Transcript Public Records and Open Meetings Heather Willis Neal Indiana Public Access Counselor Indiana Civil Rights Commission CLE February 22, 2008

Public Records and
Open Meetings
Heather Willis Neal
Indiana Public Access Counselor
Indiana Civil Rights Commission CLE
February 22, 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.
 A group of state employees who meet to conduct
business is not a governing body.
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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 (i.e. voting)
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Open Door Law
Basics

Serial meetings
In 2007, the 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 but may make
decisions (Baker v. Town of Middlebury, 753
N.E.2d 67 (Ind. Ct. App. 2001))
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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 if there is no office.
– 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 the
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 under I.C. § 5-14-1.56.1(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
– 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.
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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.
Berry v. Peoples Broadcasting Corp., 547
N.E.2d 231 (Ind. 1989)

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 a
public agency under specific authority granted
to the agency by statute
– Declared confidential by rule adopted by
Indiana supreme court (Administrative Rule 9)
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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
– Deliberative material – expressions of opinion
or speculative in nature and communicated
for the purposes of decision making
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Access to Public Records Act
Basics

Fees
– State agencies may charge the fee prescribed
by the Indiana Department of Administration:
$.10 per page for 8 ½ x 11 or 8 ½ x 14.
– The APRA’s general provisions regarding fees
are superseded by a specific statute allowing
higher fee.
– Agencies may require advance payment.
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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 agency must follow the agency’s
retention schedule adopted by the Oversight
Commission on Public Records; the state
general retention schedule covers records
which are not agency-specific.
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Open Door Law
Use of Technology

Access Laws do not always keep pace with
technological advances.

But the purpose behind the law is
constant and should be kept in mind when
addressing new issues in public access.
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Use of Technology

Teleconferencing or videoconferencing of
meetings
– Generally, a member of a governing body who
is not physically present but communicates by
electronic or telephonic means may not vote
and may not be counted present
– Some specific statutes allow for
teleconferencing or videoconferencing
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Use of Technology

Electronic mail
– Members of governing body must be cautious
in use of email when it is used between and
among members to conduct official business.
– Virginia high court ruled that email
communications did not constitute a meeting
in Beck v. Shelton, 593 S.E.2d 195. E-mail
communication lacked simultaneity.
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Use of Technology
Simultaneous communication by email
among a majority of members of a
governing body might be a “meeting”
within the meaning and spirit of IC 5-141.5-2(c).
 Indiana appellate courts have not ruled on
the question.

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Use of Technology

Electronic Mail
– Any record, including electronic media,
created received, retained, maintained, or
filed by or with a public agency is a public
record.
– Therefore, electronic mail is a public record if
it is created, received, retained, maintained,
or filed with a public agency, including a
governing body.
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Use of Technology
Electronic mail must be available for
inspection and copying by the governing
body.
 Electronic mail must be maintained in
accordance with records retention
schedules, under IC 5-15.
 The state email retention policy is to view
the email as the record it is; “email” is not
its own type of record

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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 a
copy of the 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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Access to Public Records Act
Enforcement Provisions

If a person who files an action in court
regarding alleged violation of the APRA is
victorious and has previously received an
informal or advisory opinion from the
public access counselor, the public agency
will be responsible for attorney fees,
reasonable litigation expenses and court
costs.
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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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