By SCOTT SMITH
Click here to see the court order
After spending more than $4,300 unsuccessfully defending a public records lawsuit, the city of Kokomo is ready to give Western High School student Ryan Nees what he wants.
City Attorney Ken Ferries said Tuesday the city won’t appeal Howard Circuit Judge Lynn Murray’s Feb. 20 ruling on the Ryan Nees vs. Matt McKillip civil suit.
Nees, 16, sued the city last year after his request for a city-compiled list of e-mail addresses was denied.
Nees said he wanted to compare a list of subscribers to the city’s electronic newsletter with a list of e-mail addresses receiving McKillip’s political e-mails.
He expressed concern the mayor might be using the newsletter subscriber list as a target audience for his political mailings, a charge the mayor has denied.
City officials turned down Nees, saying the teen could come in and hand-copy the list. Officials said giving out copies of address lists would leave the newsletter subscribers open to spam and computer viruses.
Murray sided with Nees, whose attorney argued the city had no legal basis for its argument.
Murray said the law, which restricts access to mailing addresses, doesn’t extend to e-mail addresses, as the city’s attorneys contended. She said the city must turn over either a copy or an electronic copy of the list.
“The city’s arguments here are of a policy rather than a legal character, and are more appropriately addressed to the Indiana Legislature rather than to this court,” Murray wrote. “The courts cannot fill gaps in a statutory scheme designed by the legislature.”
Ferries said the combination of the judge’s ruling and the fact the Indiana General Assembly is looking at further restrictions on public access to government-compiled e-mail addresses convinced the administration to end the matter.
Indiana Public Access Counselor Karen Davis issued a nonbinding opinion last year, saying the restrictions that apply to mailing addresses don’t apply to e-mail addresses. By law, cities can limit the public to hand-copying any government-compiled list of mailing addresses.
“At the time [the lawsuit was filed] there was no judicial guidance on the meaning of the word “address” in the public records law, and while we respected the opinion of the public access counselor, there’s no substitution for a judicial determination,” Ferries said.
Nees said Tuesday he expected the city to either appeal Murray’s ruling, or to stall turning over the records for at least 30 days.
Ferries said Nees is entitled to copies of the records upon filing the appropriate records request.
“I guess they want to stop the hemorrhaging of embarrassment over this,” Nees said.
He said he was also surprised by a McKillip comment, reported Tuesday in the Indianapolis Star, in which the mayor claimed his attorneys had told him he would probably lose the ruling.
McKillip could not be reached for comment Tuesday.
“I don’t see why they spent all of that time and money when they knew it would be in vain,” Nees said. “They knew the law wasn’t on their side, yet they continued to fight.”
In addition to the money spent on attorneys fees, the city will probably be forced to pay the legal fees for Nees’ attorney, William Groth, Indianapolis.
Groth took the case on a pro-bono basis, but Murray asked for an accounting of Groth’s fees in her ruling. Groth said Tuesday it’s likely he could bill several thousand dollars for the case.
“Why didn’t they settle this?” Groth said. “I had to put in a fair amount of time because they didn’t lay down at any point.”
Scott Smith may be reached at (765) 454-8569 or via e-mail at scott.smith@kokomotribune.com
