Communication and Disclosure of Utility Information

1. Communication and Disclosure of Utility Information Heather Willis Neal Indiana Public Access Counselor ISBA Utility Law Section Fall Seminar October 19, 2007

2. Office of the Public Access Counselor • The Office of Public Access Counselor was established by statute in 1999. • Powers and duties • train public officials • educate the public • respond to inquiries • issue advisory opinions

3. Enforcement Authority • Opinions are advisory only. • Attorney fees, costs, and reasonable expenses of litigation are preserved for prevailing plaintiffs in a lawsuit filed under I.C. § 5-14-1.5-7; I.C. § 5-14-3-9.

4. Annual Report Data • The Public Access Counselor files an annual report July 1 to the legislature. • From 1999 to 2006, formal complaints have increased 549% from 41 to 225. In 2007, we are at 300 in early October. • In the first two reporting years, inquiries from governmental agencies were greater than inquiries from the public.

5. Resources on Public Access • The Office of the Public Access Counselor is the best single resource in the state on the Open Door Law and the Access to Public Records Act. • Web address: www.in.gov/pac

6. Open Door Law Basics • The governing body of a public agency has a duty to observe the policy of the Open Door Law: that official action be conducted and taken openly. • The full text of the Open Door Law can be found at I.C. § 5-14-1.5.

7. Open Door LawBasics • What is a public agency? - Any board, commission, dept., agency, other entity exercising executive, administrative, or legislative power of the state or a delegated local government power. - Any entity subject to budget review by the dept. of local government finance or state board of accounts. - Any advisory body created by statute, ordinance or executive order to advise the governing body.

8. Open Door LawBasics • 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. • What is a meeting? A gathering of a majority of the governing body for the purpose of taking official action upon public business.

9. Open Door LawBasics • What is not a meeting? • Any social or chance gathering not intended to avoid this chapter; • any on-site inspection of any project, program or facilities of applicants for assistance; • traveling to and attending meetings of organizations devoted to the betterment of government • a caucus;

10. Open Door LawBasics • What is not a meeting? • A gathering to discuss an industrial or commercial prospect that does not include a conclusion as to recommendations, policy, decisions or final action on the terms of a request or an offer of public financial assistance; • An orientation of members on their role and responsibilities as public officials; or • A gathering for the sole purpose of administering an oath

11. Open Door LawBasics • What is “official action?” • receiving information • deliberating • making recommendations • establishing policy • making decisions • taking final action

12. Open Door LawBasics • Serial meetings 2007 General Assembly added new language to prohibit serial meetings, where 3 members but less than a quorum meet and then subsequent meetings involve at least 2 members (and the sum of all meeting attendees constitutes a quorum) all held within 7 days to take official action on public business.

13. Open Door LawBasics • Executive session • A meeting from which the public is excluded, except for persons necessary to carry out business • There are 13 executive session instances • The instances are narrowly construed • The governing body may not take final action in an executive session

14. Open Door LawBasics • Common executive sessions • Discussion of strategy with respect to initiation of litigation or litigation that is pending or has been threatened specifically in writing (I.C. § 5-14-1.5-6.1(b)(2)(B) • To receive information about and interview prospective employees (I.C. § 5-14-1.5-6.1(b)(5)) • To discuss a job performance evaluation (I.C. § 5-14-1.5-6.1(b)(9)

15. Open Door Law Basics • Time for Notice • The notice requirements apply to open meetings, reconvened meetings, rescheduled meetings, and executive sessions • Must post notice of date, time and location of meeting 48 hours in advance of meeting, not including Saturdays, Sundays, or legal holidays

16. Open Door Law Basics • Posting or delivery of notice • Notice must be posted at agency’s principal office or at meeting place • The agency must also deliver notice to all news media that deliver by January 1 an annual written request for such notices. The delivery of notice to news media does not meet the “posting” requirement, even if the media publish the notice or advertise your meeting.

17. Open Door Law Basics • Requirements for notice, continued • Notice of regular meetings need be given only once each year, except that an additional notice shall be given where the date, time, or location of a regular meeting is changed. • Executive session notice must be posted with each session; the ODL doesn’t allow notice of “regular” executive sessions

18. Open Door Law Basics • Special notice requirements for executive sessions: • The notice must contain the same information as for an open meeting, but must also state the subject matter by specific reference to the enumerated instance(s) for which executive sessions may be held. (e.g., “to interview prospective employees under I.C. § 5-14-1.5-6.1(b)(5).”)

