Transcript Indiana’s Access to Public Records Act Heather Willis Neal Indiana Public Access Counselor Presented to Indiana State Department of Health August 21, 2008

Indiana’s Access to
Public Records Act
Heather Willis Neal
Indiana Public Access Counselor
Presented to
Indiana State Department of Health
August 21, 2008
Office of the Public Access
Counselor

What we do
– Advise
– Mediate
– Educate

Contact us
– (317) 234-0906
– www.IN.gov/pac
– e-mail: [email protected]
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Public Access Counselor
Establishment and Authority
Ind. Code 5-14-4: Office established in
1999.
 Powers and duties:

– Train public officials
– Educate members of the public
– Respond to informal inquiries
– Issue advisory opinions
– Make recommendations to General Assembly
on ways to improve access
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Complaint Procedures
I.C. 5-14-5
 Complaint must be timely filed
 Complaint must allege denial of access
 PAC must send complaint to agency

– No statutory requirement to invite or consider
response, but it is our practice to do so

PAC must issue advisory opinion within 30
days, or 7 days if priority (62 IAC 1)
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Enforcement Authority

Opinions are advisory only

PAC has no enforcement authority; legislation
has been proposed in past years to provide
sanctions for violation
– Another proposal expected in 2009 session

A public agency is required to cooperate with
counselor in any investigation or proceeding
(I.C. § 5-14-5-5)
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APRA Overview
Remedies for Violations: I.C. § 5-14-3-9
 A person may file lawsuit to compel the
agency to permit inspection and copying.
 Court shall expedite hearing.
 Attorney fees, court costs, and reasonable
expenses of litigation to prevailing plaintiff
but must have sought and received PAC
advisory opinion or informal inquiry
response.

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Common Problems with APRA

Improperly requiring a subpoena from the
requester. The law does not require that a
person obtain a subpoena in order to get
disclosable records.
– The APRA provides a right to access records
separate from the discovery process.
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Common Problems with APRA

When records contain partially disclosable and
partially nondisclosable information, denying
access to entire record
– The agency must separate and disclose the public
portion of the record.
– Often, this means records maintained in an electronic
format (e.g. emails) must be printed, redacted, and
provided in hard copy format.
– An agency is not required to procure redaction
software to redact electronic records and provide in
electronic format if agency does not have access to
such software.
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Common Problems with APRA

Not responding within prescribed time
– Agency response must be within 24 business hours
(i.e. same time the next business day) when request
is made by telephone or in person.
– Agency response must be within 7 days when request
is made by mail, fax or email.

Denying access to records but not indicating the
statutory authority authorizing denial
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Common Problems with APRA

Not regularly communicating with requester
when the request is voluminous and agency is
taking time to review and compile records
– There is no timeframe for producing records, but
providing requester with approximate time for
production is helpful for both parties

Assuming certain records are confidential or
proprietary absent legal authority
– Records are not made confidential solely because an
agency or employee believes they should be
confidential
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Common Problems with APRA

Denying access to records which have been sent
to State Archives or the Records Center
– If the records are still available, agency must obtain
the records from Archives or Records and provide
pursuant to a request. Agency records coordinator
should have accurate accounting of which records
have been moved and/or destroyed.

Attempting to create records which do not exist.
– Nothing in the APRA requires a public agency to
develop records or information pursuant to a request.
The APRA requires the public agency to provide
access to records already created.
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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 unless an
exception to disclosure applies.

Electronic mail must be maintained in
accordance with records retention
schedules, under I.C. 5-15.
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Use of Technology

Email messages received and maintained on a
personal email account (e.g. a Yahoo! or Hotmail
account) are generally not public record.
– Use of state property for personal emailing is outside
the scope of the public access counselor’s office and
is addressed by state ethics rules.

If the personal email is submitted to the agency,
it becomes a public record.
– Example: A state employee prints out a personal
email and gives it to a colleague for follow-up action.
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Office of the Public Access
Counselor

What we do
– Advise
– Mediate
– Educate

Contact us
– (317) 234-0906
– www.IN.gov/pac
– e-mail: [email protected]
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