Indiana Newspapers v. Indiana University

• Decision Date: 02 May 2003
• Docket Number: No. 53A04-0112-CV-527.,53A04-0112-CV-527.
• Parties: AN UNINCORPORATED OPERATING DIVISION OF INDIANA NEWSPAPERS, INC., Indiana Corporation d/b/a The Indianapolis Star, Appellant-Plaintiff, v. THE TRUSTEES OF INDIANA UNIVERSITY, Appellees-Defendants.
• Court: Indiana Appellate Court

787 N.E.2d 893

AN UNINCORPORATED OPERATING DIVISION OF INDIANA NEWSPAPERS, INC., Indiana Corporation d/b/a The Indianapolis Star, Appellant-Plaintiff, v. THE TRUSTEES OF INDIANA UNIVERSITY, Appellees-Defendants.

No. 53A04-0112-CV-527.

Court of Appeals of Indiana.

May 2, 2003.

Kevin W. Betz, Betz & Associates, Indianapolis, IN, Attorney for Appellant.

Ellen E. Boshkoff, Scott D. Himsel, Baker & Daniels, Indianapolis, IN, Attorneys for Appellee.

Stephen A. Key, The Hoosier State Press Association Foundation, Indianapolis, IN, Attorney for Amicus Curiae.

OPINION

SULLIVAN, Judge.

Appellant-Plaintiff, an Unincorporated Operating Division of Indiana Newspapers, Inc., Indiana Corp. d/b/a The Indianapolis Star ("the Star"), challenges the trial court's grant of summary judgment in favor of Appellee-Defendants, the Trustees of Indiana University ("the Trustees") in the Star's suit seeking access to certain materials held by the Trustees. Upon appeal, the Star challenges the trial court's grant of summary judgment upon several grounds, which we renumber and restate as follows:

I. Whether federal law requires the materials sought by the Star to be kept confidential II. Whether the materials sought are deliberative materials excepted from public disclosure requirements;

III. Whether the materials sought are required to be disclosed by statute; and

IV. Whether the Trustees' public release of certain information precludes them from claiming any exceptions to the public disclosure statute.

We affirm in part, reverse in part, and remand.

The facts in the light most favorable to the non-moving party reveal that in March of 2000, Neil Reed, a former student basketball player for Indiana University, appeared on a television program and accused then-Indiana University basketball coach Bob Knight of inappropriate behavior, including choking Reed during basketball practice. Shortly following these allegations, a videotape surfaced which showed Knight extending his arm and contacting or grabbing Reed by the throat during a taped practice session. In response to these events, Indiana University President Myles Brand appointed University Trustees Frederick Eichhorn and John Walda to investigate the veracity of the allegations. Eichhorn and Walda were specifically given the task of investigating the following: the alleged choking of and other abuses directed toward Reed; whether Knight verbally abused Brand and removed him from a session of basketball practice; an incident in which Knight allegedly displayed soiled toilet paper to members of the basketball team; and any other allegations which might arise during the course of the investigation.

Walda hired a videotape expert and a private investigator to assist in the investigation. During the investigation, although not directed by Brand to do so, Eichhorn and Walda produced several documents which are at issue in the present case. These documents consist of letters summarizing witness interviews, transcripts of interviews, notes taken during interviews, a letter from a witness, a memorandum prepared at Walda's request by a former student regarding Reed's allegations, and a document consisting of the names of witnesses for the Reed investigation, including notes made by the private investigator. Although variously referred to by the parties as the Knight Disciplinary Records, or the Reed Investigatory Materials, we will refer to the material produced as part of the investigation of Reed's allegations as the "Reed materials."

On May 3, 2000, Eichhorn and Walda met with Brand in Bloomington and gave an oral report of the investigation, drawing in part upon information contained in the Reed materials. On May 14, 2000, Brand met with other Trustees, including Eichhorn and Walda, where, based in part upon the Reed materials, information concerning the investigation was again relayed.

On May 15, 2000, based in part upon the information he had received as a result of the investigation, Brand decided to discipline and sanction Knight and announced this decision in a televised press conference. In addition to a fine and suspension, Brand imposed what was termed a "zero-tolerance" policy which prohibited "inappropriate physical contact" by Knight. Eichhorn and Walda prepared a "Summary Report of the Trustee Review Regarding Neil Reed Allegations Concerning the Conduct of Coach Bob Knight" which reviewed the findings and conclusions of the Reed investigation. The University also drafted a document titled "Knight Sanctions" which also summarized the findings and conclusions of the investigation and announced the sanctions imposed upon Knight. The Knight Sanctions were released to the public. Brand also created a Code of Conduct Commission to "look at the general set of issues surrounding employment and ethical approaches by coaches, student athletes, athletic directors, or anyone to do with athletics, as well as to coordinate the various codes of conduct that already existed." Appellant's Appendix at 34.

