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How to Avoid Pitfalls How to Avoid Pitfalls and Correct Mistakesand Correct Mistakes

Common Problems in Public Common Problems in Public AccessAccess

Heather Willis Neal Heather Willis Neal

Indiana Public Access CounselorIndiana Public Access Counselor

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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.

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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

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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.

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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.

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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.

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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.

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Other Issues on Open Other Issues on Open MeetingsMeetings

Serial meetings violate the ODL. A Serial meetings violate the ODL. A serial meeting occurs when all of the serial meeting occurs when all of the following are take place:following are take place:– At least two gatheringsAt least two gatherings– One gathering is attended by at least One gathering is attended by at least

three members but less than a quorumthree members but less than a quorum– The sum of attendees of all meetings The sum of attendees of all meetings

equals at least a quorumequals at least a quorum

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Serial meetings continuedSerial meetings continued– All gatherings concern the same subject All gatherings concern the same subject

mattermatter– All gatherings are held within seven All gatherings are held within seven

consecutive daysconsecutive days– The gatherings are held to take official The gatherings are held to take official

action on public businessaction on public business

*Attendance may be in person or by *Attendance may be in person or by telephone or electronic means, excluding telephone or electronic means, excluding email.email.

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CommitteesCommittees

- Any advisory commission, - Any advisory commission, committee, or body created by committee, or body created by statute, ordinance or executive order statute, ordinance or executive order to advise the governing body.to advise the governing body.

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CommitteesCommittees

- Any committee appointed - Any committee appointed directly by the governing body or its directly by the governing body or its presiding officer.presiding officer.

- Exception – committees - Exception – committees appointed to conduct collective appointed to conduct collective bargaining.bargaining.

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Administrative function exceptionAdministrative function exception

- Only applies to county - Only applies to county commissioners and town boardscommissioners and town boards

- Public notice not required- Public notice not required

- Meeting still open to public- Meeting still open to public

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Administrative function exceptionAdministrative function exception

- Not well-defined- Not well-defined

- Cannot award contract or - Cannot award contract or create create obligation that obligation that binds county or binds county or towntown

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Executive sessionsExecutive sessions

Notice of meetingsNotice of meetings

- Must state subject matter and - Must state subject matter and refer refer enumerated instance in enumerated instance in ODL ODL allowing executive allowing executive sessionsession

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Memoranda and minutesMemoranda and minutes

- must identify subject matter by - must identify subject matter by statutory referencestatutory reference

- must certify no other - must certify no other discussion took discussion took placeplace

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Memoranda and minutesMemoranda and minutes

- Date, time, location- Date, time, location

- Members recorded as absent or - Members recorded as absent or presentpresent

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Baker v. MiddleburyBaker v. Middlebury

- Expanded what can be done in - Expanded what can be done in an an executive sessionexecutive session

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How to correct a problem once it has How to correct a problem once it has occurredoccurred

- “Intent of this chapter that the - “Intent of this chapter that the official action of public agencies be official action of public agencies be conducted and taken openly . . . In conducted and taken openly . . . In order that the people may be fully order that the people may be fully informed.”informed.”

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Access to Public Records ActAccess to Public Records ActPrivacyPrivacy

Social Security NumbersSocial Security Numbers– APRA exempts social security numbers APRA exempts social security numbers

from disclosure for all public agencies.from disclosure for all public agencies.– Upon request for access to a record, an Upon request for access to a record, an

agency must redact social security agency must redact social security number from record if other information number from record if other information contained in the record is disclosablecontained in the record is disclosable

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FERPA (Family Educational Rights and FERPA (Family Educational Rights and Privacy Act) 20 U.S.C. §1232gPrivacy Act) 20 U.S.C. §1232g– Applies to all schools that receive funds Applies to all schools that receive funds

under a program of U.S. Department of under a program of U.S. Department of Education.Education.

– Generally, schools must have written Generally, schools must have written permission from the parent or eligible permission from the parent or eligible student (over age 18) to release any student (over age 18) to release any information from a student’s educational information from a student’s educational record. Social security numbers may not be record. Social security numbers may not be released without consent.released without consent.

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HIPAA (Health Insurance Portability HIPAA (Health Insurance Portability and Accountability Act)and Accountability Act)– If agency is a covered entity under If agency is a covered entity under

HIPAA, may deny access to protected HIPAA, may deny access to protected health information without a valid health information without a valid patient authorization. However, very patient authorization. However, very few public agencies are covered entities few public agencies are covered entities (health plans, health care (health plans, health care clearinghouses, or health care providers clearinghouses, or health care providers who perform covered transactions who perform covered transactions electronically). electronically).

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HIPAA does not provide an HIPAA does not provide an exemption to public agencies that exemption to public agencies that maintain medical information, where maintain medical information, where the public agency is not a HIPAA the public agency is not a HIPAA covered entity, or is otherwise not covered entity, or is otherwise not covered by the privacy regulations covered by the privacy regulations (such as is a business associate).(such as is a business associate).

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However, state law requires a public However, state law requires a public agency to deny “patient medical records agency to deny “patient medical records and charts created by a provider, unless and charts created by a provider, unless the patient gives written consent…” IC 5-the patient gives written consent…” IC 5-14-3-4(a)(9).14-3-4(a)(9).

Note that not all medical information Note that not all medical information maintained by a public agency is created maintained by a public agency is created by a provider. Hence, unless specific by a provider. Hence, unless specific statutory authority exists for statutory authority exists for nondisclosure, a request must be honored.nondisclosure, a request must be honored.

