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Newspaper sues over fish kill records

By The Associated Press March 14, 2000

A newspaper is suing two state agencies for refusing to release copies of subpoenas issued as part of the state's ongoing investigation into this winter's White River fish kill.

The Indianapolis Star filed its lawsuit Monday after lawyers for the Indiana Department of Environmental Management and the Department of Natural Resources denied its' request for copies of the subpoenas.

The Star's lawsuit, filed in Marion Superior Court, names IDEM and its commissioner, Lori Kaplan, the DNR and its director, Larry Macklin. It seeks a court order to inspect and copy the subpoenas, issued last month.

A judge set a conference for today with lawyers on both sides.

The Star maintains the subpoenas are of interest to the public because they deal with one of the worst environmental disasters in state history.

``It is not The Star's intention to impede the investigation into the White River fish kill,'' Timothy A. Franklin, executive editor and vice president of the newspaper, said in statement.

``It is The Star's intention to keep the public as thoroughly informed as possible on this case of vital public interest. This lawsuit is the only recourse we have in our continuing effort to do that.''

Using a rarely used state law, a division of the DNR issued 19 subpoenas in late February to various entities in the fish kill investigation, said Stephen Sellers, a state spokesman.

The Star reported March 2 that the city of Anderson and Guide Corp. _ an Anderson auto parts maker suspected of causing the river contamination _ received subpoenas along with three other firms.

Guide has denied responsibility.

Lawyers for the state agencies denied The Star access to the subpoenas in a letter March 8. That letter states that the subpoenas are exempt from public records law because they are the work product of a lawyer.

The letter also states the documents can't become public in a pre-litigation process.

``Disclosing the subpoenas will reveal mental impressions, conclusions, opinions or legal theories concerning the investigation,'' the state said in its response to the newspaper.

Kevin Betz, a lawyer for the newspaper, said attorney-client privilege has its limits. Even if the information is privileged, that privilege was breached when state officials issued the subpoenas to outside parties, said Betz, a former chief legal counsel for IDEM.

Franklin said the Star is concerned that the state will have established a dangerous precedent for restricting public records if the attorney-client privilege argument is allowed to stand.

The newspaper is seeking only the subpoenas _ not the documents the state obtained from the subpoenas, Betz noted.

State and federal authorities are trying to find the source of what killed at least 115 tons of fish in the river from Anderson to Indianapolis beginning in mid-December.

The investigations could result in civil penalties or criminal charges stemming from the toxic discharge into the river.

Sellers said the state plans to make the subpoenas public once the investigation is complete and any litigation begins.

``However, to do so today will jeopardize our ability to hold accountable the party or parties responsible for polluting the White River and killing hundreds of thousands of fish,'' he said.

The state has hired Indianapolis lawyer Linda Pence to oversee its investigation. Pence referred questions about the lawsuit to the Indiana attorney general's office, where a spokesman said there would be no comment because the office had not reviewed the lawsuit.

http://www.courierpress.com/cgi-bin/view.cgi?/200003/14+apnewser_news.html+20000314+news

-- (Dee360Degree@aol.com), March 14, 2000

-- (Dee360Degree@aol.com), March 14, 2000

Answers

Hooray for the STAR!! A newspaper that isn't afraid to stand up and be counted. Thanks for this post.

-- gilda (jess@listbot.com), March 14, 2000.

I agree with you Gilda.

-- (Dee360Degree@aol.com), March 14, 2000.