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					Indiana Public Access Counselor
Handbook on Indiana’s Public Access Laws
Updated November 2011


Handbook on Indiana’s Public Access Laws
OFFICE OF THE PUBLIC ACCESS COUNSELOR
TABLE OF CONTENTS
Letter from the Public Access Counselor.............................................................................................................. 4

SECTION ONE: OVERVIEW OF THE INDIANA OPEN DOOR LAW.................................................... 5
COMMONLY ASKED QUESTIONS ABOUT THE OPEN DOOR LAW........................................................ 5
Who has access to government meetings? ........................................................................................................... 5
What government meetings are open to the public? ............................................................................................ 5
What is a public agency? ...................................................................................................................................... 5
What is a governing body? ................................................................................................................................... 5
What is a meeting? ............................................................................................................................................... 6
What is not a meeting? ......................................................................................................................................... 6
Can a member of a governing body attend a meeting electronically? …...…………………………………..…7
What is official action? ........................................................................................................................................ 7
What is a serial meeting? ………………………………………………………………………………………..8
What if the need for a public meeting is uncertain? ............................................................................................. 8
What is significant about executive sessions? ..................................................................................................... 8
When must a public agency give notice of an executive session?........................................................................ 9
When can a governing body take final action on executive session subject matter?............................................ 9

A PUBLIC AGENCY’S RESPONSIBILITIES UNDER THE OPEN DOOR LAW ......................................... 9
When can I see a copy of the meeting agenda? ....................................................................................................9
What can I do if I am unable to attend the open meeting? ....................................................................................9
Must a governing body keep minutes of its meetings?..........................................................................................9
What if errors occur in the entries of the open meeting’s minutes? ....................................................................10
How will I know if an open meeting has been scheduled? .................................................................................10
What if a meeting is necessary to deal with an emergency? ………...................................................................10
What special notice requirements apply for the media? .....................................................................................10
May a governing body vote by secret ballot? .................................................................................................... 10
In what manner should a vote be taken? ............................................................................................................ 10
May I bring my video camera or tape recorder to an open proceeding to record the meeting?......................... 10
Do I have the right to speak at open meetings?.................................................................................................. 11
May a meeting be set at any time? ..................................................................................................................... 11
Where can meetings be held? ............................................................................................................................. 11
Must a public agency formally adjourn its meeting?.......................................................................................... 11

REMEDIES FOR VIOLATIONS OF THE OPEN DOOR LAW ..................................................................... 11
What can I do if I think a governing body has violated the Indiana Open Door Law?...................................... 11
What remedies are available if the Indiana Open Door Law is violated?........................................................... 11
Are there any time limits on filing a legal action? ............................................................................................. 11
Who pays for my attorney if my legal action is successful? What if I lose?...................................................... 12

CONCLUSION .................................................................................................................................................. 12

SECTION TWO: THE OPEN DOOR LAW AND LEGAL COMMENTARY ….....................................12
Purpose............................................................................................................................................................... 12
Definitions.......................................................................................................................................................... 12
Open meetings; secret ballot votes..................................................................................................................... 14
Serial meetings …………………………………………………………………………………………………15
Posting of agenda; memoranda of meetings; public inspection of minutes....................................................... 15



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Indiana Public Access Counselor
Handbook on Indiana’s Public Access Laws
Updated November 2011

Public notice of meetings ................................................................................................................................... 16
Executive sessions .............................................................................................................................................. 17
Collective bargaining meetings; applicable requirements.................................................................................. 19
Violations; remedies; limitations; costs and fees ............................................................................................... 20
Accessibility to individuals with disabilities ...................................................................................................... 21

SECTION THREE: OVERVIEW OF THE INDIANA ACCESS TO PUBLIC RECORDS ACT……... 22
COMMONLY ASKED QUESTIONS ABOUT THE ACCESS TO PUBLIC RECORDS ACT...................…22
Who may access public records? ....................................................................................................................... 22
What kind of documents may be accessed?........................................................................................................ 22
What records may not be accessed? …………………....................................................................................... 22
May I request information in the form of a list?................................................................................................. 24
When can public records be accessed? .............................................................................................................. 24
How can public records be accessed? ................................................................................................................ 24
What is enhanced access to public records? ………………………………………………………………….. 25
What are the public agency’s responsibilities when I submit a request? ........................................................... 25
May a public agency deny a request? ................................................................................................................ 25
What if a public agency denies my request? ...................................................................................................... 25
May a public agency charge individuals for inspecting and copying public records?........................................ 26
What if confidential records are disclosed or public records are not protected from destruction?..................... 26

CONCLUSION .................................................................................................................................................. 26

SECTION FOUR: THE ACCESS TO PUBLIC RECORDS ACT AND LEGAL COMMENTARY …. 26
Public policy; construction; burden of proof of nondisclosure........................................................................... 26
Definitions .......................................................................................................................................................... 27
Right to inspect and copy public agency records ............................................................................................... 29
Enhanced access to public records; state agencies ............................................................................................. 31
Enhanced access to public records; public agencies .......................................................................................... 31
Records excepted from disclosure requirements; time limitations; destruction of records. .............................. 32
Job title or job descriptions of law enforcement officers ................................................................................... 36
Records relating to negotiations by the Indiana economic development corporation …………………………36
Records of the Indiana finance authority ………………………………………………………………………36
Records of the ports of Indiana ………………………………………………………………………………...37
Information relating to arrest or summons; jailed persons; agency records; inspection and copying.............. . 37
Sealing of certain records by court; hearing; notice ........................................................................................... 38
Partially disclosable records; computer or microfilm record systems; fees........................................................ 38
Confidentiality of public records ....................................................................................................................... 39
Protection against loss, alteration, destruction and unauthorized enhanced access............................................ 39
Fees; copies ........................................................................................................................................................ 39
Enhanced access fund; establishment by ordinance; purpose............................................................................. 40
Electronic map generation fund; establishment by ordinance; purpose.............................................................. 40
Denial of disclosure; action to compel disclosure; intervenors; burden of proof; attorney’s fees, costs…….... 41
Confidential information; unauthorized disclosure or failure to protect; offense; discipline............................. 42

SECTION FIVE: OVERVIEW OF THE OFFICE OF THE PUBLIC ACCESS COUNSELOR ........... 42
What is the role of the Public Access Counselor?.............................................................................................. 43
Who may utilize the services of the office?........................................................................................................ 43
What is the process for filing a formal complaint?..............................................................................................43
Must I file a formal complaint to obtain assistance? .......................................................................................... 44
Why file a formal complaint or seek an informal inquiry from the Counselor? ................................................ 44
How do I contact the Counselor?........................................................................................................................ 44




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Indiana Public Access Counselor
Handbook on Indiana’s Public Access Laws
Updated November 2011

SECTION SIX: THE PUBLIC ACCESS COUNSELOR ACT.................................................................... 44
Public Access Counselor..................................................................................................................................... 44
Formal complaints to the public access counselor ………………………………………................................. 46

APPENDICES
APPENDIX A: PUBLIC ACCESS COUNSELOR ADMINISTRATIVE RULE ............................................ 48
APPENDIX B: CHECKLIST FOR PUBLIC AGENCIES.................................................................................49
APPENDIX C: SAMPLE PUBLIC RECORDS REQUEST LETTER...............................................................50
APPENDIX D: SAMPLE NOTICES..................................................................................................................51
APPENDIX E: OTHER HELPFUL STATUTES................................................................................................52
APPENDIX F: PUBLIC ACCESS COUNSELOR CONTACT INFORMATION ...........................................53
APPENDIX G: FORMAL COMPLAINT FORM ……………………………………………………………..54




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Indiana Public Access Counselor
Handbook on Indiana’s Public Access Laws
Updated November 2011



The Office of Public Access Counselor and the Office of the Indiana Attorney General are pleased to
provide you with a copy of this “Handbook on Indiana’s Public Access Laws.” The Indiana General
Assembly created the Office of Public Access Counselor in July 1999. The role of the Office, among
other things, is to prepare and distribute interpretive and educational materials, such as this handbook, in
cooperation with the Indiana Attorney General.              This handbook is also available online at
http://www.in.gov/pac/files/pac_handbook.pd,

In this handbook, you will find the text of the two major public access statutes applicable to state and
local public agencies: the Indiana Open Door Law, which governs meetings of governing bodies of public
agencies, and the Access to Public Records Act, which governs access to public records. This handbook
includes updates to the laws through the 2011 session of the Indiana General Assembly. In addition to the
text of these statutes, we have included references to court cases interpreting these statutes. Also included
are the statute and rules governing the operation of the Office of the Public Access Counselor. The
appendices at the back of the handbook include a checklist for public agencies responding to requests for
public records, a sample records request letter, sample meeting notices and our formal complaint form.

This handbook addresses many issues but is not intended to be a substitute for seeking advice from legal
counsel. Please feel free to contact this office using the contact information provided on the back cover of
this handbook if you have any questions or problems related to the public access statutes.

Sincerely,




Joseph B. Hoage                                                    Gregory F. Zoeller
Indiana Public Access Counselor                                    Indiana Attorney General




Additionally, thank you to Steve Key, executive director and general counsel for the Hoosier State Press
Association for editing, content, and printing assistance.




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Handbook on Indiana’s Public Access Laws
Updated November 2011




SECTION ONE: OVERVIEW OF THE                              Additionally, several types of meetings are not
INDIANA OPEN DOOR LAW                                     required to be open to the public. To detail the
                                                          full range of meetings which must be accessible
INTRODUCTION                                              to the public, certain phrases must be defined.
  The Open Door Law (“ODL”)(Ind. Code 5-14-
1.5), originally passed by the Indiana General            What is a public agency?
Assembly in 1977 and most recently amended in               The term “public agency” is defined very
2008, was enacted to permit the public access to          broadly by the ODL and encompasses many
meetings held by public agencies. When the                meanings, which are set forth at I.C. §5-14-1.5-
public has an opportunity to attend and observe           2(a). According to this provision, a public
meetings, the public may witness government in            agency means the following, among others:
action and more fully participate in the                  • Any board, commission, department,
governmental process. The ODL will serve these                agency, authority, or other entity which
purposes if the public understands the provisions             exercises a portion of the executive,
of this statute. This guide sets forth the basic              administrative, or legislative power of the
elements of the ODL and provides answers to                   state
commonly asked questions. To obtain answers               • Any entity subject to a budget review by the
to more specific questions, please consult the                department of local government finance or
provisions of the Indiana Code set forth in                   the governing body of a county, city, town,
Section Two of this guide.                                    township, or school corporation
                                                          • Any entity subject to an audit by the state
COMMONLY ASKED QUESTIONS ABOUT                                board of accounts
THE OPEN DOOR LAW                                         • Any building corporation of a political
  The following are commonly asked questions                  subdivision of the state of Indiana that issues
about the ODL. It is important to note the                    bonds for the purpose of constructing public
answers are not the final authority on a                      facilities
particular issue, as the facts will vary from             • Any advisory commission, committee, or
situation to situation. Indeed, laws and court                body created by statute, ordinance, or
interpretations of the law are ever changing. It is           executive order to advise the governing
important to remember the answers to these                    body of a public agency, except for medical
questions are only guidelines, may only apply to              staffs or the committees of any such staff
specific situations, and are subject to change.
                                                          Example 1: A school building corporation
Who has access to government meetings?                    organized solely to finance school corporations
  The ODL allows all members of the public                (I.C. 21-5-11 or I.C. 21-5-12) is a public agency
access to certain meetings. There is no                   subject to the ODL.
requirement for a person to be a citizen of the
jurisdiction or a constituent of the governing            Example 2: A convention and visitor
body to be permitted access to a meeting.                 commission of an Indiana county supported
                                                          primarily by tax dollars is subject to the
What government meetings are open to the                  requirement for public notice of meetings and
public?                                                   records of meetings mandated by the ODL.
  Generally, all meetings of the governing
bodies of public agencies must be open at all             What is a governing body?
times so members of the public may observe and              The phrase “governing body” is defined at I.C.
record them. Although this general rule may               §5-14-1.5-2(b). A governing body is two or
appear to be straightforward and easy to apply, it        more individuals who are one of the following:
contains several words and phrases which are              • A public agency that is a board,
given a specific meaning by the ODL.


