Gallagher v. Marion County Victim Advocate Program, Inc., 2-777-A-292

• Decision Date: 24 March 1980
• Docket Number: No. 2-777-A-292,2-777-A-292
• Citation: 401 N.E.2d 1362
• Parties: Eugene GALLAGHER, Chief of Police, Indianapolis Police Department, Merrill Lowry, Ph.D., Director-Department of Public Safety, Defendants-Appellants, v. MARION COUNTY VICTIM ADVOCATE PROGRAM, INC., Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1362

401 N.E.2d 1362

Eugene GALLAGHER, Chief of Police, Indianapolis Police Department, Merrill Lowry, Ph.D. Director-Department of Public Safety Defendants-Appellants, v. MARION COUNTY VICTIM ADVOCATE PROGRAM, INC., Plaintiff-Appellee.

No. 2-777-A-292.

Court of Appeals of Indiana, Fourth District.

March 24, 1980.

Sheila S. Suess, Corp. Counsel, City-County Legal Div., Stephen Goldsmith, Chief Trial Deputy, Corp. Counsel, Indianapolis, for defendants-appellants.

Susan R. Porter, Indianapolis, for plaintiff-appellee.

YOUNG, Judge.

The Marion County Victim Advocate Program, Inc. (MCVAP) brought this mandamus action in the Marion Superior Court to compel access to certain Indianapolis Police Department reports known as DHC's. ¹ The DHC's are reports made by an officer who is called to the scene of a crime, accident or other incident which detail the location, time and description of the incident and include the names of any victim, witness or suspect.

MCVAP is a private Indiana corporation the sole purpose of which is to aid the victims of violent crime. From March, 1974 to February, 1976 MCVAP was provided copies of DHC's which served as a source of names and addresses of crime victims in the Marion County area. Informational letters were sent to these victims offering the assistance of MCVAP and its many programs. On February 27, 1976, the director of MCVAP was told that pursuant to an order of Indianapolis Chief of Police Engene Gallagher she would no longer have access to the DHC's. This mandamus action was filed shortly thereafter.

In the trial court the case was decided on a motion for summary judgment. The court ruled the DHC's were public records as defined by the Hughes Anti-Secrecy Act, IC 1976, 5-14-1-2(1) (Burns Supp. 1978) and ordered the Indianapolis Police Department to make copies of the DHC's available to MCVAP. The order was stayed pending this appeal.

The following issues are presented for our review:

First, whether DHC's are public records under the Hughes Anti-Secrecy Act, and whether MCVAP is thereby entitled to access to them?

Second, was mandamus a proper remedy?

Third, do appellants have standing to assert the crime victims' right of privacy?

By reason of our disposition of this appeal we reach only the first two issues.

Appellants vigorously contend DHC's are not public records because the Indianapolis Police Department is not required by any statute, rule or regulation to make or maintain the DHC's. With equal vigor MCVAP asserts the DHC's are public records as defined by the statute and points up the Indianapolis Police Department treats the reports as public records.

The Hughes Anti-Secrecy Act, IC 1976, 5-14-1-1 et seq. (Burns ed.) controls our decision. Section Three of the Act grants every citizen the right of access to public records. What constitutes a public record is defined by IC 5-14-1-2(1):

The term "public records" shall mean any writing in any form necessary, under or required, or directed to be made by any statute or by any rule or regulation of any administrative body or agency of the state or any of its political subdivisions.

The dispositive issue on appeal is whether DHC's are required by any rule or regulation within the meaning of this section. Indiana precedent is silent on this particular issue, and although anti-secrecy provisions have been enacted in many states, ² none is sufficiently similar to permit reliance on the judicial interpretations of that jurisdiction as a guide in determining the present question. ³ Indeed, the Indiana provision appears to be unique both in its definition of public records and in the complete absence of any specific exemptions.

The Hughes Anti-Secrecy Act requires that its provisions be liberally construed in favor of disclosure. ⁴ IC 5-14-1-1. However, the specific grant of the right of inspection extends only to "public records" as specifically defined. IC 5-14-1-3. The limitations on this court are clear. In the construction of statutes, we have nothing to do with questions of policy and political morals; such matters are for the consideration of the Legislature. County Bd of Election Comm'rs of Gibson County v. State ex rel. Sides, (1897) 148 Ind. 675, 48 N.E. 226, 227. Consideration of hardships cannot properly lead a court to broaden a statute beyond its legitimate limits. Fidelity & Casualty Co. of New York v. Miller, (1942) 111 Ind.App. 308, 38 N.E.2d 279, 281. We must examine the language used by the Legislature and give effect to every word and clause if possible, since it is presumed that all language in a statute was used intentionally. Foremost Life Insurance Co. v. Dept. of Insurance, (1979) Ind.App., 395 N.E.2d 418, 425; Evansville-Vanderburgh County Dept. of Health v. Evansville Printing Corp., (1975) 165 Ind.App. 437, 332 N.E.2d 829.

