1. Indiana’s Open Door Law Heather Willis Neal Indiana Public Access Counselor Presented to Fort Wayne Housing Authority Fort Wayne Housing Authority Board of Commissioners January 8, 2008

2. 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 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. 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? What is a meeting? –A gathering of a majority of the governing body for the purpose of taking official action upon public business.

4. 4 Open Door Law Basics What is a meeting? What is a meeting? 2007 Amendment A member of a governing body who is not physically present but communicates with members by electronic means may not vote and may not be considered present at the meeting unless expressly authorized by statute. I.C. § 5-14-1.5-3(d). I.C. § 5-14-1.5-3(d).

5. 5 Open Door Law Basics What is not a meeting? 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 (members of same party; discussing political strategy);

6. 6 Open Door Law Basics What is not a meeting (added in 2007)? What is not a meeting (added in 2007)? –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

7. 7 Open Door Law Basics What is “official action?” What is “official action?” –receiving information –deliberating –making recommendations –establishing policy –making decisions –taking final action I.C. § 5-14-1.5-2(d).

8. 8 Open Door Law Basics Serial meetings I.C. §5-14-1.5-3.1 Serial meetings I.C. §5-14-1.5-3.1 2007 Amendment to prohibit serial meetings –3 members but less than a quorum meet –subsequent meetings of at least 2 members –sum of all meetings constitutes a quorum –held within 7 days –to take official action on public business **The serial meeting law does not apply to governing bodies with fewer than seven members.

9. 9 Open Door Law Basics Executive session Executive session –A meeting from which the public is excluded, except for persons necessary to carry out business (invited by governing body) –There are 13 executive session instances –The instances are narrowly construed –The governing body may not take final action in an executive session

10. 10 Open Door Law Basics Executive session Executive session While a governing body may not take final action (i.e. vote) in an executive session, the Indiana Court of Appeals has said this does not preclude the governing body from making decisions in an executive session. Baker v. Town of Middlebury, 753 N.E.2d 67 (Ind. Ct. App. 2001)

11. 11 Open Door Law Basics Common executive sessions 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))

12. 12 Open Door Law Basics Time for Notice 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

13. 13 Open Door Law Basics Posting or delivery of notice 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 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 your meeting.

14. 14 Open Door Law Basics Requirements for notice, continued Requirements for notice, continued –Notice of regular meetings need be given only once each year, except that an additional notice shall be given where the date, time, or location of a regular meeting is changed. –Executive session notice must be posted with each session; the ODL doesn’t allow notice of “regular” executive sessions or a “garbage can” approach of listing all possible reasons for the executive session

15. 15 Open Door Law Basics Special notice requirements for executive sessions: 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).”)

16. 16 Open Door Law Basics Agenda and Memoranda Requirements 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 except that it must be posted before the meeting begins

17. 17 Open Door Law Basics Agenda and Memoranda Requirements 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

18. 18 Open Door Law Basics Agenda and Memoranda Requirements 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

19. 19 Open Door Law Basics Agenda and Memoranda Requirements 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.

20. 20 Open Door Law Basics Special memoranda requirements for executive sessions: 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.

21. 21 Open Door Law Basics 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 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. A governing body may place reasonable restrictions on the use of such equipment, but may not ban the use of audio or video recorders.

22. 22 Open Door Law Enforcement Provisions A person may file a complaint with the Office of the Public Access Counselor alleging denial of rights under the ODL. A person may file a complaint with the Office of the Public Access Counselor alleging denial of rights under the ODL. A person may file an action in a court to obtain a declaratory judgment; enjoin violations; or declare void any policy, decision or final action, under certain circumstances. A person may file an action in a court to obtain a declaratory judgment; enjoin violations; or declare void any policy, decision or final action, under certain circumstances.

23. 23 General Enforcement Provisions Under either the Open Door Law or the Access to Public Records Act, a court must award attorney fees, reasonable expenses of litigation, and costs to a prevailing plaintiff, but only if the person first requested and received an advisory opinion or informal opinion from the public access counselor. Under either the Open Door Law or the Access to Public Records Act, a court must award attorney fees, reasonable expenses of litigation, and costs to a prevailing plaintiff, but only if the person first requested and received an advisory opinion or informal opinion from the public access counselor.

24. 24 Office of the Public Access Counselor Our contact information 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 Visit our website at www.in.gov/pac for 48-page handbook and advisory opinions