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     commission, authority, council, committee,           What is a meeting?
     body, or other entity which takes official             “Meeting” means a gathering of a majority of
     action on public business                            the governing body of a public agency for the
•    The board, commission, council, or other             purpose of taking official action upon business.
     body of a public agency that takes official          I.C. § 5-14-1.5-2(c).
     action upon public business
•    Any committee directly appointed by the              Example 1: A majority of a city’s police
     governing body or its presiding officer to           commissioners gather to discuss previously
     which authority to take official action upon         interviewed job candidates prior to a formal vote
     public business has been delegated, except           on the matter. This qualifies as a “meeting”
     for agents appointed by a governing body to          under the ODL.
     conduct collective bargaining on behalf of
     the governing body                                   Example 2: Prior to a public meeting, a majority
                                                          of members of a city zoning appeals board held
  In each of these definitions, an entity must            a private session with the board’s attorney.
take official action on public business to be             Board members questioned the attorney about
considered a governing body.                              legal matters related to a construction project
                                                          that was the subject of a public session. The
Example 1: Staff members of the state                     private session constituted a meeting and
department of transportation meet to discuss              violated the ODL.
new requirements under federal highway laws.
A representative of a local engineering company           Example 3: A private foundation whose charge
wants to sit in on the meeting but is refused             is the betterment of education holds a forum to
admittance. This meeting is not subject to the            release its most recent report regarding the
requirements of the ODL because staff members             quality of education within a particular school
of a government agency do not constitute a                corporation. Four of seven school board
“governing body” responsible for taking official          members from the subject city want to attend to
action on public business.                                hear the presentation. This is a “meeting” of the
                                                          school board if the members decide as a group to
Example 2: Employees of the state department              attend because the four members constitute a
of health conduct a meeting. The employees                “governing body” that is taking “official action”
conducting the meeting are not members of the             (receiving information) on “public business”
state board of health or any advisory committee           (the school corporation). If each of the school
directly appointed by that Board. The meeting is          board members receives an invitation and
not subject to the requirements of the ODL.               independently makes a determination about
                                                          whether to attend, it may not be a meeting.
Example 3: A curriculum committee, appointed
by a school superintendent, who is to report its          What is not a meeting?
findings to the school board, is not subject to the         The ODL lists seven types of gatherings not
ODL because the superintendent is not the                 considered “meetings.” A meeting does not
presiding officer of the school board. The same           include the following:
committee appointed by the school board                   • Any social or chance gathering not intended
president, however, would be subject to the                   to avoid the requirements of the ODL;
ODL. I.C. § 5-14-1.5-2(b).                                • Any on-site inspection of a project or
                                                              program;
Example 4: The mayor, public works director               • Traveling to and attending meetings of
and council president meet to discuss financial               organizations devoted to the betterment of
matters. These individuals, although public                   government;
officials, do not make up a governing body. The           • A caucus;
meeting would not be covered by the ODL.                  • A gathering to discuss an industrial or a



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     commercial prospect that does not include a            board are among the regulars. Frequently, the
     conclusion as to recommendations, policy,              conversation turns to matters of local concern on
     decisions, or final action on the terms of a           the agenda for the next board meeting. The
     request or an offer of public financial                group discusses the issues and often decides
     resources;                                             “what should be done.” This discussion violates
•    An orientation of members of the governing             the ODL if the board members constitute a
     body on their role and responsibilities as             majority of the governing body. By deciding
     public officials, but not for any other official       issues before the meeting, the board members
     action; or                                             have deprived the public of the opportunity to
•    A gathering for the sole purpose of                    hear the debate leading to a decision.
     administering an oath of office to an
     individual.                                            Example 6: A county council and board of
                                                            commissioners gather to discuss the potential of
Example 1: Before a tax measure is voted upon               an international company relocating to the
in the General Assembly, members of the                     county. This is not a meeting so long as there is
majority party meet to discuss the party’s                  no conclusion as to recommendations, policy,
position. The meeting is not subject to the ODL.            decisions, or final action on the terms of a
A political caucus is not transformed into a                request or an offer of public financial resources.
meeting subject to public scrutiny under the
ODL merely because persons attending such                   Example 7: After the election of new school
caucuses happen to constitute a majority of a               board members, the school corporation holds a
governing body.                                             gathering of the board members for an
                                                            orientation of the board on their roles and
Example 2: A drainage committee decides to                  responsibilities. During the orientation, the
meet one evening in a troubled area to obtain a             board members set and discuss the agenda for
first-hand look at the problem. This is not a               the next meeting. This is a meeting subject to
meeting and is not subject to the law as long as            the requirements of the ODL because the board
the committee does no more than inspect the                 took official action beyond just receiving an
problem.                                                    orientation on their roles and responsibilities.

Example 3: A park board decides to make an                  Can a member of a governing body attend a
onsite inspection of its new lake, but it does not          meeting electronically?
give public notice of its meeting. While at the               Generally, a member of the governing body
lake, the board members decide to appropriate               who is not physically present at the gathering
funds for a boat dock. The on-site inspection has           but participates by telephone, computer,
become a meeting and is subject to the                      videoconferencing, or other electronic means of
requirements of the ODL.                                    communication may participate in the meeting.
                                                            The member, however, may not be counted
Example 4: A majority of the town board travels             present and may not participate in final action.
to a meeting together and reaches agreement on
the outcome of various issues. The board                    What is official action?
members claim this was not a meeting because                  A group is a governing body and subject to the
they were traveling to and from a national                  ODL only if it takes “official action.” “Official
meeting of town boards. The actions of the                  action” means to receive information, deliberate,
board during their travel violated the ODL                  make recommendations, establish policy, make
because the members took official action on                 decisions, or take final action. I.C. § 5-14-1.5-
public business and did not simply travel to and            2(d).
from the meeting.
                                                            Example 1: A city council schedules a meeting
Example 5: A local cafe is a popular spot for               to set hiring and firing guidelines for city
morning coffee, and several members of a town               employees. The meeting involves official action


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since policy is being established.                       excluded, except that the governing body may
                                                         admit those persons necessary to carry out its
Example 2: A zoning board hears a presentation           purpose. The ODL sets out the specific matters
from an architectural firm regarding the                 about which a public agency can hold an
designation of historic preservation areas. No           executive session. These include instances like
proposals are made nor are votes taken. Yet, the         government strategy discussions with respect to
board does take official action because the board        collective bargaining and litigation, interviews
is receiving information on public business.             of prospective employees, job performance
                                                         evaluations, and the purchase or lease of
What is a serial meeting?                                property by the public agency. For a complete
  A serial meeting is a series of small meetings         listing, see Section Two of this guide.
held by a governing body in an attempt to avoid
the requirements of the ODL. To address this,            Example 1: A local public works board meets in
the General Assembly amended the ODL in                  executive session before considering a tax
2007 to prohibit a serial meeting. By definition         proposal because there have been rumors the
the serial meeting law can only be violated by           measure may be challenged on constitutional
governing bodies of six or more individuals. A           grounds. Unless litigation is actually pending or
serial meeting occurs when members of a                  threatened in writing, this is a violation of the
governing body participate in a series of at least       ODL.
two meetings and all of the following conditions
are met:                                                 Example 2: A local school board meets in
• One gathering is attended by at least three            executive session to discuss alleged sexual
    members but less than a quorum;                      harassment of a fellow employee by a teacher in
• The other gatherings include at least two              the district. The board calls the teacher in to the
    members of the governing body;                       executive session to discuss the complaint. This
• The sum of different members participating             is a permissible executive session, so long as the
    at least equals a quorum;                            board limits its action to discussion of the
• The gatherings concern the same subject                complaint and does not take any final
    matter and are held within a period of seven         disciplinary action against the teacher.
    days; and
• The gatherings are held to take official               Example 3: A town board meets in executive
    action on public business.                           session with its attorney and the attorney for a
  For purposes of the serial meeting section, a          person who has filed a civil rights action against
member of the governing body attends by being            the town. The purpose of the meeting is to
present in person or by telephonic or other              discuss settlement of the lawsuit. This violates
electronic means, excluding email.                       the ODL because the meeting includes
                                                         adversaries.
What if the need for a public meeting is
uncertain?                                               Example 4: A local public works board meets in
  All doubts under the ODL must be resolved in           executive session to open bids for a sewer
favor of requiring a public meeting, and all             project. Unless authorized by federal or state
exceptions to the rule requiring open meetings           statute, or the bids are classified as confidential
must be interpreted narrowly.                            by statute, the executive session would violate
                                                         the ODL.
What is significant about executive sessions?
  Executive sessions are significant because the         Example 5: The governing body of a state
ODL permits governing bodies to meet privately           agency meets in executive session to discuss
under certain circumstances. “Executive                  records containing trade secrets. Under the
session” is defined in I.C. § 5-14-1.5-2(f) and          Access to Public Records Act, which is
means a meeting from which the public is                 addressed in Sections 3 and 4 of this guide, such
                                                         records are exempt from public inspection. This


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discussion is appropriate for an executive                required to use an agenda, but if it chooses to
session.                                                  utilize one, the agency must post a copy of the
                                                          agenda at the entrance to the location of the
When must a public agency give notice of an               meeting prior to the meeting. In addition, the
executive session?                                        public agency must describe each agenda item
  Public notice of an executive session must be           specifically during a meeting and may not refer
given 48 hours in advance of every session,               solely to an agenda item by number. The ODL
excluding Saturdays, Sundays and legal                    does not prohibit a public agency from changing
holidays, and must state the time, date, location         or adding to its agenda during the meeting.
and subject matter by reference to the specific
statutory exception under which an executive              Example: The clerk posts the agenda outside the
session may be held.                                      meeting room one hour prior to the meeting.
                                                          This is not a violation of the ODL because the
Example: A commission posts notice indicating             agenda was posted prior to the meeting. Unlike
it will meet in executive session to discuss              the meeting notice, the agenda is not required to
“personnel matters authorized under the Open              be posted 48 hours prior to the meeting.
Door Law.” Unless the specific statutory
exception is identified, this is a violation. There       Example: The presiding officer of a meeting
are executive session instances which allow               announces the next vote by saying, “Now we
executive sessions for specific types of                  will vote on Item 2, the purchase of property at
personnel matters (e.g. a job performance                 200 Main Street.” This was not a violation
evaluation), but there is no instance allowing a          because the reference was not to the item
meeting to discuss “personnel matters.”                   number alone.

When can a governing body take final action on            Suppose I am unable to attend an open meeting
an item which is the subject of an executive              and want to find out what happened. What can I
session?                                                  do?
  Final action (i.e. a vote) must be taken at a             You can obtain a copy of the meeting
meeting open to the public.                               memoranda. The ODL requires the following
                                                          memoranda to be kept:
Example: A board meets in executive session to
review an individual’s job performance. At the            •   date, time, and place of the meeting;
next regular board meeting, the presiding officer         •   the members of the governing body recorded
announces the board has voted to terminate the                as either present or absent;
employee. This is a violation of I.C. § 5-14-1.5-         •   the general substance of all matters
6.1(c). The board’s vote, or final action, was not            proposed, discussed, or decided; and
taken at an open meeting. The board can make              •   a record of all votes taken, by individual
decisions in the executive session but cannot                 members, if there is a roll call.
take final action in executive session.
                                                            The memoranda are to be available within a
A PUBLIC AGENCY’S RESPONSIBILITIES                        reasonable period of time after the meeting for
UNDER THE OPEN DOOR LAW                                   the purpose of informing the public of the
  The ODL requires public agencies to schedule            governing body’s proceedings.
and conduct meetings in a fashion that enhances
the public’s access to and understanding of               Must a governing body keep minutes of its
governmental meetings. The following questions            meetings?
explore these requirements.                                 There is no requirement in the ODL for a
                                                          public agency to keep minutes of its meeting.
When can I see a copy of the meeting agenda so            Minutes of a meeting, if any, are to be open for
I will know the order of proceedings?                     public inspection and copying. A public agency
  A governing body of a public agency is not


