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home : most recent : madison August 23, 2017


6/17/2017 6:24:00 PM
City of Anderson claims immunity in open records complaint

Ken de la Bastide, Herald Bulletin City and County Government Reporter

ANDERSON — In his response to a complaint alleging the city of Anderson violated the state’s open records law, the city’s assistant attorney maintains it is protected by absolute and qualified immunity.

Local attorney Alex Beeman filed the complaint in April on behalf of Kathleen Oberhart after the city of Anderson declined to provide records from an accident in which her husband, Daniel, and son, Riley, died while Anderson police were in pursuit of robbery suspect Gary Agnew, who also died.

Daniel Oberhart, 53, and his son Riley, 24, died in the crash on Raible Avenue that occurred about 11:15 p.m. Jan. 14. Kathleen Oberhart, 50, and daughter Macy, 14, survived.

Agnew, 55, who minutes before had allegedly robbed the Pizza Hut restaurant on Nichol Avenue, also died in the head-on collision.

The case has been transferred from Madison Circuit Court Division 6 to Division 5, where Judge Thomas Clem was appointed special judge and will now decide the case. A review hearing is set for August 2.

Assistant city attorney Evan Broderick in the response said the city acted in good faith and the city was advised by the Indiana Public Access Counselor not to release the requested documents.

The Oberhart family has filed a tort claim with the city for the wrongful deaths of Daniel Oberhart and Riley Oberhart.

Broderick wrote the city has absolute and qualified immunity when it comes to the complaint and the records requested must be excluded from public access or may be excluded at the city’s discretion.

Beeman requested dash camera video from the patrol car of Sgt. Nicholas Durr, incident and accident reports related to the crash, a copy of the police department’s pursuit policy and copy of the emergency driving and emergency response policies and procedures.

The city denies a high-speed chase took place after the robbery at the Pizza Hut and that the city provided all the 911 calls and communications between officers and Central Dispatch.

Broderick also indicated the city was denying the request for the Anderson Police Department’s policy on vehicle pursuit.

The city also denies that it failed to provide the complete accident report.

Beeman requested the records on Jan. 20, Feb. 2 and on Feb. 8.

Broderick denied the request in a Feb. 3 letter.

In a letter to Beeman, Broderick said none of the officers involved in the pursuit were driving vehicles with dash cameras, and were not wearing body cameras.

Broderick did provide copies of the 911 call made by Pizza Hut employees and dispatch traffic that took place during the incident.

He said the city has a vehicle pursuit policy in place which took effect in 1994 and was amended in 2013.

“The nature of the internal guide, if made public, would provide criminals with a manual on how to evade the Anderson Police Department during a vehicular pursuit,” Broderick wrote previously.

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