Indiana’s Public Access Laws and The Role of the Public Access Counselor

Presented toIndiana School Boards AssociationIndiana Association of Public School SuperintendentsOctober 2, 2007Heather Willis Neal, Public Access Counselor Indiana’s Public Access Laws and The Role of the Public Access Counselor

Contact Information • On the Web: www.IN.gov/pac • By telephone: 317.234.0906 800.228.6013 • By fax: 317.233.3091 • By e-mail: pac@icpr.IN.gov • By mail: 402 West Washington Street W460 Indianapolis, IN 46204

Open Door Law(ODL) • Reference: I.C. § 5-14-1.5 • Public Policy: It is the intent of the [Open Door Law] that the official action of public agencies be conducted and taken openly, unless otherwise expressly provided by statute, in order that the people may be fully informed. I.C. § 5-14-1.5-1

Definitions General rule: All meetings of the governing bodies of public agencies must be open at all times for the purpose of permitting members of the public to observe and record them.

General Principles of ODL Three conditions must be met in order for public meeting, notice and memoranda requirements to apply: • Gathering of a majority of a governing body • to take official action • on public business.

General Principles of ODL • A member of a governing body who is not physically present at a meeting but who communicates with members during the meeting via telephone, computer, video conferencing, or other electronic means • may not vote unless expressly authorized by statute • may not be considered present unless expressly authorized by statute

ODL Official action is • Receiving information, • deliberating, • making recommendations, • establishing policy, • making decisions, or • taking final action

ODL These gatherings of a majority of a governing body are excluded from the definition of meeting: • on site inspections • traveling to and attending meetings of organizations devoted to betterment of government • a caucus • a social or chance gathering not intended to avoid ODL • gathering to discuss an industrial or commercial prospect that does not include a conclusion as to recommendations, policy, decisions, or final action

ODL • a gathering for the sole purpose of administering an oath of office • a gathering between less than a quorum of members intended solely for members to receive information and deliberate on whether a member or members may be inclined to support a member’s proposal or piece of legislation and at which no other official action will occur

Executive Sessions • Reference: I.C. § 5-14-1.5-6.1 • Members of the public do not have right to attend • 12 instances where E.S. may be held • Common instances: • to discuss strategy for the following: purchase or lease of real estate; collective bargaining or initiation of litigation or litigation pending or threatened in writing.

Executive Sessions • To receive information about and interview prospective employees • With respect to any individual over whom the governing body has jurisdiction: • to receive information concerning the individual’s alleged misconduct; • to discuss status as an employee

Executive Sessions • For discussion of records classified as confidential by state or federal statute • To discuss a job performance evaluation of an individual employee. This does not include a discussion of salary, compensation, or benefits of employee during a budget process.

Executive Sessions • When considering the appointment of a public official, to • Develop a list of prospective appointees; • Consider applications; and • Make one initial exclusion of prospective appointees from further consideration. • A “public official” is a member of a governing body or whose tenure and compensation are fixed and who executes an oath.

Executive Sessions • Final action must be taken at a public meeting • A governing body may not conduct an executive session during a meeting, except as otherwise permitted by applicable statute. A meeting may not be recessed and reconvened with the intent of circumventing this subsection.

Notice Requirements under ODL • Reference: I.C. § 5-14-1.5-5 • Requires notice of the date, time, and place of any meetings, executive session, or of any rescheduled or reconvened meeting at least 48 hours (excluding Saturdays, Sundays, and legal holidays) before the meeting. • Emergency meetings: I.C. § 5-14-1.5-5(d)

Notice Requirements Under ODL • Notice must be posted at the principal office of the public agency holding the meeting, or at the building where the meeting is to be held. • Notice must be delivered to all news media which deliver by Jan. 1 to public agency an annual written request for such notices.

Notice Requirements under ODL • Notice of regular meetings need be given only once each year except where the date, time or place of the meeting changes. Annual notice is not applicable to executive sessions.

Memoranda and Agenda Requirements Under the ODL • Reference: I.C. § 5-14-1.5-4 • No agenda required, but if utilizing one must post at the entrance to the meeting prior to the meeting • A rule, regulation, ordinance or other final action adopted by reference to agenda item alone is void

Memoranda and Agenda Requirements Under the ODL • As the meeting progresses, the following memoranda must be kept: • The date, time, place of the meeting • Members present or absent • General substance of all matters proposed, discussed, or decided • A record of all votes taken • Other information specified by other statute

Executive Session Memoranda • Memoranda must be maintained in same format as for meetings, except • memoranda and minutes must identify the subject matter considered by specific reference to the enumerated instance for which public notice was given • must contain statement certifying that no other matters were discussed

Serial Meetings • The governing body of a public agency violates the ODL if members participate in a series of at least two gatherings and those gatherings meet all the following criteria: • One gathering is attended by at least three but less than a quorum of members and the others are attended by at least two members

Serial Meetings • The sum of the number of different members attending any gathering equals at least a quorum • All gatherings concern the same subject • All gatherings are held within a seven-day period • The gatherings are held to take official action on public business

Remedies for Violation of ODL • Complaint filed with Public Access Counselor within 30 days of denial of access or of learning about the meeting • File lawsuit: • obtain declaratory judgment • enjoin continuing, threatened, or future violations of ODL • declare void any policy, decision or final action

Remedies for Violation of ODL • No need to prove special damage different from that suffered by public • Generally, must file lawsuit within 30 days of violation of ODL, but before the delivery of warrants, notes, bonds, or obligations if relief would invalidate any of those • Courts have applied a “substantial compliance” standard

Access to Public Records Act (APRA) • Reference: I.C. § 5-14-3 • Policy: All persons are entitled to full and complete information regarding the affairs of government

“Public Record,”Broadly Defined • I.C. § 5-14-3-2: Any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that is created, received, retained, maintained, or filed by or with a public agency and is generated on paper, papers substitutes, …or any other material, regardless of form or characteristics.

