Court of Appeals of Indiana | Memorandum Decision 02A03-1708-MI-1913 | November 15, 2018 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res 

judicata, collateral estoppel, or the law of the 

case.

APPELLANT PRO SE

Michael M. Williams

Michigan City, Indiana

ATTORNEYS FOR APPELLEES

ALLEN COUNTY SUPERIOR AND 

CIRCUIT COURTS AND HON.

WENDY DAVIS

Curtis T. Hill, Jr.

Attorney General of Indiana

Patricia C. McMath

Deputy Attorney General

Indianapolis, Indiana

ATTORNEY FOR APPELLEE 

CLERK LISBETH A. BORGMANN

Thomas A. Hardin

Shine & Hardin LLP

Fort Wayne, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Michael M. Williams,

Appellant-Plaintiff,

v.

Allen County Superior and 

Circuit Courts, Wendy W. 

November 15, 2018

Court of Appeals Case No.

02A03-1708-MI-1913

Appeal from the Allen Superior 

Court

The Honorable Nancy Eshcoff 

Boyer, Judge
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Davis, Lisbeth A. Borgmann, 

and Marcia Terenet,

Appellees-Defendants.

Trial Court Cause No.

02D01-1610-MI-1035

Shepard, Senior Judge.

[1] Michael Williams received a paper copy of his trial transcript but later

requested a copy of the original recording under Indiana’s Access to Public 

Records Act. He contends that a defendant is entitled to a record of his trial 

proceedings in the format of his choice. The trial court granted summary 

judgment to Allen County court officials, determining Williams did not need a 

copy of the recording because the paper copy was sufficient. We affirm.

Facts and Case History

[2] In 1989, Williams was convicted in Allen County of battery, a Class C felony, 

in Cause Number 02D04-8905-CF-395 (CF-395). He did not appeal. In a later 

case, Williams’ battery conviction was cited as a predicate felony for a habitual 

offender enhancement. He remains incarcerated.

[3] In 1999, Williams filed a petition for post-conviction relief on the battery 

conviction but withdrew it in 2001 after obtaining a copy of his trial transcript. 

In 2008, Williams requested leave for a belated appeal of his battery conviction, 

but the trial court denied his request. This Court affirmed. See Williams v. State, 

No. 02A03-0805-CR-218 (Ind. Ct. App. Sept. 29, 2008), trans. denied.
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[4] On January 19, 2014, Williams sent a request for access to public records to the 

Allen County Courthouse, asking for a copy of the “trial disc” from CF-395. 

Appellant’s App. Vol. 2, p. 55. The Allen Circuit and Superior Courts Clerk 

denied his request, stating the office did not have such a disc. The Allen 

Superior Court separately denied his request, stating that the court “does not 

make copies of ‘trial disks’” but that he was otherwise free to inspect the court’s 

files. Id. at 79.

[5] In February 2014, Williams filed a formal complaint with the Indiana Public 

Access Counselor asking for a ruling that he is entitled to a copy of the trial 

disc. The Allen Superior Court filed a response. Neither party advised the 

Counselor that Williams already had a printed copy of the trial transcript. On 

April 1, 2014, the Counselor issued an advisory opinion recommending that the 

court give Williams a copy of the recording if “the Court has . . . the method of 

electronic retrieval to make a trial disk of your proceeding.” Id. at 73.

[6] In December 2014, Williams filed a second petition for post-conviction relief on

his battery conviction. It appears from the record that the petition is pending.

[7] On April 21, 2016, Williams filed a complaint in Sullivan County (where he

was incarcerated at the time) against the Allen County Circuit and Superior 

Courts, Judge Wendy W. Davis, Allen County Clerk Lisbeth A. Borgmann, 

and Court Reporter Marcia Terenet, claiming they violated the Access to Public

Records Act, Indiana Code section 5-14-3-1 et seq., by failing to give him a copy 
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of the trial recording. He asked that the defendants be ordered to provide a 

copy of the disc and to pay civil penalties.

[8] The case was transferred to Allen County, where the parties filed cross-motions 

for summary judgment. On July 20, 2017, the trial court granted summary 

judgment to the court officials, stating that they met their obligations under 

APRA by giving Williams the paper transcript in 1999. This appeal followed.

Analysis

[9] A movant is entitled to summary judgment “if the designated evidentiary 

matter shows that there is no genuine issue as to any material fact and that the 

moving party is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). 

We review summary judgment de novo. Schoettmer v. Wright, 992 N.E.2d 702 

(Ind. 2013). We construe all facts and reasonable inferences drawn therefrom 

in a light most favorable to the non-moving party. McSwane v. Bloomington 

Hosp. & Healthcare Sys., 916 N.E.2d 906 (Ind. 2009). We owe no deference to a 

trial court’s legal conclusions. Int’l Union of Police Assocs., Local No. 133 v. 

Ralston, 872 N.E.2d 682 (Ind. Ct. App. 2007). Cross-motions for summary 

judgment do not alter this standard or change our analysis. Erie Indem. Co. v. 

Estate of Harris, 99 N.E.3d 625 (Ind. 2018).

[10] Williams accuses the court, the clerk, and the court reporter of acting “above 

the law” in denying his request for a copy of his trial recording. Appellant’s Br. 

p. 8. The trial court ruled otherwise, and we agree.
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[11] The General Assembly has determined:

it is the public policy of the state that all persons are entitled to 

full and complete information regarding the affairs of 

government and the official acts of those who represent them as 

public officials and employees. Providing persons with the 

information is an essential function of a representative 

government and an integral part of the routine duties of public 

officials and employees, whose duty it is to provide the 

information. [APRA] shall be liberally construed to implement 

this policy and place the burden of proof for the nondisclosure of 

a public record on the public agency that would deny access to 

the record and not on the person seeking to inspect and copy the 

record.

