Transcript Indiana’s Public Access Laws and The Role of the Public Access Counselor Presented to Indiana School Boards Association Indiana Association of Public School Superintendents October 2,

Indiana’s Public Access Laws
and
The Role of the Public Access Counselor
Presented to
Indiana School Boards Association
Indiana Association of Public School Superintendents
October 2, 2007
Heather Willis Neal, Public Access Counselor
Contact Information
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On the Web: www.IN.gov/pac
By telephone: 317.234.0906
800.228.6013
By fax: 317.233.3091
By e-mail: [email protected]
By mail: 402 West Washington Street W460
Indianapolis, IN 46204
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Open Door Law
(ODL)
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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
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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.
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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.
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General Principles of ODL
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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
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ODL
Official action is
– Receiving information,
– deliberating,
– making recommendations,
– establishing policy,
– making decisions, or
– taking final action
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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
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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
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Executive Sessions
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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.
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Executive Sessions
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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
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Executive Sessions
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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.
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Executive Sessions
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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.
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Executive Sessions
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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.
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Notice Requirements
under ODL
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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)
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Notice Requirements
Under ODL
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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.
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Notice Requirements
under ODL
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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.
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Memoranda and Agenda
Requirements Under the
ODL
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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
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Memoranda and Agenda
Requirements Under the
ODL
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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
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Executive Session
Memoranda
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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
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Serial Meetings
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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
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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
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Remedies for Violation of
ODL
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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
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Remedies for Violation of
ODL
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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
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Access to Public Records
Act (APRA)
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Reference: I.C. § 5-14-3
Policy: All persons are entitled to full
and complete information regarding
the affairs of government
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“Public Record,”
Broadly Defined
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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.
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APRA’s Basic Rules
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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.
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Miscellaneous Access
Provisions
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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.
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Miscellaneous Access
Provisions
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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.
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Miscellaneous Access
Provisions
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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)
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Exceptions to Access
I.C. § 5-14-3-4(a)
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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
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Exceptions to Access
I.C. § 5-14-3-4(a)
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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
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Discretionary Exceptions
I.C. § 5-14-3-4(b)
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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,
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demote or discharge
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Discretionary Exceptions
I.C. § 5-14-3-4(b)
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Employees have access to their own
complete personnel files
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Discretionary Exceptions
I.C. § 5-14-3-4(b)
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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
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Discretionary Exceptions
I.C. § 5-14-3-4(b)
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Records specifically prepared for
discussion or developed during
discussion in an executive session
Records that would expose
vulnerability to terrorist attack
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Duties of Public Agency
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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
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Copy Fees
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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)
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Denial of Access
I.C. § 5-14-3-9
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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
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Remedies for Denial of
Access
I.C. § 5-14-3-9
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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
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Remedies for Denial of
Access
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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
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Remedies for Denial of
Access
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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.
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Public Access Counselor
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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
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Public Access Counselor
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Duties of the Public Access Counselor
– Advise, assist, educate
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Formal complaint procedure
Informal inquiries
Written opinions posted on website
– www.IN.gov/pac
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Handbook on website
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Response of PAC to
Complaints
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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
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Questions?
Thank you!
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