19. Open Door Law Basics • Agenda and Memoranda Requirements • An agency is not required to have an agenda under the ODL. • If the governing body utilizes an agenda, the agenda must be posted outside the meeting at some time before the meeting – the ODL does not provide a time by when the agenda must be posted

20. Open Door Law Basics • Agenda and Memoranda Requirements • An agency may deviate from its posted agenda unless a specific statute provides otherwise. • A final action adopted by reference to agenda number or item alone is void

21. Open Door Law Basics • Agenda and Memoranda Requirements • Memoranda must be kept as the meeting progresses, and contain the following: • Date, time and location of meeting • Members present and absent • The general substance of all matters, proposed, discussed, or decided • A record of all votes taken, by individual members if there is a roll call

22. Open Door Law Basics • Agenda and Memoranda Requirements • The memoranda are to be available within a reasonable period of time after the meeting. • The minutes, if any, are to be open for inspection and copying. • Draft minutes of a public meeting are disclosable public records despite not being in final form or adopted by the governing body.

23. Open Door Law Basics • Special memoranda requirements for executive sessions: • Same requirements as for meetings, except the memoranda and minutes must identify the subject matter considered by specific reference to the enumerated instance or instances for which public notice was given. • The memoranda and minutes must certify no other matter was discussed.

24. Open Door LawBasics • A right of the public to record the meeting, found at I.C. § 5-14-1.5-3(a) includes the right to audio or video record the meeting. • A governing body may place reasonable restrictions on the use of such equipment, but may not ban the use of audio or video recorders.

25. Open Door LawEnforcement Provisions • A person may file a complaint with the Office of the Public Access Counselor alleging denial of rights under the ODL. • A person may file an action in a court to obtain a declaratory judgment; enjoin violations; or declare void any policy, decision or final action, under certain circumstances.

26. Access to Public Records ActBasics • “It is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.” I.C. §5-14-3-1.

27. Access to Public Records ActBasics • “Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information.” • The full text of APRA can be found at I.C. § 5-14-3.

28. Access to Public Records ActBasics • General Rule: Any person may inspect and copy the public records of a public agency during the agency’s regular business hours, unless there is an exception to disclosure in law.

29. Access to Public Records ActBasics • “Public records” are broadly defined: can be summarized as “any material that is created, received, retained, maintained or filed by or with a public agency.” • The Indiana Court of Appeals has added to this definition any material created for or on behalf of a public agency.

30. Access to Public Records ActBasics • The agency may require a person to submit a request for a public record in writing, on or in a form supplied by the agency. • The agency shall either make the requested copy or allow the person to make a copy on the agency’s equipment or on the person’s own equipment.

31. Access to Public Records ActBasics • An agency must make reasonable efforts to provide a copy of electronic data to a person if the medium requested is compatible with the agency’s system. • If a record contains disclosable and nondisclosable information, the agency shall separate the disclosable material and make it available.

32. Access to Public Records ActBasics • Public Agency’s Responsibility • Respond to requests made in person or over telephone within 24 hours of receipt. • Respond to mailed, faxed, or e-mailed requests within 7 calendar days of receipt. • Respond in writing to written requests for records; best practice is to respond to all requests in writing. • Responding is not necessarily producing the record.

33. Access to Public Records ActBasics • Agency’s Responsibility, continued • If denying records, state reason for denial with citation to authority, and give name and title or position of person responsible for denial. • Produce records in reasonable time; communication with person requesting is key.

34. Access to Public Records ActBasics • Exemptions to disclosure I.C. § 5-14-3-4 • Section 4(a) categories are confidential • Declared confidential by state statute • Required to be kept confidential by federal law • Patient medical records created by a provider • Declared confidential by rule adopted by Indiana supreme court (Administrative Rule 9)

35. Access to Public Records ActBasics • Section 4(b) are discretionary categories • Investigatory records of law enforcement • Attorney work product • Personnel file information, except for information that must be disclosed • Telephone number, address, and social security number of a customer of a municipally-owned utility

36. Access to Public Records ActBasics • Fees • Local agencies (cities or towns) may charge only the fee schedule adopted by the fiscal body of the agency (town or common council). State agencies may charge $.10 per page. • May not exceed the actual cost for providing a copy of the public record. • Actual cost is the cost of the paper and per page cost for use of the equipment.

37. Access to Public Records ActBasics • Fees, continued • APRA’s general provisions on fees are superseded by a specific statute allowing higher fee. • Agencies may require advance payment.

38. Access to Public Records Act • Opinion of the Public Access Counselor 06-FC-172 IURC and OUCC’s reliance on a Settlement Agreement to refuse disclosure was not allowable under the APRA. There must be statutory authority to withhold disclosure.

39. Office of the Public Access Counselor • Our contact information • 402 West Washington Street, W460 Indianapolis 46204 • Fax: 317.233.3091 • Toll free: 800.228.6013 • Phone: 317.234.0906 • Visit our website at www.in.gov/pac for 48-page handbook and advisory opinions