indiana’s public access laws heather willis neal public access counselor indiana recorders...

Indiana’s Public Indiana’s Public Access LawsAccess Laws

Heather Willis NealHeather Willis Neal

Public Access CounselorPublic Access Counselor

Indiana Recorders AssociationIndiana Recorders Association

April 15, 2008April 15, 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 actiontaking final action

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Serial meetingsSerial meetings2007 General Assembly added new 2007 General Assembly added new language to prohibit serial meetings, language to prohibit serial meetings, where 3 members but less than a where 3 members but less than a quorum meet and then subsequent quorum meet and then subsequent meetings involve at least 2 members meetings involve at least 2 members (and the sum of all meeting (and the sum of all meeting attendees constitutes a quorum) all attendees constitutes a quorum) all held within 7 days to take official held within 7 days to take official action on public business. action on public business.

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

– There are 13 executive session There are 13 executive session instancesinstances

– 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 sessionaction in an executive session

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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 and Memoranda RequirementsAgenda and Memoranda Requirements– An agency is not required to have an An agency is not required to have an

agenda under the ODL. agenda under the ODL.

– 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 when the ODL does not provide a time by when the agenda must be postedthe agenda must be posted

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Agenda and Memoranda RequirementsAgenda and Memoranda Requirements– Memoranda must be kept as the meeting Memoranda must be kept as the meeting

progresses, and contain the following:progresses, and contain 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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Agenda and Memoranda RequirementsAgenda and Memoranda Requirements– The memoranda are to be available within The memoranda are to be available within

a reasonable period of time after the a reasonable period of time after the meeting.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 meetings, Same requirements as for meetings,

except the memoranda and minutes except the memoranda and minutes must identify the subject matter must identify the subject matter considered by specific reference to the considered by specific reference to the enumerated instance or instances for enumerated instance or instances for which public notice was given.which 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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A right of the public to record the A right of the public to record the meeting, found at I.C. § 5-14-1.5-3(a) meeting, found at I.C. § 5-14-1.5-3(a) includesincludes the right to audio or video the right to audio or video record the meeting.record the meeting.

A governing body may place A governing body may place reasonable restrictions on the use of reasonable restrictions on the use of such equipment, but may not ban the such equipment, but may not ban the use of audio or video recorders.use of audio or video recorders.

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Access to Public Records ActAccess to Public Records ActBasicsBasics

““Providing persons with the Providing persons with the information is an essential function of information is an essential function of a representative government and an a representative government and an integral part of the routine duties of integral part of the routine duties of public officials and employees, whose public officials and employees, whose duty it is to provide the information.”duty it is to provide the information.”

The full text of APRA can be found at The full text of APRA can be found at Ind. Code 5-14-3.Ind. Code 5-14-3.

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Access to Public Records ActAccess to Public Records Act

Key definitionsKey definitions– ““Public Record” means any writing, Public Record” means any writing,

paper, report, study, map, photograph, paper, report, study, map, photograph, book, card, tape recording, or other book, card, tape recording, or other material that is created, received, material that is created, received, retained, maintained, or filed by or with retained, maintained, or filed by or with a public agency and which is generated a public agency and which is generated on paper, paper substitutes, on paper, paper substitutes, photographic media,...photographic media,...

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APRA OverviewAPRA Overview

““Public record” continued:Public record” continued:– chemically based media, magnetic or chemically based media, magnetic or

machine readable media, electronically machine readable media, electronically stored data, or any other material, stored data, or any other material, regardless of form or characteristics.regardless of form or characteristics.

– The Indiana Court of Appeals has added The Indiana Court of Appeals has added to this definition materials created to this definition materials created for or for or on behalf ofon behalf of a public agency. a public agency. Knightstown Banner, LLC v. Town of Knightstown Banner, LLC v. Town of KnightstownKnightstown, 838 N.E.2d 1127 (Ind. Ct. , 838 N.E.2d 1127 (Ind. Ct. App. 2005)App. 2005)

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““Copy” includes photocopying as well Copy” includes photocopying as well as making a digital copy using a as making a digital copy using a digital camera or a hand-held digital camera or a hand-held scanner.scanner.

““Inspect” includes the right to make Inspect” includes the right to make notes, abstracts and memoranda, or notes, abstracts and memoranda, or to listen to an audiotape.to listen to an audiotape.

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The agency may require a person to The agency may require a person to submit a request for a public record submit a request for a public record in writing, on or in a form supplied by in writing, on or in a form supplied by the agency.the agency.

The agency shall either make the The agency shall either make the requested copy or allow the person requested copy or allow the person to make a copy on the agency’s to make a copy on the agency’s equipment or on the person’s own equipment or on the person’s own equipment.equipment.

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An agency must make reasonable An agency must make reasonable efforts to provide a copy of electronic efforts to provide a copy of electronic data to a person if the medium data to a person if the medium requested is compatible with the requested is compatible with the agency’s system.agency’s system.

