BMV denies being secretive on overcharging records

The Indiana Bureau of Motor Vehicles is denying allegations that it's being secretive about its release of videos and other documents related to a lawsuit over the agency's overcharges.

Two issues were central to the dispute at a contentious hearing Wednesday in Marion Superior Court: whether video depositions about the motorist overcharges should be withheld from the public and whether the BMV should be held in contempt for missing a deadline for producing documents related to the case.

Wayne Turner, an attorney representing the BMV, said the video depositions should not be released because the media only publishes clips in their reports, which he said provides a distorted view of the information.

"This is not a request for a gag order," he said, but rather a "matter of protecting" current and former BMV employees.

The agency took its stance in September, several months after The Indianapolis Star and other media published a recorded deposition of former BMV Deputy Director Matthew Foley.

In the video, Foley testifies under oath that top agency officials knew they were improperly charging Hoosiers for years, but secretly continued the practice to avoid budget troubles.

However, Attorney Irwin Levin, who is representing motorists in the lawsuit, asked Judge John Hanley at Wednesday's hearing not to involve the court in telling the press how to cover a story, adding that the BMV's "entire argument is that the BMV doesn't like the way the story is being told."

The BMV's efforts to keep the videos secret is just the latest wrinkle in the lawsuit, which seeks to recoup $30 million to $40 million that the BMV overcharged Indiana motorists for personalized license plates, vehicle registrations and dozens of other services.

The overcharges may date back to at least the early 2000s and have been estimated to be as much as $60 million to $80 million.

The BMV admitted last June that it had overcharged drivers for operator licenses. Then in November, it agreed to refund $30 million to motorists in a separate class action lawsuit involving those excessive charges.

The agency also said earlier this month that it has begun sending out claim forms to 180,000 Hoosiers who were overcharged an estimated $29 million in vehicle excise taxes, the agency said Wednesday. The overcharges date back to 2004 and are just the latest multimillion dollar mistake at the troubled agency.

BMV attorneys at the hearing say written transcripts would still be available, just not video. They argued that the video depositions should be secret because of "the magnitude of the mis-disclosure."

The agency's attorneys also argued that they needed more time to produce written records because they said there were more than 260,000 pages to collect. The documents that were sought by the plaintiffs included meeting minutes, emails, and spreadsheets. The agency said it did turn those records over on Tuesday, but it missed last month's deadline set by the court.

The plaintiffs believe those documents will show BMV knew about overcharges years ago, but did nothing to correct them. Levin said at the meeting that the agency's failure to release the records in a timely manner "is beyond understanding."

Levin held up a small stack of documents, before saying to the judge: "Why are we here so often? Because this is what they've produced in a year."

Carl Hayes, an attorney for BMV, countered that he had nine attorneys, three paralegals and one law clerk working on producing the requested documentation.

But Hayes also said that the lead plaintiff in the case never paid "at least 28 of 29 fees" at issue in the lawsuit. It is for that reason, he said, that they've asked that the case be dismissed and also have filed a motion to allow them to stop releasing documents to the plaintiff. A hearing on those issues is scheduled for December.

At the end of the hearing, Levin accused BMV attorneys of a "commitment to delay and obfuscation." BMV attorney Hayes responded: "That's simply not the case."

The judge did not rule Wednesday, instead taking the BMV issues under advisement. But he also admonished the attorneys on both sides, saying that the courts aren't "particularly eager to involve themselves in discovery disputes."

The BMV announced earlier this month that it has hired accounting and advisory firm BKD to review how the agency calculates and charges taxes and fees.

The agency also has admitted overcharging for dozens of other fees. The overcharges acknowledged by BMV ranged from $11 on antique vehicle registrations to 50 cents on motorcycle endorsements for operator licenses.

Those overcharges are the target of pending class action lawsuits filed by Levin of the Indianapolis firm Cohen & Malad LLP.

Call Star reporter Tony Cook at (317) 444-6081. Follow him on Twitter: @indystartony.