Open Door Law, Public Records Law, Retention Laws

1. Open Door Law, Public Records Law, Retention Laws December 14, 2010 Election Administrator’s Conference

2. Where can I find these laws? • Open Door Law (IC 5-14-1.5), pages 481-487 of 2010 Election Code • Public Records Law (IC 5-14-3), pages 487-500 of 2010 Election Code, and certain sections in IC 3-7 concerning voter registration records. • State Record Retention Law (IC 3-10-1-31.1), page 222 of 2010 Election Code; cross-references in laws about other types of elections.

3. Basic Open Door Law Questions: • When is there a “meeting”? • How much notice must be given? • What kind of notice must be given? • Does there have to be an agenda? • When can there be an “executive session”? • Can there be a “secret ballot”? • What if the law isn’t followed?

4. Is this a “meeting”? • A gathering of a majority of the County Election Board to take “official action”: receiving information, deliberate, make recommendations or decisions. • Exemption: social or chance gatherings not intended to evade law • Exemption: traveling to or attending better government meetings.

5. Circuit court clerk; board of registration • “Governing body” means 2 or more individuals who are exercising legal authority and making decisions. • Circuit court clerk is only 1 individual. • Board of Voter Registration is 2 person body. No specific exemption from law’s requirements.

6. Notice requirements • At least 48 hours notice (not including Saturdays, Sundays, or legal holidays). • Media annual notice requirement: US mail/email/fax. • Exemption: Reconvened meetings when time and place of reconvened meeting announced at properly noticed meeting.

7. A “real emergency” • “Actual or threatened injury to person or property” • “Actual or threatened disruption” of government activity under authority of office. • 48 hour notice does not apply; instead, news media given same notice as board members; notice of meeting posted for public.

8. Risk of “running late” • If meeting starts at time “so unreasonably departing from the time stated in its public notice that public misled or substantially deprived of opportunity to attend”, then meeting has not met notice requirements. • No set time limit for meeting running late. • SOLUTION: Have someone present at meeting site, make announcement about delay.

9. “I’ll just whisper”: How notice is given • Posting copy of notice “at principal office of the agency conducting the meeting” • If no office, post in building where meeting occurs. • Not necessary outside actual meeting room. But location must be specified in notice. • Legal publication of notice not required. • Ask county attorney about newspaper legal notice requirements. (IC 5-3-1-2)

10. Regularly scheduled meetings • Consider possibility of regularly scheduled meetings (once a month, the second Tuesday at 10 am, for example). Cancel meeting if no important business. • Notice only given once a year. Additional notice necessary only if time, date, or place of regular meeting changed.

11. Agendas • Agenda not required to be used. • If agenda is used, must be posted “at entrance to location of meeting” before the meeting occurs. • Cannot adopt item by “agenda number” only. “Move to adopt item 5 on the agenda…”

12. “Minutes” and Memoranda • “Minutes” required for county election board. • Consider risk of litigation, using tape recordings, etc. • “Memoranda” must be available within reasonable time after meeting to inform public of proceedings. • Memoranda must include: date, time, and place of meeting; members present and absent; “general substance” of matters discussed or decided; record of all votes taken, by individual member if roll call.

13. Secret Ballots? • A secret ballot vote may not be taken at meeting. (IC 5-14-1.5-3). • Only time secret ballots permitted in election law are on election day, and during political party caucuses.

14. “Executive Sessions” • What is an “executive session”? • When can a board have one? • Where authorized by law: • Missouri rule – “Show me where it says…” • Litigation discussion and strategy; lawsuit filed or threatened in writing. • Discussion of confidential records.

15. Executive Sessions • Public notice must identify specific law that allows executive session. • Impromptu executive sessions not allowed: “Governing body may not conduct executive session during a meeting… A meeting may not be recessed and reconvened…” with intent to evade Open Door Law. • Certification of compliance by board required.

16. What if the Open Door Law Isn’t Followed? • Potential lawsuit (IC 5-14-1.5-7) • Can ask for court to “declare void any policy, decision, or final action” taken at executive session or regular meeting held without proper notice. • Generally, must be filed within 30 days after date of “action complained of” or date person “should have known” of action.

