Kokomo Tribune; Kokomo, Indiana

Local News

February 5, 2013

Juwi sees report denied to public

County attorney: Document created to aid negotiations

— TIPTON — Tipton County officials are withholding a consultant’s report on tax abatements from the public, but not from the developers of the Prairie Breeze Wind Farm.

Included in the report, according to those familiar with it, are detailed financial estimates of what property tax abatements would be worth to juwi Wind Energy, and the property taxes the proposed wind farm project might bring to Tipton County and Tri-Central Community Schools.

John Brooke, the Muncie attorney handling public records requests for the county, denied a request for the report, saying it was produced for the purpose of helping county officials in negotiations.

The report was a public record, Brooke agreed. But he said county officials still retained discretion over whether to release it.

“The report was prepared by a consultant hired by the county for the purpose of deliberations, negotiations, and was shared at an executive session,” Brooke wrote in a Dec. 13 denial of the Kokomo Tribune’s public records request. “[County officials] are not obligated to provide information created during the course of negotiations or which are created by a private contractor which are communicative for the purposes of decision making.”

The Kokomo Tribune asked the Indiana public access counselor for an advisory opinion on Brooke’s denial letter, and in a Jan. 28 response to the Tribune’s query, Brooke told the counselor, Joseph Hoage, the report was “contemplative” and “deliberative” in nature, “as well as part of the entire negotiation process with the wind energy company that was looking to locate some wind energy improvements in Tipton County.”

The reason for asking Carmel-based consultants H.J. Umbaugh for the report, according to Brooke’s letter, was “for the purpose of deciding what, if any, benefits would be received by the Prairie Breeze Wind Farm.”

Brooke also maintained the report wasn’t provided to any other party or entity, other than Tipton County elected officials. A copy of the report was filed with Tipton County Auditor Greg Townsend, who issued the initial denial of the Tribune’s records request.

Based on Brooke’s statement, Hoage sided with Tipton County’s denial.

But in fact, the report already had been shared with juwi Wind Energy officials, before Brooke denied the records request, and while Tipton County officials were ostensibly still in negotiations with juwi.

According to former Tipton County Commissioner Jane Harper, whose term ended Dec. 31, the commissioners received an email from an H.J. Umbaugh employee during the commissioners’ Dec. 3 meeting.

According to the emails, which Harper forwarded to the Tribune, the Umbaugh consultant had been contacted by Mary Solada, an attorney representing juwi, who had asked for a copy of the Umbaugh report.

Harper said she asked fellow commissioners Mike Cline and Phil Heron, during the meeting, if they were OK with Umbaugh sending the report to juwi’s attorney, Solada. Both Cline and Heron agreed to the request, and then Harper emailed back to the Umbaugh consultant that it was OK to send the report.

The Umbaugh employee, Matt Eckerle, confirmed last week that, with the commissioners’ OK, he’d sent the report to Solada.

Matt Heck, project manager with juwi, said Friday the company had looked at the report.

Heck was in charge of producing a 40-page Power Point report juwi presented at the Dec. 18 meeting of the Tipton County Council. At that meeting, the council voted to approve the tax abatements.

“Yeah, we’ve looked at it. I don’t have a great deal of understanding of the ins and outs of it,” Heck said Friday of the Umbaugh report. “We just pulled different numbers from it, and talked about the positives, in terms of economic development.”

Solada referred questions about the document to the county’s attorney, Rick Hall. Hall didn’t return calls seeking comment.

Harper said she wasn’t happy that she wasn’t consulted, as a commissioner, before Brooke issued a denial of the Tribune’s initial Dec. 12 request.

It’s her contention decisions on records are being made by Cline, who hasn’t returned phone calls for weeks.

“I am extremely disturbed that decisions are being made by a ‘select few’ regarding the release of public records, yet it is being reported that such decisions were made by a majority of elected officials,” Harper said. “So much for transparency in government, and within government.”

Hoage said that since the Indiana Court of Appeals issued the 2003 Indianapolis Star v. Indiana University Board of Trustees decision, it has been generally accepted that once a “deliberative” record has been disclosed to an outside party, the agency can’t deny that record to other parties.

“The court of appeals has said that if an agency provides it to one party, from there on down the line, they can’t deny it to another party, based on a deliberative exception,” Hoage said.

Contacted last week, Brooke said his statement that the Umbaugh report hadn’t been supplied to a third party was based on information he’d received.

“That’s what my client has told me,” he said.

He said he didn’t think the fact juwi received the report would change the county’s position on the records request.

Scott Smith can be reached at 765-454-8569 or at scott.smith@kokomotribune.com

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