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may not deny access to minutes of a meeting                public agency.
simply because they are still in “draft” form or
have not yet been approved. Such records are               What special notice requirements apply for the
disclosable public records under the APRA. See             media?
Sections 3 and 4 of this handbook.                           For governing bodies holding regularly
                                                           scheduled meetings, notice need only be given
What if errors occur in the minutes of an open             once each year to all news media which have
meeting?                                                   made a timely request in accordance with I.C. §
  The governing body may correct minutes of its            5-14-1.5-5(b)(2). Notices for executive sessions
meetings and make corrections to the record                and additional open meetings must be delivered
where errors have occurred in properly                     48 hours before a meeting to news media which
recording the minutes. Modifications and                   properly requested such notices.
amendments may be made to entries of minutes.
                                                           May a governing body vote by secret ballot?
How will I know if an open meeting has been                  During a meeting of the governing body of a
scheduled?                                                 public agency, the governing body cannot vote
  The ODL requires public notice of date, time,            by secret ballot.
and place of any meetings, executive sessions, or
of any rescheduled or reconvened meeting at                Example: A commission votes by written ballot,
least 48 hours prior to the meeting, excluding             which may be signed, initialed or left unsigned
Saturdays, Sundays, and legal holidays. A public           at the individual’s discretion. This is a secret
agency must post a notice of meetings at the               ballot and thus a violation of the ODL.
principal office of the agency, and if no such
office exists, at the place where the meeting is to        In what manner should a vote be taken?
be held. See Section 2 of this handbook,                     The ODL does not require votes to be taken in
regarding I.C. § 5-14-1.5-5. State agencies are            any particular manner, so long as a secret ballot
also required to provide electronic access to              is not utilized.
meeting notices on the Internet. There may also
be other statutes governing notices of particular          Example: At a meeting of all three members of
meetings. See Appendices D and E for sample                the board of county commissioners, one
meeting notices.                                           commissioner suggests John Doe would make a
                                                           good county bridge superintendent. The other
Example: A board posts a notice that indicates a           two commissioners agree, and the staff is
public meeting will be held “after the executive           directed to inform Mr. Doe he is the new bridge
session.” This is not proper notice because it             superintendent. No formal motion is made and
does not provide the time the meeting is                   seconded, and no roll call vote is taken. The
scheduled to begin.                                        appointment is valid because the ODL does not
                                                           require the commissioners to take a formal vote.
What if a meeting is necessary to deal with an
emergency?                                                 May I bring a video camera or tape recorder to
  If a meeting is called to deal with an                   an open proceeding to record a meeting?
emergency involving actual or threatened injury              A person has the right under the ODL to be
to person or property, or actual or threatened             present at a public meeting, other than an
disruption of governmental activity under the              executive session, and to record the meeting by
public agency’s jurisdiction, the 48-hour notice           videotape, shorthand, or any other method of
requirement does not apply. News media which               recording, subject to reasonable restrictions as to
requested notice of meetings in accordance with            equipment and use that may be imposed by the
I.C. § 5-14-1.5-5(b)(2) must be given the same             governing body. Rules and regulations
notice as members of the governing body. The               prohibiting the use of cameras, tape recorders or
public must be provided notice by the posting of           other recognized means of recording a meeting
the notice outside the principal office of the             are void.


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                                                          doors at a meeting site.

Do I have the right to speak at an open meeting?          Example: The state natural resources
  The ODL does not guarantee the right to speak           commission wants to hold its meetings at a state
at public meetings. Although an individual has            park. This would be permissible only if those
the right to attend and observe all public                attending the meeting are not required to pay the
proceedings, no specific statutory authority              park entrance fee.
allows an individual to appear before and
address a governing body. A governing body                Must a public agency adjourn its meetings?
may choose to provide an opportunity for                    The ODL does not require a public agency to
comments or discussion at any time or may                 formally adjourn its meetings. This does not
allow a limited number of comments or limited             relieve the public agency its requirement to post
amount of time for comments on matters under              notice of its meetings 48 hours in advance as
consideration. During certain meetings, a                 prescribed by I.C. § 5-14-1.5-5(a).
provision for public comment may be required
by statute.                                               REMEDIES FOR VIOLATIONS OF THE ODL

May a meeting be set at any time?                         What can I do when I think a governing body
  The ODL does not define any particular time             violated the ODL?
for a meeting as inappropriate. However, a                  Any person may contact the Public Access
public agency may not delay the start of a                Counselor to file a formal complaint or request
meeting to the extent the delay frustrates the            an informal opinion. See Sections 5 and 6 of this
public’s right to attend and observe the agency’s         handbook for more details. In addition, an action
proceedings.                                              may be filed by any person in a court of
                                                          competent jurisdiction against the governing
Example 1: A city council wants to transmit a             body which allegedly violated the ODL. The
proposed expenditure to the department of local           plaintiff need not allege or prove special damage
government finance for its approval before the            different from that suffered by the public at
calendar year expires. Because of this, the               large.
council also wants to schedule a third reading of
an appropriation as promptly as possible                  What remedies are available if the ODL has
following the second reading. The city schedules          been violated?
a city council meeting for 11:00p.m. The city               The counselor may provide informal or formal
has not violated the Open Door Law.                       advice, but that advice is not binding on public
                                                          agencies. Judicial remedies available include
Example 2: A town board gives notice of an                obtaining a declaratory judgment; enjoining
executive session for 4:30p.m., with a public             continued, threatened, or future violations of the
meeting to follow at 5:00p.m. The board does              ODL; or, declaring a policy, decision, or final
most of its work in executive session and                 action void.
convenes the public meeting four hours late, at
9:00 p.m. This is contrary to the ODL because             Are there time limits on filing a legal action?
the delay may have frustrated the public’s right            There are time limits only on filing actions
to attend, observe and record the public meeting.         under the ODL to declare any policy, decision,
                                                          or final action of a governing body void or to
Where can meetings be held?                               enter an injunction that would invalidate the
  Meetings can be held anywhere accessible to             public agency’s policy, decision or final action,
the public. The ODL does prohibit a public                on the basis that these acts violated the law. The
agency from holding a meeting at a location               action must be commenced either prior to the
inaccessible to an individual with a disability. A        time the governing agency delivers any
public agency should also ensure no other                 warrants, notes, bonds, or final actions that the
barriers to access exist, such as locked outside          legal action seeks to enjoin or declare void, or


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the action must be commenced within thirty                  public agencies be conducted and taken openly,
days of either the date the act or failure to act           unless otherwise expressly provided by statute,
complained of occurred or the date the plaintiff            in order that the people may be fully informed.
knew or should have known the act or failure to             The purposes of this chapter are remedial, and
act complained of had occurred.                             its provisions are to be liberally construed with
                                                            the view of carrying out its policy. (As added by
Who pays my legal fees if my action is successful           Acts 1977, P.L. 57, § 1; Amended by P.L. 67-
or if I lose?                                               1987, § 1.)
  In any action filed under the ODL, a court
must award reasonable attorney’s fees, court                COMMENTARY
costs, and other reasonable litigation expenses to          It is the court’s duty when construing the
the complainant if the person who filed the                 provisions of the Open Door Law to do so in a
action prevails and that person sought the advice           manner that is consistent with its declared
of the Counselor prior to filing the court action.          policy and to give effect to the intention of the
If the public agency prevails and the court finds           General Assembly. Common Council of the City
the legal action frivolous and vexatious, these             of Peru v. Peru Daily Tribune, 440 N.E.2d 726
fees, costs and expenses may be assessed against            (Ind. Ct. App. 1982).
the person who filed the legal action.
                                                            I.C. § 5-14-1.5-2 DEFINITIONS
CONCLUSION                                                  For the purposes of this chapter:
  This guide is published to help public officials          (a) “Public agency”, except as provided in
and individuals understand and apply Indiana’s              section 2.1 of this chapter, means the following:
Open Door Law. Examples and explanations                      (1) Any board, commission, department,
used in this guide are meant to be illustrative of          agency, authority, or other entity, by whatever
the law’s provisions, and they can in no way                name designated, exercising a portion of the
address every conceivable factual situation.                executive, administrative, or legislative power of
When confronted with a question of                          the state.
interpretation, the law should be liberally                   (2) Any county, township, school corporation,
construed in favor of openness.                             city, town, political subdivision, or other entity,
                                                            by whatever name designated, exercising in a
SECTION TWO: THE OPEN DOOR LAW                              limited geographical area the executive,
AND LEGAL COMMENTARY                                        administrative, or legislative power of the state
  This section contains the text of the Open                or a delegated local governmental power.
Door Law, Ind. Code § 5-14-1.5-1 et seq., which               (3) Any entity which is subject to either:
is current as of the close of the 2008 session of                (A) budget review by either the department
the Indiana General Assembly. After the                     of local government finance or the governing
sections which have been interpreted by Indiana             body of a county, city, town, township, or school
courts, the Office of the Attorney General, or the          corporation; or
Office of the Public Access Counselor, we have                   (B) audit by the state board of accounts that
provided legal commentary. The commentaries                 is required by statute, rule, or regulation.
are included merely to provide the reader with                (4) Any building corporation of a political
practical guidance on how the law has been                  subdivision of the state of Indiana that issues
interpreted and are not intended to be a                    bonds for the purpose of constructing public
substitute for specific legal advice.                       facilities.
                                                              (5) Any advisory commission, committee, or
I.C. § 5-14-1.5-1 PURPOSE                                   body created by statute, ordinance, or executive
In enacting this chapter, the general assembly              order to advise the governing body of a public
finds and declares that this state and its political        agency, except medical staffs or the committees
subdivisions exist only to aid in the conduct of            of any such staff.
the business of the people of this state. It is the           (6) The Indiana gaming commission
intent of this chapter that the official action of          established by IC 4-33, including any


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department, division, or office of the                        (2) deliberate;
commission.                                                   (3) make recommendations;
 (7) The Indiana horse racing commission                      (4) establish policy;
established by IC 4-31, including any                         (5) make decisions; or
department, division, or office of the                        (6) take final action.
commission.                                                 (e) “Public business” means any function upon
(b) “Governing body” means two (2) or more                  which the public agency is empowered or
individuals who are:                                        authorized to take official action.
 (1) a public agency that:                                  (f) “Executive session” means a meeting from
    (A) is a board, a commission, an authority, a           which the public is excluded, except the
council, a committee, a body, or other entity;              governing body may admit those persons
and                                                         necessary to carry out its purpose.
    (B) takes official action on public business;           (g) “Final action” means a vote by the governing
 (2) the board, commission, council, or other               body on any motion, proposal, resolution, rule,
body of a public agency which takes official                regulation, ordinance, or order.
action upon public business; or                             (h) “Caucus” means a gathering of members of a
 (3) any committee appointed directly by the                political party or coalition which is held for
governing body or its presiding officer to which            purposes of planning political strategy and
authority to take official action upon public               holding discussions designed to prepare the
business has been delegated. An agent or agents             members for taking official action.
appointed by the governing body to conduct                  (i) “Deliberate” means a discussion which may
collective bargaining on behalf of the governing            reasonably be expected to result in official
body does not constitute a governing body for               action (defined under subsection (d)(3), (d)(4),
the purposes of this chapter.                               (d)(5), or (d)(6)).
(c) "Meeting" means a gathering of a majority of            (j) “News media” means all newspapers
the governing body of a public agency for the               qualified to receive legal advertisements under
purpose of taking official action upon public               Indiana Code 5-3-1, all new services (as defined
business. It does not include:                              in Indiana Code 34-6-2-87), and all licensed
 (1) any social or chance gathering not intended            commercial or public radio or television stations.
to avoid this chapter;                                      (k) “Person” means an individual, a corporation,
 (2) any on-site inspection of any:                         a limited liability company, a partnership, an
    (A) project;                                            unincorporated association, or a governmental
    (B) program; or                                         entity. (As added by Acts 1977, P.L. 57, § 1;
    (C) facilities of applicants for incentives or          1979, P.L. 39, § 1; P.L.33-1984, § 1; P.L.67-
assistance from the governing body;                         1987, § 2; P.L.8-1993, § 56; P.L.277-1993(ss), §
 (3) traveling to and attending meetings of                 127; P.L.1-1994, § 20; P.L.50-1995, § 14;
organizations devoted to betterment of                      P.L.1-1998, § 71; P.L.90-2002, § 16; P.L.35-
government;                                                 2003, § 1; P.L.179-2007, § 1.)
 (4) a caucus;
 (5) a gathering to discuss an industrial or a              COMMENTARY
commercial prospect that does not include a                 In Robinson v. Indiana University, 638 N.E.2d
conclusion as to recommendations, policy,                   435 (Ind.Ct. App. 1994), the Court of Appeals
decisions, or final action on the terms of a                held that the definition of a governing body
request or an offer of public financial resources;          included committees that are directly appointed
 (6) an orientation of members of the governing             by the governing body or its presiding officer.
body on their role and responsibilities as public
officials, but not for any other official action; or        A group of state employees who meets to
 (7) a gathering for the sole purpose of                    conduct business under state or federal law is
administering an oath of office to an individual.           not a governing body under the Open Door Law.
(d) “Official action” means to:                             Indiana State Board of Health v. Journal-Gazette
 (1) receive information;                                   Co., 608 N.E.2d 989 (Ind. Ct. App. 1993),


