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Carthage Claims Town Marshal is Also an ‘Undercover’ Officer
July 1, 2009 - The town of Carthage has balked at providing cell phone and pay records for Town Marshal Dan Murphy, citing a state law that permits the withholding of certain information for undercover officers.
The Banner filed its record request with the town on June 22. In a response received a week later, on June 29, the town's new attorney, Adam Forrest, said the town "must deny" most of The Banner's request.
According to Forrest, Murphy sometimes serves "in an undercover capacity in order to investigate and enforce the law." Because of this undercover work, Forrest said the state's Access to Public Records Act allows the town to withhold certain personnel information that normally must be released for other public employees.
Forrest said Carthage will not release Murphy's cell phone bills, citing the statutory exception for records on undercover officers and another statute that says law enforcement agencies don't have to release the job title and job description of officers. He did, however, say the town would be willing to provide The Banner with the total amount the town paid for each cell phone bill.
Murphy's time cards and his payroll history, Forrest said in his letter, will also not be provided. He cited the same two statutes in support of not providing these records as he had with respect to the cell phone records.
The town's reliance on the statute that exempts certain records of undercover officers came as a surprise to The Banner, since Murphy's employment status with the Carthage Police Department has always been a matter of public knowledge. First hired as an interim deputy in late April 2008, Murphy was, in just a matter of days, elevated to interim town marshal, a position that became permanent a month later.
As Carthage's town marshal, Murphy is the CPD's only full-time employee. Moreover, until just recently, the phone number for the cell phone he used for official business had been publicly given out by the town council president, Rich Bush. Because of the high volume of calls he was receiving, the council voted in April of this year, at Murphy's request, to pay to have his cell phone number changed. Because his cell phone would no longer be used primarily for business purposes, the council also agreed it would stop paying his cell phone bill, which, according to McMahan, had sometimes been as high as $150 a month.
An attorney who regularly advises Indiana newspapers on issues involving public records told The Banner he thinks Carthage has no legitimate basis for not providing the requested records. Steve Key, general counsel for the Hoosier State Press Association, said the town's attorney reliance on a statute dealing with undercover officers is misplaced.
"The two provisions that the attorney cites … were intended to allow the police department to protect the lives of undercover police officers and ongoing undercover investigations," Key said. "I don't see how Carthage could claim the records requested would do either in a situation where Murphy is commonly known as the town marshal and where the council publicly announced his cell phone number and encouraged citizens to use that number to contact Murphy."
"Since Murphy's job title is publicly known, I don't see how the billing records and phone usage records or payment records would be deemed protected through the undercover police provisions," Key continued. "At most, the city could argue for deletion of numbers called while Murphy was operating undercover or bills or payroll directly attributed to his undercover work, but that should be a small percentage of the records involved since his primary job consists of being a very public figure - the town marshal of Carthage."
The Banner continues to review its options for handling the town's refusal to provide the requested records.
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