1. Open Door Law; Public Records Law; Record Retention December 15, 2015 Brad King Co-Director, Indiana Election Division 2016 Election Administrators Conference

2. Where Can I Find These Laws?  Open Door Law (IC 5-14-1.5), pages 601-610 of the Indiana Election Code, 2016 Edition  Public Records Law (IC 5-14-3), pages 610-626 of the Indiana Election Code, 2016 Edition  Records Retention Law (IC 3-10-1-31.1), pages 298-299, Indiana Election Code, 2016 Edition  Some special laws about voter registration records (IC 3-7-27-6), page 183.

3. Basic Open Door Law Questions  When is there a “meeting”?  How much notice must be given for a meeting?  Does there have to be an agenda?  When can there be an “executive session”?  Can there be a secret ballot?  What happens if the Open Door Law isn’t followed?

4. Is this a “meeting”?  A gathering of a majority of the County Election Board to take “official action”: receiving information, deliberate, make recommendations or decisions.  Exception: Social or chance gatherings not intended to evade law.  Exception: Traveling to or attending “better government” meetings.

5. What about a separate Board of Registration or the Clerk?  A “governing body” means 2 or more individuals who are exercising legal authority and making decisions.  Board of Registration: Bipartisan 2 member body. No specific exemption from Open Door Law.  Circuit Court Clerk: Only 1 individual; not a “governing body.”  County Election Board: 3 members (5 in Lake County), therefore a “governing body.”

6. Meeting Notice Requirements  At least 48 hours (not including Saturdays, Sundays, or legal holidays).  EXCEPTION: “Reconvened” meetings, if time and place of reconvened meeting announced at properly noticed meeting.  EXCEPTION: A “real” emergency.  NOTE: Media can file annual request for notice of meeting by US mail, email, or fax.

7. When is it a “real” emergency?  “Actual or threatened injury to person or property”  “Actual or threatened disruption” of government activity under authority of the office.  48 hour notice requirement does not apply if there is emergency as defined in law.  If an emergency meeting necessary, give news media the same notice as board members; post notice of meeting for public in usual location.

8. Starting Late is Risky  If meeting starts at time “so unreasonably departing from the time stated in its public notice that public misled or substantially deprived of opportunity to attend”, the meeting does not meet notice requirements.  No magic time limit for meeting to start if running late.  SOLUTION: Have someone present at meeting location, make announcement about delay.

9. How must “notice” be given?  Posting copy of notice “at principal office of agency conducting the meeting.”  If no agency office, then post in building where meeting occurs.  Not necessary to post outside actual meeting room. But location of meeting must be specified in notice.  LEGAL NOTICE: Not required to be published in newspaper (with exception of voting system public test meetings).  SUGGESTION: Consider scheduling regular meetings (once a month, on second Tuesday, at 10 am, in Clerk’s Office, for example). Cancel meeting if no important business.  You can then give notice once a year. Additional notice necessary only if emergency meeting, or if time, date, or place of regular meeting changes.

10. Agendas  Agenda NOT required to be used.  If agenda IS used, must be posted “at entrance to location of meeting” before meeting occurs.  A body cannot adopt an item by “agenda number” only  Example: “Madam Chairman, I move that the County Election Board adopt Item 5 on the Agenda.”

11. “Minutes” and Memoranda  “Minutes” are required for county election board. Are usually approved at following meeting of Board.  SUGGESTION: Consider risk of lawsuit or other controversy as a result of CEB decisions. Use tape recordings or other electronic media to preserve record.  “Memoranda” must be available within reasonable time after meeting to inform public. Memoranda must include:  Date, time, place of meeting.  Members present and absent.  “General substance” of matters discussed or decided.  Record of all votes taken, by individual member if roll call.

12. Secret Ballots and “Executive Sessions”  Secret ballot vote MAY NOT be taken at meeting. EVER.  What is an “executive session”?  When can county election board have an executive session”? Only when authorized by state law:  Examples:  Litigation discussion and strategy – lawsuit filed, or threatened in writing.  Discussion of confidential records.

13. Executive Sessions  Public notice required for executive session. Notice must identify specific part of Open Door Law that allows executive session.  “Impromptu” executive sessions in middle of public meeting not allowed: “Governing body may not conduct executive session during a meeting… A meeting may not be recessed and reconvened…” with intent to evade Open Door Law.  Certificate of compliance with Executive Session requirements of Open Door Law must be made by County Election Board. See Indiana Election Commission January 19, 2010 minutes example.

