indiana’s open door law heather willis neal indiana public access counselor indiana state library...

Indiana’s Open Door Indiana’s Open Door LawLaw

Heather Willis NealHeather Willis Neal

Indiana Public Access CounselorIndiana Public Access Counselor

Indiana State LibraryIndiana State Library

Director WorkshopDirector Workshop

August 6 and 14, 2008August 6 and 14, 2008

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Open Door Law BasicsOpen Door Law Basics

The governing body of a public The governing body of a public agency has a duty to observe the agency has a duty to observe the policy of the Open Door Law: that policy of the Open Door Law: that official action be conducted and official action be conducted and taken openly.taken openly.

The full text of the Open Door Law The full text of the Open Door Law can be found at Ind. Code 5-14-1.5.can be found at Ind. Code 5-14-1.5.

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Open Door LawOpen Door LawBasicsBasics

What is a meeting? What is a meeting?

– A A gatheringgathering of a of a majoritymajority of the of the governing body for the purpose of governing body for the purpose of taking taking official actionofficial action upon public upon public business.business.

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What is What is notnot a meeting? a meeting?– Any social or chance gathering not Any social or chance gathering not

intended to avoid this chapter;intended to avoid this chapter;– any on-site inspection of any project, any on-site inspection of any project,

program or facilities of applicants for program or facilities of applicants for assistance;assistance;

– traveling to and attending meetings of traveling to and attending meetings of organizations devoted to the betterment organizations devoted to the betterment of governmentof government

– a caucus;a caucus;

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What is What is notnot a meeting? a meeting?– A gathering to discuss an industrial or A gathering to discuss an industrial or

commercial prospect that does not include a commercial prospect that does not include a conclusion as to recommendations, policy, conclusion as to recommendations, policy, decisions or final action on the terms of a decisions or final action on the terms of a request or an offer of public financial request or an offer of public financial assistance;assistance;

– An orientation of members on their role and An orientation of members on their role and responsibilities as public officials; orresponsibilities as public officials; or

– A gathering for the sole purpose of A gathering for the sole purpose of administering an oathadministering an oath

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What is “official action?” What is “official action?” – receiving informationreceiving information– deliberatingdeliberating– making recommendationsmaking recommendations– establishing policyestablishing policy– making decisionsmaking decisions– taking final action (i.e. voting)taking final action (i.e. voting)

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Serial meetingsSerial meetingsIn 2007 the legislature added new language In 2007 the legislature added new language to prohibit serial meetings. All of the to prohibit serial meetings. All of the following must be present to violate the following must be present to violate the serial meeting law: serial meeting law: – three members but less than a quorum meet three members but less than a quorum meet – subsequent meetings involve at least 2 subsequent meetings involve at least 2

members members – sum of all meeting attendees constitutes a sum of all meeting attendees constitutes a

quorum quorum – all held within 7 days all held within 7 days – to take official action on public businessto take official action on public business

** The serial meeting law does not apply to ** The serial meeting law does not apply to governing bodies with fewer than six members.governing bodies with fewer than six members.

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Executive sessionExecutive session– A meeting from which the public is A meeting from which the public is

excluded, except for persons necessary to excluded, except for persons necessary to carry out businesscarry out business

– There are 13 executive session instancesThere are 13 executive session instances– The instances are narrowly construedThe instances are narrowly construed– The governing body may The governing body may notnot take final take final

action in an executive session but may action in an executive session but may make decisions (make decisions (Baker v. Town of Baker v. Town of MiddleburyMiddlebury, 753 N.E.2d 67, Ind. Ct. App. , 753 N.E.2d 67, Ind. Ct. App. 2001)2001)

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Common executive sessionsCommon executive sessions– Discussion of strategy with respect to Discussion of strategy with respect to

initiation of litigation or litigation that is initiation of litigation or litigation that is pending or has been threatened specifically pending or has been threatened specifically in writing (I.C. § 5-14-1.5-6.1(b)(2)(B))in writing (I.C. § 5-14-1.5-6.1(b)(2)(B))

– To receive information about and interview To receive information about and interview prospective employees (I.C. § 5-14-1.5-prospective employees (I.C. § 5-14-1.5-6.1(b)(5))6.1(b)(5))

– To discuss a job performance evaluation To discuss a job performance evaluation (I.C. § 5-14-1.5-6.1(b)(9))(I.C. § 5-14-1.5-6.1(b)(9))

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Open Door Law Open Door Law BasicsBasics