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modified 603 N.E.2d 989 (Ind. Ct. App. 1993).             billed for fees by the entity for the services,
                                                          goods, or other benefits actually provided by the
If a majority of the members of a governing body          entity.
attend a political “caucus,” this is not converted         (2) The provider is not required by statute, rule,
to a meeting under the Open Door Law unless               or regulation to be audited by the state board of
official action is taken. Evansville Courier v.           accounts. (As added by Act P.L.179-2007, § 2.)
Willner, 563 N.E.2d 1269 (Ind. 1990).
                                                          I.C. § 5-14-1.5-3 OPEN MEETINGS; SECRET
When a university hospital and a private                  BALLOT VOTES
hospital consolidated to form a private,                  (a) Except as provided in section 6.1 of this
nonprofit corporation that (1) assumed all the            chapter, all meetings of the governing bodies of
liabilities of the university hospital;(2) would          public agencies must be open at all times for the
not receive any State funds; and (3) would                purpose of permitting members of the public to
engage non-public employees, the corporation              observe and record them.
formed is not a public “entity” subject to audit          (b) A secret ballot vote may not be taken at a
by the Indiana State Board of Accounts and is             meeting.
not subject to the Open Door Law. However, to             (c) A meeting conducted in compliance with IC
the extent a portion of the newly formed private,         5-1.5-2-2.5 does not violate this section.
nonprofit corporation is a “public office”                (d) A member of the governing body of a public
subject to Indiana State Board of Accounts’               agency who is not physically present at a
audits, that portion of the corporation will be           meeting of the governing body but who
subject to the Open Door Law. Indiana State Bd.           communicates with members of the governing
of Accounts v. Consolidated Health Group, Inc.,           body during the meeting by telephone,
700 N.E.2d 247, 251-53 (Ind. Ct. App. 1998).              computer, videoconferencing, or any other
                                                          electronic means of communication:
Failure to give notice of an on-site inspection is          (1) may not participate in final action taken at
not a violation of the Open Door Law because              the meeting unless the member's participation is
an on-site inspection is not a meeting. Opinion           expressly authorized by statute; and
of the Public Access Counselor 98-FC-03.                    (2) may not be considered to be present at the
                                                          meeting unless considering the member to be
I.C. § 5-14-1.5-2.1 “PUBLIC AGENCY”                       present at the meeting is expressly authorized by
DEFINED                                                   statute.
  "Public agency," for purposes of this chapter,          (e) The memoranda of a meeting prepared under
does not mean a provider of goods, services, or           section 4 of this chapter that a member
other benefits that meets the following                   participates in by using a means of
requirements:                                             communication described in subsection (d) must
  (1) The provider receives public funds through          state the name of:
an agreement with the state, a county, or a                 (1) each member who was physically present at
municipality that meets the following                     the place where the meeting was conducted;
requirements:                                               (2) each member who participated in the
     (A) The agreement provides for the payment           meeting by using a means of communication
of fees to the entity in exchange for services,           described in this section; and
goods, or other benefits.                                   (3) each member who was absent. (As added
     (B) The amount of fees received by the               by Acts 1977, P.L.57, § 1; P.L.38-1988, § 6;
entity under the agreement is not based upon or           P.L.1-1991, § 35; P.L.179-2007, § 3.)
does not involve a consideration of the tax
revenues or receipts of the state, county, or             COMMENTARY
municipality.                                             Governing bodies may not ban the use of
     (C) The amount of the fees are negotiated by         cameras and tape recorders at public meetings.
the entity and the state, county, or municipality.        Berry v. Peoples Broadcasting Corp., 547
     (D) The state, county, or municipality is            N.E.2d 231 (Ind. 1989).


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                                                           any of the gatherings at least equals a quorum of
The Hammond Board of Works and Public                      the city-county council.
Safety violated the Open Door Law when it                    (3) All the gatherings concern the same subject
conferred with its legal counsel off the record            matter and are held within a period of not more
during the course of an administrative hearing.            than seven (7) consecutive days.
Hinojosa v. Board of Public Works & Safety for               (4) The gatherings are held to take official
the City of Hammond, Indiana, 789 N.E.2d 533,              action on public business.
549 (Ind. 2003).                                              For purposes of this subsection, a member of
                                                           the city-county council attends a gathering if the
I.C. § 5-14-1.5-3.1 SERIAL MEETINGS                        member is present at the gathering in person or
(a) Except as provided in subsection (b), the              if the member participates in the gathering by
governing body of a public agency violates this            telephone or other electronic means, excluding
chapter if members of the governing body                   electronic mail.
participate in a series of at least two (2)                (c) A gathering under subsection (a) or (b) does
gatherings of members of the governing body                not include:
and the series of gatherings meets all of the                (1) a social or chance gathering not intended by
following criteria:                                        any member of the governing body to avoid the
  (1) One (1) of the gatherings is attended by at          requirements of this chapter;
least three (3) members but less than a quorum               (2) an onsite inspection of any:
of the members of the governing body and the                    (A) project;
other gatherings include at least two (2)                       (B) program; or
members of the governing body.                                  (C) facilities of applicants for incentives or
  (2) The sum of the number of different                   assistance from the governing body;
members of the governing body attending any of               (3) traveling to and attending meetings of
the gatherings at least equals a quorum of the             organizations devoted to the betterment of
governing body.                                            government;
  (3) All the gatherings concern the same subject            (4) a caucus;
matter and are held within a period of not more              (5) a gathering to discuss an industrial or a
than seven (7) consecutive days.                           commercial prospect that does not include a
  (4) The gatherings are held to take official             conclusion as to recommendations, policy,
action on public business.                                 decisions, or final action on the terms of a
For purposes of this subsection, a member of a             request or an offer of public financial resources;
governing body attends a gathering if the                    (6) an orientation of members of the governing
member is present at the gathering in person or            body on their role and responsibilities as public
if the member participates in the gathering by             officials, but not for any other official action;
telephone or other electronic means, excluding               (7) a gathering for the sole purpose of
electronic mail.                                           administering an oath of office to an individual;
(b) This subsection applies only to the city-              or
county council of a consolidated city or county              (8) a gathering between less than a quorum of
having a consolidated city. The city-county                the members of the governing body intended
council violates this chapter if its members               solely for members to receive information and
participate in a series of at least two (2)                deliberate on whether a member or members
gatherings of members of the city-county                   may be inclined to support a member's proposal
council and the series of gatherings meets all of          or a particular piece of legislation and at which
the following criteria:                                    no other official action will occur.
  (1) One (1) of the gatherings is attended by at          (d) A violation described in subsection (a) or (b)
least five (5) members of the city-county council          is subject to section 7 of this chapter. (As added
and the other gatherings include at least three (3)        by P.L.179-2007, §.4)
members of the city-county council.
  (2) The sum of the number of different                   I.C. § 5-14-1.5-4 AGENDA; MEMORANDA;
members of the city-county council attending               PUBLIC INSPECTION OF MINUTES


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(a) A governing body of a public agency                    or, if no such office exists, at the building where
utilizing an agenda shall post a copy of the               the meeting is to be held; and
agenda at the entrance to the location of the                (2) delivering notice to all news media which
meeting prior to the meeting. A rule, regulation,          deliver by January 1 an annual written request
ordinance, or other final action adopted by                for such notices for the next succeeding calendar
reference to agenda number or item alone is                year to the governing body of the public agency.
void.                                                      The governing body shall give notice by one (1)
(b) As the meeting progresses, the following               of the following methods:
memoranda shall be kept:                                        (A) Depositing the notice in the United
 (1) The date, time, and place of the meeting.             States mail with postage prepaid.
 (2) The members of the governing body                          (B) Transmitting the notice by electronic
recorded as either present or absent.                      mail.
 (3) The general substance of all matters                       (C) Transmitting the notice by facsimile
proposed, discussed, or decided.                           (fax).
 (4) A record of all votes taken, by individual            If a governing body comes into existence after
members if there is a roll call.                           January 1, it shall comply with this subdivision
 (5) Any additional information required under             upon receipt of a written request for notice. In
IC 5-1.5-2-2.5.                                            addition, a state agency (as defined in Ind. Code
(c) The memoranda are to be available within a             §4-13-1-1) shall provide electronic access to the
reasonable period of time after the meeting for            notice through the computer gateway
the purpose of informing the public of the                 administered by the intelenet commission under
governing body’s proceedings. The minutes, if              Indiana Code 5-21-2.
any, are to be open for public inspection and              (c) Notice of regular meetings need be given
copying. (As added by Acts 1977, P.L.57, § 1;              only once each year, except that an additional
P.L.38-1988, § 7; P.L.76-1995, § 1; P.L.2-2007,            notice shall be given where the date, time, or
§ 99.)                                                     place of a regular meeting or meetings is
                                                           changed. This subsection does not apply to
COMMENTARY                                                 executive sessions.
Draft copies of minutes taken during a public              (d) If a meeting is called to deal with an
meeting are disclosable public records despite             emergency involving actual or threatened injury
not being in final form. Opinion of the Public             to person or property, or actual or threatened
Access Counselor 98-FC-08.                                 disruption of the governmental activity under the
                                                           jurisdiction of the public agency by any event,
I.C. § 5-14-1.5-5 PUBLIC NOTICE OF                         then the time requirements of notice under this
MEETINGS                                                   section shall not apply, but:
(a) Public notice of the date, time, and place of            (1) news media which have requested notice of
any meetings, executive sessions, or of any                meetings must be given the same notice as is
rescheduled or reconvened meeting, shall be                given to members of the governing body; and
given at least forty-eight (48) hours (excluding             (2) the public must be notified by posting a
Saturdays, Sundays, and legal holidays) before             copy of the notice according to this section.
the meeting. This requirement does not apply to            (e) This section shall not apply where notice by
reconvened meetings (not including executive               publication is required by statute, ordinance,
sessions) where announcement of the date, time,            rule, or regulation.
and place of the reconvened meeting is made at             (f) This section shall not apply to:
the original meeting and recorded in the                     (1) the department of local government finance,
memoranda and minutes thereof, and there is no             the Indiana board of tax review, or any other
change in the agenda.                                      governing body which meets in continuous
(b) Public notice shall be given by the governing          session, except that this section applies to
body of a public agency by:                                meetings of these governing bodies which are
  (1) posting a copy of the notice at the principal        required by or held pursuant to statute,
office of the public agency holding the meeting            ordinance, rule, or regulation; or


