Daniel Brewington v. Dearborn Superior Court II, Judge Sally McLaughlin, Judge Brian Hill, Court Reporter Barbara Ruwe (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 29 2020, 10:53 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Daniel Brewington Curtis T. Hill, Jr. Dublin, Ohio Attorney General Frances Barrow Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Daniel Brewington, July 29, 2020 Appellant-Plaintiff, Court of Appeals Case No. 19A-PL-3047 v. Appeal from the Dearborn Superior Court Dearborn Superior Court II, The Honorable Judge Sally McLaughlin, Donald J. Mote, Special Judge Judge Brian Hill, Trial Court Cause No. Court Reporter Barbara Ruwe, 15D01-1702-PL-13 Appellees-Defendants

Vaidik, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-PL-3047 | July 29, 2020 Page 1 of 7

Case Summary [1] Daniel Brewington sued Dearborn Superior Court II and other defendants,

alleging that they failed to give him the complete audio of the grand-jury

proceedings in his criminal case in violation of the Indiana Access to Public

Records Act (APRA). Both Brewington and the defendants moved for

summary judgment, and the trial court entered summary judgment in favor of

the defendants. Because Indiana law only allows the release of a transcript of

the testimony of a grand-jury witness, and not audio, we affirm the trial court.

Facts and Procedural History [2] In 2011, a Dearborn County grand jury indicted Brewington on six offenses. To

help him prepare for trial, Brewington was given a transcript of the grand-jury

proceedings. A jury trial was held in Dearborn Superior Court II before Special

Judge Brian Hill, and the jury convicted Brewington of five of the six charges.

On appeal, the Indiana Supreme Court affirmed three of Brewington’s

convictions. Brewington v. State, 7 N.E.3d 946 (Ind. 2014). [3] In January 2016, Brewington submitted an APRA request to Dearborn Superior

Court II, asking for an audio recording of the grand-jury proceedings in his

criminal case. Appellant’s App. Vol. III p. 7. The court denied Brewington’s

request. Id. at 11. In February, Brewington submitted an amended APRA

request to the court, again seeking an audio recording of the grand-jury

proceedings in his criminal case. The next month, before receiving a response to

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his amended request, Brewington filed a formal complaint with the Office of the

Public Access Counselor. [4] In April 2016, the Public Access Counselor issued an advisory opinion that

“because the transcript of the grand jury proceedings ha[d] previously been

provided to [Brewington], a copy of the audio recordings of said proceedings

should be released as well.” Id. at 66. In response to the Public Access

Counselor’s advisory opinion, the court ordered the court reporter to “prepare a

compact disc of audio recordings of the Grand Jury proceedings[.]” Id. at 68.

Brewington received an audio recording but believed it was incomplete. In

May, Brewington filed an amended request for “complete unedited copies of

the grand jury audio” in his criminal case, which the court denied. Id. at 70. [5] In February 2017, Brewington filed a civil complaint under APRA in Dearborn

Superior Court I against Dearborn Superior Court II/Judge Sally McLaughlin

(the sitting judge), Judge Hill (the special judge in his criminal case), and

Barbara Ruwe (the court reporter in Superior Court II) “for failing to disclose

public records as required by law,” specifically, “the entire audio record from

the grand jury proceedings” in his criminal case. Appellant’s App. Vol. II p. 76.

Brewington sought (1) a declaration that the defendants violated APRA, (2) an

injunction requiring the defendants to “disclose without alteration or redaction”

an audio recording of the grand-jury proceedings in his criminal case, and (3)

attorney’s fees and costs. Id. at 76-77.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-3047 | July 29, 2020 Page 3 of 7 [6] In March 2017, Ruwe moved for judgment on the pleadings, which the trial

court granted. In April, Brewington filed a motion for summary judgment. The

remaining defendants (hereinafter, “Defendants”) then filed a cross-motion for

summary judgment, alleging that Brewington “already received the records he

requested and is not entitled to the records he . . . further requests.” Appellant’s

App. Vol. III p. 4. Finding that Brewington was not entitled to an audio

recording of the grand-jury proceedings under APRA, the court denied

Brewington’s motion and granted Defendants’ cross-motion. [7] Brewington now appeals.

