1. Elected Officials and Health Department Records Indiana Public Health Foundation February 27, 2008

2. 2 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.” “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. The full text of APRA can be found at Ind. Code 5-14-3.

3. 3 Access to Public Records Act Key definitions 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,...

4. 4 APRA Overview “Public record” continued: “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)

5. 5 Access to Public Records Act Basics “Copy” includes photocopying as well as making a digital copy using a digital camera or a hand-held scanner. “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. “Inspect” includes the right to make notes, abstracts and memoranda, or to listen to an audiotape.

6. 6 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. 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. 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.

7. 7 Access to Public Records Act Basics 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. 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. If a record contains disclosable and nondisclosable information, the agency shall separate the disclosable material and make it available.

8. 8 Access to Public Records Act Basics Public Agency’s Responsibility 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.

9. 9 Access to Public Records Act Basics Agency’s Responsibility, continued 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.

10. 10 Access to Public Records Act Basics Exemptions to disclosure I.C. § 5-14-3-4 Exemptions to disclosure I.C. § 5-14-3-4 –Section 4(a) categories are confidential –Declared confidential by state statute or federal law –Declared confidential by rule adopted by a public agency under specific authority granted to the agency by statute –Patient medical records and charts created by a provider, unless the patient gives written consent under I.C. 16-39 –A Social Security number contained in the records of a public agency

11. 11 Access to Public Records Act Basics Section 4(b) are discretionary categories 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

12. 12 Access to Public Records Act Basics Definition of “provider”: Definition of “provider”: –Provider has the meaning set forth in I.C. § 16-18-2-295(b) and includes employees of the state department of health or local boards of health who create patient records at the request of another provider or who are social workers and create records concerning the family background of children who may need assistance. I.C. § 5-14-3-2(k).

13. 13 Access to Public Records Act Basics Fees Fees –Public agencies may charge the fee established by fiscal body or governing body if there is no fiscal body; may not exceed $.10 per page for black and white copies or actual cost to make the copy, whichever is greater –The APRA’s general provisions regarding fees are superseded by a specific statute allowing higher fee. –Agencies may require advance payment.

14. 14 Access to Public Records Act Basics Retention of records 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.

15. 15 Use of Technology Access Laws do not always keep pace with technological advances. 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. But the purpose behind the law is constant and should be kept in mind when addressing new issues in public access.

16. 16 Use of Technology Electronic Mail 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.

17. 17 Use of Technology Electronic mail must be available for inspection and copying by the governing body. 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. 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 based on the content rather than the medium; “email” is not its own type of record. The state email retention policy is to view the email based on the content rather than the medium; “email” is not its own type of record.

18. 18 Contact Information Public Access Counselor Public Access Counselor –402 West Washington Street, W460 Indianapolis 46204 –Fax: 317.233.3091 –Phone: 317.234.0906 Commission on Public Records Commission on Public Records –402 West Washington Street, W472 Indianapolis 46204 –Phone: 317.232.3380