APRA’s Basic Rules • Anyone has the right to inspect and copy the public records of any public agency during regular business hours. • The request must identify with reasonable particularity the record being requested. • The request must be, at the discretion of the agency, on a form provided by the agency.

Miscellaneous Access Provisions • A public agency may not deny or interfere with the exercise of the right to inspect and copy. • The public agency shall either provide the requested copies or allow the person to make copies on the agency’s equipment or the person’s own equipment.

Miscellaneous Access Provisions • The agency shall make reasonable efforts to provide to a person making a request a copy of all disclosable data contained in the records on paper, disk, tape, drum, or any other method of electronic retrieval if the medium requested is compatible with the agency’s data storage system.

Miscellaneous Access Provisions • Lists of names and addresses • public agency only required to permit inspection, not copying • three types of lists may not be disclosed to commercial entities for commercial purposes • list of employees of public agency • list of persons attending meetings at state univ. • list of students enrolled in public school corp.(under certain conditions)

Exceptions to Access I.C. § 5-14-3-4(a) • Confidential Records • declared confidential by state law • declared confidential by Federal Law (FERPA) • Patient Medical Records • Under rules adopted by public agency under specific statutory authority to classify records as confidential

Exceptions to AccessI.C. § 5-14-3-4(a) • Trade secrets • Confidential financial information obtained, upon request, from a person • Information concerning research conducted under auspices of an institution of higher education • Grade transcripts and license exam scores

Discretionary ExceptionsI.C. § 5-14-3-4(b) • Discretionary: 20 Exceptions • Deliberative materials privilege • Personnel records, except • name, compensation, job title, business address; phone number; job description, education and training background, work experience, dates of first and last employment • information relating to status of any formal charges against the employee; • the factual basis for final action to suspend, demote or discharge

Discretionary ExceptionsI.C. § 5-14-3-4(b) • Employees have access to their own complete personnel files

Discretionary ExceptionsI.C. § 5-14-3-4(b) • Diaries, journals, personal notes • Computer programs, codes, and other software owned by the public agency or entrusted to it • Administrative or technical information that would jeopardize a record keeping or security system

Discretionary ExceptionsI.C. § 5-14-3-4(b) • Records specifically prepared for discussion or developed during discussion in an executive session • Records that would expose vulnerability to terrorist attack

Duties of Public Agency • Duty to provide disclosable parts of record while protecting non-disclosable portions (redaction) • Duty to preserve records from loss, alteration, destruction and regulate material interference with regular discharge of duties • Duty to observe the confidentiality of records received from another public agency

Copy Fees • Agencies may require payment in advance • Public agency need copy only when it has “reasonable access to a machine capable of reproducing the record” • School board may set a fee schedule for copies, but may not exceed the actual cost of copying (excluding labor and overhead)

Denial of AccessI.C. § 5-14-3-9 • Time for agency’s response: • 24 hours if in person or by phone • 7 days if requested by mail, facsimile or e-mail • Response does not mean production • Response is acknowledgment of request and efforts toward production, or specific reasons for denial, including citation • Written requests must be denied in writing

Remedies for Denial of AccessI.C. § 5-14-3-9 • Seek a formal advisory opinion or informal inquiry response from the Public Access Counselor • File lawsuit in circuit or superior court of county in which denial of access occurred • Burden of proof is on agency to sustain its denial

Remedies for Denial of Access • A court shall expedite the hearing of an action filed under APRA • A court shall award attorney fees, court costs, and reasonable expenses of litigation to the prevailing party if • the plaintiff substantially prevails; or • the defendant substantially prevails and the action was frivolous or vexatious

Remedies for Denial of Access • However, the plaintiff is not eligible for attorney fees, court costs, and reasonable costs of litigation if the plaintiff filed the court action without first seeking and receiving an informal inquiry response or advisory opinion from the PAC, unless the person can show the record was needed to present to a public agency preparing to act.

Public Access Counselor • Current Public Access Counselor’s term expires June 30, 2011 • Appointed by Governor to four year term beginning July 1, 2007 • One other staff member – Amy Miller

Public Access Counselor • Duties of the Public Access Counselor • Advise, assist, educate • Formal complaint procedure • Informal inquiries • Written opinions posted on website • www.IN.gov/pac • Handbook on website

Response of PAC to Complaints • PAC is required to issue advisory opinion within 30 days of receiving complaint • Priority advisory opinions issued within 7 days of receipt: see 62 IAC 1 for priority situations • Complaint form at www.in.gov/pac • Statute of limitation not tolled by filing complaint or contacting the PAC

Questions? Thank you!

Indiana’s Public Access Laws and The Role of the Public Access Counselor