State sides with city in public records request issue

Indiana's public access counselor sided with the city of Elkhart in a public records inquiry.
Posted on July 18, 2013 at 1:00 a.m. | Updated on July 18, 2013 at 6:04 p.m.

ELKHART — Indiana’s public access counselor has concluded that the city of Elkhart did not violate the state’s public records law in its response to a request for information involving Ontwa Township.

The request was made by an area businessman who is among a group that are upset with how the city charges commercial customers outside of the city for sewer service.

The request was made by Melvin Bontrager on behalf of David Schemenauer who wanted information about contractual arrangements between the city of Elkhart, which treats sewage for Ontwa Township in Edwardsburg, Mich. Schemenauer has sought details concerning Ontwa under the assumption that Elkhart charges less to Ontwa while charging more to other sewer customers outside of the city.

The city of Elkhart has an inter-local agreement to treat sewage for Ontwa.

Schemenauer wanted to know how much of a credit Elkhart provides to Ontwa for capital expenditures.

The request was made in the form of a public records request in which specific documents must be sought.

The records request was hampered in part by a lack of proper wording.

“I agreed with the city that he was not making a request for records, but rather he was asking a question,” Joe Hoage, public access counselor, said Wednesday.

Nonetheless, the city responded by indicating the city had not provided any credits.

While the city provided Bontrager and Schemenauer with numerous documents, city officials declined to provide a capital cost “calculation” and claimed an attorney work product exception — similar to attorney-client privilege — in choosing not to provide the information because the city was in a contractual dispute with Ontwa.

Schemenauer questioned whether the city was in a contractual dispute with Ontwa after he said he talked to a representative of Ontwa who told him they were unaware of any litigation.

The city also provided the public access counselor with an affidavit from Laura Kolo, the city’s utilities services manager, who indicated the city was considering litigation against Ontwa and that some documents may have been created in preparation for litigation.

Hoage noted that the attorney work product exception doesn’t require that a lawsuit already be filed.

“It just says there has to be reasonable anticipation of litigation and based on the affidavit that they provided that they met that burden … if in fact they had actually received a request for records,” Hoage said.

Schemenauer said he believes his lack of familiarity with preparing such requests was a factor, but said he plans to continue looking into the matter.

The Ontwa issue marks the fourth time in the past year the public access counselor’s office has heard cases involving the city of Elkhart.

In the first, a complaint was made suggesting a press conference organized by Republicans represented an illegal meeting. The counselor’s office ruled the group should have provided 48-hour notice.

In another case, the city successfully defended claims by Republican city councilman David Henke, who alleged Democrats on the city council were meeting illegally to plan voting strategies.

In another case decided last month, the state ruled Mayor Dick Moore’s task force did not violate the state’s open door law after Republican Brian Dickerson suggested the meetings should be open to the public. The opinion came down to whether the task force recommendations would go to the city council or the mayor. A key factor in the opinion, according to the state, involved an affidavit provided by the city showing the results were intended for the mayor even though a letter sent residents earlier had indicated the results were intended for the council.

Moore did not respond to a request for comment on the most recent ruling.

He said in the past that he believes the complaints have been politically motivated.

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