1. Indiana’s Public Access Laws Heather Willis Neal Indiana Public Access Counselor Indiana Association of Cities and Towns Red Flag and Sunshine Workshop April 1, 2009

2. 2 Open Door Law Basics  The governing body of a public agency has a duty to observe the public 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. 3 Open Door Law Basics  What is a meeting? A gathering of a majority of the governing body for the purpose of taking official action upon public business. I.C. § 5-14-1.5-2(c). The following are generally not meetings:  A gathering of staff members  A gathering of department heads  A gathering of fewer than a majority of the members of a governing body  Training sessions for staff members

4. 4 Open Door Law Basics  What is “official action?” receiving information deliberating making recommendations establishing policy making decisions taking final action (i.e. voting) Any one of these items constitutes official action.

5. 5 Open Door Law Basics  Executive session (I.C. § 5-14-1.5-6.1) 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 in the executive session (Baker v. Town of Middlebury, 753 N.E.2d 67 (Ind. Ct. App. 2001))

6. 6 Open Door Law Basics  Common executive sessions Discussion of strategy with respect to initiation of litigation or litigation that is pending or has been threatened in writing (I.C. § 5-14-1.5-6.1(b)(2)(B)) Discussion of records classified confidential by state or federal statute (I.C. § 5-14-1.5- 6.1(b)(7))  The red flag policy must be confidential by state or federal statute to utilize this instance for executive session to develop the policy.

7. 7 Open Door Law Basics  Time for Notice (I.C. § 5-14-1.5-5) 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

8. 8 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 pursuant to I.C. § 5-14- 1.5-6.1(b)(5)”) Note: There is no executive session instance to “discuss personnel matters” or to “meet with the Board’s attorney” – specific instances must be cited

9. 9 Open Door Law Basics  Administrative Function meeting The notice requirement is waived for a meeting of the town legislative body where the body is receiving information about or carrying out administrative functions.  Establishing new policy likely would not be considered an “administrative function.”  No other ODL requirements are waived for an administrative function meeting.

10. 10 Access to Public Records Act Basics  “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.

11. 11 Access to Public Records Act Basics  “Public records” are broadly defined: can be summarized as “any material that is created, received, retained, maintained or filed by or with a public agency.” I.C. § 5- 14-3-2(n).  The Indiana Court of Appeals has added to this definition any material created for or on behalf of a public agency. Knightstown Banner v. Town of Knightstown, 838 N.E.2d 1137 (Ind. Ct. App. 2005).

12. 12 Access to Public Records Act Basics  General rule The APRA provides that any person is entitled to inspect and copy the public records of a pubic agency unless an exception to disclosure applies.

13. 13 Access to Public Records Act Basics  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. I.C. § 5-14-3-3(a).  If a record contains disclosable and nondisclosable information, the agency shall separate the disclosable material and make it available. I.C. § 5-14-3-6.

14. 14 Access to Public Records Act Basics  Public Agency’s Responsibility Respond to requests made in person or via telephone within 24 hours of receipt. Respond to mailed, faxed, or e-mailed requests within seven 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.

15. 15 Access to Public Records Act Basics  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. I.C. § 5-14-3-9. Produce records in reasonable time; communication with requestor is key.

16. 16 Access to Public Records Act Basics  Exemptions to disclosure (I.C. § 5-14-3-4) Section 4(a) categories are confidential and include the following:  Records made confidential by state statute or federal law  A social security number  Confidential financial information obtained, upon request, from a person (credit card number, credit report information)

17. 17 Access to Public Records Act Basics  Section 4(b) are discretionary categories and include the following: Intra- or interagency deliberative material Telephone number and address of a customer of a municipally-owned utility  The law does not indicate whether email address is equivalent to address

18. 18 Access to Public Records Act Basics  Retention of records The APRA requires an agency to protect records from loss, alteration, mutilation, or destruction. Each county has a commission on public records to adopt retention schedules. The state oversight committee on public records has set general retention schedules for cities and towns. More information can be found at www.in.gov/icpr/county/coretention.

19. 19 Office of the Public Access Counselor  Our contact information 402 West Washington Street, W470 Indianapolis 46204 Fax: 317.233.3091 Toll free: 800.228.6013 Phone: 317.234.0906  Visit our website at www.in.gov/pac for the Handbook on Indiana’s Public Access Laws, advisory opinions, and other resources.