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  (2) the executive of a county or the legislative        knowledge or understanding of the public
body of a town if the meetings are held solely to         business conducted was impeded. Town of
receive information or recommendations in                 Merrillville v. Blanco, 687N.E.2d 191 (Ind. Ct.
order to carry out administrative functions, to           App. 1998) (Town violated the technical
carry out administrative functions, or confer             requirements of the Open Door Law by failing to
with staff members on matters relating to the             post notice at least 48 hours in advance of its
internal management of the unit.                          meetings at the city hall but was not in
“Administrative functions” do not include the             substantial compliance since a police officer’s
awarding of contracts, the entering into                  termination was a matter of primary interest to
contracts, or any other action creating an                the general public; the town’s failure to give
obligation or otherwise binding a county or               adequate notice about this public matter
town.                                                     restricted interested spectators’ access to the
(g) This section does not apply to the General            hearing). See also, Riggin v. Board of Trustees
Assembly.                                                 of Ball State University, 489 N.E.2d 616 (Ind.
(h) Notice has not been given in accordance with          Ct. App. 1988)(substantial compliance standard
this section if a governing body of a public              met).
agency convenes a meeting at a time so
unreasonably departing from the time stated in            County commissioners do not meet in
its public notice that the public is misled or            continuous session and must post notice of
substantially deprived of the opportunity to              meetings 48 hours prior to meetings. Opinion of
attend, observe, and record the meeting. (As              the Public Access Counselor 98-FC-05.
added by Acts 1977, P.L. 57, § 1; 1979, P.L. 39,
§ 2; P.L.67-1987, § 3; P.L.3-1989, § 29; P.L.8-           IC 5-14-1.5-6.1 EXECUTIVE SESSIONS
1989, § 22; P.L.46-1990, § 1; P.L.251-1999, §             Sec. 6.1. (a) As used in this section, "public
4; P.L.90-2002, § 17; P.L.200-2003, § 1;                  official" means a person:
P.L.177-2005, § 14)                                             (1) who is a member of a governing body
                                                          of a public agency; or
COMMENTARY                                                      (2) whose tenure and compensation are
Action taken at a city council meeting was not            fixed by law and who executes an oath.
void simply because the meeting was held at                  (b) Executive sessions may be held only in the
11:00p.m. Blinn v. City of Marion, 390 N.E.2d             following instances:
1066 (Ind. Ct. App. 1979).                                      (1) Where authorized by federal or state
                                                          statute.
Notice of a county council meeting was adequate                 (2) For discussion of strategy with respect
despite the failure to post the notice on the door        to any of the following:
of the meeting room when the council posted the                    (A) Collective bargaining.
notice outside the courthouse where notices are                    (B) Initiation of litigation or litigation
usually posted and notified the daily newspaper,          that is either pending or has been threatened
which published news articles on three separate           specifically in writing.
days. Pepinsky v. Monroe County Council, 461                       (C) The implementation of security
N.E.2d 128 (Ind. Ct. App. 1984).                          systems.
                                                                   (D) The purchase or lease of real
A court’s inquiry does not end with the                   property by the governing body up to the time a
determination that meetings subject to the Open           contract or option to purchase or lease is
Door Law were not in “technical compliance”               executed by the parties.
with the law. Turner v. Town of Speedway, 528                   However, all such strategy discussions
N.E. 2d 858 (Ind. Ct. App. 1988). Instead, a              must be necessary for competitive or bargaining
court may look for “substantial compliance”               reasons and may not include competitive or
which includes (1) the extent to which the                bargaining adversaries.
violation denied or impaired access to a                        (3) For discussion of the assessment,
meeting; and (2) the extent to which public


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design, and implementation of school safety and           three (3) unless there are fewer than three (3)
security measures, plans, and systems.                    prospective appointees. Interviews of
      (4) Interviews and negotiations with                prospective appointees must be conducted at a
industrial or commercial prospects or agents of           meeting that is open to the public.
industrial or commercial prospects by the                       (11) To train school board members with an
Indiana economic development corporation, the             outside consultant about the performance of the
office of tourism development, the Indiana                role of the members as public officials.
finance authority, the ports of Indiana, an                     (12) To prepare or score examinations used
economic development commission, the Indiana              in issuing licenses, certificates, permits, or
state department of agriculture, a local economic         registrations under IC 25.
development organization (as defined in IC 5-                   (13) To discuss information and
28-11-2(3)), or a governing body of a political           intelligence intended to prevent, mitigate, or
subdivision.                                              respond to the threat of terrorism.
      (5) To receive information about and                       (14) To train members of a board of
interview prospective employees.                          aviation commissioners appointed under IC 8-
      (6) With respect to any individual over             22-2 or members of an airport authority board
whom the governing body has jurisdiction:                 appointed under IC 8-22-3 with an outside
         (A) to receive information concerning            consultant about the performance of the role of
the individual's alleged misconduct; and                  the members as public officials. A board may
         (B) to discuss, before a determination,          hold not more than one (1) executive session per
the individual's status as an employee, a student,        calendar year under this subdivision.
or an independent contractor who is:                         (c) A final action must be taken at a meeting
            (i) a physician; or                           open to the public.
            (ii) a school bus driver.                        (d) Public notice of executive sessions must
      (7) For discussion of records classified as         state the subject matter by specific reference to
confidential by state or federal statute.                 the enumerated instance or instances for which
      (8) To discuss before a placement decision          executive sessions may be held under subsection
an individual student's abilities, past                   (b). The requirements stated in section 4 of this
performance, behavior, and needs.                         chapter for memoranda and minutes being made
      (9) To discuss a job performance evaluation         available to the public is modified as to
of individual employees. This subdivision does            executive sessions in that the memoranda and
not apply to a discussion of the salary,                  minutes must identify the subject matter
compensation, or benefits of employees during a           considered by specific reference to the
budget process.                                           enumerated instance or instances for which
      (10) When considering the appointment of            public notice was given. The governing body
a public official, to do the following:                   shall certify by a statement in the memoranda
         (A) Develop a list of prospective                and minutes of the governing body that no
appointees.                                               subject matter was discussed in the executive
         (B) Consider applications.                       session other than the subject matter specified in
         (C) Make one (1) initial exclusion of            the public notice.
prospective appointees from further                          (e) A governing body may not conduct an
consideration.                                            executive session during a meeting, except as
      Notwithstanding IC 5-14-3-4(b)(12), a               otherwise permitted by applicable statute. A
governing body may release and shall make                 meeting may not be recessed and reconvened
available for inspection and copying in                   with the intent of circumventing this subsection.
accordance with IC 5-14-3-3 identifying                   (As added by P.L.1-1991, SEC.37 and P.L.10-
information concerning prospective appointees             1991, SEC.8. Amended by P.L.48-1991, SEC.1;
not initially excluded from further consideration.        P.L.37-2000, SEC.1; P.L.200-2003, SEC.2;
An initial exclusion of prospective appointees            P.L.4-2005, SEC.28; P.L.229-2005, SEC.2;
from further consideration may not reduce the             P.L.235-2005, SEC.84; P.L.101-2006, SEC.3;
number of prospective appointees to fewer than            P.L.179-2007, SEC.5; P.L.2-2008, SEC.20;


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P.L.98-2008, SEC.3; P.L.120-2008, SEC.1.;                 Airport Board of Authority v. Maclin, 772
Amended Sec.1, SEA 60 (2011)).                            N.E.2d 463, 468 (Ind. Ct. App. 2002). The Court
                                                          of Appeals found that the Board’s argument that
COMMENTARY                                                it substantially complied with the Open Door
Public agencies may not seek legal advice from            Law lacked merit because I.C. §5-14-1.5-6.1
their attorneys in private about matters which            requires the Board to identify the subject matter
are not related to litigation. Simon v. City of           by specific reference to subsection (b). Id.
Auburn, 519 N.E.2d 205 (Ind. Ct. App. 1988).
                                                          A county council may not post the notice of
The term “employee,” as used in the Open Door             executive sessions on an annual basis; instead,
Law, does not include an independent contractor           council must specify each executive session and
with the agency and, therefore, a public agency           list a permissible statutory exception. Opinion of
may not hold an executive session to receive              the Public Access Counselor 99-FC-23.
information about that independent contractor.
Opinion of the Indiana Attorney General, 1997,            Final actions of a public agency, including
No. 2 (OAG 97-02).                                        selection of a Town Council President and
                                                          deliberation of an employee’s termination, taken
Municipal board applicants are not prospective            during executive sessions were taken in violation
“employees” but are prospective officers and              of the ODL. Opinions of the Public Access
executive sessions to interview these applicants          Counselor 99-FC-04; 00-FC-06.
are not permitted under the Open Door Law.
Common Council of the City of Peru v. Peru                Commission's order substantially complied with
Daily Tribune, Inc., 440 N.E.2d 726 (Ind. Ct.             the Open Door Law when final order had not
App. 1982).                                               actually been signed and released in public
                                                          meeting but all prior proceedings and findings
Police commissioners board could conduct a                had occurred in public meetings. Ind. Dep't of
hearing on police disciplinary charges in                 Envtl. Mgmt. v. West, 812 N.E.2d 1099, 2004
executive session because the police disciplinary         Ind. App. LEXIS 1592 (Ind. App. 2004),
statute authorizes a hearing, rather than a               superseded, 838 N.E.2d 408, 2005 Ind. LEXIS
public hearing, and the Open Door Law                     1085 (2005).
authorizes executive sessions for the purpose of
receiving information about alleged misconduct            Former city employee was terminated in an open
and to discuss, before determination, a person’s          meeting by the council's vote on a motion to
employment status. Town of Merrillville, Lake             appoint another person to the employee's
County v. Peters, 655 N.E.2d 341, 343 (Ind.               position under I.C. §§5-14-1.5-2 and 5-14-1.5-
1995).                                                    6.1(c); accordingly, no violation of the ODL
                                                          occurred. Furthermore, a letter sent to the
The only official action that cannot take place in        employee by the council president was not a
executive session is a final action, which must           final action by the council because it was a mere
take place at a meeting open to the public. Baker         formality to inform the employee of the council's
v. Town of Middlebury, 753 N.E. 2d 67, 71                 action. City of Gary v. McCrady, 851 N.E.2d
(Ind. Ct. App. 2001). The act of compiling a              359, 2006 Ind. App. LEXIS 1403 (2006).
rehire list in an executive session, and excluding
the town marshal from that list, was appropriate          Notice of an executive session shall incude the
according to both the language and goals of the           language of the statute and the citation to the
statute and did not constitute impermissible final        specific instance. “To discuss a performance
action. Id. at 73.                                        evaluation of an individual employee, pursuant
                                                          to IC 5-14-1.5-6.1(b)(9)” for example, would
Notice of an executive session which refers to            satisfy the notice requirements. Opinions of the
“legal matters” and “FOI requests” does not               Public Access Counselor, 05-FC-223; 07-FC-64
comply with the Open Door Law. Gary/Chicago               and 11-FC-39.


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                                                                  (i) executive session in violation of section
                                                            3(a) of this chapter;
                                                                  (ii) meeting of which notice is not given in
IC 5-14-1.5-6.5 COLLECTIVE BARGAINING                       accordance with section 5 of this chapter; or
MEETINGS; APPLICABLE REQUIREMENTS                                 (iii) series of gatherings in violation of
    Sec. 6.5. (a) Whenever a governing body, or             section 3.1 of this chapter; or
any person authorized to act for a governing                     (D) taken at a meeting held in a location in
body, meets with an employee organization, or               violation of section 8 of this chapter.
any person authorized to act for an employee                The plaintiff need not allege or prove special
organization, for the purpose of collective                 damage different from that suffered by the
bargaining or discussion, the following apply:              public at large.
      (1) Any party may inform the public of the            (b) Regardless of whether a formal complaint or
status of collective bargaining or discussion as it         an informal inquiry is pending before the Public
progresses by release of factual information and            Access Counselor, any action to declare any
expression of opinion based upon factual                    policy, decision, or final action of a governing
information.                                                body void, or to enter an injunction which would
      (2) If a mediator is appointed, any report            invalidate any policy, decision, or final action of
the mediator may file at the conclusion of                  a governing body, based on violation of this
mediation is a public record open to public                 chapter occurring before the action is
inspection.                                                 commenced, shall be commenced:
      (3) If a factfinder is appointed, any hearings          (1) prior to the delivery of any warrants, notes,
the factfinder holds must be open at all times for          bonds, or obligations if the relief sought would
the purpose of permitting members of the public             have the effect, if granted, of invalidating the
to observe and record them. Any findings and                notes, bonds, or obligations; or
recommendations the factfinder makes are                      (2) with respect to any other subject matter,
public records open to public inspection as                 within thirty (30) days of either:
provided by any applicable statute relating to                   (A) the date of the act or failure to act
factfinding in connection with public collective            complained of; or
bargaining.                                                      (B) the date that the plaintiff knew or should
   (b) This section supplements and does not                have known that the act or failure to act
limit any other provision of this chapter.                  complained of had occurred; whichever is later.
(As added by Acts 1979, P.L.39, SEC.4.                      If the challenged policy, decision, or final action
Amended by P.L.67-1987, SEC.5; P.L.1-2005,                  is recorded in the memoranda or minutes of a
SEC.8; P.L. 48-2011, SEC.1.)                                governing body, a plaintiff is considered to have
                                                            known that the act or failure to act complained
I.C. § 5-14-1.5-7 VIOLATIONS; REMEDIES;                     of had occurred not later than the date that the
LIMITATIONS; COSTS AND FEES                                 memoranda or minutes are first available for
(a) An action may be filed by any person in any             public inspection.
court of competent jurisdiction to:                         (c) If a court finds that a governing body of a
  (1) obtain a declaratory judgment;                        public agency has violated this chapter, it may
  (2) enjoin continuing, threatened, or future              not find that the violation was cured by the
violations of this chapter; or                              governing body by only having taken final
  (3) declare void any policy, decision, or final           action at a meeting that complies with this
action:                                                     chapter.
     (A) taken at an executive session in violation         (d) In determining whether to declare any
of section 3(a) of this chapter;                            policy, decision, or final action void, a court
     (B) taken at any meeting of which notice is            shall consider the following factors among other
not given in accordance with section 5 of this              relevant factors:
chapter;                                                      (1) The extent to which the violation:
     (C) that is based in whole or in part upon                  (A) affected the substance of the policy,
official action taken at any:                               decision, or final action;