Time for NoticeTime for Notice– The notice requirements apply to open The notice requirements apply to open

meetings, reconvened meetings, meetings, reconvened meetings, rescheduled meetings, rescheduled meetings, andand executive executive sessionssessions

– Must post notice of date, time and Must post notice of date, time and location of meeting 48 hours in advance location of meeting 48 hours in advance of meeting, not including Saturdays, of meeting, not including Saturdays, Sundays, or legal holidaysSundays, or legal holidays

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Posting or delivery of noticePosting or delivery of notice– Notice must be posted at agency’s Notice must be posted at agency’s

principal office or at meeting placeprincipal office or at meeting place– The agency must also deliver notice to The agency must also deliver notice to

all news media that deliver by January 1 all news media that deliver by January 1 an annual written request for such an annual written request for such notices. The delivery of notice to news notices. The delivery of notice to news media does not meet the “posting” media does not meet the “posting” requirement, even if the media publish requirement, even if the media publish the notice or advertise your meeting.the notice or advertise your meeting.

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Special notice requirements for Special notice requirements for executive sessions:executive sessions:– The notice must contain the same The notice must contain the same

information as for an open meeting, but information as for an open meeting, but must also state the subject matter by must also state the subject matter by specific reference to the enumerated specific reference to the enumerated instance(s) for which executive sessions instance(s) for which executive sessions may be held. (e.g., “to interview may be held. (e.g., “to interview prospective employees pursuant to I.C. § prospective employees pursuant to I.C. § 5-14-1.5-6.1(b)(5)”)5-14-1.5-6.1(b)(5)”)

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Agenda RequirementsAgenda Requirements– An agency is not required by the ODL to An agency is not required by the ODL to

utilize an agenda. utilize an agenda.

– If the governing body utilizes an agenda, If the governing body utilizes an agenda, the agenda must be posted outside the the agenda must be posted outside the meeting at some time before the meeting meeting at some time before the meeting – the ODL does not provide a time by – the ODL does not provide a time by when the agenda must be postedwhen the agenda must be posted

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Memoranda RequirementsMemoranda Requirements– Memoranda must be kept as the Memoranda must be kept as the

meeting progresses and must contain meeting progresses and must contain the following:the following: Date, time and location of meetingDate, time and location of meeting Members present and absentMembers present and absent The general substance of all matters, The general substance of all matters,

proposed, discussed, or decidedproposed, discussed, or decided A record of all votes taken, by individual A record of all votes taken, by individual

members if there is a roll callmembers if there is a roll call

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Memoranda RequirementsMemoranda Requirements– The memoranda are to be available The memoranda are to be available

within a reasonable period of time after within a reasonable period of time after the meeting.the meeting.

– The minutes, if any, are to be open for The minutes, if any, are to be open for inspection and copying.inspection and copying.

– Draft minutes of a public meeting are Draft minutes of a public meeting are disclosable public records despite not disclosable public records despite not being in final form or adopted by the being in final form or adopted by the governing body.governing body.

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Special memoranda requirements for Special memoranda requirements for executive sessions:executive sessions:– Same requirements as for regular Same requirements as for regular

meetings, except the memoranda and meetings, except the memoranda and minutes must identify the subject minutes must identify the subject matter considered by specific reference matter considered by specific reference to the enumerated instance(s) for which to the enumerated instance(s) for which public notice was given.public notice was given.

– The memoranda and minutes must The memoranda and minutes must certify no other matter was discussed.certify no other matter was discussed.

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The right of the public to record meetings, The right of the public to record meetings, found at I.C. § 5-14-1.5-3(a) found at I.C. § 5-14-1.5-3(a) includesincludes the the right to audio or video record the meeting. right to audio or video record the meeting. ((Berry v. Peoples Broadcasting Corp.Berry v. Peoples Broadcasting Corp., 547 , 547 N.E.2d 231, Ind. 1989)N.E.2d 231, Ind. 1989)

A governing body may place reasonable A governing body may place reasonable restrictions on use of equipment but may restrictions on use of equipment but may not ban the use of recording devices.not ban the use of recording devices.

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Open Door Law BasicsOpen Door Law Basics

General provisionsGeneral provisions– Nothing in the ODL requires a governing Nothing in the ODL requires a governing

body to allow public testimony or to body to allow public testimony or to allow a person who requests so to be allow a person who requests so to be placed on the agenda.placed on the agenda.