If a record contains disclosable and If a record contains disclosable and nondisclosable information, the nondisclosable information, the agency shall separate the disclosable agency shall separate the disclosable material and make it available.material and make it available.

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Public Agency’s ResponsibilityPublic Agency’s Responsibility– Respond to requests made in person or Respond to requests made in person or

over telephone within 24 hours of receipt.over telephone within 24 hours of receipt.– Respond to mailed, faxed, or e-mailed Respond to mailed, faxed, or e-mailed

requests within 7 calendar days of receipt.requests within 7 calendar days of receipt.– Respond in writing to written requests for Respond in writing to written requests for

records; best practice is to respond to all records; best practice is to respond to all requests in writing.requests in writing.

– Responding is not necessarily producing Responding is not necessarily producing the record.the record.

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Agency’s Responsibility, continuedAgency’s Responsibility, continued– If denying records, state reason for If denying records, state reason for

denial with citation to authority, and denial with citation to authority, and give name and title or position of person give name and title or position of person responsible for denial.responsible for denial.

– Produce records in reasonable time; Produce records in reasonable time; communication with person requesting communication with person requesting is key.is key.

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Exemptions to disclosure I.C. § 5-14-3-4Exemptions to disclosure I.C. § 5-14-3-4– Section 4(a) categories are confidentialSection 4(a) categories are confidential– Declared confidential by state statuteDeclared confidential by state statute– Required to be kept confidential by federal Required to be kept confidential by federal

lawlaw– Declared confidential by rule adopted by Declared confidential by rule adopted by

Indiana supreme court (Administrative Rule Indiana supreme court (Administrative Rule 9)9)

– Social security number contained in the Social security number contained in the records of a public agencyrecords of a public agency

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Section 4(b) are discretionary Section 4(b) are discretionary categoriescategories– Investigatory records of law enforcementInvestigatory records of law enforcement– Attorney work productAttorney work product– Personnel file information, except for Personnel file information, except for

information that must be disclosedinformation that must be disclosed– Telephone number, address, and social Telephone number, address, and social

security number of a customer of a security number of a customer of a municipally-owned utilitymunicipally-owned utility

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FeesFees– Local agencies (cities or towns) may Local agencies (cities or towns) may

charge only the fee schedule adopted by charge only the fee schedule adopted by the fiscal body of the agency (town or the fiscal body of the agency (town or common council).common council).

– May not exceed the May not exceed the actual costactual cost for for providing a copy of the public record.providing a copy of the public record.

– Actual costActual cost is the cost of the paper and is the cost of the paper and per page cost for use of the equipment.per page cost for use of the equipment.

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Fees, continuedFees, continued

– Agencies may require advance Agencies may require advance payment.payment.

– APRA’s general provisions on fees are APRA’s general provisions on fees are superseded by a specific statute superseded by a specific statute allowing higher fee.allowing higher fee.

– I.C. § 36-2-7-10 lists specific fees to be I.C. § 36-2-7-10 lists specific fees to be collected by recorderscollected by recorders

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Access to Public RecordsAccess to Public Records

County recorders have another specific County recorders have another specific provision regarding access to records:provision regarding access to records:

– I.C. § 36-2-11-8(b) requires a recorder to I.C. § 36-2-11-8(b) requires a recorder to establish a written procedure for the establish a written procedure for the public to obtain access to an original public to obtain access to an original instrument in order to protect the instrument in order to protect the instrument from loss, alteration, instrument from loss, alteration, mutilation, or destruction. The recorder mutilation, or destruction. The recorder shall post the written procedure in the shall post the written procedure in the recorder's office.recorder's office.

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Access to Public Records Act Access to Public Records Act BasicsBasics

Retention of recordsRetention of records– The APRA requires an agency to protect The APRA requires an agency to protect

records from loss, alteration, mutilation, records from loss, alteration, mutilation, or destruction.or destruction.

– Each county should have a commission Each county should have a commission on public records to adopt retention on public records to adopt retention schedules. The state oversight schedules. The state oversight committee on public records has set committee on public records has set general retention schedules for cities general retention schedules for cities and towns which can be found at and towns which can be found at www.in.gov/icpr/county/coretention. www.in.gov/icpr/county/coretention.

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Access to Public Records ActAccess to Public Records ActEnforcement ProvisionsEnforcement Provisions

A person may file a complaint with the A person may file a complaint with the public access counselor alleging a public access counselor alleging a denial of a right under APRA. The PAC denial of a right under APRA. The PAC sends formal complaint to the agency sends formal complaint to the agency for response and issues a formal for response and issues a formal advisory opinion within 30 days.advisory opinion within 30 days.

A person may file a lawsuit in superior A person may file a lawsuit in superior court to compel the agency to court to compel the agency to produce a record.produce a record.

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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 Visit our website at www.in.gov/pac for 48-page handbook and advisory for 48-page handbook and advisory opinionsopinions

indiana’s public access laws heather willis neal public access counselor indiana recorders...

Documents

open meetings

open door law basics

final action slide

official action

executive session slide

public business

caucus slide

oath slide