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Commission in apparent violation of state law

BY Spencer Durham - sdurham@chronicle-tribune.com

Monday night's Area Plan Commission appears to have violated Indiana's Open Door Law at the meeting in which commissioners vote down a planned CAFO.

The Plan Commission, which denied local farmer Nolan Holloway's CAFO proposal, forbid any sort of audio or video recording at the meeting.

Plan Commission attorney Bruce Elliott denied student journalists with cameras access to the meeting and had sheriff’s deputies enforce the ban.

Indiana Wesleyan student journalists Silas Weghorst and Daniel McMurray arrived at Monday night's meeting to video record and interview those in attendance for a class project. In addition to the class project, the two were also reporting for GrantCOnnected.net, an IWU student-run news website.

Weghorst told the Chronicle-Tribune that Elliott, told the two they could not record the meeting in any format.

“I was told per prior released information, we could not record video or audio during the meeting,” McMurray said.

Weghorst added that he asked a Grant County Sheriff deputy if the meeting was public. The officer confirmed the meeting was public. Weghorst said he then asked if he could record the meeting on his phone. The officer seemed unsure, the IWU student said, and Elliott stepped in.

Sheriff deputies were at the meeting to keep the peace and make sure the Area Plan Commission did not violate occupancy limits. Prior CAFO meetings have been heavily attended with the audience spilling into the main lobby area of the Grant County Complex building. Monday night's meeting was no different.

“I asked separately if I could take my phone in and simply record audio and was told no,” Weghorst said. “I even called the Area Plan Commission earlier in the day if media was allowed in and they said yes.”

Weghorst said he did not specifically ask if he could record the meeting in his call to the Area Plan Commission.

Randall King, professor of communication at IWU, said the project was for a TV news class. When his students texted him about what had transpired he said “alarm bells went off in his head.”

“I can't think of any state that will allow media coverage and not video, other than courtrooms, obviously,” said King, who has been in media and journalism for 25 years.

After the meeting, Elliott said he “had to get home” and would only answer questions as he walked to his car.

Elliott said he told the two IWU students they could not record the meeting. When asked why, Elliott said, “The video camera and electronic recording devices are not permitted.”

When pressed on this matter, Elliott said the devices were “distracting.” When further questioned on the legality of the decision he said, “Recording and video cameras and cameras are not allowed in the courtrooms in the State of Indiana.”

When told the meeting was not a courtroom, Elliott said, “Our rules of procedure say that the Area Plan Commission may record. So we are the ones recording.”

Asked if that meant the public could not record, he said, “That's what we said.”

Elliott did not go into further detail about what, if any, legal language would allow the Area Plan Commission to prevent people recording their public meetings.

General Counsel for the Hoosier State Press Association Steve Key said the Indiana Supreme Court ruled in the case Berry v. Peoples Broadcasting Corp. that governing bodies cannot ban recording at public meetings.

“The Open Door Law very specifically gives the public the right to observe and record,” Key said.

State statute says, barring a few exceptions, “… all meetings of the governing bodies of public agencies must be open at all times for the purpose of permitting members of the public to observe and record them.

Key said a governing body could set certain parameters, such as a camera or recording device cannot block people from viewing the public meeting, but cannot outright ban use of such devices.

“They cannot prohibit people from recording the meeting,” he said. “... The Plan Commission cannot trump state [statute] … They have to abide by Open Door Law.”

The action banning recordings throws the validity of the meeting, and the vote by commission members, into doubt.

“By violating the statute, they (the Area Plan Commission) have set themselves up … for challenges,” he said.

Whether action at the meeting is null and void would be up to the court to decide.

Key said a member of the public or media could challenge the Area Plan commission's policy in court or by reporting it to the public access counselor.

Robert Bothwell, president of the Area Plan Commission, deferred all questions to Elliott. Larry

Strange, Area Plan director, also deferred questions to the attorney.

“I have no comment to that,” Bothwell said. “It was his decision. You need to talk to him about it.”

UPDATE: This article has been updated to properly identify GrantCOnnected.net. A previous version had misspelled the student-run news website.