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Court allows lottery agency to step out of fight over records

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  1. Freedom of Information

    NMU         INDIANA         Freedom of Information         Dec 4, 2000    

Court allows lottery agency to step out of fight over records

  • A newspaper and lottery-ticket distributors are left to “duke it out” after the state’s lottery commission is allowed to withdraw from an open records case.

Earlier this month, an Indiana court determined that a public agency can sidestep a legal battle between a newspaper seeking access to an agency record and a group of retailers who want to keep the record closed. By allowing the public agency to withdraw from the case, the agency avoids any further liability, except for possibly paying some of the newspaper’s attorney fees.

On Nov. 17, the Indiana Court of Appeals upheld a trial court ruling allowing the Indiana State Lottery Commission to withdraw from the case. The court permitted the commission to step out because it had filed the disputed records with the court.

Originally, the group of lottery ticket distributors sued the state commission because they did not want their revenue records released to The Indianapolis Star. Once the Star joined the lawsuit, the commission argued that it was placed in the “horns of a dilemma” and the proper litigants in the case were the distributors and newspaper. The commission argued it could not lawfully satisfy the request of either the distributors or newspaper without facing an additional lawsuit by the alienated party. As a result, the trial court accepted the revenue records from the commission and dismissed it from the case. The newspaper appealed the dismissal of the lottery commission because, it argued, a state agency has an affirmative obligation to comply with an open records request of public documents in its possession.

On appeal, the court accepted the commission’s argument based on the procedural oddity that the distributors sued to close the records rather than a more traditional open records lawsuit brought by the newspaper. However, the court did order the commission to pay for some of the newspaper’s attorneys fees and left open the possibility that the commission may have to pay for more attorneys fees if the case is appealed further.

In May 1999, the Star requested the names and addresses of Hoosier Lottery ticket distributors and the revenue generated by these distributors during 1998. The lottery commission gave the Star a computer disk containing the requested names and addresses, but refused to release the revenue information, claiming it was exempt from the open records laws because it was a trade secret.

The Star sought an advisory opinion from a state public records ombudsman in July 1999. The ombudsman concluded that the records should be released because the distributor revenues were not trade secrets. Before the lottery commission could release the records, the distributors sued the lottery commission to keep the revenues sealed. In August 1999, the Star intervened in the suit to compel disclose of the records.

(Indianapolis Newspapers v. Indiana State Lottery Commission; Media Counsel: Lee McTurnan, Jackie Bennett, Jr. and Anne Cowgur of McTurnan & Turner, Indianapolis) CC

© 2000 The Reporters Committee for Freedom of the Press

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