Indiana’s Public Access Laws

Indiana’s Public Indiana’s Public Access LawsAccess Laws

Heather Willis NealHeather Willis NealPublic Access CounselorPublic Access Counselor

City of AndersonCity of AndersonJune 11, 2008June 11, 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 of organizations devoted to the betterment of governmentgovernment

– 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 to In 2007 the legislature added new language to prohibit serial meetings. All of the following must prohibit serial meetings. All of the following must be present to violate the serial meeting law: be present to violate the 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 members subsequent meetings involve at least 2 members – sum of all meeting attendees constitutes a quorum sum of all meeting attendees constitutes a 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 governing ** The serial meeting law does not apply to governing bodies with fewer than six members.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 of location of meeting 48 hours in advance of meeting, not including Saturdays, 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 all The agency must also deliver notice to all

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

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

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

– Note: There is no executive session instance to Note: There is no executive session instance to “discuss personnel matters” or to “meet with the “discuss personnel matters” or to “meet with the Board’s attorney” – specific instances must be usedBoard’s attorney” – specific instances must be used

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

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Agenda and Memoranda Agenda and Memoranda RequirementsRequirements– An agency may deviate from its posted An agency may deviate from its posted

agenda unless a specific statute agenda unless a specific statute provides otherwise.provides otherwise.

– A final action adopted by reference to A final action adopted by reference to agenda number or item alone is voidagenda number or item alone is void

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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 must contain the following:progresses and must 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, proposed, The general substance of all matters, proposed,

discussed, or decideddiscussed, 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 must except the memoranda and minutes must identify the subject matter considered by identify the subject matter considered by specific reference to the enumerated specific reference to the enumerated instance or instances for which public instance or instances for which public notice was given.notice was given.

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

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A right of the public to record meetings, A 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 the use of such equipment, restrictions on the use of such equipment, but may not ban the use of audio or video but may not ban the use of audio or video recorders.recorders.

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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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Use of TechnologyUse of Technology 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 Indiana courts have not addressed the issue, but the Virginia high court ruled that issue, but the Virginia high court ruled that email communications did not constitute a email 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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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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““Public records” are broadly defined: Public records” are broadly defined: can be summarized as “any material can be summarized as “any material that is created, received, retained, that is created, received, retained, maintained or filed by or with a public maintained or filed by or with a public agency.”agency.”

The Indiana Court of Appeals has added The Indiana Court of Appeals has added to this definition any material created to this definition any material created for for or on behalf ofor on behalf of a public agency. a public agency.

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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 in submit a request for a public record in writing, on or in a form supplied by 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 to requested copy or allow the person to make a copy on the agency’s 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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Use of TechnologyUse of Technology 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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Use of TechnologyUse of Technology 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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Use of TechnologyUse of Technology 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 city official prints out a Example: A city official prints out a

personal email from a neighbor and gives it personal email from a neighbor and gives it to a city employee for follow-up. to a city employee for follow-up.

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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 the Responding is not necessarily producing the record.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– Patient medical records created by a Patient medical records created by a

providerprovider– Declared confidential by rule adopted by Declared confidential by rule adopted by

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

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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 (including cities) may Local agencies (including cities) may

charge only the fee schedule adopted by charge only the fee schedule adopted by the fiscal body of the agency (city the fiscal body of the agency (city council).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

– 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.

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

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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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APRA and ODLAPRA and ODLEnforcement 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 or ODL. denial of a right under APRA or ODL. The PAC sends formal complaint to the The PAC sends formal complaint to the agency for response and issues a agency for response and issues a formal advisory opinion within 30 days.formal 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 produce court to compel the agency to produce a record or declare an action void.a record or declare an action void.

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APRA and ODL APRA and ODL Enforcement ProvisionsEnforcement Provisions

If a person prevails in court and has, If a person prevails in court and has, prior to going to court, received an prior to going to court, received an advisory opinion from the Public advisory opinion from the Public Access Counselor, the person shall Access Counselor, the person shall be awarded reasonable attorney’s be awarded reasonable attorney’s fees, court costs, and other fees, court costs, and other reasonable costs of litigation.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 the Visit our website at www.in.gov/pac for the newly updated newly updated Public Access HandbookPublic Access Handbook, , advisory opinions, and other resourcesadvisory opinions, and other resources

Indiana’s Public Access Laws

Documents

open meetings

serial meeting law

oathopen door lawbasicswhat

location of meeting

advance of meeting

meeting attendees

1b9open door law basicstime

official action