Altice, C.J.
Jose L. Lopez Sanchez, charged with operating while intoxicated (OWI), brings this interlocutory appeal of the trial court’s denial of his request to compel the discovery of police reports related to his criminal prosecution. He contends that the trial court erred in determining that the Access to Public Records Act (APRA), Ind. Code Chap. 5-14-3, applies in this context and grants the State with discretion to deny discovery of such information.
We reverse and remand.
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For many years, the Elkhart County Prosecuting Attorney’s Office (the Prosecutor’s Office) has maintained a policy whereby police reports in criminal cases are not provided to defense counsel unless counsel executes an agreement on discovery (the Discovery Agreement). The Discovery Agreement requires defense counsel to acknowledge that criminal offense reports and other investigative materials are “generally non-discoverable pursuant to [APRA]” and that it is within the discretion of the Prosecutor’s Office whether to provide such in discovery. Exhibit Book at 3. Further, this “courtesy production” comes with strings regarding counsel’s possession and use of the discovered material and provides that if counsel violates the terms of the Discovery Agreement, “the State will suspend [counsel’s] privilege to obtain all investigative materials except those mandated by law.” Id. at 3, 4.
Sanchez’s counsel refused to sign the Discovery Agreement and then pursued a motion to compel after the State withheld the police reports. This is the first of several cases that counsel is pursuing in Elkhart County courts to challenge the Prosecutor’s Office’s policy of withholding from discovery police reports, pursuant to APRA, unless counsel executes the Discovery Agreement.
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Just a few years ago, in Minges, our Supreme Court addressed a different but related policy of prosecutor’s offices in two counties to assert a blanket work product privilege to avoid producing police reports to defendants in criminal cases. The Court observed that “the majority of prosecutors across the State of Indiana regularly produce police reports to defendants and their counsel, while prosecutor’s offices in the minority of counties automatically assert the work product privilege over these documents as a matter of policy.” Minges, 192 N.E.3d at 895.
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Thus, the Court held that trial courts, with broad discretion in discovery matters, must determine – on a case-by-case basis applying T.R. 26(B)(3) – whether a police report is protectible work product. Id. at 902. In other words, police reports are generally discoverable in criminal proceedings where relevant and not privileged.
While Crim. R. 2.5 does not expressly list police reports among the mandatory disclosure items found in subsections (B)(2) through (B)(4), the rule’s clear intent is to facilitate liberal discovery and provide a criminal defendant with the maximum amount of relevant, unprivileged information within the State’s possession. And pursuant to Minges, the State may not withhold police reports from a defendant in a criminal case as a matter of course; it must establish that the particular police reports at issue are privileged.
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Here, the trial court determined that APRA was relevant to its determination of the discovery dispute. Specifically, it agreed with the State’s argument that APRA applies to a request for police reports by the defense in a pending criminal case and that Ind. Code § 5-14-3-4(b)(1) of APRA provided the State with discretion to deny Sanchez’s discovery request.4 The trial court treated the motion to compel as an action under APRA and looked to that statutory scheme to determine whether disclosure should be mandated. We agree with Sanchez that this was erroneous.
This is a discovery matter, not a public records request under I.C. § 5-14-3-3.5 Thus, the discretionary exceptions to APRA’s public disclosure requirements set out in I.C. § 5-14-3-4(b) are not relevant here and do not provide the State with the privilege of deciding whether to provide discovery of the police reports. See id. (providing a list of public records that “shall be excepted from section 3 of this chapter at the discretion of the public agency”) (emphasis supplied)). Further, applying APRA’s discretionary exceptions to forestall the discovery of relevant, unprivileged information, to which a criminal defendant would be otherwise entitled, conflicts with Indiana’s liberal discovery rules.
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As Minges makes clear, police reports are generally discoverable in a criminal proceeding unless the State establishes that a privilege applies. Crim. R. 2.5 did not change this. Further, we agree with Sanchez that the police reports in this case are discoverable under the rule’s catch-all provision, subsection (B)(5),7 because they are relevant and material to the preparation of the defense and are not privileged. The trial court believed that its authority to order disclosure under the catch-all provision was limited to “exceptional circumstances,” Appellant’s Appendix at 47, but there is no such limitation; Crim. R. 2.5(B)(5) requires only that the defense make a reasonable request and a showing of materiality to the preparation of the defense.
In sum, the trial court incorrectly determined that the State may utilize APRA to prevent a defense attorney from obtaining discovery of police reports in a pending criminal case. Further, as the State has not established any other applicable privilege, the trial court abused its discretion by denying Sanchez’s motion to compel disclosure of the police reports.
Reversed and remanded with instructions to grant the motion to compel.
Brown, J. and Tavitas, J., concur.