Perry Township trustee Dan Combs has filed a lawsuit against the city of Bloomington.
The suit demands that the city produce records related to decision making and the development of policies connected to displacement of homeless encampments in the last year.
The lawsuit was filed Thursday evening. By midday on Friday, the complaint with its exhibits had been uploaded to the state’s online court document system. The lawsuit was filed in Monroe County superior court.
The question of law is whether the city of Bloomington has met its obligations under Indiana’s Access to Public Records Act (APRA), to response to records requests made by Combs, about the city’s homeless encampment policies, among other matters.
What prompted the records requests in the first place, from an elected township trustee, was an interest in understanding Bloomington’s decision making process related to homeless encampments, because of the potential impact that the city’s policies have on township government.
Combs, who is named as an individual plaintiff, and in his capacity as township trustee, told The B Square on Friday that the township board had approved going ahead with the litigation that has now been filed.
City attorney Mike Rouker responded to The B Square’s emailed inquiry about the lawsuit, by writing that the city does not comment on pending litigation.
What in part led to the records requests, and eventually the lawsuit, was the inclusion of Perry Township on a list of resources for members of encampment communities, as part of a notice that was posted at the encampments, about upcoming action by the city.
On Aug. 20, the city of Bloomington cleared an encampment located under and around the B-Line Trail over Grimes Lane bridge. In December last year, and again in January this year, the city cleared an encampment at Seminary Park.
Before clearing the Seminary Park encampment in January, and the Grimes Lane bridge encampment in August, the city posted notices to alert campers to upcoming action to displace them.
Under the heading, “Help is available here: … ,” the posted notices included the Perry Township trustee’s office among other resources.
Combs told The B Square on Friday that the city of Bloomington had not contacted him about inclusion of the township trustee’s office as a resource that could help the members of the encampment. In fact, given the statutory constraints of township government, the township is generally not in a position to provide assistance to people in homeless encampments, Combs said.
The wording of the posted notices had three effects, Combs said. “One is, it makes it look like we support the eviction. Two, it makes it look like we are working with the eviction. And three, it also makes it look like [townships] help just everybody—it raises expectations,” Combs said.
The effect of the posted notices was also to push responsibility off the city and onto the township government, Combs said. “It’s like the city abdicated their responsibility,” Combs said. He added that the city of Bloomington was saying to the encampment community: “We’re going to evict you. But if you feel badly, blame it on the [township] trustees, because they’re not helping you.”
About the city of Bloomington’s approach to the encampments, Combs said, “They tried to both usurp our policies, and then annex those policies into their screwball plan.”
So part of the impetus for the records requests was to discover how the Perry Township trustee’s office wound up on the posted notices in the same list of resources as Beacon/Shalom Center, Friend’s Place, New Hope Family Shelter, Amethyst House, and Middle Way House.
The first formal records request was made in early June. Included in the June 2 request were: “Any and all records which describe how the List of Community and Family Resources was compiled and created…”
The June 2 request also asked for “Any and all records pertaining to Bloomington City Policy of people living and/or sleeping in places defined as public spaces.”
In response to subsequent and revised records requests from Combs, the city of Bloomington produced some records. On June 30, Bloomington produced drafts of general police orders on “homeless persons and homeless encampments.”
The draft police orders are described in a June 30 email from assistant city attorney Jennifer Lloyd, responding to the records request from Combs. According to Lloyd, the draft orders were developed in 2014 “to provide guidance to the then-new BPD Downtown Resource Officers and were distributed only in that limited capacity.”
Lloyd’s email message continues, “They have not been adopted as official General Orders and have not been promulgated department-wide.”
By Aug. 20, when the campers at the Grimes Lane bridge were displaced, a general police order on homeless encampments had been adopted. On the Monday before the Friday displacement, the mayor’s office issued a news release including the new general police order on encampments.
But the records produced in response to the APRA requests did not give Combs the understanding of the city’s policies and procedures that he was seeking.
A deadline of Aug. 9, for Bloomington to respond with additional records, was set by William Morris, attorney for Combs and Perry Township. Morris wrote on July 29 to assistant city attorney Lloyd:
It has been nearly two months since our initial Request for Records. The city’s delay in making a full response to our Request for Records affects Perry Township’s ability to make…policy determinations. Therefore, if the city does not comply with our Request by August 9, 2021, the Trustee and Board of Perry Township have authorized me to seek judicial steps to compel the city’s compliance.
Responding in an email on Aug. 9, Lloyd wrote that the kind of records Combs was seeking, beyond already public documents, did not exist:
While I understand that your client is interested in learning how City policies regarding unhoused persons were ‘formulated, developed and promulgated,’ the City administration is unaware of any documents that record that process (other than the minutes of public meetings which were described in my previous response). We are aware of no memoranda, position papers or the like, nor are there minutes of any internal meetings. As I’m sure you know, the City is not required to create documents in order to satisfy a records request (see, e.g., Opinion of the Public Access Counselor, 12-FC-17). We believe that we have fully responded to your request.
In responding to requests leading up to the ultimatum, Lloyd also cited the APRA’s exemption for “deliberative materials.” The exception for “deliberative materials” is broad—it’s sometimes called, “the exception that swallowed the rule.” The exception is for inter-governmental communications that are “expressions of opinion or are of a speculative nature, and that are communicated for the purpose of decision making.”
Lloyd also cited the APRA’s requirement that request be “reasonably particular.” She wrote on Sept. 23, “There is no means by which I can reasonably identify or search through all City records for any reference to the information you are requesting.”
Commenting on the idea that the effort required to search city records would be too great, Combs told The B Square on Friday, “I’m pretty sure inconvenience is not an exemption in the state law.”