Communication and Disclosure of Utility Information

Communication and Communication and Disclosure of Utility Disclosure of Utility

InformationInformation

Heather Willis Neal Heather Willis Neal

Indiana Public Access CounselorIndiana Public Access Counselor

ISBA Utility Law Section Fall ISBA Utility Law Section Fall SeminarSeminar

October 19, 2007October 19, 2007

Office of the Public Access Office of the Public Access CounselorCounselor

The Office of Public Access Counselor The Office of Public Access Counselor was established by statute in 1999.was established by statute in 1999.

Powers and dutiesPowers and duties– train public officialstrain public officials– educate the publiceducate the public– respond to inquiries respond to inquiries – issue advisory opinionsissue advisory opinions

Enforcement AuthorityEnforcement Authority

Opinions are advisory only.Opinions are advisory only.

Attorney fees, costs, and reasonable Attorney fees, costs, and reasonable expenses of litigation are preserved expenses of litigation are preserved for prevailing plaintiffs in a lawsuit for prevailing plaintiffs in a lawsuit filed under I.C. § 5-14-1.5-7; I.C. § 5-filed under I.C. § 5-14-1.5-7; I.C. § 5-14-3-9.14-3-9.

Annual Report DataAnnual Report Data

The Public Access Counselor files an The Public Access Counselor files an annual report July 1 to the legislature.annual report July 1 to the legislature.

From 1999 to 2006, formal complaints From 1999 to 2006, formal complaints have increased 549% from 41 to 225. have increased 549% from 41 to 225. In 2007, we are at 300 in early October.In 2007, we are at 300 in early October.

In the first two reporting years, inquiries In the first two reporting years, inquiries from governmental agencies were from governmental agencies were greater than inquiries from the public.greater than inquiries from the public.

Resources on Public AccessResources on Public Access

The Office of the Public Access The Office of the Public Access Counselor is the best single resource Counselor is the best single resource in the state on the Open Door Law in the state on the Open Door Law and the Access to Public Records Act.and the Access to Public Records Act.

Web address: www.in.gov/pacWeb address: www.in.gov/pac

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 I.C. § 5-14-1.5.can be found at I.C. § 5-14-1.5.

Open Door LawOpen Door LawBasicsBasics

What is a public agency?What is a public agency?- Any board, commission, dept., agency, - Any board, commission, dept., agency, other entity exercising executive, other entity exercising executive, administrative, or legislative power of the administrative, or legislative power of the state or a delegated local government power.state or a delegated local government power.- Any entity subject to budget review by the - Any entity subject to budget review by the dept. of local government finance or state dept. of local government finance or state board of accounts.board of accounts.- Any advisory body created by statute, - Any advisory body created by statute, ordinance or executive order to advise the ordinance or executive order to advise the governing body.governing body.


All meetings of the governing bodies of All meetings of the governing bodies of public agencies must be open at all times public agencies must be open at all times for the purpose of permitting members of for the purpose of permitting members of the public to observe and record them.the public to observe and record them.

What is a meeting? What is a meeting? A A gatheringgathering of a of a majoritymajority of the governing of the governing body for the purpose of taking body for the purpose of taking official official actionaction upon public business. upon public business.


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 organizations devoted to the betterment of governmentof government

– a caucus;a caucus;


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


What is “official action?” What is “official action?” – receiving informationreceiving information– deliberatingdeliberating– making recommendationsmaking recommendations– establishing policyestablishing policy– making decisionsmaking decisions– taking final actiontaking final action


Serial meetingsSerial meetings2007 General Assembly added new 2007 General Assembly added new language to prohibit serial meetings, language to prohibit serial meetings, where 3 members but less than a where 3 members but less than a quorum meet and then subsequent quorum meet and then subsequent meetings involve at least 2 members meetings involve at least 2 members (and the sum of all meeting (and the sum of all meeting attendees constitutes a quorum) all attendees constitutes a quorum) all held within 7 days to take official held within 7 days to take official action on public business. action on public business.