Discussion and Decision [8] Brewington appeals the trial court’s grant of Defendants’ cross-motion for

summary judgment. We review motions for summary judgment de novo,

applying the same standard as the trial court. Hughley v. State, 15 N.E.3d 1000,

1003 (Ind. 2014). That is, “The judgment sought shall be rendered forthwith if

the designated evidentiary matter shows that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Ind. Trial Rule 56(C). [9] Under APRA, “Any person may inspect and copy the public records of any

public agency during the regular business hours of the agency,” subject to

several exceptions. Ind. Code § 5-14-3-3(a). One exception is that a public

agency may not disclose records “declared confidential by state statute.” Ind.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-3047 | July 29, 2020 Page 4 of 7 Code section § 5-14-3-4(a)(1). Indiana Code 35-34-2-4(i) provides that grand-jury proceedings are secret and generally should not be disclosed:

Grand jury proceedings shall be secret, and no person present during a grand jury proceeding may, except in the lawful discharge of his duties or upon written order of the court impaneling the grand jury or the court trying the case on indictment presented by the grand jury, disclose:

(1) the nature or substance of any grand jury testimony; or

(2) any decision, result, or other matter attending the grand jury proceeding.

However, any court may require any person present during a proceeding to disclose the testimony of a witness as direct evidence in a prosecution for perjury.

See also Hinojosa v. State, 781 N.E.2d 677, 680 (Ind. 2003) (“[T]he general rule regarding grand jury transcripts is that they be kept secret.”). Indeed, it is a criminal offense to knowingly or intentionally disclose information acquired in a grand-jury proceeding unless compelled by law. Ind. Code § 35-34-2-10(a); Hinojosa, 781 N.E.2d at 680. However, the legislature created an exception to the general rule of secrecy by granting trial courts the discretion to release a “transcript” of a grand-jury witness’s testimony in the following narrow circumstances:

(1) for the official use of the prosecuting attorney; or

(2) upon order of: Court of Appeals of Indiana | Memorandum Decision 19A-PL-3047 | July 29, 2020 Page 5 of 7

(A) the court which impaneled the grand jury;

(B) the court trying a case upon an indictment of the grand jury; or

(C) a court trying a prosecution for perjury;

but only after a showing of particularized need for the transcript.

I.C. § 35-34-2-10(b). [10] According to the above statutes, the general rule is that grand-jury proceedings

are confidential and therefore cannot be disclosed under APRA. Although there

are narrow circumstances under which a transcript of a grand-jury witness’s

testimony may be disclosed, the statutes do not provide for the disclosure of

audio. But Dearborn Superior Court II, in response to the Public Access

Counselor’s advisory opinion, ordered the court reporter to give Brewington an

audio recording of the grand-jury proceedings. However, that does not change

our conclusion that these statutes do not authorize the disclosure of audio.

Accordingly, Brewington is not entitled to any additional audio he believes

exists from the grand-jury proceedings in his criminal case under APRA. We

therefore affirm the trial court’s grant of Defendants’ cross-motion for summary

judgment.1

1 Brewington filed at least two motions to disqualify the Office of the Attorney General in the trial court, which were denied. On appeal, Brewington says we should “consider the disqualification” of the Office of

Court of Appeals of Indiana | Memorandum Decision 19A-PL-3047 | July 29, 2020 Page 6 of 7 [11] Affirmed.

Baker, J., and Bailey, J., concur.

Attorney General. Appellant’s Br. p. 33. Brewington, however, has waived this argument for failing to support it with cogent reasoning and citation to authorities. See Ind. Appellate Rule 46(A)(8)(a).

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