– Some other specific state statutes may Some other specific state statutes may

require a time for public testimony (e.g. require a time for public testimony (e.g. budget hearings)budget hearings)

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Open Door LawOpen Door LawUse of TechnologyUse of Technology

Access laws do not always keep pace Access laws do not always keep pace with technological advances.with technological advances.

But the purpose behind the law is But the purpose behind the law is constant and should be kept in mind constant and should be kept in mind when addressing new issues in public when addressing new issues in public access.access.

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Use of TechnologyUse of Technology

Teleconferencing or Teleconferencing or videoconferencing of meetingsvideoconferencing of meetings– Generally, a member of a governing Generally, a member of a governing

body who is not physically present but body who is not physically present but communicates by electronic or communicates by electronic or telephonic means may not vote and telephonic means may not vote and may not be counted presentmay not be counted present

– Some specific statutes allow for Some specific statutes allow for teleconferencing or videoconferencingteleconferencing or videoconferencing

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Electronic mailElectronic mail– Members of governing body must be Members of governing body must be

cautious in use of email when it is used cautious in use of email when it is used between and among members to conduct between and among members to conduct official business.official business.

– Indiana courts have not addressed the issue, Indiana courts have not addressed the issue, but the Virginia high court ruled that email but the Virginia high court ruled that email communications did not constitute a communications did not constitute a meeting in meeting in Beck v. SheltonBeck v. Shelton, 593 S.E.2d 195. , 593 S.E.2d 195. E-mail communication lacked simultaneity.E-mail communication lacked simultaneity.

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Electronic MailElectronic Mail– Any record, including electronic media, Any record, including electronic media,

created received, retained, maintained, created received, retained, maintained, or filed by or with a public agency is a or filed by or with a public agency is a public record.public record.

– Therefore, electronic mail is a public Therefore, electronic mail is a public record if it is created, received, retained, record if it is created, received, retained, maintained, or filed with a public maintained, or filed with a public agency, including a governing body.agency, including a governing body.

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Electronic mail must be available for Electronic mail must be available for inspection and copying by the inspection and copying by the governing body.governing body.

Electronic mail must be maintained Electronic mail must be maintained in accordance with records retention in accordance with records retention schedules, under I.C. 5-15.schedules, under I.C. 5-15.

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Email messages received and Email messages received and maintained on a personal email account maintained on a personal email account (e.g. a Yahoo! or Hotmail account) are (e.g. a Yahoo! or Hotmail account) are generally not public record.generally not public record.

If the personal email is submitted to the If the personal email is submitted to the agency, it becomes a public record. agency, it becomes a public record. – Example: A library board member prints Example: A library board member prints

out an email from a customer and gives it out an email from a customer and gives it to the library staff for follow-up. to the library staff for follow-up.

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Open Door LawOpen Door LawEnforcement ProvisionsEnforcement Provisions

A person may file a complaint with A person may file a complaint with the public access counselor alleging the public access counselor alleging a denial of a right under the ODL. a denial of a right under the ODL.

The PAC sends formal complaint to The PAC sends formal complaint to the agency for response and issues a the agency for response and issues a formal advisory opinion within 30 formal advisory opinion within 30 days.days.

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Open Door LawOpen Door LawEnforcement ProvisionsEnforcement Provisions

A person may file a lawsuit in superior A person may file a lawsuit in superior court to enjoin future violations or declare court to enjoin future violations or declare void a policy, decision, or final action.void a policy, decision, or final action.

If a person files an action in court alleging If a person files an action in court alleging an Open Door Law violation and is an Open Door Law violation and is victorious and that person has previously victorious and that person has previously sought an opinion from the public access sought an opinion from the public access counselor, the court shall award counselor, the court shall award reasonable attorney’s fees, court costs, reasonable attorney’s fees, court costs, and other reasonable costs of litigation. and other reasonable costs of litigation.

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Office of the Public Access Office of the Public Access CounselorCounselor

Our contact informationOur contact information– 402 West Washington Street, W460402 West Washington Street, W460

Indianapolis 46204Indianapolis 46204– Fax: 317.233.3091Fax: 317.233.3091– Toll free: 800.228.6013Toll free: 800.228.6013– Phone: 317.234.0906Phone: 317.234.0906

Visit our website at www.IN.gov/pac for Visit our website at www.IN.gov/pac for Public Access HandbookPublic Access Handbook (updated in (updated in 2008), other resource materials, and 2008), other resource materials, and advisory opinions.advisory opinions.

indiana’s open door law heather willis neal indiana public access counselor indiana state library...

Documents

open door law basics

open meetings

serial meeting law

official action

final action

public business

caucus slide

oath slide