Public Access to Public Access to Election RecordsElection Records

Heather Willis NealHeather Willis Neal

Public Access CounselorPublic Access Counselor

Circuit Court Clerks’ ConferenceCircuit Court Clerks’ Conference

June 10, 2008June 10, 2008

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Access to Public Records ActAccess to Public Records ActBasicsBasics

““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.

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Access to Public Records ActAccess to Public Records ActBasicsBasics

““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.

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Access to Public Records ActAccess to Public Records ActBasicsBasics

““Copy” includes photocopying as well Copy” includes photocopying as well as making a digital copy using a digital as making a digital copy using a digital camera or a hand-held scanner.camera or a hand-held scanner.

““Inspect” includes the right to make Inspect” includes the right to make notes, abstracts and memoranda, or notes, abstracts and memoranda, or to listen to an audiotape.to listen to an audiotape.

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Access to Public Records ActAccess to Public Records ActBasicsBasics

The agency may require a person to submit The agency may require a person to submit a request for a public record in writing, on a request for a public record in writing, on or in a form supplied by the agency.or in a form supplied by the agency.– Example: VRG-24 to request voter registration Example: VRG-24 to request voter registration

listlist

The agency shall either make the The agency shall either make the requested copy or allow the person to requested copy or allow the person to make a copy on the agency’s equipment or make a copy on the agency’s equipment or on the person’s own equipment.on the person’s own equipment.

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Access to Public Records ActAccess to Public Records ActBasicsBasics

An agency must make reasonable efforts An agency must make reasonable efforts to provide a copy of electronic data to a to provide a copy of electronic data to a person if the medium requested is person if the medium requested is compatible with the agency’s system.compatible with the agency’s system.

If a record contains disclosable and If a record contains disclosable and nondisclosable information, the agency nondisclosable information, the agency shall separate the disclosable material and shall separate the disclosable material and make it available.make it available.– Example: SSN on a voter registration recordExample: SSN on a voter registration record

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Access to Public Records ActAccess to Public Records ActBasicsBasics

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 – no deadlines for production.the record – no deadlines for production.

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Access to Public Records ActAccess to Public Records ActBasicsBasics

Agency’s Responsibility, continuedAgency’s Responsibility, continued– If denying records in response to a If denying records in response to a

written request, state reason for denial written request, state reason for denial with citation to authority, and give name with citation to authority, and give name and title or position of person responsible and title or position of person responsible for denial.for denial.

– Produce records in reasonable time; Produce records in reasonable time; communication with person requesting is communication with person requesting is key.key.

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Access to Public Records ActAccess to Public Records ActBasicsBasics

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– Declared confidential by rule adopted by Declared confidential by rule adopted by

Indiana supreme court (Administrative Rule Indiana supreme court (Administrative Rule 9)9)

– Social security number contained in the Social security number contained in the records of a public agencyrecords of a public agency

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Access to Public Records Act Access to Public Records Act BasicsBasics

Exemptions to disclosure I.C. § 5-14-3-Exemptions to disclosure I.C. § 5-14-3-44– Section 4(b) are discretionary categoriesSection 4(b) are discretionary categories– Attorney work productAttorney work product– Personnel file information, except for Personnel file information, except for

information that must be disclosedinformation that must be disclosed– Inter or intra-agency deliberative material, Inter or intra-agency deliberative material,

which is expression of opinion and is which is expression of opinion and is communicated for the purpose of decision communicated for the purpose of decision makingmaking

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Access to Public Records ActAccess to Public Records ActBasicsBasics

FeesFees– Local agencies may charge only the fee Local agencies may charge only the fee

schedule adopted by the fiscal body of schedule adopted by the fiscal body of the agency.the agency.

– 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.

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Access to Public Records ActAccess to Public Records ActBasicsBasics

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.

– Clerks have specific statute allowing a Clerks have specific statute allowing a higher fee: I.C. § 33-37-5-1higher fee: I.C. § 33-37-5-1

– Agencies may require advance Agencies may require advance payment.payment.

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Access to Election RecordsAccess to Election Records

Voter registration recordsVoter registration records– Generally, voter registration affidavits or forms Generally, voter registration affidavits or forms

must be available at reasonable times for must be available at reasonable times for public inspection, transcription, and copying. public inspection, transcription, and copying. I.C. § 3-7-27-12.I.C. § 3-7-27-12.

– Exceptions to public inspection and copying of Exceptions to public inspection and copying of voter registration records:voter registration records: Records concerning declinations to register to voteRecords concerning declinations to register to vote Records that indicate the identity of a voter Records that indicate the identity of a voter

registration agency where a person registeredregistration agency where a person registered Registration records of participants in the attorney Registration records of participants in the attorney

general’s confidentiality program for abused persons general’s confidentiality program for abused persons

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Access to Election RecordsAccess to Election Records Voter registration recordsVoter registration records

– The county election board shall adopt a policy with The county election board shall adopt a policy with regard to electronic voter registration information. regard to electronic voter registration information. The policy must either permit a person to obtain a The policy must either permit a person to obtain a copy of the electronic voter registration copy of the electronic voter registration information or not permit a person to obtain a copy information or not permit a person to obtain a copy of the information. I.C. § 3-7-27-6(c). of the information. I.C. § 3-7-27-6(c).

– The person may not use the information to solicit The person may not use the information to solicit merchandise, goods, services, or subscriptions or merchandise, goods, services, or subscriptions or sell, loan, give away, or otherwise deliver the sell, loan, give away, or otherwise deliver the information to any other person for a purpose information to any other person for a purpose other than political activities or political other than political activities or political fundraising activities. State Form VRG-24 must be fundraising activities. State Form VRG-24 must be used. used.