Words of a statute should be given their plain, ordinary and usual meaning, but not taken out of context. United States v. Bradford, (7th Cir. 1974) 493 F.2d 1282, cert. denied 419 U.S. 834, 95 S.Ct. 60, 42 L.Ed.2d 60; Ernst & Ernst v. Underwriters Nat. Assur. Co., (1978) Ind.App., 381 N.E.2d 897; Angel v. Behnke, (1975) 166 Ind.App. 541, 337 N.E.2d 503. Webster's Third New International Dictionary 1986 (3rd ed. 1976) offers altogether twenty-nine different meanings of the noun "rule." Eight mention regulations. One definition of "regulation" is "a rule or order having the force of law issued by an executive authority of a government (usually) under power granted by a constitution or delegated by legislation . . . ." Id. at 1913. A similar definition is found in Black's Law Dictionary 1451 (4th ed. 1968): "Regulation of an Executive Department. The general rules relating to the subject on which a department acts, made by the head of the department under some act of Congress conferring power to make such regulations and thereby give to them the force of law." This is nothing new. See 1 I.L.E. Administrative Law and Procedure § 27 (West 1957), quoting Burns' Ann.St. § 60-1503, Acts 1945, ch. 120, § 3, p. 251:

The word "rule" means any rule, regulation, standards, classification, procedure, or requirement of any agency, designed to have or having the effect of law or interpreting, supplementing or implementing any statute, but does not include resolutions or directions of any agency relating solely to internal policy, internal agency organization or internal procedure which do not have the force of law and does not include "administrative adjudication."

This statute is presently codified at IC 1976, 4-22-2-3 (Burns Supp. 1978).

The Hughes Anti-Secrecy Act definition refers to "any rule or regulation of any administrative body or agency . . ." (emphasis added). The above definitions are the most specifically directed to this context, and therefore the most appropriate to consider in construing the statutory definition as a whole.

It is presumed that in enacting legislation, the Legislature is aware of existing law on the same subject. Schrenker v. Clifford, (1979) Ind., 387 N.E.2d 59; Speedway v. Nilson, (1979) Ind.App., 395 N.E.2d 1292. Thus, a proper approach in seeking legislative intent is to consider the history of law on that subject. Harris v. Muncie, (1975) 163 Ind.App. 522, 325 N.E.2d 208. See Miles v. State, (1920) 189 Ind. 691, 129 N.E. 10; State v. Ellis, (1916) 184 Ind. 307, 112 N.E. 98; Hurwich v. Zoss, (1976) Ind.App., 353 N.E.2d 549.

At common law, two views existed concerning the definition of public records. The more conservative and prevailing definition included records "required by law to be kept, or necessary to be kept, in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done." Linder v. Eckard, (1967) 261 Iowa 216, 152 N.W.2d 833, 835. The more liberal definition included "all written memorials made by a public officer . . . where such writings constitute a convenient, appropriate or customary method of discharging the duties of the office." Disabled Police Veterans Club v. Long, (Mo.Ct.App., 1955) 279 S.W.2d 220, 223. The underlying theoretical approach of the common law right of access has been analyzed as presuming all public records should be subject to inspection. In such case, the determinative issue is whether a particular document may be categorized as "public." Anti-secrecy laws usually differ in that public records are defined very broadly, ⁵ and the dispositive issue becomes whether a particular document comes within any of the enumerated exemptions. See Note, Iowa's Freedom of Information Act: Everything You've Always Wanted to Know About Public Records But Were Afraid to Ask, 57 Iowa L.Rev. 1163, 1167 (1972).

The original draft of the Hughes Anti-Secrecy Act, as amended by the House Judiciary Committee, provided:

SECTION 1. Every citizen of this state shall have the right during the usual business hours, to inspect any public records of the state or of any political sub-division thereof where such agency is engaged in conduct of matters involving the public interest except where otherwise specifically provided by law.

SEC. 3. All persons having the custody of any state public records of this state, or of county, school, city, town or township records in this state shall furnish proper and reasonable opportunities for the inspection and examination of all the such records requested of their respective offices and reasonable facilities for making memoranda abstracts therefrom, shall be available during the usual business hours, to all persons having occasion to make examination of them such records for any lawful purpose. Provided, however, that nothing in this act shall be construed to include the records of any police department in this state.

A motion to amend section three so as to exclude student school records was rejected. The Senate Judiciary Committee rejected the House draft in its entirety and substituted what is now the...