17. What if the Open Door Law Isn’t Followed? • Court determines whether to “void” agency action after deciding extent to which violation affected public “knowledge or understanding” of agency’s decision. • Court also looks at reliance on decision by the public and what effect declaring the action void would have. (Campaign finance fine versus election canvass). • Cooperation with Public Access Counselor.

18. Who is the Public Access Counselor? • Independent state office created to advise public and governing bodies about Open Door Law and Public Records Law. • Contact: Andrew J. Kossack, 402 West Washington St, Room W460, Indianapolis, IN 46204; • (317) 233-9435

19. Basic Public Record Law Questions: • Which records are “public”? • What discretion does an agency have? • What about records with some confidential information? • How does an agency respond to a public records request? • What if the law isn’t followed?

20. “Public” Records; The Missouri Rule: • Begin with assumption that any agency record is available for public inspection and copying. • The magic words: “Show Me where it says that a record is, or can be, ‘confidential’.” • If not, then the document is public record.

21. Election-Related Public Records Issues: • Absentee application and ballot information. IC 3-11-4-17 requires Clerk keep record of absentee ballot applications sent, ballots sent, and ballots returned. Not “confidential” • Original voter registration application: IC 3-7-27-12 provides that forms be available for inspection and copying.

22. Election-Related Public Records Issues: • Voter registration transfers, cancellations, etc. Public records under IC 3-7-27-12. • Poll Lists, other Precinct Forms: Must be “sealed and preserved”, but are available for inspection and copying. • Original marked ballots: IC 3-10-1-31.1 These ballots are confidential.

23. Election-Related Public Records Issues: Electronic Voter Registration Records: • Depends on policy REQUIRED to be adopted by county election board under IC 3-7-27-6(c). • If you don’t know what your county’s policy is, or have a written copy of it, GET ONE! • Must be “uniform and nondiscriminatory”. Choice is whether to make available to all, or none. If available, for standard fee.

24. Agency Discretion Concerning Public Records: • First question: Do you create a public record or not? Many records not REQUIRED to be created, but once created, are public records. • Written request or use of form can be required by agency policy. (IC 5-14-3-3). • No charge for inspection; limited charges for copying (IC 5-14-3-8)

25. “Partially Confidential” Records: • Classic example: “Legacy” voter registration applications with full Social Security number. • Public record with confidential information can have confidential material “separated” before inspection. (IC 5-14-3-7) • SUGGESTION: Photocopy original and “redact” confidential information on copy.

26. Public Records Request: • In person: Respond within 24 hours of request. • In writing: Respond within 7 days after request received. • “Respond” does not mean make photocopies of documents requested. Instead, means indicate if agency will comply with request, how, and when.

27. What if the Public Records Law Isn’t Followed? • Lawsuit can be filed in circuit or superior court. (IC 5-14-3-9) • Burden is on public agency to prove that inspection and copying should not be allowed. • Court can award attorney’s fees to requestor, or to government agency, if court finds that requestor “substantially prevailed”, or if requestor’s lawsuit was frivolous.

28. Record Retention Laws: Everything Isn’t “Dust in the Wind”. • What records must be kept forever? • When can certain records be disposed of? • How does the agency dispose of records?

29. Record Retention: What is kept forever? • CEB and Board of Registration minutes, orders, policies. • Samples of official ballots. • Canvassed precinct election results.

30. Record Retention: When can it be tossed? • Unvoted ballots: after recount and contest deadline. • Voter Registration declinations, and cancelled records: 24 months after applicable election. • Voted ballots, Absentee Ballot Applications, Poll Lists: 22 months after applicable election.

31. Record Retention: When can it be tossed? • Original Voter Registration Records: Keep as long as person is registered to vote (active or inactive), then dispose of 24 months after cancellation.

32. Record Retention: Local Commission on Public Records • Local Commission on Public Records meeting required to dispose of some documents. • Members are county and municipal officials. IC 5-15-6. • Local retention schedule for records may have been adopted. • If meeting needed, can be a 5 minute lunch break.

33. State Commission on Public Records: 402 West Washington St, Room W472, Indianapolis, IN 46204; (317) 232-3380

34. Questions? Thanks! Brad King Co-Director, Indiana Election Division (317) 233-0929 (direct) bking@iec.in.gov