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Access to Election RecordsAccess to Election Records

Election materialsElection materials– The general rule for retention of election The general rule for retention of election

materials is that they must be retained materials is that they must be retained for 22 months from the date of the for 22 months from the date of the election. I.C. § 3-10-31.1-1(c). Any election. I.C. § 3-10-31.1-1(c). Any record concerning an issue in litigation record concerning an issue in litigation must be retained until the controversy is must be retained until the controversy is resolved, subject to court orders. resolved, subject to court orders.

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Access to Election RecordsAccess to Election Records

Election materialsElection materials– The general rule for election materials is The general rule for election materials is

that they are available for public that they are available for public inspection and copying after the period inspection and copying after the period for filing and recount and contest has for filing and recount and contest has expired. I.C. § 3-10-31.1-1(c). expired. I.C. § 3-10-31.1-1(c).

– This includes poll lists, applications for This includes poll lists, applications for absentee ballots, ballot envelopes, tally absentee ballots, ballot envelopes, tally sheets, and the computer programs sheets, and the computer programs used to tabulate votes.used to tabulate votes.

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Access to Election RecordsAccess to Election Records

Election materialsElection materials– Exceptions to public inspection and Exceptions to public inspection and

copyingcopying Unused ballots may be disposed of after the Unused ballots may be disposed of after the

time for filing a petition for recount or contest time for filing a petition for recount or contest has expired. I.C. § 3-11-3-31.has expired. I.C. § 3-11-3-31.

Affidavits challenging voter as an illegal voter Affidavits challenging voter as an illegal voter must be opened and copied. I.C. § 3-14-5-2.must be opened and copied. I.C. § 3-14-5-2.

If an order is issued under I.C. § 3-12-6-19, If an order is issued under I.C. § 3-12-6-19, I.C. § 3-12-11-16, or 42 U.S.C. 1973, I.C. § 3-12-11-16, or 42 U.S.C. 1973, continued preservation of the confidentiality continued preservation of the confidentiality of the records is required. of the records is required.

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Access to Election RecordsAccess to Election Records

Election materialsElection materials– Exceptions to public inspection and Exceptions to public inspection and

copyingcopying If a petition for a recount or contest is filed, If a petition for a recount or contest is filed,

the election material remains confidential the election material remains confidential until completion of the recount or contest. until completion of the recount or contest. I.C. § 3-10-31.1-1(d). I.C. § 3-10-31.1-1(d).

Ballots remain confidential even after the Ballots remain confidential even after the period for filing a petition for recount or period for filing a petition for recount or contest has expired. I.C. § 3-10-31.1-1(c). contest has expired. I.C. § 3-10-31.1-1(c).

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Access to Election RecordsAccess to Election Records

Absentee ballot election materialsAbsentee ballot election materials– If a county voter registration office If a county voter registration office

determines that the inspection and determines that the inspection and copying of precinct election material copying of precinct election material would reveal the political parties, would reveal the political parties, candidates, and public questions for which candidates, and public questions for which an individual cast an absentee ballot, the an individual cast an absentee ballot, the county voter registration office shall keep county voter registration office shall keep confidential only the part of the election confidential only the part of the election material necessary to protect the secrecy material necessary to protect the secrecy of the voter’s ballot. I.C. § 3-10-31.1-1(f). of the voter’s ballot. I.C. § 3-10-31.1-1(f).

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Access to Election RecordsAccess to Election Records

Poll listsPoll lists– Upon delivery of the poll lists, the voter Upon delivery of the poll lists, the voter

registration office may unseal the registration office may unseal the envelopes containing the poll lists for envelopes containing the poll lists for the purposes of cancellation, transfer, the purposes of cancellation, transfer, name change, or addition of a name change, or addition of a registration. Upon completion of registration. Upon completion of inspection, the poll list shall be inspection, the poll list shall be preserved with the ballots and other preserved with the ballots and other election materials. I.C. § 3-10-31.1-1(e). election materials. I.C. § 3-10-31.1-1(e).

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Access to Public Records Act Access to Public Records Act BasicsBasics

Retention of recordsRetention of records– The APRA requires an agency to protect The APRA requires an agency to protect

records from loss, alteration, mutilation, records from loss, alteration, mutilation, or destruction.or destruction.

– Each county should have a commission Each county should have a commission on public records to adopt retention on public records to adopt retention schedules. The state oversight schedules. The state oversight committee on public records has set committee on public records has set general retention schedules for cities general retention schedules for cities and towns which can be found at and towns which can be found at www.in.gov/icpr/county/coretention. www.in.gov/icpr/county/coretention.

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Access to Public Records ActAccess to Public Records ActEnforcement ProvisionsEnforcement Provisions

A person may file a complaint with the A person may file a complaint with the public access counselor alleging a public access counselor alleging a denial of a right under APRA. The PAC denial of a right under APRA. The PAC sends formal complaint to the agency sends formal complaint to the agency for response and issues a formal for response and issues a formal advisory opinion within 30 days.advisory opinion within 30 days.

A person may file a lawsuit in superior A person may file a lawsuit in superior court to compel the agency to court to compel the agency to produce a record.produce a record.

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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 for the Visit our website at www.in.gov/pac for the Public Access Handbook Public Access Handbook (updated in (updated in 2008)2008), , advisory opinions and other advisory opinions and other reference materialsreference materials