14. What if Open Door Law Not Followed?  Potential lawsuit against county election board. (IC 5-14-1.5-7)  Complainant can ask court to “declare void any policy, decision, or final action” taken at executive session or regular meeting held without proper notice.  GENERAL RULE: Lawsuit alleging Open Door Law violation must be filed within 30 days after “action complained of” or date person “should have known” of action.

15. What if Open Door Law Not Followed?  Court determines whether to “void” agency action after deciding extent to which violation affected public “knowledge or understanding” of agency’s decision.  Court looks to reliance on decision by public and what effect declaring action “void” would have. Compare: Voiding a campaign finance fine versus canvass.

16. Public Access Counselor  SUGGESTION: Consult and cooperate with Public Access Counselor on these issues.  Public Access Counselor is independent state office created to advise both public and government bodies about Open Door Law and Public Records Law.  Contact: Luke Britt, Room W470, 402 W Washington St, Ind. 46204; 317-234-0906; www.in.gov/pac/

17. “Public” Records: The Missouri Rule:  BEGIN with assumption that ANY agency record can be inspected and copied by public.  REMEMBER the magic words from Missouri: “Show Me…” where it says that this record is, or can be, confidential.  If not declared confidential by law (or by agency acting under authority of law), then document is a public record.

18. Election Related Public Records  Absentee applications: Absentee ballot applications available for inspection and copying until attached to returned absentee ballot envelope. New law requires copies be made of by mail and traveling board applications for public inspection and copying. IC 3-11-10-8.5  Absentee ballot information: Clerk is required to keep record of absentee ballot applications sent, ballots sent, and ballots returned. Not confidential. IC 3-11-4-17

19. Election Related Public Records  Original voter registration application: These applications must be made available for inspection and copying. Not confidential. IC 3-7-27-12  Voter registration transfers, cancellations, etc: Public records. IC 3-7-27-12  Original marked ballots: Always confidential. IC 3-10- 1-31.1.  Poll Lists and other precinct forms: Must be “sealed and preserved”, but can be inspected and copied AFTER recount filing period (or end of recount).

20. Election Related Public Records  Electronic Voter Registration Records (SVRS)  Depends on policy REQUIRED to be adopted by county election board. IC 3-7-27-6(c).  If you don’t know what your county election board’s policy is, or have a written copy of it, NOW is the time to get one.  Policy must be “uniform and nondiscriminatory.” Policy must make electronic info available to all or none. If available, for standard fee.

21. Agency Discretion When receiving public request, first thing to ask is: Do I create a public record, or not? Many records not REQUIRED to be created in response to request, but once created, are public records. Office can require written request or use of form for public records request. IC 5-14-3-3

22. “Partially” Confidential Records  EXAMPLE: “Legacy” paper voter registration applications with FULL Social Security number.  Public record with confidential information can have confidential material “separated” before inspection. (IC 5-14-3-7)  SUGGESTION: Photocopy original and redact confidential information on copy.

23. Public Records Requests Received in person: Respond within 24 hours of request. Received in writing: Respond within 7 days after request received. “Respond” does not mean to find and make photocopies of all documents requested. Instead means to indicate if office will comply with the request, and if so, how and when.

24. If Public Records Law Not Followed?  Lawsuit can be filed against office in circuit or superior court. IC 5-14-3-9  Burden is on office to prove that inspection and copying of record should not be allowed.  Court can award attorney’s fees to person requesting records, or to government agency if court finds that requestor “substantially prevailed” or to agency if requestor’s lawsuit was

25. Basic Record Retention Questions  What records must be kept forever?  When can some records be disposed of?  How does an office dispose of records?

26. Record Retention What must be kept forever? – County Election Board and Board of Registration minutes, orders and policies. – Sample of each official ballot style. – Canvassed precinct election results.

27. Record Retention When can records be disposed of? Unused ballots: After recount and contest lawsuit filing deadline. Voted ballots, Absentee Ballot Applications, Poll Lists, and Other Election material: 22 months after the election in which they were used.

28. Record Retention When can voter registration material be disposed of? Original voter registration records: Keep as long as person is registered to vote (whether active or inactive), then dispose of 24 months after registration cancelled. Voter registration declinations: 24 months after applicable election.

29. Local Commission on Public Records Local Commission on Public Records meeting required to dispose of some election documents. County retention schedule revised by Commission on Public Records to remove this requirement for some records. Check if any local retention schedule adopted. Members are county and municipal officials. IC 5- 15-6. SUGGESTION: A 5 minute lunch break meeting?

30. Archives and Records Administration Contact: County/Local Records Management 402 W Washington St, Rm W472, Ind. 46204 317-232-3380 www.in.gov/iara/index.html