Transcript How to Avoid Pitfalls and Correct Mistakes Common Problems in Public Access Heather Willis Neal Indiana Public Access Counselor.

How to Avoid Pitfalls and
Correct Mistakes
Common Problems in Public Access
Heather Willis Neal
Indiana Public Access Counselor
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.

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Other Issues on Open Meetings

Serial meetings violate the ODL. A serial
meeting occurs when all of the following
are take place:
– At least two gatherings
– One gathering is attended by at least three
members but less than a quorum
– The sum of attendees of all meetings equals
at least a quorum
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Other Issues on Open Meetings

Serial meetings continued
– All gatherings concern the same subject
matter
– All gatherings are held within seven
consecutive days
– The gatherings are held to take official action
on public business
*Attendance may be in person or by telephone
or electronic means, excluding email.
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Other Issues on Open Meetings

Committees
- Any advisory commission, committee,
or body created by statute, ordinance or
executive order to advise the governing
body.
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Other Issues on Open Meetings

Committees
- Any committee appointed directly by
the governing body or its presiding officer.
- Exception – committees appointed to
conduct collective bargaining.
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Other Issues on Open Meetings

Administrative function exception
- Only applies to county commissioners
and town boards
- Public notice not required
- Meeting still open to public
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Other Issues on Open Meetings
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Administrative function exception
- Not well-defined
- Cannot award contract or create
obligation that binds county or
town
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Other Issues on Open Meetings
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Executive sessions
Notice of meetings
- Must state subject matter and refer
enumerated instance in ODL
allowing executive session
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Other Issues on Open Meetings

Executive sessions
Memoranda and minutes
- must identify subject matter by
statutory reference
- must certify no other discussion took
place
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Other Issues on Open Meetings

Executive sessions
Memoranda and minutes
- Date, time, location
- Members recorded as absent or
present
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Other Issues on Open Meetings

Executive sessions
Baker v. Middlebury
- Expanded what can be done in an
executive session
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Other Issues on Open Meetings

How to correct a problem once it has
occurred
- “Intent of this chapter that the official
action of public agencies be conducted
and taken openly . . . In order that the
people may be fully informed.”
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Access to Public Records Act
Privacy

Social Security Numbers
– APRA exempts social security numbers from
disclosure for all public agencies.
– Upon request for access to a record, an
agency must redact social security number
from record if other information contained in
the record is disclosable
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Access to Public Records Act
Privacy

FERPA (Family Educational Rights and
Privacy Act) 20 U.S.C. §1232g
– Applies to all schools that receive funds under
a program of U.S. Department of Education.
– Generally, schools must have written
permission from the parent or eligible student
(over age 18) to release any information from
a student’s educational record. Social security
numbers may not be released without
consent.
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Access to Public Records Act
Privacy

HIPAA (Health Insurance Portability and
Accountability Act)
– If agency is a covered entity under HIPAA,
may deny access to protected health
information without a valid patient
authorization. However, very few public
agencies are covered entities (health plans,
health care clearinghouses, or health care
providers who perform covered transactions
electronically).
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Access to Public Records Act
Privacy

HIPAA does not provide an exemption to
public agencies that maintain medical
information, where the public agency is
not a HIPAA covered entity, or is otherwise
not covered by the privacy regulations
(such as is a business associate).
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Access to Public Records Act
Privacy
However, state law requires a public
agency to deny “patient medical records
and charts created by a provider, unless
the patient gives written consent…” IC 514-3-4(a)(9).
 Note that not all medical information
maintained by a public agency is created
by a provider. Hence, unless specific
statutory authority exists for
nondisclosure, a request must be honored.

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Access to Public Records Act
Privacy
Privacy vs. Confidentiality
 Indiana law does not contain a general
privacy exemption to protect from
disclosure sensitive information.
 There are various confidentiality statutes
that recognize privacy interests, but APRA
requires disclosure unless a specific
statute makes the information
confidential.

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Access to Public Records Act
Common questions

Law enforcement records
- Investigatory records may be withheld
– Some law enforcement records must be
disclosed
– “Daily log or record” v. incident report
- 911 tapes
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Access to Public Records Act
Common questions

Personnel records and disciplinary actions
- Generally, personnel file disclosure is
discretionary
- Must release
Basic work information
Status of formal charges
Factual basis for discipline leading to
demotion, suspension or discharge
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Common questions
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Deliberative materials exception
- Opinions or speculative comments
communicated for purpose of
decision-making.
- IU case: Court limits exception and
requires release of redacted
documents
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Common questions

Records prepared for governing bodies –
when and what is disclosable?
- Board packets are public records
when created
- Can be requested prior to board
receipt
- Can exclude confidential records
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Procedural Issues
Responding to Requests

Time for agency’s response:
– 24 business hours if in person or phone
request is made
– 7 calendar days if requested by mail, facsimile
or e-mail.

Written requests, if denied, must be
denied in writing.
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Procedural Issues
Responding to Requests

Agency denial of a record
– Must contain a statement of the specific
exemption or exemptions authorizing the
withholding of all or part of the public record;
and
– the name and the title or position of the
person responsible for the denial.
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Procedural Issues
Responding to Requests
Response is acknowledgment of the
request and what efforts the agency is
making toward production, including a
specific timeframe for further response or
production.
 Time for response does not necessarily
mean production of the record.
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Procedural Issues
Responding to Requests

APRA does not contain a time within which
an agency must produce the records.
Records must be produced in a reasonable
period of time under the circumstances.
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Procedural Issues
Responding to Requests

Common violations of APRA regarding
agency response:
– No response at all.
– Denying because the requester cited to FOIA
(federal law). No citation is necessary to
invoke APRA.
– Denying all the record when part of the
record must be disclosed
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Procedural Issues
Responding to Requests

Common violations regarding agency
response:
– Denials because the requester can use civil or
criminal discovery procedures. APRA is an
independent legal basis for obtaining records.
– Not citing to any statutory exemption allowing
nondisclosure. “We don’t regard this as a
public record” is insufficient and a violation.
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Office of the Public Access
Counselor
Established in 1998 by Gov. O’Bannon.
Legislature made it a statutory office in
1999.
 Statutory authority is at IC 5-14-4.
 Duties are to educate, interpret public
access laws, issue advisory opinions.

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Office of the Public Access
Counselor
Formal complaint procedure: IC 5-14-5.
 Persons who have been denied any right
under IC 5-14-3 for records or IC 5-14-1.5
for meetings, or any other state statute or
rule governing access to public meetings
or public records, may file a complaint.

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Office of the Public Access
Counselor
Complaints are forwarded to the agency
that is the subject of the complaint. PAC
encourages responses, but response is not
required under the statute.
 Advisory opinion must be issued within 30
days of receipt of complaint, or within 7
days if priority complaint under 62 IAC 1.
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Office of the Public Access
Counselor

Educational and informational materials
available on web: www.in.gov/pac
– Handbook
– Advisory opinions
– Complaint form
– Contact information
– Annual reports
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