WTHR-TV v. Hamilton Se. Sch. Dist.

• Decision Date: 10 March 2021
• Docket Number: Court of Appeals Case No. 20A-MI-1701
• Citation: 167 N.E.3d 301
• Parties: WTHR-TV, Appellant-Plaintiff, v. HAMILTON SOUTHEASTERN SCHOOL DISTRICT, Appellee-Defendant, and Rick Wimmer, Intervenor.
• Court: Indiana Appellate Court

167 N.E.3d 301

WTHR-TV, Appellant-Plaintiff,

v. HAMILTON SOUTHEASTERN SCHOOL DISTRICT, Appellee-Defendant,andRick Wimmer, Intervenor.

Court of Appeals Case No. 20A-MI-1701

Court of Appeals of Indiana.

FILED March 10, 2021

Attorneys for Appellant: Michael A Wilkins, Broyles Kight & Ricafort, P.C., Indianapolis, Indiana, Katie Townsend, Adam A. Marshall, Reporters Committee for Freedom of the Press, Washington, D.C.

Attorney for Appellee Hamilton Southeastern School District: Liberty L. Roberts, Church Church Hittle & Antrim, Noblesville, Indiana

Attorney for Intervenor Rick Wimmer: Eric M. Hylton, Riley Bennet Egloff LLP, Indianapolis, Indiana

Kirsch, Judge.

[1] This case concerns two public record requests submitted by WTHR-TV ("WTHR") under Indiana Code chapter 5-14-3 ("APRA") to the Hamilton Southeastern School District ("HSE") concerning HSE's discipline of its employee, Rick Wimmer¹ ("Wimmer"). Following WTHR's unsuccessful attempts to obtain the records it requested from HSE, in which the Indiana Public Access Counselor ("the PAC") issued three advisory opinions, two regarding the factual basis surrounding HSE's discipline of Wimmer and one regarding HSE's release of information extracted from Wimmer's personnel file pursuant to Indiana Code section 5-14-3-4(b)(8) ("the personnel file exception"), WTHR filed a complaint on June 8, 2018 to compel HSE to produce the records it sought from Wimmer's personnel file. WTHR appeals the trial court's order denying its motion to compel HSE to provide documents and other additional information from Wimmer's personnel file. WTHR raises the following issues, which we revise and restate as:

I. Whether HSE violated APRA by refusing to release to WTHR the records it requested from Wimmer's personnel file; and

II. Whether HSE violated APRA by providing WTHR with an inadequate factual basis for the final disciplinary action taken against Wimmer.

[2] We affirm.

Facts and Procedural History

[3] In September 2016, Fishers High School Principal Jason Urban notified parents that Wimmer, who was a physical education teacher and head football coach at Fishers High School, had been placed on paid administrative leave following an incident with a student during a class at the school. Appellant's App. Vol. 2 at 159, 173-74. HSE reported the incident to the Fishers Police. Id. WTHR independently obtained the Fishers Police report² of the incident, which occurred on September 13, 2016, and described the incident as follows:

[a student] entere[d] the weight room at around 1:03 pm and he was confronted by [ ] Wimmer. The [school surveillance] video shows [ ] Wimmer and [redacted] talking and then [ ] Wimmer points in [redacted] direction. [ ] Wimmer walks towards him and places his right hand on [redacted] upper left arm and his left hand near [redacted] chest. [ ] Wimmer backs [redacted] up a few steps and then releases him. [ ] Wimmer walks away and you can't see him in the video anymore. [redacted] then leaves the weight room and goes to the locker room while being escorted by [ ] Wimmer. After getting dressed [redacted] goes to the Dean's office and meets with Mr. Miller.

Id. at 164. On September 23, 2016, HSE stated that "[t]he school district has concluded a thorough evaluation and has addressed the incident." Id. at 173.

[4] On December 14, 2016, the HSE Board of Education held a meeting and unanimously approved a "Consent Agenda" for "Certified Staff" that addressed various personnel matters and included a list of thirty-nine employees. Id. at 22, 34-36. Of the thirty-nine employees, thirty-eight were listed by name, position, school building, action for vote, and other information, and one was listed as "Employee #10042," with the notation "Teacher 5 days of suspension, unpaid." Id. WTHR later learned through its reporting that "Employee #10042" was Wimmer and that he had been suspended for five days without pay per the December 14, 2016 HSE Board of Education vote. Id. at 22, 24, 84.