In September of 2000, the Vice President of Public Affairs for Indiana University Christopher Simpson informed Brand that a freshman student had made allegations that Knight had inappropriate physical contact with the student. Brand then asked the University's chief counsel, Dottie Frapwell, to investigate the allegations. Frapwell instructed James Kennedy to direct the Indiana University Police Department ("IUPD") to investigate the freshman student's allegations, which "sounded like it could be a battery...." Appellant's App. at 145. IUPD interviewed several witnesses, including the student and Knight. We will refer to the materials generated in this investigation as the "IUPD materials." These materials are maintained by IUPD and are not physically kept in Knight's personnel file. Following the investigation, Brand held a meeting at his residence in Bloomington with Eichhorn, Frapwell, Kennedy, Simpson, Vice President Terry Clapacs, Bill Stephan, and Brand's wife, Peg Brand,¹ concerning the IUPD investigation. At this meeting, the information garnered during the IUPD investigation was relayed to Brand. The information contained in the IUPD materials was a factor supporting the decision to terminate Knight's employment. The IUPD materials were turned over to the Monroe County Prosecutor's Office, which decided not to file any criminal charges.

During a televised press conference on September 10, 2000, Brand announced the decision to terminate Knight. The University also publicly issued two documents, entitled "Remarks of President Myles Brand," and "IU announces removal of Basketball Coach Bob Knight."

During the Reed investigation, the Star made ten requests for access to records maintained by the Trustees, and the Trustees produced over forty documents in response thereto. On May 18, 2000, the Star requested, pursuant to the Indiana Access to Public Records Act ("APRA"),² "copies of any notes taken during the course of the [Reed] investigation, information gathered during the course of the investigation and reports written as a result of the investigation." Appellee's App. at 13. In response, the Trustees produced the "Summary Report" but denied access to the Reed materials. In doing so, the Trustees claimed that the Reed materials were attorney work product³ and also protected by various exceptions to the general policy of disclosure as provided in APRA. After the Trustees denied the Star's request for access, the Star filed a complaint with the Office of the Public Access Counselor,⁴ in which it inquired as to whether the Trustees had waived any of the claimed exceptions to public access.⁵ The informal opinion of the Access Counselor's Office was that, based upon the circumstances under which the Trustees had disclosed the Summary Report to the media and the public, the Trustees had not waived the APRA exceptions upon which it based its withholding of the Reed materials.

On October 16, 2000, the Star made a request for access to Knight's personnel file.⁶ In response, the Trustees produced "all documents to which the Star was entitled, including President Brand's September 11, 2000, letter removing Knight," but denied access to the IUPD materials. Appellee's App. at 10. The Star again filed an inquiry with the Access Counselor's Office, but the Office declined to issue another advisory opinion.

On January 2, 2001, in response to the Trustees' denial of access, the Star filed a complaint alleging a violation of APRA by the Trustees and seeking access to the Reed and IUPD materials. On March 2, 2001, the Trustees moved for summary judgment. The Star filed its response to this motion on July 3, 2001. The Trustees filed a reply to the Star's response on August 7, 2001, and the Star filed a sur-reply on August 10, 2001. Also on August 10, 2001, the trial court held a hearing on the summary judgment motion. The trial court reviewed in camera the disputed materials. Thereafter, on November 5, 2001, the trial court granted summary judgment in favor of the Trustees, denying the Star access to the disputed materials. The trial court's order also contained specific findings of fact and conclusions of law. The Star filed its Notice of Appeal on December 3, 2001.

Summary Judgment

Summary judgment is appropriate only if the designated evidentiary material demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Title Search Co., Inc. v. 1st Source Bank, 765 N.E.2d 167, 171 (Ind.Ct.App.2002), trans. denied. Upon appeal, we apply the same standard as the trial court and resolve disputed facts or inferences in favor of the non-moving party. Id. This court and the trial court are bound to consider only those matters which were designated to the trial court. Markley Enters., Inc. v. Grover, 716 N.E.2d 559, 564 (Ind.Ct.App. 1999). The moving party bears the burden of...