Public Records and Open Meetings Heather Willis Neal Indiana Public Access Counselor Indiana Civil...

Public Records and Public Records and Open MeetingsOpen Meetings

Heather Willis NealHeather Willis Neal

Indiana Public Access CounselorIndiana Public Access Counselor

Indiana Civil Rights Commission CLEIndiana Civil Rights Commission CLE

February 22, 2008February 22, 2008

22

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 Ind. Code 5-14-1.5.can be found at Ind. Code 5-14-1.5.

33

Open Door LawOpen Door LawBasicsBasics

What is a meeting? What is a meeting?

– A A gatheringgathering of a of a majoritymajority of the of the governing body for the purpose of governing body for the purpose of taking taking official actionofficial action upon public upon public business.business.

A group of state employees who meet to A group of state employees who meet to conduct business is not a governing body. conduct business is not a governing body.

44


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;

55


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

66


What is “official action?” What is “official action?” – receiving informationreceiving information– deliberatingdeliberating– making recommendationsmaking recommendations– establishing policyestablishing policy– making decisionsmaking decisions– taking final action (i.e. voting)taking final action (i.e. voting)

77


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

88


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

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

– There are 13 executive session instancesThere are 13 executive session instances– 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 session but may action in an executive session but may make decisions (make decisions (Baker v. Town of Baker v. Town of MiddleburyMiddlebury, 753 N.E.2d 67 (Ind. Ct. App. , 753 N.E.2d 67 (Ind. Ct. App. 2001))2001))

99


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)

1010

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

1111


Posting or delivery of noticePosting or delivery of notice– Notice must be posted at agency’s principal Notice must be posted at agency’s principal

office or at meeting place if there is no office or at meeting place if there is no office.office.

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

1212


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).”)

1313


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 posted.posted.

1414


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 void.agenda number or item alone is void.

1515


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

1616


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.

1717


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.

1818


A right of the public to record the meeting, A right of the public to record the meeting, found at I.C. § 5-14-1.5-3(a) found at I.C. § 5-14-1.5-3(a) includesincludes the the right to audio or video record the meeting. right to audio or video record the meeting. Berry v. Peoples Broadcasting Corp.Berry v. Peoples Broadcasting Corp., 547 , 547 N.E.2d 231 (Ind. 1989)N.E.2d 231 (Ind. 1989)

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

1919

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 Ind. Code 5-14-3.Ind. Code 5-14-3.

2020

Access to Public Records ActAccess to Public Records Act

Key definitionsKey definitions– ““Public Record” means any writing, Public Record” means any writing,

paper, report, study, map, photograph, paper, report, study, map, photograph, book, card, tape recording, or other book, card, tape recording, or other material that is created, received, material that is created, received, retained, maintained, or filed by or with retained, maintained, or filed by or with a public agency and which is generated a public agency and which is generated on paper, paper substitutes, on paper, paper substitutes, photographic media,...photographic media,...

2121

APRA OverviewAPRA Overview

““Public record” continued:Public record” continued:– chemically based media, magnetic or chemically based media, magnetic or

machine readable media, electronically machine readable media, electronically stored data, or any other material, stored data, or any other material, regardless of form or characteristics.regardless of form or characteristics.

– The Indiana Court of Appeals has added The Indiana Court of Appeals has added to this definition materials created to this definition materials created for or for or on behalf ofon behalf of a public agency. a public agency. Knightstown Banner, LLC v. Town of Knightstown Banner, LLC v. Town of KnightstownKnightstown, 838 N.E.2d 1127 (Ind. Ct. , 838 N.E.2d 1127 (Ind. Ct. App. 2005)App. 2005)

2222


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

2323


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.

2424


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.

2525


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.

2626


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.

2727


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 a Declared confidential by rule adopted by a

public agency under specific authority public agency under specific authority granted to the agency by statutegranted to the agency by statute

– Declared confidential by rule adopted by Declared confidential by rule adopted by Indiana supreme court (Administrative Rule Indiana supreme court (Administrative Rule 9)9)

2828


Section 4(b) are discretionary categoriesSection 4(b) are discretionary categories– 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– Deliberative material – expressions of opinion Deliberative material – expressions of opinion

or speculative in nature or speculative in nature andand communicated for communicated for the purposes of decision makingthe purposes of decision making

2929


FeesFees– State agencies may charge the fee State agencies may charge the fee

prescribed by the Indiana Department of prescribed by the Indiana Department of Administration: $.10 per page for 8 ½ x 11 Administration: $.10 per page for 8 ½ x 11 or 8 ½ x 14. or 8 ½ x 14.

