how to avoid pitfalls and correct mistakes
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DESCRIPTIONHow to Avoid Pitfalls and Correct Mistakes. Common Problems in Public Access Heather Willis Neal Indiana Public Access Counselor. Open Door Law Use of Technology. Access Laws do not always keep pace with technological advances. - PowerPoint PPT Presentation
How to Avoid Pitfalls and Correct MistakesCommon Problems in Public Access
Heather Willis Neal Indiana Public Access Counselor
Open Door LawUse of TechnologyAccess 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.
Use of TechnologyTeleconferencing or videoconferencing of meetingsGenerally, a member of a governing body who is not physically present but communicates by electronic or telephonic means may not vote and may not be counted presentSome specific statutes allow for teleconferencing or videoconferencing
Use of TechnologyElectronic mailMembers of governing body must be cautious in use of email when it is used between and among members to conduct official business.Virginia high court ruled that email communications did not constitute a meeting in Beck v. Shelton, 593 S.E.2d 195. E-mail communication lacked simultaneity.
Use of TechnologySimultaneous communication by email among a majority of members of a governing body might be a meeting within the meaning and spirit of IC 5-14-1.5-2(c).Indiana appellate courts have not ruled on the question.
Use of TechnologyElectronic MailAny 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.
Use of TechnologyElectronic 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.
Other Issues on Open MeetingsSerial meetings violate the ODL. A serial meeting occurs when all of the following are take place:At least two gatheringsOne gathering is attended by at least three members but less than a quorumThe sum of attendees of all meetings equals at least a quorum
Other Issues on Open MeetingsSerial meetings continuedAll gatherings concern the same subject matterAll gatherings are held within seven consecutive daysThe gatherings are held to take official action on public business*Attendance may be in person or by telephone or electronic means, excluding email.
Other Issues on Open MeetingsCommittees- Any advisory commission, committee, or body created by statute, ordinance or executive order to advise the governing body.
Other Issues on Open MeetingsCommittees- Any committee appointed directly by the governing body or its presiding officer.
- Exception committees appointed to conduct collective bargaining.
Other Issues on Open MeetingsAdministrative function exception- Only applies to county commissioners and town boards
- Public notice not required
- Meeting still open to public
Other Issues on Open MeetingsAdministrative function exception- Not well-defined
- Cannot award contract or create obligation that binds county or town
Other Issues on Open MeetingsExecutive sessionsNotice of meetings- Must state subject matter and refer enumerated instance in ODL allowing executive session
Other Issues on Open MeetingsExecutive sessionsMemoranda and minutes- must identify subject matter by statutory reference
- must certify no other discussion took place
Other Issues on Open MeetingsExecutive sessionsMemoranda and minutes- Date, time, location- Members recorded as absent or present
Other Issues on Open MeetingsExecutive sessionsBaker v. Middlebury- Expanded what can be done in an executive session
Other Issues on Open MeetingsHow to correct a problem once it has occurred- Intent of this chapter that the official action of public agencies be conducted and taken openly . . . In order that the people may be fully informed.
Access to Public Records ActPrivacySocial Security NumbersAPRA exempts social security numbers from disclosure for all public agencies.Upon request for access to a record, an agency must redact social security number from record if other information contained in the record is disclosable
Access to Public Records ActPrivacyFERPA (Family Educational Rights and Privacy Act) 20 U.S.C. 1232gApplies to all schools that receive funds under a program of U.S. Department of Education.Generally, schools must have written permission from the parent or eligible student (over age 18) to release any information from a students educational record. Social security numbers may not be released without consent.
Access to Public Records ActPrivacyHIPAA (Health Insurance Portability and Accountability Act)If agency is a covered entity under HIPAA, may deny access to protected health information without a valid patient authorization. However, very few public agencies are covered entities (health plans, health care clearinghouses, or health care providers who perform covered transactions electronically).
Access to Public Records ActPrivacyHIPAA does not provide an exemption to public agencies that maintain medical information, where the public agency is not a HIPAA covered entity, or is otherwise not covered by the privacy regulations (such as is a business associate).
Access to Public Records ActPrivacyHowever, state law requires a public agency to deny patient medical records and charts created by a provider, unless the patient gives written consent IC 5-14-3-4(a)(9).Note that not all medical information maintained by a public agency is created by a provider. Hence, unless specific statutory authority exists for nondisclosure, a request must be honored.
Access to Public Records ActPrivacyPrivacy vs. ConfidentialityIndiana law does not contain a general privacy exemption to protect from disclosure sensitive information.There are various confidentiality statutes that recognize privacy interests, but APRA requires disclosure unless a specific statute makes the information confidential.
Access to Public Records ActCommon questionsLaw enforcement records - Investigatory records may be withheldSome law enforcement records must be disclosedDaily log or record v. incident report - 911 tapes
Access to Public Records ActCommon questionsPersonnel records and disciplinary actions- Generally, personnel file disclosure is discretionary
- Must releaseBasic work informationStatus of formal chargesFactual basis for discipline leading to demotion, suspension or discharge
Common questionsDeliberative materials exception- Opinions or speculative comments communicated for purpose of decision-making.- IU case: Court limits exception and requires release of redacted documents
Common questionsRecords prepared for governing bodies when and what is disclosable?- Board packets are public records when created- Can be requested prior to board receipt- Can exclude confidential records
Procedural IssuesResponding to RequestsTime for agencys response:24 business hours if in person or phone request is made7 calendar days if requested by mail, facsimile or e-mail.Written requests, if denied, must be denied in writing.
Procedural IssuesResponding to RequestsAgency denial of a recordMust contain a statement of the specific exemption or exemptions authorizing the withholding of all or part of the public record; andthe name and the title or position of the person responsible for the denial.
Procedural IssuesResponding to RequestsResponse is acknowledgment of the request and what efforts the agency is making toward production, including a specific timeframe for further response or production. Time for response does not necessarily mean production of the record.
Procedural IssuesResponding to RequestsAPRA does not contain a time within which an agency must produce the records. Records must be produced in a reasonable period of time under the circumstances.
Procedural IssuesResponding to RequestsCommon violations of APRA regarding agency response:No response at all.Denying because the requester cited to FOIA (federal law). No citation is necessary to invoke APRA.Denying all the record when part of the record must be disclosed
Procedural IssuesResponding to RequestsCommon violations regarding agency response:Denials because the requester can use civil or criminal discovery procedures. APRA is an independent legal basis for obtaining records. Not citing to any statutory exemption allowing nondisclosure. We dont regard this as a public record is insufficient and a violation.
Office of the Public Access CounselorEstablished in 1998 by Gov. OBannon. Legislature made it a statutory office in 1999.Statutory authority is at IC 5-14-4.Duties are to educate, interpret public access laws, issue advisory opinions.
Office of the Public Access CounselorFormal complaint procedure: IC 5-14-5.Persons who have been denied any right under IC 5-14-3 for records or IC 5-14-1.5 for meetings, or any other state statute or rule governing access to public meetings or public records, may file a complaint.
Office of the Public Access CounselorComplaints are forwarded to the agency that is the subject of the complaint. PAC encourages responses, but response is not required under the statute.Advisory opinion must be issued within 30 days of receipt of complaint, or within 7 days if priority complaint under 62 IAC 1.
Office of the Public Access CounselorEducational and informational materials available on web: www.in.gov/pacHandbookAdvisory opinionsComplaint formContact