The city of Columbus has filed an appeal of a ruling by a special judge saying the city violated the Indiana public access law and must pay attorney fees to former Mayor Kristen Brown stemming from a public records dispute.
Special Judge Richard W. Poynter ruled in June that the Columbus Police Department’s response to Brown’s public information request about an incident involving a Bartholomew County Jail corrections officer violated the Indiana Access to Public Records Act.
On Wednesday, city attorney Alan Whitted, as well as two attorneys with the law firm representing the city, Faegre Baker Daniels, filed a notice of appeal with the Indiana Supreme Court, Court of Appeals and Tax Court, according to court records.
Whitted said the notice of appeal was filed “to keep the option to appeal open” for the city. The deadline to file an appeal was Wednesday. The two parties have until Aug. 17 to “agree upon the amount of Brown’s reasonable attorney’s fees,” Poynter’s decision states.
“The judge gave the parties some time to work out an agreement concerning the fees,” Whitted said. “There is ongoing discussion concerning the fees. The filing was made to keep options open in case no agreement is reached. It can be dismissed, if there is an agreement reached between the parties.”
Brown says her attorney fees are approaching $50,000. In addition to owing Brown “reasonable” attorney fees, the city has paid Faegre Baker Daniels $79,813.50 in fees for legal representation in Brown’s lawsuit, according to city records.
Whitted said the city has requested billing information from Brown’s attorneys, but no offers to pay attorney fees have been extended since the city made two offers to settle the case in 2017.
In May 2017, the city offered to pay $2,500 for Brown’s attorney fees and costs in exchange for a judgment that said, among other things, that CPD’s response to her public information request “was not adequate” under the Indiana Access to Public Records Act. The offer included what the city said were some factual circumstances and a general description of any injuries, property or weapons regarding the Aug. 23 incident, according to a copy of the offer.
On June 9, the city offered Brown $5,000 in attorney fees and costs, along with the same terms laid out in the previous offer.
“We’re still trying to understand what their fees are and look at their billing records,” Whitted said. “We haven’t received those yet.”
In a statement to The Republic, Brown accused Columbus Mayor Jim Lienhoop of “wasting taxpayer dollars” by hiring Faegre Baker Daniels to “run up everyone’s legal expenses.”
“I gave Lienhoop the opportunity to do the right thing two and a half years ago,” Brown said in a statement. “Instead, he is protecting a police chief who lied, claiming a police report didn’t exist when of course it did. The police report reveals a cover-up of a crime involving law enforcement officers by the police chief and the sheriff. That is why they fought so hard not to release it. …This is Lienhoop wasting the taxpayers’ hard-earned dollars to be small, petty and personally vindictive.”
Lienhoop declined to comment about Brown’s allegations, saying he could not comment because the issue was ongoing litigation.
“At no point in time have I lied,” Columbus Police Chief John Rohde said Thursday.
As of July 8, Brown had filed 26 public record requests with the city since leaving office on Jan. 1, 2016, according to city officials. Additionally, Brown has filed at least six formal complaints with Indiana’s Public Access Counselor against several local public offices, including the Columbus Police Department, Columbus Fire Department, Columbus clerk-treasurer and the Bartholomew County Sheriff’s Department, according to the Indiana Public Access Counselor’s website.
The dispute between Brown and CPD that is subject to the lawsuit started in September 2016, when Brown submitted a public records request about a domestic dispute that occurred on Aug. 23, 2016, according to the lawsuit.
The Aug. 23, 2016 incident involved former jail commander Gary Myers and his then-wife Sabrina S. Myers, according to the public incident report. The report also lists that two vehicles were involved in the incident, one of which was owned by the sheriff’s department. No charges were filed related to the incident, according to court records.
On Sept. 26, 2016, Columbus Police Chief John Rohde responded to Brown’s request, providing an incident report that classified the incident as criminal mischief/vandalism and domestic disturbance and listed the weapon or tools involved in the incident as “other weapon.” No other factual circumstances or description of any injuries, property or weapons involved in the incident were disclosed at that time, the lawsuit states.
Four days later, Brown filed a formal complaint with Indiana’s public access counselor, alleging that the incident report provided to her did not meet the standards of two provisions of the Indiana Access to Public Records Act because it didn’t include “the factual circumstances surrounding the incident” and “a general description of any injuries, property or weapons involved.”
In response to the public access counselor, the city asserted, among other things, that it was not required to generate documentation about the Aug. 23, 2016 incident because nobody was arrested, summoned to court or jailed. Additionally, the city argued that the documentation the city provided complied with the statute.
The Republic reported in 2017 that a few weeks later, the Bartholomew County Sheriff’s Department said that Gary Myers had requested reassignment for personal reasons, and was named to oversee the road division.
Bartholomew County Prosecutor Bill Nash told The Republic in 2017 that he received a report for consideration of criminal charges in 2016, but requested a special prosecutor. Jennings County Prosecutor Brian Belding was assigned to review the matter.
According to court records, Belding then sent a letter to Nash and Bartholomew Superior Court 2 Judge Kathleen Coriden, stating that no charges would be filed due to insufficient evidence about whether the act was intentional, and that vehicle damage was minimal and repair costs had been paid by the alleged offender.
On Nov. 3, 2016, Luke Britt, Indiana’s public access counselor, issued an opinion in Brown’s favor.
“It is my opinion CPD’s attorney has misapplied the statute,” Britt wrote in his opinion, which is not legally binding. “Any alleged crime or infraction requires documentation of the factual circumstances surrounding the incident; and a general description of any injuries, property or weapons involved. …Factual circumstances must be more than just a list of suspected crimes.”
Brown informed Rohde on Dec. 7, 2016, that more than a month had passed since Britt had issued his opinion, according to the lawsuit, and she still had not received additional information. Brown filed the lawsuit in February 2017.
The documents were given to Brown in January 2018, Whitted said, after Poynter, the special judge appointed to the case, issued an order Dec. 11, 2017, for the city to provide them to her.
Brown told The Republic last month that she rejected the 2017 offers and then continued with the litigation after receiving in 2018 the information she had initially requested because “a judge still needed to rule on whether or not (CPD) had violated the (Indiana public records) law” and because she sought to recover attorney fees, which she said were, at that time, “substantially less than half than they are today.”
Poynter issued his decision on June 17, ruling in Brown’s favor.
“The court finds that the information CPD initially provided to Brown pursuant to her public records request in the Public Incident Report contained insufficient ‘information’ to meet the requirements of (the Indiana Access to Public Records Act),” Poynter wrote in the decision. “… Merely listing ‘Criminal Mischief/Vandalism’ and ‘Domestic Disturbance’ does not provide any factual evidence. There was no general description of any injuries, property or weapons involved. The only reference to any injuries, property or weapons involved was ‘other weapon,’ which is an insufficient description; nor was there any description of the property damage involved in the incident.”
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Attorneys for the city of Columbus and former Mayor Kristen Brown have until Aug. 17 to agree upon "reasonable" attorney fees, according to a decision handed down on June 17 by Special Judge Richard W. Poynter in Bartholomew County Superior Court 2.
If the two parties are unable to reach an agreement by Aug. 17, Brown can file a petition for fees, the decision states.
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