Executive sessionExecutive session– A meeting from which the public is A meeting from which the public is

excluded, except for persons necessary excluded, except for persons necessary to carry out businessto carry out business

– There are 13 executive session There are 13 executive session instancesinstances

– 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 sessionaction in an executive session


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)

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 location of meeting 48 hours in advance of meeting, not including Saturdays, of meeting, not including Saturdays, Sundays, or legal holidaysSundays, or legal holidays


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 The agency must also deliver notice to

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


Requirements for notice, continuedRequirements for notice, continued– Notice of regular meetings need be Notice of regular meetings need be

given only once each year, except that given only once each year, except that an additional notice shall be given an additional notice shall be given where the date, time, or location of a where the date, time, or location of a regular meeting is changed. regular meeting is changed.

– Executive session notice must be posted Executive session notice must be posted with each session; the ODL doesn’t with each session; the ODL doesn’t allow notice of “regular” executive allow notice of “regular” executive sessionssessions


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

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


Agenda and Memoranda Agenda and Memoranda RequirementsRequirements– 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 at some time before the meeting – the ODL does not provide a meeting – the ODL does not provide a time by when the agenda must be time by when the agenda must be postedposted


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


Agenda and Memoranda RequirementsAgenda and Memoranda Requirements– Memoranda must be kept as the meeting Memoranda must be kept as the meeting

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

proposed, discussed, or decidedproposed, discussed, 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


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.


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

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


A right of the public to record the A right of the public to record the meeting, found at I.C. § 5-14-1.5-3(a) meeting, found at I.C. § 5-14-1.5-3(a) includesincludes the right to audio or video the right to audio or video record the meeting.record the meeting.

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

Open Door LawOpen Door LawEnforcement Provisions Enforcement Provisions

A person may file a complaint with the A person may file a complaint with the Office of the Public Access Counselor Office of the Public Access Counselor alleging denial of rights under the alleging denial of rights under the ODL.ODL.

A person may file an action in a court A person may file an action in a court to obtain a declaratory judgment; to obtain a declaratory judgment; enjoin violations; or declare void any enjoin violations; or declare void any policy, decision or final action, under policy, decision or final action, under certain circumstances.certain circumstances.

Access to Public Records ActAccess to Public Records ActBasicsBasics

““It is the public policy of the state It is the public policy of the state that all persons are entitled to full that all persons are entitled to full and complete information regarding and complete information regarding the affairs of government and the the affairs of government and the official acts of those who represent official acts of those who represent them as public officials and them as public officials and employees.” I.C. §5-14-3-1.employees.” I.C. §5-14-3-1.


““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 I.C. § 5-14-3.I.C. § 5-14-3.


General Rule:General Rule:

Any person may inspect and Any person may inspect and copy the copy the public records of a public records of a public agency public agency during the during the agency’s regular business agency’s regular business hours, hours, unless there is an exception to unless there is an exception to disclosure in law.disclosure in law.


““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 or on behalf offor or on behalf of a public agency. a public agency.


The agency may require a person to The agency may require a person to submit a request for a public record submit a request for a public record in writing, on or in a form supplied by in 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 requested copy or allow the person to make a copy on the agency’s to make a copy on the agency’s equipment or on the person’s own equipment or on the person’s own equipment.equipment.


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.


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 Responding is not necessarily producing the record.the record.


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.


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)


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


FeesFees– Local agencies (cities or towns) may Local agencies (cities or towns) may

charge only the fee schedule adopted by charge only the fee schedule adopted by the fiscal body of the agency (town or the fiscal body of the agency (town or common council). State agencies may common council). State agencies may charge $.10 per page.charge $.10 per page.

– 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.


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.

Access to Public Records ActAccess to Public Records Act

Opinion of the Public Access Opinion of the Public Access Counselor 06-FC-172Counselor 06-FC-172

IURC and OUCC’s reliance on a IURC and OUCC’s reliance on a Settlement Agreement to refuse Settlement Agreement to refuse disclosure was not allowable under disclosure was not allowable under the APRA. There must be statutory the APRA. There must be statutory authority to withhold disclosure.authority to withhold disclosure.

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 Visit our website at www.in.gov/pac for 48-page handbook and advisory for 48-page handbook and advisory opinionsopinions

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Communication and Disclosure of Utility Information

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