Bloomington wins dismissal of Perry Township trustee’s lawsuit over records about homeless encampment policy

The lawsuit filed last October by Perry Township trustee Dan Combs against the city of Bloomington for allegedly failing to provide records under Indiana’s Access to Public Records Act (APRA) has been dismissed.

The requested records involved implementation of policies related to homeless encampments.

On March 9, Monroe County circuit court judge Geoff Bradley issued his second order of dismissal, which ends the case. The first order to dismiss came late last year, but gave Combs a chance to file an amended complaint.

An amended complaint was filed, but did not fix the problems that Bloomington and the judge found with the original complaint.

The original complaint alleged among other things that Bloomington had denied the records request because the requested records fell under the “deliberative materials” exemption of the APRA. In fact, the stated basis for Bloomington’s denial of Combs’s request was that the request was not “reasonably particular” as required under the APRA.

But Bloomington’s response to the APRA request continued by saying that if Combs was asking for records that indicate how city policies are developed related to homeless encampments, such records would fall under the “advisory or deliberative materials” exemption.

The dismissal of the lawsuit leaves Combs still without any records containing the kind of information he wants. Combs wants records that would help him understand why some posted notices for residents of homeless encampments, who faced displacement if they did not vacate the premises, included a mention of the Perry Township trustee’s office.

Notices posted near the homeless encampment at Seminary Park in January 2021 and under the Grimes Lane B-Line bridge in August 2021 included the Perry Township trustee’s office and contact information. On the posted signs, under the header “Help is Available Here,” was a list of resources that included the Perry Township trustee’s office.

Last week, Combs told The B Square in a phone interview about the lawsuit, “We were not saying: How did you come up with a policy of making signage?”

Records containing information about how the policies were created would have likely fallen under the “deliberative materials” exemption.

Combs continued, “We were saying: How did you come up with listing us [Perry Township] ] and no other township, and not bothering to ask if we fit into the criteria that you were advertising?”

Based on the signage posted near the homeless encampments, Bloomington was suggesting that anybody can go down to apply at the township trustee’s office for assistance—when they would in fact need to have a residence in a township, not just a tent in the township, Combs said.

It got some people’s hopes up, Combs said, but township assistance is not an entitlement program.

About the pursuit of the records that might give him the insight he wants, Combs commented on the “reasonable particularity” exception in the APRA: “Without the documents themselves, you wouldn’t know which ones you want.” He continued, “That’s what we got caught in: How can we tell you what we want, if we can’t see an inventory of what documents there are?”

Combs told the B Square, “I just want [the city of Bloomington] to understand: I am as persistent as I can be.” Combs added, “We may not have the resources at the township to make a landmark records case.”

Representing the township in the case was attorney William Morris. He provided to The B Square a copy of his response to the city’s second motion to dismiss. The crux of the response is an argument based the standard of review used by the Indiana court of appeals in testing whether a motion to dismiss should be granted. On that standard, a lawsuit should be dismissed only if “it is apparent that the facts alleged in the challenged pleading are incapable of supporting relief under any set of circumstances.”

Whether the judge had seen the response when he weighed whether to grant the second motion to dismiss is not clear.

The case record in the online system does not show the response listed among the documents that are filed with the court.

After reviewing the documents he had set up in the court’s electronic filing system, Morris told The B Square he does not think he moved the response out of “draft” mode.