Thursday, December 6, 2012

Indiana General Assembly Should Take Investigation of Notices of Tort Claim Away From Attorney General

WRTV's Kara Kenney has an excellent report on a couple decisions by the Indiana Public Access Counselor finding the Indiana Attorney General violated the Open Records Law:
The Indiana Attorney General’s office is facing criticism for several violations of Indiana’s Access to Public Records Act.  

Attorney General Greg Zoeller
Illinois-turned-Hamilton-County, Ind-resident Paul Straughn told Call 6 Investigator Kara Kenney it’s been a nightmare getting records from the Attorney General’s office.
Straughn said his father Max, a World War II disabled veteran, was mistreated by two Indiana doctors. 
His father has since passed away, but Straughn filed a complaint with the Attorney General’s office in November 2011 asking the agency to investigate the mistreatment allegations.
Straughn said the agency closed the complaint without interviewing key witnesses [including Straughn.].
Frustrated, Straughn filed a request for documents on his father’s case under the Indiana Access to Public Records Act (APRA). 
In advisory opinions dated July 25 and Aug. 8, 2012, Hoage found three separate violations of the APRA, including failing to preserve records and failing to meet its burden for redacting, or blacking out, information. 
“I’m like wow, holy smokes,” said Straughn. “What can I say? I was dumbfounded. I find it refreshing -- the integrity of the public access counselor’s office.”
Straughn said he only filed the records request as a last resort after the agency failed to properly investigate his complaints.
“I’ve brought allegations there are Indiana licensed physicians violating professional licensing standards,” said Straughn. “Why isn’t the Attorney General’s office looking into these allegations?”
Straughn is hopeful after his Nov. 29 meeting with the Chief Deputy that the Attorney General’s office will investigate.
“My goal is I just want my complaint to get a fair shake,” said Straughn. “If the AG’s office does a proper and thorough investigation of my complaint using qualified staff, let the chips fall where they may.”
You have two stories here. First there is a failure to comply with the open records law. The second is the failure to investigate.  That's of particular concern to me.

Indiana law mandates that, if you are considering suing a state agency, you send the agency a "notice of tort claim" saying what happened, and when and that you may sue.  The idea of a notice of tort claim is to give government advance notice of possible litigation so that claims that have merit can be resolved prior to the onset of expensive litigation.

A copy of that letter goes to the Attorney General's Office which is charged with the responsibility of investigating the claim and reporting back. Here is the problem.  The AG's office is also the attorney for the state agency against which the claim is lodged.  Is the AG going to investigate the matter thoroughly, then turn over incriminating information to a possible litigant against the state?  Is the AG going to write a letter to a possible litigant saying that, yes, the agency is at fault?  There is a huge conflict in investigating the notice of tort claim on behalf of the public and then representing the agency.

The fact is the AG's office does not investigate tort claims.  After a couple months, the AG's office will send out a form letter to the person saying that his or her claim was "investigated" and found with to be without merit.  But the fact is no investigation is ever conducted.  I am not aware of a single instance when the AG's office has ever talked to witnesses or reviewed information relating to a notice of tort claim.  And that is from sending probably 25 notices myself over the years, not to mention other attorneys I've talked to who likewise have never saw any evidence of an investigation into a tort claim being done by the AG's office.

The investigation of tort claims needs to be taken away from the AG's office to resolve the conflict between the investigation and representation of the state agencies.  Another body, perhaps the Office of Inspector General, should investigate notices of tort claims.  The current practice of the AG's office falsely telling the Hoosiers their claims have been "investigated" when no investigation has in fact been conducted,  needs to cease.


Jeff Cox said...

I disagree with the premise here, but what exactly would you propose as a solution?

TMLutas said...

You'd probably get better results if you start off seeking the standards that the AG's office has to determine whether a tort claim investigation has been investigated adequately. If the rules seem reasonable to uninvolved attorneys then the problem becomes that the AGs office might not be following its own rules. That would be a job for an IG to sort out. But if the rules are flawed or laughable you have a very different sort of problem that needs a different sort of solution.

Then again, neither might be the case in this particular instance and the AGs office might actually be in the right. I am not a lawyer, usual disclaimers apply but nailing down the rules and comparing them to actual activity seems a necessary step to a better situation on tort claims investigations.