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     (B) denied or impaired access to any                   P.L.191-1999, §1; P.L.179-2007, §6.)
meetings that the public had a right to observe
and record; and
     (C) prevented or impaired public knowledge             COMMENTARY
or understanding of the public’s business.                  A party challenging the action of a public
  (2) Whether voiding of the policy, decision, or           agency need not prove special damage that is
final action is a necessary prerequisite to a               different from the public at large in order to
substantial reconsideration of the subject matter.          obtain an injunction under this section of the
  (3) Whether the public interest will be served            ODL. Common Council v. Peru Daily Tribune,
by voiding the policy, decision, or final action            Inc., 440 N.E.2d 726 (Ind. Ct. App. 1982).
by determining which of the following factors
outweighs the other:                                        A city resident was entitled to file a taxpayer’s
     (A) The remedial benefits gained by                    action and initiate proceedings to force the city
effectuating the public policy of the state                 council’s compliance with the Open Door Law.
declared in section 1 of this chapter.                      Reichhart v. City of New Haven, 674 N.E.2d 27,
     (B) The prejudice likely to accrue to the              32 (Ind. Ct. App. 1996).
public if the policy, decision, or final action is
voided, including the extent to which persons               Whether to invalidate any policy, decision, or
have relied upon the validity of the challenged             final action taken by a public agency in violation
action and the effect declaring the challenged              of the Open Door Law is left to the court’s
action void would have on them.                             discretion. Town of Merrillville v. Blanco, 687
  (4) Whether the defendant acted in compliance             N.E.2d 191 (Ind. Ct. App. 1998).
with an informal inquiry response or advisory
opinion issued by the Public Access Counselor               Because appellant's suit against government
concerning a violation.                                     board was necessary to prevent current and
(e) If a court declares a policy, decision, or final        further violations of the Open Door Law, award
action of a governing body of a public agency               of attorney fees to appellant under I.C. §5-14-
void, the court may enjoin the governing body               1.5-7(f) was proper. Hinojosa v. Bd. of Pub.
from subsequently acting upon the subject                   Works & Safety, 789 N.E.2d 533, 2003 Ind.
matter of the voided act until it has been given            App. LEXIS 922 (Ind. App. 2003), transfer
substantial reconsideration at a meeting or                 denied, 812 N.E.2d 796, 2004 Ind. LEXIS 170
meetings that comply with this chapter.                     (Ind. 2004).
(f) In any action filed under this section, a court
shall award reasonable attorney’s fees, court               Former city employee was not entitled under
costs, and other reasonable expenses of litigation          I.C. §5-14-1.5-7(f) to an award of attorney's fees
to the prevailing party if:                                 before the trial court or on appeal because the
  (1) the plaintiff prevails; or                            appellate court found for the city council and
  (2) the defendant prevails and the court finds            reversed the trial court's entry of summary
that the action is frivolous and vexatious.                 judgment for the employee. City of Gary v.
The plaintiff is not eligible for the awarding of           McCrady, 851 N.E.2d 359, 2006 Ind. App.
attorney’s fees, court costs, and other reasonable          LEXIS 1403 (2006).
expenses if the plaintiff filed the action without
first seeking and receiving an informal inquiry             I.C. § 5-14-1.5-8 ACCESSIBILITY TO
response or advisory opinion from the public                INDIVIDUALS WITH DISABILITIES
access counselor, unless the plaintiff can show             (a) This section applies only to the following
the filing of the action was necessary to prevent           public agencies:
a violation of this chapter.                                  (1) A public agency described in section
(g) A court shall expedite the hearing of an                2(a)(1) of this chapter.
action filed under this section. (As added by Acts            (2) A public agency:
1977, P.L. 57, §1; 1979, P.L. 39, §5; P.L.67-                    (A) described in section 2(a)(5) of this
1987, §6; P.L.38-1992, §1; P.L.70-1999, §1;                 chapter; and


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    (B) created to advise the governing body of a
public agency described in section 2(a)(1) of this
chapter.
(b) As used in this section, “accessible” means
the design, construction, or alteration of
facilities in conformance with the Uniform
Federal Accessibility Standards (41 C.F.R. 101-
19.6, App. A (1991)) or with the Americans with
Disabilities Act Accessibility Guidelines for
Buildings and Facilities (56 Fed. Reg. 35605
(1991)).
(c) As used in this section, “individual with a
disability” means an individual who has a
temporary or permanent physical disability.
(d) A public agency may not hold a meeting at a
location that is not accessible to an individual
with a disability. (As added by Acts P.L. 38-
1992, § 2.)

COMMENTARY
Ind. Code §5-14-1.5-8 mandates that public
agency hearings must be held in facilities that
permit barrier-free physical access to the
physically handicapped; the statute does not
make allowances for agencies who plan to
accommodate disabled individuals only when
those individuals express interest in attending
the meetings. Town of Merrillville v. Blanco,
687 N.E.2d 191, 198 (Ind. App. 1998).




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SECTION THREE: OVERVIEW OF THE                            must be a public record from a public agency.
ACCESS TO PUBLIC RECORDS ACT                              The APRA defines a public record:
                                                          . . . any writing, paper, report, study, map,
INTRODUCTION                                              photograph, book, card, tape recording, or other
  The Access to Public Records Act                        material that is created, received, retained,
(“APRA”)(Ind. Code 5-14-1.5), originally                  maintained, or filed by or with a public agency
passed by the Indiana General Assembly in 1983            and which is generated on paper, paper
and most recently amended in 2008, was enacted            substitutes, photographic media, chemically
to permit the citizens of Indiana broad and easy          based media, magnetic or machine readable
access to public records. By providing the public         media, electronically stored data, or any other
with the opportunity to review and copy public            material, regardless of form or characteristics.
records, the APRA gives individuals the                   I.C. § 5-14-3-2.
opportunity to obtain information relating to               I.C. § 5-14-3-2 defines public agency very
their government and to more fully participate in         broadly to include boards, commissions,
the governmental process. For the APRA to be              departments       and      offices    exercising
useful to the public, it is important that the            administrative, judicial or legislative power;
public understands the APRA. This guide sets              counties, townships, cities, law enforcement
forth the basic elements of the APRA and                  agencies;    school     corporations;  advisory
provides answers to common questions. This                commissions, committees and bodies; license
guide does not, however, contain specific                 branches; the lottery commission and the
answers to specific questions. For more detailed          gaming commission. Additionally, any entity
guidance, please consult the provisions of the            that is subject to audit by the State Board of
Indiana Code set forth at Section 4 of this               Accounts is a public agency for purposes of the
handbook.                                                 APRA. An entity that is maintained or
                                                          supported, in whole or in part, by public funds
COMMONLY ASKED QUESTIONS ABOUT                            may fall within the APRA, and, therefore, its
THE ACCESS TO PUBLIC RECORDS ACT                          records are accessible.
  The following are commonly asked questions
about the APRA. It is important to note that the          Example: The following public records are
answers are not the final authority on a                  generally accessible from public agencies:
particular issue, as the facts will vary from             applications for permits and licenses, contracts
situation to situation. Indeed, laws and court            to which the state or local unit of government is
interpretations of the law are ever changing.             a party, survey plats, commission, board and
Therefore, it is important to remember that the           committee reports and recommendations, and
answers to these questions are only guides for            transcripts of public hearings in which testimony
the public, may only apply to specific situations,        was taken.
and are subject to change.
                                                          Example: A person may obtain a copy of a
Who may access public records?                            property record card maintained by a county or
  The explicit policy statement and statutory             township assessor.
language of the APRA permit all persons access
to public records. A “person” includes                    What records may not be accessed?
individuals as well as corporations, limited              The stated policy of the APRA and its broad
liability companies, partnerships, associations           definition of public records make most
and governmental entities.                                documents accessible to the public. But the
                                                          APRA specifically excludes certain types of
Example: A company may access minutes of a                documents from disclosure. These exceptions
public board meeting just as an individual may.           can be found in I.C. § 5-14-3-4. In determining
                                                          whether a particular record is excepted from
What kinds of documents may be accessed?                  disclosure under the APRA, Indiana courts are
 To be required to be accessible, a document              to interpret these exceptions narrowly. Under


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I.C. § 5-14-3-4(a), the following records cannot
be disclosed by a public agency unless the                 2. The work product of an attorney employed by
disclosure is specifically required by state or            the state or a public agency who is representing
federal statute, or is ordered by a court under the        a public agency, the state, or an individual in
rules of discovery. The exceptions found in I.C.           reasonable anticipation of litigation;
§ 5-14-3-4(a) include the following:                       Example: A letter written by a school board
• Records made confidential by state statute;              attorney to the board, advising the board of his
• Records made confidential by rule adopted                strategy regarding pending litigation, may be
    by a public agency under specific statutory            withheld at the agency’s discretion.
    authority;
• Records made confidential by federal law;                3. Test questions, scoring keys and examination
• Records containing trade secrets;                        data     used     in    administering     licensing
• Records containing confidential financial                examinations before the examination is given;
    information received upon request from a               4. Test scores if the person is identified by name
    person;                                                and has not consented to the release of the
• Records containing information concerning                scores;
    research, including research conducted                 5. Certain records from public agencies relating
    under the auspices of an institution of higher         to negotiations created while the negotiations are
    learning;                                              in process;
                                                           6. Intra-agency or interagency advisory or
• Grade transcripts and license examination
                                                           deliberative materials that express opinions and
    scores;
                                                           are used for decision-making;
• Records made confidential by rules adopted
                                                           Example: A memo from a staff member to the
    by the Indiana Supreme Court;
                                                           mayor expressing the staff member’s opinion on
• Patient medical records and charts created
                                                           a proposed change in office policy may be
    by a health care provider unless the patient
                                                           withheld under the deliberative materials
    provides written consent for the record’s
                                                           exception.
    disclosure;
• Application            information       declared        7. Diaries, journals or other personal notes;
    confidential by the Twenty-First Century               Example: The written contents of a county
    research and technology fund board;                    employee’s calendar, used at her office for the
• A photograph, a video recording, or an                   purpose of maintaining a journal of personal
    audio recording of an autopsy; and                     notes, may be withheld at the discretion of the
• A social security number contained in the                agency.
    records of a public agency.
                                                           8. Certain information contained in the files of
  In certain circumstances, the APRA grants                public employees and applicants for public
public agencies discretion in determining which            employment (Certain information in an
public records should be disclosed. I.C. §5-14-3-          employee’s personnel file is required to be
4(b) provides public agencies the discretion to            disclosed under this exception);
withhold the following records from public                 Example: An employee’s job performance
access:                                                    evaluation kept in his personnel file may be
1. Investigatory records of law enforcement                withheld at the agency’s discretion. The factual
agencies (Under I.C. § 5-14-3-5, certain factual           basis for an employee’s termination must be
information relating to the identity of a person           disclosed under subsection (C).
arrested or jailed and the agency’s response to a
complaint, accident or incident must be made               9. Minutes or records of hospital staff meetings;
available to the public.)                                  10. Certain administrative or technical
Example: Statements made to police by                      information that would jeopardize a record
witnesses of a crime may be withheld at the                keeping or security system;
discretion of the agency.                                  Example: A diagram of the security system for


