Purdue Exponent officials criticize ruling allowing university to withhold public records

INDIANA — In a written ruling issued earlier this month, a state public access counselor said Purdue University doesn’t have to release surveillance video footage and other records requested by The Purdue Exponent because of a public-records exemption allowing an agency to withhold “investigatory records.”

Exponent officials have criticized the ruling for containing factual inaccuracies and for appearing to misunderstand the context of the investigation.

The Exponent sought public records in an attempt to find out more about a January incident in which, shortly after a fatal campus shooting, Purdue police detained photo editor Michael Takeda for several hours and confiscated his camera equipment. Editor Saran Mishra requested audio, video and police inventory related to Takeda’s detention.

After the request was denied, Mishra appealed the decision to the state public access counselor’s office, which attempts to resolve disputes out of court.

Public Access Counselor Luke Britt said he could have explained his position more clearly: While he believes Purdue can legally withhold the requested records under the exemption — Indiana’s public records law defines “investigatory record” as “information compiled in the course of the investigation of a crime” — “whether they should or not is subjective,” Britt said.

In some cases, Britt said he will include recommendations in his rulings that “if you have materials that are disclosable that wouldn’t compromise the investigation of some alleged crime, the best practice would be to go ahead and release it.”

“I should have been a little more clear in the opinion that the tapes have to be germane to the investigation of a crime, it can’t just be captured by anything,” Britt added.

A key question in the case is whether the records Mishra wants — which pertain to the detention of Takeda in a location that wasn’t the crime scene, after the shooter was already in custody — could be considered “investigatory” records of the shooting.

When the university initially denied the Exponent’s request for the records, it didn’t specify an investigation it was referring to when invoking the exemption for investigatory records. Multiple calls to Legal Services Coordinator Abby Daniels, who denied Mishra’s request in a March 5 email, were not returned.

When asked to clarify which investigation Daniels referred to in her initial decision to deny the records, University spokeswoman Shelley Triol said via email: “All video obtained from the Electrical Engineering Building from the day in question was compiled in the course of the investigation of the homicide.”

Purdue did, however, provide the public counselor’s office with a three-and-a-half page explanation of its rationale, Britt said. The university argued that the Exponent’s appeal for the records “fails due to the fairly broad nature” of the exemption for investigatory records, Britt said.

Britt said he interpreted the investigatory records exemption to apply not only in the context of the campus shooting investigation but also his understanding that “the detention [of Takeda] was a criminal investigation, although nothing came of it.”

“Even if it doesn’t result in some kind of arrest or prosecution or anything else, the fact that police detained someone — they had probable cause to detain him, and that would give rise to an investigation into his actions and what he was doing there for a suspected crime,” he said.

Based on the material he received from the Exponent and Purdue, “my understanding was that [police] were looking at the photographer in some light of wrongdoing,” Britt said.

Britt’s interpretation troubled Exponent publisher Pat Kuhnle — who maintains that the material sought by the newspaper “had nothing to do with the shooting on campus.”

“We were under no impression that Michael was ever under criminal investigation,” Kuhnle said.

Kuhnle also expressed concern with language in Britt’s initial ruling, which stated that the footage sought was “related to campus shooter Michael Takeda” — inaccurately stating the Exponent photographer committed the crime. The mistake was a “clerical error,” Britt said, and the document was updated after the error was brought to his attention.

Attorney Steven Badger, who was retained by the Exponent after the ruling was issued, said Britt’s ruling opens up the potential for overclassification of records as investigatory.

“Under that analysis, virtually any record showing abuse by the police — whether investigatory or however that occurs — is going to be subject to being withheld,” Badger said.

In a letter responding to the ruling, which the Exponent published, Badger argued against Britt’s analysis on several fronts. For one, he wrote, the records are not “clearly related to the criminal investigation” of the shooting because the confrontation between Takeda and police occurred on a different floor and “at least 35 minutes after the shooting and arrest of the suspected gunman.”

He continued, “nothing about the incident involving Takeda conceivably sheds any light on the crime that occurred in the basement of the building earlier that day.” Badger also criticized the ruling for not addressing the request for police inventory.

In the weeks that followed Takeda’s detention, both Exponent officials and National Press Photographers Association attorney Mickey Osterreicher condemned officers’ treatment of Takeda, calling for an investigation into potential misconduct. The university obliged, but an internal investigation found no wrongdoing on the part of police — and officers’ accounts of the interactions differed substantially from Takeda’s description of the events.

Since the incident, Purdue also said it would take steps to improve relations between the Exponent and campus police — but Kuhnle said he has yet to see meaningful progress on that end, and reaching Chief John Cox for comments on stories has been difficult.

Badger said Britt’s comments about clarifying his position are “a nice sentiment” but ultimately lack the teeth that would have accompanied a more assertive analysis.

“It’s not going to make any difference if agency is not going to disclose the records,” he said. “[They’re] not going to do it, period, unless compelled to.”

Contact McDermott by email or at (703) 807-1904 ext. 123.