Transcript Indiana’s Public Access Laws Heather Willis Neal Public Access Counselor Indiana Recorders Association April 15, 2008

Indiana’s Public Access
Laws
Heather Willis Neal
Public Access Counselor
Indiana Recorders Association
April 15, 2008
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 Ind. Code 5-14-1.5.
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Open Door Law
Basics

What is a meeting?
– A gathering of a majority of the governing
body for the purpose of taking official action
upon public business.
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Open Door Law
Basics

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;
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Open Door Law
Basics

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
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Open Door Law
Basics

What is “official action?”
– receiving information
– deliberating
– making recommendations
– establishing policy
– making decisions
– taking final action
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Open Door Law
Basics

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.
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Open Door Law
Basics

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
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Open Door Law
Basics

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. § 5-14-1.56.1(b)(5))
– To discuss a job performance evaluation (I.C.
§ 5-14-1.5-6.1(b)(9))
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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
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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.
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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 pursuant to I.C. § 514-1.5-6.1(b)(5).”)
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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
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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
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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.
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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.
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Open Door Law
Basics

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.
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Access to Public Records Act
Basics

“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 Ind.
Code 5-14-3.
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Access to Public Records Act

Key definitions
– “Public Record” means 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 which is
generated on paper, paper substitutes,
photographic media,...
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APRA Overview

“Public record” continued:
– chemically based media, magnetic or machine
readable media, electronically stored data, or
any other material, regardless of form or
characteristics.
– The Indiana Court of Appeals has added to
this definition materials created for or on
behalf of a public agency. Knightstown
Banner, LLC v. Town of Knightstown, 838
N.E.2d 1127 (Ind. Ct. App. 2005)
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Access to Public Records Act
Basics

“Copy” includes photocopying as well as
making a digital copy using a digital
camera or a hand-held scanner.

“Inspect” includes the right to make notes,
abstracts and memoranda, or to listen to
an audiotape.
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Access to Public Records Act
Basics
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.

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Access to Public Records Act
Basics
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.

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Access to Public Records Act
Basics

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.
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Access to Public Records Act
Basics

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.
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Access to Public Records Act
Basics

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
– Declared confidential by rule adopted by
Indiana supreme court (Administrative Rule 9)
– Social security number contained in the
records of a public agency
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Access to Public Records Act
Basics

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
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Access to Public Records Act
Basics

Fees
– Local agencies (cities or towns) may charge
only the fee schedule adopted by the fiscal
body of the agency (town or common
council).
– 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.
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Access to Public Records Act
Basics

Fees, continued
– Agencies may require advance payment.
– APRA’s general provisions on fees are
superseded by a specific statute allowing
higher fee.
– I.C. § 36-2-7-10 lists specific fees to be
collected by recorders
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Access to Public Records

County recorders have another specific
provision regarding access to records:
– I.C. § 36-2-11-8(b) requires a recorder to
establish a written procedure for the public to
obtain access to an original instrument in
order to protect the instrument from loss,
alteration, mutilation, or destruction. The
recorder shall post the written procedure in
the recorder's office.
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Access to Public Records Act Basics

Retention of records
– The APRA requires an agency to protect
records from loss, alteration, mutilation, or
destruction.
– Each county should have a commission on
public records to adopt retention schedules.
The state oversight committee on public
records has set general retention schedules
for cities and towns which can be found at
www.in.gov/icpr/county/coretention.
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Access to Public Records Act
Enforcement Provisions
A person may file a complaint with the
public access counselor alleging a denial
of a right under APRA. The PAC sends
formal complaint to the agency for
response and issues a formal advisory
opinion within 30 days.
 A person may file a lawsuit in superior
court to compel the agency to produce a
record.

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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
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