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Updated November 2011

the State Museum’s artifacts may be withheld by           request for information from that system.
the agency using this exception.                            When a commercial entity requests a list that
                                                          contains the names and addresses of (1) the
11. Certain software owned by the public                  employees of a public agency, (2) the names of
agency;                                                   the people attending conferences or meetings at
12. Records specifically prepared for discussion          a state institution of higher education, or (3)
in executive sessions;                                    students enrolled in a public school corporation
13. Work product of the legislative services              which adopts a policy that such information
agency;                                                   need not be released, the public agency may not
14. Work product of the general assembly and              permit a commercial entity access to the list
its staff;                                                when the list is sought for a commercial
15. The identity of a donor of a gift made to a           purpose.
public agency if the donor or the donor’s family
requests non-disclosure;                                  Example: A request is received by the county
16. Certain information identifying library               highway department for “the dates that County
patrons or material deposited with the library or         Road 500 North has been paved between the
archives;                                                 years 1995 and 1997.” This request seeks
17. The identity of a person contacting the               information in list form. If the county does not
Bureau of Motor Vehicles regarding the ability            maintain such a list, it need not create one. The
of a driver to operate a motor vehicle safely;            requestor would, however, be entitled to access
18. Information including school safety and               any of the county’s documents that may provide
security measures and school emergency                    pertinent information to satisfy his request.
preparedness plans;
19. Information disclosure of which would                 When can public records be accessed?
threaten public safety by exposing a                        The APRA permits the public access to public
vulnerability to a terrorist attack; and                  records during the regular business hours of the
20. Personal information concerning a customer            particular public agency from which the records
of a municipally owned utility, including the             are sought. On occasion, part-time public
customer’s telephone number, address, and                 officials may have limited business hours. The
Social Security number.                                   APRA does not require a public agency to be
                                                          open for any particular hours of the day, but it is
  With the exception of adoption records, public          the responsibility of the public official to ensure
records classified as confidential are available          there is adequate time for persons who wish to
for public inspection and copying 75 years after          inspect and copy records. Once a public agency
they were created. If a public agency argues that         indicates there are disclosable public records
a document is not disclosable, the agency bears           which will be provided in response to a request,
the burden of proving that the document does              the compilation and copying of the records may
not fall within the scope of the APRA.                    not unreasonably interfere with the regular
                                                          business of that agency.
May I request information in the form of a list?
   The Act provides that a public agency is not           Example 1: A citizen requests access to and
required to create and release a list of names and        copies of numerous records of a state agency.
addresses upon request. If a list of names has            The agency responds to the request by stating
been compiled, or if a public agency maintains a          the estimated time for preparation of the copies
list of information under some statutory                  and the estimated copying fee. So long as the
requirement, the list is accessible to the public.        copies will be provided within a reasonable
In general, however, a public agency is not               period of time after the request is made, the
required to create a “list” to satisfy a public           agency is in compliance with the APRA.
records request. But an agency that maintains its
records on an “electronic data storage system”            How can public records be accessed?
must make a reasonable effort to satisfy a                 A request for the inspection or copying of


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public records must identify with reasonable               production of records within this specified time
particularity the record being requested. The              period. The records must be produced in a
public agency, in its discretion, may require the          reasonable period of time, considering the facts
request to be in writing on or in a form provided          and circumstances. See Appendix B for a
by the agency. It is advisable to first contact the        checklist for agencies responding to requests
public agency to determine whether a request               under the APRA.
form is required and/or if specific information is
required to quickly locate particular documents.           Example: A person appears at the county
                                                           auditor’s office and asks to inspect the minutes
What is enhanced access to public records?                 of the council’s last ten meetings. The auditor
  In l993, the Indiana General Assembly added a            need not produce the records on demand but
new dimension to accessing public records-                 must respond to the request within 24 business
enhanced access. Enhanced access permits                   hours, which is the same time the next business
individuals who enter into a contract with a               day.
public agency to obtain access to public records
by means of electronic devices. Essentially, the           May a public agency deny a request?
enhanced access provision allows individuals                 In general, if a requested record (1) is a public
who frequently use information from a public               record from a public agency; (2) is not exempt
agency to examine public records using their               from disclosure; and (3) is identified with
own computer equipment.                                    reasonable particularity pursuant to I.C. § 5-14-
  State agencies may provide enhanced access               3-3(a), the public agency cannot deny access to
only through a computer gateway established by             the record.
the state intelenet commission, unless an                    If access to a public record would reveal
exception has been made by the state data                  disclosable and nondisclosable information, the
processing oversight commission. All other                 information that is disclosable must be made
public agencies covered by the APRA may                    available for inspection. The public agency must
provide enhanced access to their records either            separate, or redact, the nondisclosable
directly through an individual’s computer                  information.
gateway, by contracting with a third party to                Oral requests made by telephone or in person
serve as the agency’s gateway or through the               may be denied orally. If a request is made in
gateway established and approved by the state              writing, by facsimile or by email, or if an oral
intelenet commission. Any provision of                     request that was denied is renewed in writing,
enhanced access, whether by contract or                    the public agency may only deny the request in
otherwise, must provide that the public agency,            writing. A denial must include a statement of
the user or a third party gateway provider will            the specific statutory reason for nondisclosure of
not engage in unauthorized enhanced access or              the information and the name and title of the
alteration of public records and will not lead to          person responsible for the denial.
the disclosure of confidential information.
                                                           What if a public agency denies my request?
What are the public agency’s responsibilities                 If a person feels he or she has been wrongly
when I submit a request?                                   denied, that person should contact the Public
If a requestor is physically present in the office         Access Counselor for an informal response or to
of the public agency or makes a request by                 file a formal complaint. See Sections 5 and 6 of
telephone or requests enhanced access to a                 this handbook for more information.
document, the public agency must respond to the               The APRA authorizes an individual who has
request within 24 hours after any employee of              been denied access to a public record to file a
the agency receives the request. If a request is           civil lawsuit in the circuit or superior court of
mailed or sent by facsimile or email, a public             the county in which the denial occurred. The
agency must respond within seven calendar days             purpose of the lawsuit is to compel disclosure of
of the receipt of that request. The APRA                   the records sought. When such a lawsuit is filed,
requires only a response and not the actual                the public agency must notify each person who


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supplied a part of the public record in dispute            protect information classified as confidential by
that a request for its release has been denied.            state statute. Additionally, the APRA requires a
  The burden of proof then falls upon the public           public agency to protect public records from
agency to establish that it properly denied access         loss, alteration, mutilation, or destruction. The
to the public record because the record falls              APRA does not identify a penalty if the agency
outside the scope of the Act. If certain                   fails to do so.
conditions are met, the prevailing party is
entitled to reasonable attorney fees, court costs          CONCLUSION
and other litigation expenses.                               The APRA provides the people of Indiana
                                                           with broad access to the public documents
May a public agency charge a fee for inspecting            maintained by public agencies. Access to public
and copying public records?                                records is the rule and not the exception. This
  The APRA provides that a public agency                   handbook is published with the hope that it will
cannot charge for inspection or a search for               help public officials and individual citizens
records unless it is authorized to do so by                understand and apply the APRA. The examples
statute. For copies of records from a state                and explanations used in the guide are meant to
agency, the state Department of Administration             be illustrative of the law’s provisions; they can
has established a copying fee for agencies under           in no way address every conceivable factual
the executive branch of $.10 per page for black            situation. When confronted with a question of
and white copies or $.25 per page for color                interpretation, the law should be liberally
copies. The state judicial and legislative                 construed in favor of openness.
branches set their own fees.
  For non-state agencies covered by the APRA,              SECTION FOUR: THE ACCESS TO
the fiscal body of the agency is required to               PUBLIC RECORDS ACT AND LEGAL
establish a fee schedule for the certification or          COMMENTARY
copying of documents that does not exceed the
actual cost of certification or copying. “Actual           INTRODUCTION
cost” is defined as the cost of the paper plus the         This section contains the text of the Access to
per-page cost of use of the copying and may not            Public Records Act, I.C. § 5-14-3-1 et seq.,
include labor and overhead. In addition, the fee           which is current as of the close of the 2008
must be uniform to all purchasers.                         session of the Indiana General Assembly. After
  Copies of public records may also be provided            those sections which have been interpreted by
in other forms. For a duplicate of a computer              Indiana courts, the Office of the Attorney
tape, disc, microfilm or similar record system             General, or the Public Access Counselor, we
containing public records, an agency may charge            have provided legal commentary. These
a fee as prescribed by statute. I.C. § 5-14-3-8(g).        commentaries are included merely to provide the
An agency may also provide enhanced access to              reader with practical guidance on how the law
a public record and charge a reasonable fee                has been interpreted and are not intended to be a
under the provisions governing enhanced access,            substitute for specific legal advice.
I.C. § 5-14-3-3.5 and I.C. § 5-14-3-3.6.
                                                           I.C. § 5-14-3-1 PUBLIC POLICY;
What happens if confidential records are                   CONSTRUCTION; BURDEN OF PROOF FOR
disclosed or if there is a failure to protect the          NON-DISCLOSURE
public records from destruction?                           A fundamental philosophy of the American
  It is a Class A misdemeanor for a public                 constitutional form of representative government
official or employee(s) of contractors with                is that government is the servant of the people
public agencies to knowingly or intentionally              and not their master. Accordingly, it is the
disclose records that are confidential by state            public policy of the state that all persons are
statute. In addition, a public employee can be             entitled to full and complete information
disciplined in accordance with agency personnel            regarding the affairs of government and the
guidelines for reckless disclosure or failure to           official acts of those who represent them as


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public officials and employees. Providing                    (1) the initial development of a program, if any;
persons with the information is an essential                 (2) the labor required to retrieve electronically
function of a representative government and an             stored data; and
integral part of the routine duties of public                (3) any medium used for electronic output;
officials and employees, whose duty it is to               for providing a duplicate of electronically stored
provide the information. This chapter shall be             data onto a disk, tape, drum, or other medium of
liberally construed to implement this policy and           electronic data retrieval under section 8(g) of
place the burden of proof for the nondisclosure            this chapter, or for reprogramming a computer
of a public record on the public agency that               system under section 6(c) of this chapter.
would deny access to the record and not on the             (d) "Electronic map" means copyrighted data
person seeking to inspect and copy the record.             provided by a public agency from an electronic
(As added by P.L. 19-1983, § 6; Amended by                 geographic information system.
P.L. 77-1995, § 1.)                                        (e) "Enhanced access" means the inspection of a
                                                           public record by a person other than a
COMMENTARY                                                 governmental entity and that:
The APRA clearly provides that the public is to              (1) is by means of an electronic device other
have access to the affairs of government and               than an electronic device provided by a public
actions of officials who represent them. A liberal         agency in the office of the public agency; or
construction of the Act does not mean that                   (2) requires the compilation or creation of a list
expressed exceptions specified by the legislature          or report that does not result in the permanent
are to be contravened. Heltzel v. Thomas, 516              electronic storage of the information.
N.E.2d 103 (Ind. Ct. App. 1987).                           (f) "Facsimile machine" means a machine that
                                                           electronically transmits exact images through
A public agency has the burden to establish that           connection with a telephone network.
a requested record is included in categories not           (g) "Inspect" includes the right to do the
disclosable under the APRA. Indianapolis                   following:
Convention and Visitors Association, Inc. v.                 (1) Manually transcribe and make notes,
Indianapolis Newspapers, Inc., 577 N.E.2d 208              abstracts, or memoranda.
(Ind. 1991).                                                 (2) In the case of tape recordings or other aural
                                                           public records, to listen and manually transcribe
Because an affidavit signed by the judge of a              or duplicate, or make notes, abstracts, or other
small claims court was not public record, the              memoranda from them.
court was not required to respond to a citizen's             (3) In the case of public records available:
request for the affidavit; furthermore, the court               (A) by enhanced access under section 3.5 of
did not maintain a copy of the affidavit and,              this chapter; or
therefore, could not produce it. Woolley v.                     (B) to a governmental entity under section
Wash. Twp. of Marion County Small Claims                   3(c)(2) of this chapter;
Court, 804 N.E.2d 761, 2004 Ind. App. LEXIS                to examine and copy the public records by use of
325 (Ind. Ct. App. 2004).                                  an electronic device.
                                                             (4) In the case of electronically stored data, to
I.C. § 5-14-3-2 DEFINITIONS                                manually transcribe and make notes, abstracts,
(a) The definitions set forth in this section apply        or memoranda or to duplicate the data onto a
throughout this chapter.                                   disk, tape, drum, or any other medium of
(b) "Copy" includes transcribing by handwriting,           electronic storage.
photocopying, xerography, duplicating machine,             (h) "Investigatory record" means information
duplicating electronically stored data onto a              compiled in the course of the investigation of a
disk, tape, drum, or any other medium of                   crime.
electronic data storage, and reproducing by any            (i) “Offender” means a person confined in a
other means.                                               penal institution as the result of the conviction
(c) "Direct cost" means one hundred five percent           for a crime.
(105%) of the sum of the cost of:                          (j) "Patient" has the meaning set out in IC 16-18-