– The APRA’s general provisions regarding The APRA’s general provisions regarding

fees are superseded by a specific statute fees are superseded by a specific statute allowing higher fee.allowing higher fee.

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

3030

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 agency must follow the agency’s Each agency must follow the agency’s retention schedule adopted by the retention schedule adopted by the Oversight Commission on Public Oversight Commission on Public Records; the state general retention Records; the state general retention schedule covers records which are not schedule covers records which are not agency-specific.agency-specific.

3131

Open Door LawOpen Door LawUse of TechnologyUse of Technology

Access Laws do not always keep Access Laws do not always keep pace with technological advances.pace with technological advances.

But the purpose behind the law is But the purpose behind the law is constant and should be kept in mind constant and should be kept in mind when addressing new issues in public when addressing new issues in public access.access.

3232

Use of TechnologyUse of Technology

Teleconferencing or Teleconferencing or videoconferencing of meetingsvideoconferencing of meetings– Generally, a member of a governing Generally, a member of a governing

body who is not physically present but body who is not physically present but communicates by electronic or communicates by electronic or telephonic means may not vote and telephonic means may not vote and may not be counted presentmay not be counted present

– Some specific statutes allow for Some specific statutes allow for teleconferencing or videoconferencingteleconferencing or videoconferencing

3333


Electronic mailElectronic mail– Members of governing body must be Members of governing body must be

cautious in use of email when it is used cautious in use of email when it is used between and among members to between and among members to conduct official business.conduct official business.

– Virginia high court ruled that email Virginia high court ruled that email communications did not constitute a communications did not constitute a meeting in meeting in Beck v. SheltonBeck v. Shelton, 593 S.E.2d , 593 S.E.2d 195. E-mail communication lacked 195. E-mail communication lacked simultaneity.simultaneity.

3434


Simultaneous communication by Simultaneous communication by email among a majority of members email among a majority of members of a governing body might be a of a governing body might be a “meeting” within the meaning and “meeting” within the meaning and spirit of IC 5-14-1.5-2(c).spirit of IC 5-14-1.5-2(c).

Indiana appellate courts have not Indiana appellate courts have not ruled on the question.ruled on the question.

3535


Electronic MailElectronic Mail– Any record, including electronic media, Any record, including electronic media,

created received, retained, maintained, created received, retained, maintained, or filed by or with a public agency is a or filed by or with a public agency is a public record.public record.

– Therefore, electronic mail is a public Therefore, electronic mail is a public record if it is created, received, retained, record if it is created, received, retained, maintained, or filed with a public maintained, or filed with a public agency, including a governing body.agency, including a governing body.

3636


Electronic mail must be available for Electronic mail must be available for inspection and copying by the inspection and copying by the governing body.governing body.

Electronic mail must be maintained Electronic mail must be maintained in accordance with records retention in accordance with records retention schedules, under IC 5-15.schedules, under IC 5-15.

The state email retention policy is to The state email retention policy is to view the email as the record it is; view the email as the record it is; “email” is not its own type of record“email” is not its own type of record

3737

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 a copy of the formal complaint to sends a copy of the formal complaint to the agency for response and issues a the agency for response and issues a formal advisory opinion within 30 days.formal 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 produce court to compel the agency to produce a record.a record.

3838

Access to Public Records ActAccess to Public Records ActEnforcement ProvisionsEnforcement Provisions

If a person who files an action in If a person who files an action in court regarding alleged violation of court regarding alleged violation of the APRA is victorious and has the APRA is victorious and has previously received an informal or previously received an informal or advisory opinion from the public advisory opinion from the public access counselor, the public agency access counselor, the public agency will be responsible for attorney fees, will be responsible for attorney fees, reasonable litigation expenses and reasonable litigation expenses and court costs. court costs.

3939

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

Date post:	13-Dec-2015
Category:	Documents
Upload:	ashley-davidson
View:	214 times
Download:	0 times

Public Records and Open Meetings Heather Willis Neal Indiana Public Access Counselor Indiana Civil...

Documents