Senate Bill 232, authored by Senator Gard, came on for a hearing on Wednesday 21 January 2009 before the Committee on Local Government of the Indiana General Assembly.
Here is the digest of the introduced bill.
Public access issues. Requires a public agency to give notice of the agency's meetings to any person who makes an annual request for notice. Allows a court to assess a civil penalty of up to $1,000 against each of the following for violating the public records law or the open door law: (1) The officer of a public agency. (2) Employee of a public agency. (3) The public agency. Requires (rather than allows) a court to review public records in camera to determine whether redaction of the records violates the public records act. If a formal complaint is filed, requires the public access counselor to review public records in camera to determine whether redaction of the records violated the access to public records act. Creates an education fund for a program administered by the public access counselor to train public officials and educate the public on the rights of the public and the responsibilities of public agencies under the public access laws. Makes a continuous appropriation.
Steven Key of the Hoosier Press Association is the major proponent of this legislation. Key mentioned that although most agencies comply with the public records law there are those few bad actors who will simply refuse to abide by the law. Key believes that these provisions will have little impact on public agencies. Currently media outlets may make a request to be notified of agency meetings by submitting a request for the year-long notices by December of the preceding year. Citizens would now also be allowed to use the same notice system which is delivered by email.
During my testimony I relayed to the committee two experiences I have had by the bad actors for which Steven Key spoke. In the Summer of 2007 I was reading the on-line forum of a local newspaper. There, multiple people were making accusations that two police officers had been stalking them. Rumors and speculation were rampant. I thought it would be best to just request copies of complaints against the officers from their departments. So I did that using the APRA.
Two days later the Police Chief for Lebanon met with me and discussed my request. Since no one made a formal written complaint there were no records to supply to me. However, he did discuss that two people had come by the police station but once he explained about why police watch people leaving bars or follow them as they drive away from the bar then the people decided not to file a formal complaint. He also sent a formal response to me in writing citing that no records existed but also providing additional information not required by the Act. To me that was an ideal way to respond to a public records request.
This was not unlike the responses I generally get from state agencies like IDEM or the State Court Administration. However, this was not the type of response I got from Thorntown for my request of stalking complaints against the other police officer. Instead the Town Attorney asked a Superior Court judge to order me to submit my public records requests to the court using the Indiana Trial Rules instead of to the Town. The judge, Rebecca McClure, then ordered me to do so.
Since that order was illegal I simply ignored it and continued to send any request directly to the town. As the town continued to ignore my request or demand payment to compile the records for my inspection I filed complaints with the Public Access Counselor. The PAC tried to resolve the matter without success and ruled that the town was violating the Act.
Later in 2007 a friend of mine went on trial in relation to a sensational 2005 arson fire in Lebanon. Although media was allowed to attend, this same judge ordered me out of the courtroom. So, I filed a public records request for copies of the audio recording. After an initial denial the PAC intervened and then the judge said I could listen to the tapes under specific conditions enumerated in her response. One was that I could not bring my own equipment to make a copy even though the APRA clearly states that a requester may make a copy on his own equipment.
I then filed suit against the court and the town to compel production of the records. The town attorney responded by filing a Motion to Dismiss. At the hearing on his motion the attorney stated that his basis was if the law was the way he wanted it to be then I wouldn't be able to sue the town. The judge, in denying his motion, said he would apply the law as written. This suit is set for hearing next month on my Motion for Summary Judgment.
In opposition to the bill were numerous lobbyist for government agency associations. Their complaints ranged from things like it may take having to create a new position just to add the email addresses of everyone requesting notice to people no longer willing to run for public office or work as a government employee for fear of being fined up to $1000 for intentionally denying someone access to public records.
The provision for providing notice of regular meetings gives the agency the option by which members of the public will be notified. Senator Young asked if this would allow an agency who didn't want to provide notice to then declare that notice will be provided by fax machine since few people have those. Senator Gard suggested that the Legislative Services Agency look at ways to address some of the issues raised during the hearing and that a vote be taken later.
Indiana does have a good public access law but it lacks enforcement power. Adding a penalty provision where employees or officials who intentionally prevent the public from having access may be the incentive that they need to follow the law.