FORT WAYNE, Ind. (WANE) — Indiana Public Access Counselor Luke Britt said in a report Tuesday he believes the City of Fort Wayne violated the Access to Public Records Act (APRA) by failing to disclose investigatory records and police footage from Mayor Tom Henry’s arrest.
APRA is a state law that says records held by government agencies are “presumed to be
accessible for inspection or copying by any member of the public unless exempted by law.”
In his report, Britt says unless Fort Wayne provides a “credible and justifiable reason for exercising discretion, it should release records.”
City spokesman John Perlich provided the following statement to WANE 15 regarding the report:
“We’re reviewing the counselor’s opinion and will have a formal response in the near future.”
Britt explains in the report that Fort Wayne could withhold investigatory records under APRA if the following circumstances were at play:
- Any expectation of privacy on the part of a witness or victim
- A legitimate public safety reason
- Disclosure of information could jeopardize an investigation
However, Britt believes none of these factors applied in the situation.
Another reason Fort Wayne gave for not releasing records from the incident is that the only way to obtain the investigatory documents is through a subpoena, according to Britt.
Britt, however, said in the report Fort Wayne’s reasoning is in direct conflict with APRA because APRA places the burden of proof on the agency — which is Fort Wayne in this case — but making the inquiring group obtain something from a subpoena would place the burden of proof on them.
Furthermore, Britt believes this policy by Fort Wayne should be amended “post haste” and that records requests should be approached by the city on a case-by-case basis.
Britt offered similar opinions regarding requests for the police footage, but did point out some key distinctions between the police footage and any other records from Mayor Henry’s crash.
According to Britt’s report, a law enforcement recording is not considered an investigatory record under APRA.
“Simply put, no credible policy or legal justification has been raised for withholding an incident report or body worn camera footage for a mayor who has already pleaded guilty, been sentenced and has continued his role as a city executive,” Britt wrote in his report.
The Public Access Counselor provides advice and assistance concerning Indiana’s public access laws to members of the public and government officials and their employees.
However, Britt has no authority to force Fort Wayne to release investigatory records or police footage.