[5] On January 5, 2017, WTHR reporter Bob Segall ("Segall") spoke with HSE Superintendent Dr. Allen Bourff ("Bourff") about the suspension, and Segall orally requested the following information about the suspension ("the first request"): (1) the name of the employee (which was unknown at the time) suspended by the HSE Board at its December 14, 2016 meeting; (2) facts establishing the grounds for the suspension; (3) the dates the suspension was served; (4) the date of the incident(s) for which the discipline was deemed necessary; and (5) whether the teacher in question was the same as the teacher involved in an incident WTHR had previously reported on. Id. at 130-31. Bourff responded that same day via email and stated, "Hamilton Southeastern Schools maintains the confidentiality of personnel matters. Pursuant to Indiana Code § [5-14-3-4(b)(8)(C)], the board action for which you inquired was due to not implementing instructions for classroom management strategies." Id. at 134.

[6] On January 6, 2017, Segall spoke with the PAC, who informed Segall that Bourff's response did not sufficiently identify the factual basis for the disciplinary action. Id. at 131, 135. Segall emailed Bourff the next day seeking the factual basis for the suspension, including "the date(s) of the teacher action(s) that resulted in the suspension, any policies or instructions that were violated or not followed by the employee, and a more detailed explanation of the behavior/action(s) that prompted the disciplinary action," information as to any other discipline HSE had taken against the employee, and the name and job title of "[E]mployee #10042." Id. On January 9, 2017, Segall eventually received a response from HSE that stated:

Hamilton Southeastern Schools respects the privacy of our students and employees. Consistent with that, we do not reference employees engaged in disciplinary action by name. On December 14, 2016, the Board of School Trustees approved its first personnel report utilizing employee numbers. That report references a suspension for an employee due to not following Board of School Trustees Policy G02.06.

Id. at 137.

[7] On January 12, 2017, Segall filed a formal complaint with the PAC regarding HSE'S response to the first request. Id. at 43-45, 131. On March 3, 2017, the PAC issued an advisory opinion³ determining that the factual basis HSE had provided did not provide sufficient detail and concluding:

"Not implementing instructions for classroom management strategies" could encompass any number of performance deficiencies. Even buttressed by the subsequent release of the Board Trustee Policy, the information does not provide a factual basis from the underlying deviation from an ascertainable standard of performance.... A reader of a factual basis should have some tangible indication as to why a public employee is disciplined.

Factual basis contemplates at least a fact. I would argue that a fact equates to a detail specific to an incident or set of incidents.

Id. at 141-42. The advisory opinion added "I trust HSE will take these considerations under advisement and craft a factual basis which strikes a balance between employee-student privacy expectations and a reasonably transparent description of what actually took place." Id. at 142.

[8] On April 10, 2017, Segall filed another complaint with the PAC regarding HSE's failure to comply with the PAC's March 3, 2017 advisory opinion. Id. at 51-55. The PAC issued another advisory opinion on May 30, 2017. Id. at 144-48. The PAC acknowledged that in the March 3, 2017, "[w]hile I did not find HSE to be in violation of the APRA," "I thought their response leaned towards lacking sufficient detail." Id. at 145. As to factual basis, the PAC explained as follows:

The Complainant suggested that the appropriate measure for a factual basis is the journalistic standard: who, what, when, where, why, and how. HSE responds that a "short, cursory statement" has been the minimum requirement for a factual basis under the APRA since at least 2011, as discussed in 11-FC-149. However, in 16-FC-164, I rejected this standard, stating:

"Factual basis" is not a term of art. It should include actual facts of the misdeeds supporting a policy violation. It does not have to be a detailed narrative or include names of victims or specific summaries, but it should give the reader a reasonable idea of why someone was fired, suspended or demoted.

The only definition of "factual basis" appears in Ind. Code § 35-35-1-3, the statute governing voluntary plea agreements for criminal convictions. While not controlling upon APRA, it is at least instructive to an extent. Courts are not to "enter judgment upon a plea of guilty or guilty but mentally ill at the time of the crime unless it is satisfied from its examination of the defendant or the evidence presented that there is a factual basis for the plea." Ind. Code § 35-35-1-3 [(b)]. Like the APRA, factual basis is not defined in this statute, but case law has provided that "[A] factual basis exists when there is evidence about the elements of the crime from which a court could reasonably conclude that the defendant is guilty." Butler v. State , 658 N.E.2d 72, [77 (Ind. 1995) (footnote omitted)]. In other words, the "[f]actual basis requirement primarily ensures that when a plea is accepted there is sufficient evidence that a court can conclude that the defendant could have been convicted had he stood trial." Id. [at 76].

I do not consider "factual basis" in a criminal setting to be completely analogous to public employee discipline, but it is not wholly distinguished either. To say that a short, cursory statement which only makes a vague reference to a policy violation is a sufficient factual basis would be similar to saying that a prosecutor's statement that a defendant violated a section of the criminal code would be a sufficient factual basis for a voluntary plea agreement.

HSE appears to misinterpret the intent of the APRA in favor of "legitimate privacy interests

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