City Controller’s Office Refuses CCO FOIA Request Based on Technicality

CITY OF EVANSVILLE
Office of the City Controller
CIVIC CENTER COMPLEX, ROOM 300
ONE NW MARTIN LUTHER KING, JR. BOULEVARD
EVANSVILLE, INDIANA 47708
(812) 436-4919 FAX (812) 436-4926
Lloyd Winnecke, Mayor

April 18, 2012

Mr. Tim Eckels
City County Observer
Evansville, IN 47714

Re: Public Records Request

Dear Mr. Eckels:

The Finance Department received your written request on April 17, 2012 for the following: credit checks, background checks, contracts, studies, technical performance reports, purchase orders, terms of payment, power purchase agreements (PPA’s), and other pertinent documentation associated with the recently announced agreement between the City of Evansville and/or its surrogates and Earthcare Energy and its associated subcontractors and/or surrogates. To be more specific the project that I refer to is the recently announced loan and incentive package worth approximately $5 million that was approved by the Evansville City Council on March 26th, 2012. I would also like any agreements pertaining to the use of Park 41, formally known as the Whirlpool building, by Earthcare Energy LLC.

Your request contains “catch-all” language at the end of the list of specific documents or types of documents – “any other pertinent information regarding” the [Ford Center or the Earthcare agreement.] This is a problem because we do not know what you mean by “pertinent,” but assuming everything “regarding” those topics is “pertinent,” the request would encompass massive amounts of materials, including items that are or may be subject to non-disclosure under the following exceptions:

1. Records that cannot be disclosed, pursuant to IC 5-14-3-4(a), including the following subparagraphs:

(1) Those declared confidential by state statute.

(2) Those declared confidential by rule adopted by a public agency under specific authority to classify public records as confidential granted to the public agency by statute.

(3) Those required to be kept confidential by federal law.

(4) Records containing trade secrets.

(5) Confidential financial information obtained, upon request, from a person, other than information that is filed with or received by a public agency pursuant to state statute.

(6) Information concerning research, including actual research documents, conducted under the auspices of a state educational institution, including information:
(A) concerning any negotiations made with respect to the research; and
(B) received from another party involved in the research.

(8) Those declared confidential by or under rules adopted by the supreme court of Indiana.

(10) Application information declared confidential by the board of the Indiana economic development corporation under IC 5-28-16.

(12) A Social Security number contained in the records of a public agency.

(13) The following information that is part of a foreclosure action subject to IC 32-30-10.5:
(A) Contact information for a debtor, as described in IC 32-30-10.5-8(d)(2)(B).
(B) Any document submitted to the court as part of the debtor’s loss mitigation package under IC 32-30-10.5-10(a)(3).

2. Records that can be withheld and not disclosed at the discretion of the public agency pursuant to IC 5-14-3-4(b), including the following subparagraphs:

(1) Investigatory records of law enforcement agencies, other than those that must be made available for inspection and copying as provided in IC 5-14-3-5.

(5) Records relating to negotiations between the Indiana economic development corporation, the ports of Indiana, the Indiana state department of agriculture, the Indiana finance authority, an economic development commission, a local economic development organization (as defined in IC 5-28-11-2(3)), or a governing body of a political subdivision with industrial, research, or commercial prospects, if the records are created while negotiations are in progress (except for certified terms of the final offer of public financial resources communicated by the Indiana economic
development corporation, the ports of Indiana, the Indiana finance authority, an economic development commission, or a governing body of a political subdivision to an industrial, a research, or a commercial prospect, which terms shall be available for inspection and copying after negotiations with that prospect have terminated.)

(6) Records that are intra-agency or interagency advisory or deliberative material, including material developed by a private contractor under a contract with a public agency, that are expressions of opinion or are of a speculative nature, and that are communicated for the purpose of decision making.

(7) Diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal.

(10) Administrative or technical information that would jeopardize a record keeping or security system.

(11) Computer programs, computer codes, computer filing systems, and other software that are owned by the public agency or entrusted to it and portions of electronic maps entrusted to a public agency by a utility.

(12) Records specifically prepared for discussion or developed during discussion in an executive session under IC 5-14-1.5-6.1.

(13) The work product of the legislative services agency under personnel rules approved by the legislative council.

(14) The work product of individual members and the partisan staffs of the general assembly.

(15) The identity of a donor of a gift made to a public agency if:
(A) the donor requires nondisclosure of the donor’s identity as a condition of making the gift; or
(B) after the gift is made, the donor or a member of the donor’s family requests nondisclosure.

(19) A record or a part of a record, the public disclosure of which would have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack.

You may wish to narrow your request or restate it in a way that allows us to more specifically address the scope and nature of the documents that will be produced or withheld. Otherwise, our response is that we possess documents responsive to your requests but that some of them may be withheld for the foregoing reasons.

Finally, because your request is so broad, and may amount to far more than 1,000 pages, your statement that you are only willing to spend $100.00 in copy charges presents a problem. Per your request, we will not compile records that exceed 1,000 pages, and are not required to categorize or prioritize in any particular way which 1,000 pages of records we compile and copy for you. Therefore, once we resolve the issue of the scope of your request, you may wish to change your request to provide for inspection rather than copying, and then identify and request the specific documents you wish to have copied.

Please contact us for clarification of your request and to discuss these issues

Sincerely,

Jean Carlson
Office Manager