Public Records and Open Meetings

1. Public Records and Open Meetings Heather Willis Neal Indiana Public Access Counselor Indiana Civil Rights Commission CLE February 22, 2008

2. Open Door Law Basics • The governing body of a public agency has a duty to observe the policy of the Open Door Law: that official action be conducted and taken openly. • The full text of the Open Door Law can be found at Ind. Code 5-14-1.5.

3. Open Door LawBasics • What is a meeting? • A gathering of a majority of the governing body for the purpose of taking official action upon public business. • A group of state employees who meet to conduct business is not a governing body.

4. Open Door LawBasics • What is not a meeting? • Any social or chance gathering not intended to avoid this chapter; • any on-site inspection of any project, program or facilities of applicants for assistance; • traveling to and attending meetings of organizations devoted to the betterment of government • a caucus;

5. Open Door LawBasics • What is not a meeting? • A gathering to discuss an industrial or commercial prospect that does not include a conclusion as to recommendations, policy, decisions or final action on the terms of a request or an offer of public financial assistance; • An orientation of members on their role and responsibilities as public officials; or • A gathering for the sole purpose of administering an oath

6. Open Door LawBasics • What is “official action?” • receiving information • deliberating • making recommendations • establishing policy • making decisions • taking final action (i.e. voting)

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

8. Open Door LawBasics • Executive session • A meeting from which the public is excluded, except for persons necessary to carry out business • There are 13 executive session instances • The instances are narrowly construed • The governing body may not take final action in an executive session but may make decisions (Baker v. Town of Middlebury, 753 N.E.2d 67 (Ind. Ct. App. 2001))

9. Open Door LawBasics • Common executive sessions • Discussion of strategy with respect to initiation of litigation or litigation that is pending or has been threatened specifically in writing (I.C. § 5-14-1.5-6.1(b)(2)(B) • To receive information about and interview prospective employees (I.C. § 5-14-1.5-6.1(b)(5)) • To discuss a job performance evaluation (I.C. § 5-14-1.5-6.1(b)(9)

10. Open Door Law Basics • Time for Notice • The notice requirements apply to open meetings, reconvened meetings, rescheduled meetings, and executive sessions • Must post notice of date, time and location of meeting 48 hours in advance of meeting, not including Saturdays, Sundays, or legal holidays

11. Open Door Law Basics • Posting or delivery of notice • Notice must be posted at agency’s principal office or at meeting place if there is no office. • The agency must also deliver notice to all news media that deliver by January 1 an annual written request for such notices. The delivery of notice to news media does not meet the “posting” requirement, even if the media publish the notice or advertise the meeting.

12. Open Door Law Basics • Special notice requirements for executive sessions: • The notice must contain the same information as for an open meeting, but must also state the subject matter by specific reference to the enumerated instance(s) for which executive sessions may be held. (e.g., “to interview prospective employees under I.C. § 5-14-1.5-6.1(b)(5).”)

13. Open Door Law Basics • Agenda and Memoranda Requirements • An agency is not required to have an agenda under the ODL. • If the governing body utilizes an agenda, the agenda must be posted outside the meeting at some time before the meeting – the ODL does not provide a time by when the agenda must be posted.

14. Open Door Law Basics • Agenda and Memoranda Requirements • An agency may deviate from its posted agenda unless a specific statute provides otherwise. • A final action adopted by reference to agenda number or item alone is void.

15. Open Door Law Basics • Agenda and Memoranda Requirements • Memoranda must be kept as the meeting progresses, and contain the following: • Date, time and location of meeting • Members present and absent • The general substance of all matters, proposed, discussed, or decided • A record of all votes taken, by individual members if there is a roll call

16. Open Door Law Basics • Agenda and Memoranda Requirements • The memoranda are to be available within a reasonable period of time after the meeting. • The minutes, if any, are to be open for inspection and copying. • Draft minutes of a public meeting are disclosable public records despite not being in final form or adopted by the governing body.

17. Open Door Law Basics • Special memoranda requirements for executive sessions: • Same requirements as for meetings, except the memoranda and minutes must identify the subject matter considered by specific reference to the enumerated instance or instances for which public notice was given. • The memoranda and minutes must certify no other matter was discussed.

18. Open Door LawBasics • A right of the public to record the meeting, found at I.C. § 5-14-1.5-3(a) includes the right to audio or video record the meeting. Berry v. Peoples Broadcasting Corp., 547 N.E.2d 231 (Ind. 1989) • A governing body may place reasonable restrictions on the use of such equipment, but may not ban the use of audio or video recorders.