Ind. Code § 5-14-3-1 (1995). We apply a presumption in favor of disclosure of 

records. Evansville Courier & Press v. Vanderburgh Cty. Health Dep’t, 17 N.E.3d 

922 (Ind. 2014).

[12] The version of APRA that was in effect when Williams filed his records request 

in 2014 declared: “[a]ny person may inspect and copy the public records of any 

public agency during the regular business hours of the agency.” Ind. Code § 5-

14-3-3(a) (2012). The Indiana Supreme Court has declared a similar broad 

policy in Indiana Administrative Rule 9(D)(1), which provides that court 

records shall be “accessible to the public.” If a public agency denies a request to 

inspect a record, a trial court reviews the matter de novo, “with the burden of 

proof on the public agency to sustain its denial.” Ind. Code § 5-14-3-9 (2013).

[13] APRA defines a public record as:
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any writing, paper, report, study, map, photograph, book, card, 

tape recording, or other material that is created, received, 

retained, maintained, or filed by or with a public agency and 

which is generated on paper, paper substitutes, photographic 

media, chemically based media, magnetic or machine readable 

media, electronically stored data, or any other material, 

regardless of form or characteristics.

Ind. Code § 5-14-3-2 (2013). Copying a record is defined as “transcribing by 

handwriting, photocopying, xerography, duplicating machine, duplicating 

electronically stored data onto a disk, tape, drum, or any other medium of 

electronic data storage, and reproducing by any other means.” Id.

[14] The Code further provides:

A public agency that maintains or contracts for the maintenance 

of public records in an electronic data storage system shall make 

reasonable efforts to provide to a person making a request a copy 

of all disclosable data contained in the records on paper, disk, 

tape, drum, or any other method of electronic retrieval if the 

medium requested is compatible with the agency’s data storage 

system.

Ind. Code § 5-14-3-3(d).

[15] Indiana Administrative Rule 9(D)(4) states that a person may not be denied a 

right to access a court record, but a “Court may manage access to audio and 

video recordings of its proceedings to the extent appropriate to avoid substantial 

interference with the resources or normal operation of the court . . . .”
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[16] If a statute is clear and unambiguous, we apply its words and phrases “‘in their 

plain, ordinary, and usual sense.’” Garner v. Kempf, 93 N.E.3d 1091, 1094 (Ind. 

2018) (quoting KS&E Sports v. Runnels, 72 N.E.3d 892, 898-99 (Ind. 2017)). 

Williams already had a paper copy of the transcript from CF-395 when he 

requested a copy of the recording in 2014. He had received the paper copy, in 

the form he had requested, during his prior post-conviction proceeding, 

consistent with ARPA. Nothing in ARPA or Administrative Rule 9 at the time 

Williams filed his request required the Allen Superior Court or the trial court 

clerk to give him a second copy of the trial record in a different format.1

[17] Even if Williams was entitled to a copy of the original recording, the Allen 

Superior Court and the trial court clerk informed the trial court through a court 

employee’s affidavit that they no longer have it. Williams did not provide any 

evidence to the contrary. Court officials cannot be required to produce what 

they do not have, especially after Williams waited twenty-five years to present 

his request.

[18] Further, neither the trial court nor the trial court clerk breached their

recordkeeping obligations. In 1989, Indiana Criminal Rule 5 provided, “a 

 

1

In 2018, the Indiana General Assembly amended Indiana Code section 5-14-3-3 to state, “A public agency 

shall provide an electronic copy or a paper copy of a public record, at the option of the person making the 

request for the public record. This subsection does not require a public agency to change the format of a 

public record.” 2018 Ind. Acts 2196. Even if the 2018 amendment applied to Williams’ case, it would not 

change the result because Williams originally requested a copy of the trial proceedings in paper format. 

Moreover, it may be that this amendment actually constitutes a declaration about court procedure, which is 

governed by Supreme Court rules.
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printed transcript shall be produced and maintained as a court record for fiftyfive years.” Trial courts were required to maintain recordings only “[i]f a 

transcript of the recorded matters has not been prepared.” Id. There is no 

dispute that the Allen Superior Court prepared a transcript and gave Williams a 

copy, so the court was not obligated to also retain the recording. The trial court 

did not err in determining the court officials were entitled to judgment as a 

matter of law.

[19] Williams argues he is entitled to a copy of the trial recording because the 

Counselor determined it should be provided to him. While we carefully 

consider the Counselor’s decisions, they are “advisory.” Ind. Code § 5-14-4-10 

(1999). In this case the Counselor’s determination was based on incomplete 

facts because neither party told the Counselor that Williams had already 

received a paper copy of the transcript.

[20] Finally, Williams argues he is entitled to an award of costs and fees. A plaintiff 

in an action to compel access to public records is so entitled, but only if he 

“substantially prevails.” Ind. Code § 5-14-3-9(i) (2013). Counsel Thomas 

Hardin correctly observes for the clerk that “Williams cannot be said to have 

‘substantially prevailed’ by any definition of the term.” Appellant Borgmann’s 

Br. p. 14.

Conclusion

[21] For the reasons stated above, we affirm the judgment of the trial court.

[22] Affirmed.
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Kirsch, J., and May, J., concur.