ISP probe into altered record in clerk's office is public business
In late September, the Tribune-Star filed a formal complaint with the Indiana Public Access Counselor concerning a denial of public records. The information sought was the report compiled by the Indiana State Police into the case of altered documents in the Vigo County clerk's office.
Special prosecutor Ann Smith Mischler had reviewed the report and decided there was not enough evidence to file criminal charges, even though state law indicates that altering or destroying a public record can be prosecuted as a Level 6 felony.
Mischler, the prosecutor in Sullivan County, was appointed special prosecutor in this case by Vigo Circuit Judge Sarah Mullican.
Mischler's announcement that there would be no charges filed in the case did not carry any other explanation about how the document — a declaration of candidacy by a Terre Haute woman — was altered after it was filed in a way that led the clerk and Election Board not to follow state law and list the candidates for that office alphabetically on the ballot.
The candidate — Tess Brooks-Stephens — asked the Election Board to reconsider, but her appeal was denied. That forced her to take the matter to court. Judge Mullican conducted a hearing, then ruled that the Election Board had indeed violated the law and ordered that ballots be reprinted.
The special prosecutor's decision not to pursue charges and drop the case meant that how and why the document was altered remained a mystery. So we asked both the special prosecutor and the Indiana State Police for the report on the investigation to see what had been found. Our request was denied by both. They claimed the report was an investigatory record, even though the case was closed.
Indiana Public Access Counselor Luke Britt delivered his advisory opinion on the matter late last week. He stated that while the ISP did not violate the state's open records law, he encouraged the agency to re-evaluate its decision to deny us, and the public, access to this information.
His reasoning is sound and refers to the access law's principle of openness. He emphasizes that the agency does have discretion to release the records, and has every right to do so if it chooses.
In this case, there are compelling reasons to make the records public. As the access counselor stated in a previous opinion concerning the release of investigatory records, what goes on in public agencies are of "significant public concern. The public has a vested interest in the stewardship of their tax monies [and trust]. The release of investigatory records is discretionary — not confidential. Even if it is covered by an ... exception, public policy may outweigh the purpose of withholding exempted records."
We join the access counselor in encouraging the State Police to reconsider its denial of this report. The public interest would be far better served with the records open and accessible.