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Privacy vs. ConfidentialityPrivacy vs. Confidentiality Indiana law does not contain a Indiana law does not contain a

general privacy exemption to protect general privacy exemption to protect from disclosure sensitive information.from disclosure sensitive information.

There are various confidentiality There are various confidentiality statutes that recognize privacy statutes that recognize privacy interests, but APRA requires interests, but APRA requires disclosure unless a specific statute disclosure unless a specific statute makes the information confidential.makes the information confidential.

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Access to Public Records ActAccess to Public Records ActCommon questionsCommon questions

Law enforcement recordsLaw enforcement records

- Investigatory records may be - Investigatory records may be withheldwithheld– Some law enforcement records must be Some law enforcement records must be

discloseddisclosed– ““Daily log or record” v. incident reportDaily log or record” v. incident report

- 911 tapes- 911 tapes

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Access to Public Records ActAccess to Public Records ActCommon questionsCommon questions

Personnel records and disciplinary actionsPersonnel records and disciplinary actions

- Generally, personnel file disclosure is - Generally, personnel file disclosure is discretionarydiscretionary

- Must release- Must release

Basic work informationBasic work information

Status of formal chargesStatus of formal charges

Factual basis for discipline leading Factual basis for discipline leading to to demotion, suspension or dischargedemotion, suspension or discharge

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Common questionsCommon questions Deliberative materials exceptionDeliberative materials exception

- Opinions or speculative - Opinions or speculative comments comments communicated for communicated for purpose of purpose of decision-decision-making.making.

- IU case: Court limits exception - IU case: Court limits exception and and requires release of redacted requires release of redacted

documentsdocuments

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Common questionsCommon questions Records prepared for governing bodies Records prepared for governing bodies

– when and what is disclosable?– when and what is disclosable?

- Board packets are public records - Board packets are public records when createdwhen created

- Can be requested prior to board - Can be requested prior to board receiptreceipt

- Can exclude confidential records- Can exclude confidential records

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Procedural IssuesProcedural IssuesResponding to RequestsResponding to Requests

Time for agency’s response:Time for agency’s response:– 24 business hours if in person or phone 24 business hours if in person or phone

request is maderequest is made– 7 calendar days if requested by mail, 7 calendar days if requested by mail,

facsimile or e-mail.facsimile or e-mail. Written requests, if denied, must be Written requests, if denied, must be

denied in writing. denied in writing.

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Agency denial of a recordAgency denial of a record– Must contain a statement of the specific Must contain a statement of the specific

exemption or exemptions authorizing exemption or exemptions authorizing the withholding of all or part of the the withholding of all or part of the public record; andpublic record; and

– the name and the title or position of the the name and the title or position of the person responsible for the denial.person responsible for the denial.

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Response is acknowledgment of the Response is acknowledgment of the request and what efforts the agency request and what efforts the agency is making toward production, is making toward production, including a specific timeframe for including a specific timeframe for further response or production. further response or production.

Time for response does not Time for response does not necessarily mean production of the necessarily mean production of the record. record.

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APRA does not contain a time within APRA does not contain a time within which an agency must produce the which an agency must produce the records. Records must be produced records. Records must be produced in a reasonable period of time under in a reasonable period of time under the circumstances.the circumstances.

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Common violations of APRA Common violations of APRA regarding agency response:regarding agency response:– No response at all.No response at all.– Denying because the requester cited to Denying because the requester cited to

FOIA (federal law). No citation is FOIA (federal law). No citation is necessary to invoke APRA.necessary to invoke APRA.

– Denying all the record when part of the Denying all the record when part of the record must be disclosedrecord must be disclosed

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Common violations regarding agency Common violations regarding agency response:response:– Denials because the requester can use Denials because the requester can use

civil or criminal discovery procedures. civil or criminal discovery procedures. APRA is an independent legal basis for APRA is an independent legal basis for obtaining records. obtaining records.

– Not citing to any statutory exemption Not citing to any statutory exemption allowing nondisclosure. “We don’t allowing nondisclosure. “We don’t regard this as a public record” is regard this as a public record” is insufficient and a violation.insufficient and a violation.

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Office of the Public Access Office of the Public Access CounselorCounselor

Established in 1998 by Gov. Established in 1998 by Gov. O’Bannon. Legislature made it a O’Bannon. Legislature made it a statutory office in 1999.statutory office in 1999.

Statutory authority is at IC 5-14-4.Statutory authority is at IC 5-14-4. Duties are to educate, interpret Duties are to educate, interpret

public access laws, issue advisory public access laws, issue advisory opinions.opinions.

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Formal complaint procedure: IC 5-14-Formal complaint procedure: IC 5-14-5.5.

Persons who have been denied any Persons who have been denied any right under IC 5-14-3 for records or IC right under IC 5-14-3 for records or IC 5-14-1.5 for meetings, or any other 5-14-1.5 for meetings, or any other state statute or rule governing access state statute or rule governing access to public meetings or public records, to public meetings or public records, may file a complaint.may file a complaint.

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Complaints are forwarded to the Complaints are forwarded to the agency that is the subject of the agency that is the subject of the complaint. PAC encourages complaint. PAC encourages responses, but response is not responses, but response is not required under the statute.required under the statute.

Advisory opinion must be issued Advisory opinion must be issued within 30 days of receipt of complaint, within 30 days of receipt of complaint, or within 7 days if priority complaint or within 7 days if priority complaint under 62 IAC 1.under 62 IAC 1.

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Educational and informational Educational and informational materials available on web: materials available on web: www.in.gov/pacwww.in.gov/pac– HandbookHandbook– Advisory opinionsAdvisory opinions– Complaint formComplaint form– Contact informationContact information– Annual reportsAnnual reports

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