Those of you in Indiana may want to take special note of the Court of Appeals decision in Knightstown Banner vs. Town of Knightstown, which examined “Whether documents created by the attorney appointed by Knightstown’s reciprocal insurer, memorializing the terms and conditions of a settlement of a civil rights lawsuit brought by a former employee against Knightstown, are public records under the Indiana Access to Public Records Act (APRA).”
The question of whether documents of government related business in thepossessionn of a private entity are public records was addressed by Indiana’s public access counselor, Karen Davis, who reported her interpretation of the opinion to the local paper.
Just because a record is not in the physical custody of a public agency does not mean it’s the end of the inquiry,” Davis said. “A lot of public duties are delegated to a private company. That is fairly common. . . . If they’ve delegated a function to a private company, it remains a (matter of) public record.”
The Court summarized the newspaper’s (Knightstown Banner) position:
Specifically, the Banner asserts that due to the fiduciary relationship that exists between Knightstown and Retained Town Counsel, who was retained by Knightstown’s insurer, GIE, the settlement agreement in Retained Town Counsel’s possession is in effect received, retained, or maintained by Knightstown. As a result, the agreement must be considered a public record, which can be produced under APRA for the Banner’s inspection.
The Court of Appeals sided with the Banner, ruling that the Town government must secure a copy of the settlement agreement and release it to the newspaper.