1. Indiana’s Access to Public Records Act Heather Willis Neal Indiana Public Access Counselor Presented to Indiana State Department of Health August 21, 2008

2. 2 Office of the Public Access Counselor What we do What we do –Advise –Mediate –Educate Contact us Contact us –(317) 234-0906 –www.IN.gov/pac –e-mail: pac@icpr.IN.gov

3. 3 Public Access Counselor Establishment and Authority Ind. Code 5-14-4: Office established in 1999. Ind. Code 5-14-4: Office established in 1999. Powers and duties: Powers and duties: –Train public officials –Educate members of the public –Respond to informal inquiries –Issue advisory opinions –Make recommendations to General Assembly on ways to improve access

4. 4 Complaint Procedures I.C. 5-14-5 I.C. 5-14-5 Complaint must be timely filed Complaint must be timely filed Complaint must allege denial of access Complaint must allege denial of access PAC must send complaint to agency PAC must send complaint to agency –No statutory requirement to invite or consider response, but it is our practice to do so PAC must issue advisory opinion within 30 days, or 7 days if priority (62 IAC 1) PAC must issue advisory opinion within 30 days, or 7 days if priority (62 IAC 1)

5. 5 Enforcement Authority Opinions are advisory only Opinions are advisory only PAC has no enforcement authority; legislation has been proposed in past years to provide sanctions for violation PAC has no enforcement authority; legislation has been proposed in past years to provide sanctions for violation –Another proposal expected in 2009 session A public agency is required to cooperate with counselor in any investigation or proceeding (I.C. § 5-14-5-5) A public agency is required to cooperate with counselor in any investigation or proceeding (I.C. § 5-14-5-5)

6. 6 APRA Overview Remedies for Violations: I.C. § 5-14-3-9 Remedies for Violations: I.C. § 5-14-3-9 A person may file lawsuit to compel the agency to permit inspection and copying. A person may file lawsuit to compel the agency to permit inspection and copying. Court shall expedite hearing. Court shall expedite hearing. Attorney fees, court costs, and reasonable expenses of litigation to prevailing plaintiff but must have sought and received PAC advisory opinion or informal inquiry response. Attorney fees, court costs, and reasonable expenses of litigation to prevailing plaintiff but must have sought and received PAC advisory opinion or informal inquiry response.

7. 7 Common Problems with APRA Improperly requiring a subpoena from the requester. The law does not require that a person obtain a subpoena in order to get disclosable records. Improperly requiring a subpoena from the requester. The law does not require that a person obtain a subpoena in order to get disclosable records. –The APRA provides a right to access records separate from the discovery process.

8. 8 Common Problems with APRA When records contain partially disclosable and partially nondisclosable information, denying access to entire record When records contain partially disclosable and partially nondisclosable information, denying access to entire record – The agency must separate and disclose the public portion of the record. –Often, this means records maintained in an electronic format (e.g. emails) must be printed, redacted, and provided in hard copy format. –An agency is not required to procure redaction software to redact electronic records and provide in electronic format if agency does not have access to such software.

9. 9 Common Problems with APRA Not responding within prescribed time Not responding within prescribed time –Agency response must be within 24 business hours (i.e. same time the next business day) when request is made by telephone or in person. –Agency response must be within 7 days when request is made by mail, fax or email. Denying access to records but not indicating the statutory authority authorizing denial Denying access to records but not indicating the statutory authority authorizing denial

10. 10 Common Problems with APRA Not regularly communicating with requester when the request is voluminous and agency is taking time to review and compile records Not regularly communicating with requester when the request is voluminous and agency is taking time to review and compile records –There is no timeframe for producing records, but providing requester with approximate time for production is helpful for both parties Assuming certain records are confidential or proprietary absent legal authority Assuming certain records are confidential or proprietary absent legal authority –Records are not made confidential solely because an agency or employee believes they should be confidential

11. 11 Common Problems with APRA Denying access to records which have been sent to State Archives or the Records Center Denying access to records which have been sent to State Archives or the Records Center –If the records are still available, agency must obtain the records from Archives or Records and provide pursuant to a request. Agency records coordinator should have accurate accounting of which records have been moved and/or destroyed. Attempting to create records which do not exist. Attempting to create records which do not exist. –Nothing in the APRA requires a public agency to develop records or information pursuant to a request. The APRA requires the public agency to provide access to records already created.

12. 12 Use of Technology Electronic Mail Electronic Mail –Any 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.

13. 13 Use of Technology Electronic mail must be available for inspection and copying unless an exception to disclosure applies. Electronic mail must be available for inspection and copying unless an exception to disclosure applies. Electronic mail must be maintained in accordance with records retention schedules, under I.C. 5-15. Electronic mail must be maintained in accordance with records retention schedules, under I.C. 5-15.

14. 14 Use of Technology Email messages received and maintained on a personal email account (e.g. a Yahoo! or Hotmail account) are generally not public record. Email messages received and maintained on a personal email account (e.g. a Yahoo! or Hotmail account) are generally not public record. –Use of state property for personal emailing is outside the scope of the public access counselor’s office and is addressed by state ethics rules. If the personal email is submitted to the agency, it becomes a public record. If the personal email is submitted to the agency, it becomes a public record. –Example: A state employee prints out a personal email and gives it to a colleague for follow-up action.

15. 15 Office of the Public Access Counselor What we do What we do –Advise –Mediate –Educate Contact us Contact us –(317) 234-0906 –www.IN.gov/pac –e-mail: pac@icpr.IN.gov