19. Access to Public Records ActBasics • “Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information.” • The full text of APRA can be found at Ind. Code 5-14-3.

20. Access to Public Records Act • Key definitions • “Public Record” means any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that is created, received, retained, maintained, or filed by or with a public agency and which is generated on paper, paper substitutes, photographic media,...

21. APRA Overview • “Public record” continued: • chemically based media, magnetic or machine readable media, electronically stored data, or any other material, regardless of form or characteristics. • The Indiana Court of Appeals has added to this definition materials created for or on behalf of a public agency. Knightstown Banner, LLC v. Town of Knightstown, 838 N.E.2d 1127 (Ind. Ct. App. 2005)

22. Access to Public Records ActBasics • “Copy” includes photocopying as well as making a digital copy using a digital camera or a hand-held scanner. • “Inspect” includes the right to make notes, abstracts and memoranda, or to listen to an audiotape.

23. Access to Public Records ActBasics • The agency may require a person to submit a request for a public record in writing, on or in a form supplied by the agency. • The agency shall either make the requested copy or allow the person to make a copy on the agency’s equipment or on the person’s own equipment.

24. Access to Public Records ActBasics • An agency must make reasonable efforts to provide a copy of electronic data to a person if the medium requested is compatible with the agency’s system. • If a record contains disclosable and nondisclosable information, the agency shall separate the disclosable material and make it available.

25. Access to Public Records ActBasics • Public Agency’s Responsibility • Respond to requests made in person or over telephone within 24 hours of receipt. • Respond to mailed, faxed, or e-mailed requests within 7 calendar days of receipt. • Respond in writing to written requests for records; best practice is to respond to all requests in writing. • Responding is not necessarily producing the record.

26. Access to Public Records ActBasics • Agency’s Responsibility, continued • If denying records, state reason for denial with citation to authority, and give name and title or position of person responsible for denial. • Produce records in reasonable time; communication with person requesting is key.

27. Access to Public Records ActBasics • Exemptions to disclosure I.C. § 5-14-3-4 • Section 4(a) categories are confidential • Declared confidential by state statute • Required to be kept confidential by federal law • Declared confidential by rule adopted by a public agency under specific authority granted to the agency by statute • Declared confidential by rule adopted by Indiana supreme court (Administrative Rule 9)

28. Access to Public Records ActBasics • Section 4(b) are discretionary categories • Investigatory records of law enforcement • Attorney work product • Personnel file information, except for information that must be disclosed • Deliberative material – expressions of opinion or speculative in nature and communicated for the purposes of decision making

29. Access to Public Records ActBasics • Fees • State agencies may charge the fee prescribed by the Indiana Department of Administration: $.10 per page for 8 ½ x 11 or 8 ½ x 14. • The APRA’s general provisions regarding fees are superseded by a specific statute allowing higher fee. • Agencies may require advance payment.

30. Access to Public Records Act Basics • Retention of records • The APRA requires an agency to protect records from loss, alteration, mutilation, or destruction. • Each agency must follow the agency’s retention schedule adopted by the Oversight Commission on Public Records; the state general retention schedule covers records which are not agency-specific.

31. Open Door LawUse 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.

32. 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

33. 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.

34. 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 5-14-1.5-2(c). • Indiana appellate courts have not ruled on the question.

35. 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.

36. 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. • The state email retention policy is to view the email as the record it is; “email” is not its own type of record

37. Access to Public Records ActEnforcement Provisions • A person may file a complaint with the public access counselor alleging a denial of a right under APRA. The PAC sends a copy of the formal complaint to the agency for response and issues a formal advisory opinion within 30 days. • A person may file a lawsuit in superior court to compel the agency to produce a record.

38. Access to Public Records ActEnforcement Provisions • If a person who files an action in court regarding alleged violation of the APRA is victorious and has previously received an informal or advisory opinion from the public access counselor, the public agency will be responsible for attorney fees, reasonable litigation expenses and court costs.

39. Office of the Public Access Counselor • Our contact information • 402 West Washington Street, W460 Indianapolis 46204 • Fax: 317.233.3091 • Toll free: 800.228.6013 • Phone: 317.234.0906 • Visit our website at www.in.gov/pac for 48-page handbook and advisory opinions