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2-272(d).                                                government that engages in the investigation,
(k) "Person" means an individual, a corporation,         apprehension, arrest, or prosecution of alleged
a limited liability company, a partnership, an           criminal offenders, such as the state police
unincorporated association, or a governmental            department, the police or sheriff's department of
entity.                                                  a political subdivision, prosecuting attorneys,
(l) "Provider" has the meaning set out in IC 16-         members of the excise police division of the
18-2-295(b) and includes employees of the state          alcohol and tobacco commission, conservation
department of health or local boards of health           officers of the department of natural resources,
who create patient records at the request of             gaming agents of the Indiana gaming
another provider or who are social workers and           commission, gaming control officers of the
create records concerning the family background          Indiana gaming commission, and the security
of children who may need assistance.                     division of the state lottery commission.
(m) "Public agency," except as provided in                (7) Any license branch staffed by employees of
section 2.1 of this chapter, means the following:        the bureau of motor vehicles commission under
  (1) Any board, commission, department,                 IC 9-16.
division, bureau, committee, agency, office,              (8) The state lottery commission established by
instrumentality, or authority, by whatever name          IC 4-30-3-1, including any department, division,
designated, exercising any part of the executive,        or office of the commission.
administrative, judicial, or legislative power of         (9) The Indiana gaming commission
the state.                                               established under IC 4-33, including any
  (2) Any:                                               department, division, or office of the
     (A) county, township, school corporation,           commission.
city, or town, or any board, commission,                  (10) The Indiana horse racing commission
department, division, bureau, committee, office,         established by IC 4-31, including any
instrumentality, or authority of any county,             department, division, or office of the
township, school corporation, city, or town;             commission.
     (B) political subdivision (as defined by IC         (n) "Public record" means any writing, paper,
36-1-2-13); or                                           report, study, map, photograph, book, card, tape
     (C) other entity, or any office thereof, by         recording, or other material that is created,
whatever name designated, exercising in a                received, retained, maintained, or filed by or
limited geographical area the executive,                 with a public agency and which is generated on
administrative, judicial, or legislative power of        paper, paper substitutes, photographic media,
the state or a delegated local governmental              chemically based media, magnetic or machine
power.                                                   readable media, electronically stored data, or
  (3) Any entity or office that is subject to:           any other material, regardless of form or
     (A) budget review by either the department          characteristics.
of local government finance or the governing             (o) "Standard-sized documents" includes all
body of a county, city, town, township, or school        documents that can be mechanically reproduced
corporation; or                                          (without mechanical reduction) on paper sized
     (B) an audit by the state board of accounts         eight and one-half (8 1/2) inches by eleven (11)
that is required by statute, rule, or regulation.        inches or eight and one-half inches by fourteen
  (4) Any building corporation of a political            inches.
subdivision that issues bonds for the purpose of         (p) "Trade secret" has the meaning set forth in
constructing public facilities.                          IC 24-2-3-2.
  (5) Any advisory commission, committee, or             (q) "Work product of an attorney" means
body created by statute, ordinance, or executive         information compiled by an attorney in
order to advise the governing body of a public           reasonable anticipation of litigation. The term
agency, except medical staffs or the committees          includes the attorney's:
of any such staff.                                        (1) notes and statements taken during
  (6) Any law enforcement agency, which means            interviews of prospective witnesses; and
an agency or a department of any level of                 (2) legal research or records, correspondence,


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reports, or memoranda to the extent that each              requirements:
contains the attorney's opinions, theories, or                 (A) The agreement provides for the payment
conclusions.                                               of fees to the entity in exchange for services,
  This definition does not restrict the application        goods, or other benefits.
of any exception under section 4 of this chapter.              (B) The amount of fees received by the
(As added by P.L.19-1983, § 6; P.L.34-1984, §              entity under the agreement is not based upon or
1; P.L.54-1985, § 1; P.L.42-1986, § 2; P.L.50-             does not involve a consideration of the tax
1986, § 1; P.L.341-1989(ss), § 6; P.L.2-1991, §            revenues or receipts of the state, county, or
29; P.L.2-1992, § 53; P.L.2-1993, § 49; P.L.8-             municipality.
1993, § 57; P.L.58-1993, § 1; P.L.277-1993(ss),                (C) The amount of the fees are negotiated by
§ 128; P.L.1-1994, § 21; P.L.77-1995, § 2;                 the entity and the state, county, or municipality.
P.L.50-1995, § 15; P.L.1-1999, § 6; P.L.256-                   (D) The state, county, or municipality is
1999, § 1; P.L.204-2001, § 12; P.L.90-2002, §              billed for fees by the entity for the services,
18; P.L.261-2003, § 5; P.L.2-2005, § 16;                   goods, or other benefits actually provided by the
P.L.170-2005, § 17; P.L.1-2006, § 101; P.L.1-              entity.
2007, § 28; P.L.227-2007, § 57; P.L. 3-2008, §              (2) The provider is not required by statute, rule,
28; P.L. 51-2008, § 1.)                                    or regulation to be audited by the state board of
                                                           accounts. (As added by P.L.179-2007, § 8.)
COMMENTARY
Coroner’s office is a “law enforcement agency”             I.C. § 5-14-3-3 RIGHT TO INSPECT AND
due to various statutes under which he or she              COPY PUBLIC AGENCY RECORDS
performs investigations into deaths often                  (a) Any person may inspect and copy the public
involving crimes. Heltzel v. Thomas, 516 N.E.2d            records of any public agency during the regular
103 (Ind. Ct. App. 1987).                                  business hours of the agency, except as provided
                                                           in section 4 of this chapter. A request for
The APRA applies to municipally owned utilities            inspection or copying must:
as public agencies. Opinion of the Attorney                  (1) identify with reasonable particularity the
General, 1984, No. 7, page 106.                            record being requested; and
                                                             (2) be, at the discretion of the agency, in
Township's small claims court was a "public                writing on or in a form provided by the agency.
agency" for purposes of the Access to Public               No request may be denied because the person
Records Act. Woolley v. Wash. Twp. of Marion               making the request refuses to state the purpose
County Small Claims Court, 804 N.E.2d 761,                 of the request, unless such condition is required
2004 Ind. App. LEXIS 325 (Ind. Ct. App. 2004).             by other applicable statute.
                                                           (b) A public agency may not deny or interfere
Trial court qualifies as "public agency" within            with the exercise of the right stated in subsection
meaning of Indiana Access to Public Records                (a). The public agency shall either:
Act, Ind. Code 5-14-3. Bobrow v. Bobrow, 810                 (1) provide the requested copies to the person
N.E.2d 726, 2004 Ind. App. LEXIS 1110 (Ind.                making the request; or
App. 2004).                                                  (2) allow the person to make copies:
                                                                (A) on the agency's equipment; or
                                                                (B) on the person's own equipment.
I.C. § 5-14-3-2.1 “PUBLIC AGENCY”                          (c) Notwithstanding subsections (a) and (b), a
DEFINED.                                                   public agency may or may not do the following:
"Public agency," for purposes of this chapter,               (1) In accordance with a contract described in
does not mean a provider of goods, services, or            section 3.5 of this chapter, permit a person to
other benefits that meets the following                    inspect and copy through the use of enhanced
requirements:                                              access public records containing information
  (1) The provider receives public funds through           owned by or entrusted to the public agency.
an agreement with the state, a county, or a                  (2) Permit a governmental entity to use an
municipality that meets the following                      electronic device to inspect and copy public


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records containing information owned by or                  names and addresses (including electronic mail
entrusted to the public agency.                             account addresses) described in subdivisions (1)
(d) Except as provided in subsection (e), a public          through (3) may not be disclosed by public
agency that maintains or contracts for the                  agencies to commercial entities for commercial
maintenance of public records in an electronic              purposes and may not be used by commercial
data storage system shall make reasonable                   entities for commercial purposes. The
efforts to provide to a person making a request a           prohibition in this subsection against the
copy of all disclosable data contained in the               disclosure of lists for political or commercial
records on paper, disk, tape, drum, or any other            purposes applies to the following lists of names
method of electronic retrieval if the medium                and addresses (including electronic mail account
requested is compatible with the agency's data              addresses):
storage system. This subsection does not apply                (1) A list of employees of a public agency.
to an electronic map.                                         (2) A list of persons attending conferences or
(e) A state agency may adopt a rule under IC 4-             meetings at a state educational institution or of
22-2, and a political subdivision may enact an              persons involved in programs or activities
ordinance, prescribing the conditions under                 conducted or supervised by the state educational
which a person who receives information on                  institution.
disk or tape under subsection (d) may or may not              (3) A list of students who are enrolled in a
use the information for commercial purposes,                public school corporation if the governing body
including to sell, advertise, or solicit the                of the public school corporation adopts a policy:
purchase of merchandise, goods, or services, or                  (A) with respect to disclosure related to a
sell, loan, give away, or otherwise deliver the             commercial purpose, prohibiting the disclosure
information obtained by the request to any other            of the list to commercial entities for commercial
person for these purposes. Use of information               purposes;
received under subsection (d) in connection with                 (B) with respect to disclosure related to a
the preparation or publication of news, for                 commercial purpose, specifying the classes or
nonprofit activities, or for academic research is           categories of commercial entities to which the
not prohibited. A person who uses information               list may not be disclosed or by which the list
in a manner contrary to a rule or ordinance                 may not be used for commercial purposes; or
adopted under this subsection may be prohibited                  (C) with respect to disclosure related to a
by the state agency or political subdivision from           political purpose, prohibiting the disclosure of
obtaining a copy or any further data under                  the list to individuals and entities for political
subsection (d).                                             purposes.
(f) Notwithstanding the other provisions of this            A policy adopted under subdivision (3)(A) or
section, a public agency is not required to create          (3)(B) must be uniform and may not
or provide copies of lists of names and addresses           discriminate among similarly situated
(including electronic mail account addresses)               commercial entities. For purposes of this
unless the public agency is required to publish             subsection, "political purposes" means
such lists and disseminate them to the public               influencing the election of a candidate for
under a statute. However, if a public agency has            federal, state, legislative, local, or school board
created a list of names and addresses (excluding            office or the outcome of a public question or
electronic mail account addresses) it must permit           attempting to solicit a contribution to influence
a person to inspect and make memoranda                      the election of a candidate for federal, state,
abstracts from the list unless access to the list is        legislative, local, or school board office or the
prohibited by law. The lists of names and                   outcome of a public question.
addresses (including electronic mail account                (g) A public agency may not enter into or renew
addresses) described in subdivisions (1) through            a contract or an obligation:
(3) may not be disclosed by public agencies to                (1) for the storage or copying of public records;
any individual or entity for political purposes             or
and may not be used by any individual or entity               (2) that requires the public to obtain a license
for political purposes. In addition, the lists of           or pay copyright royalties for obtaining the right


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to inspect and copy the records unless otherwise            (1) The contract between the state agency
provided by applicable statute;                            and the third party must provide for the
if the contract, obligation, license, or copyright         protection of public records in accordance
unreasonably impairs the right of the public to            with subsection (d).
inspect and copy the agency's public records.               (2) The contract between the state agency
(h) If this section conflicts with IC 3-7, the             and the third party may provide for the
provisions of IC 3-7 apply.                                payment of a reasonable fee to the state
(As added by P.L.19-1983, § 6; P.L.54-1985, §              agency by either:
2; P.L.51-1986, § 1; P.L.58-1993, § 2; P.L.77-                 (A) the third party; or
1995, § 3; P.L.173-2003, § 4; P.L.261-2003, §                  (B) the person.
6; P.L.22-2006, § 1; P.L.1-2007, § 29; P.L.2-              (d) A contract required by this section must
2007, § 100.)                                              provide that the person and the third party
                                                           will not engage in the following:
COMMENTARY                                                  (1) Unauthorized enhanced access to public
“Regular business hours” is not defined by the             records.
APRA. Although it is understandable that part-              (2) Unauthorized alteration of public
time public officials may have limited hours of            records.
operation, it is nevertheless the responsibility of         (3) Disclosure of confidential public
a public official to ensure there is adequate              records.
opportunity and time for persons who wish to               (e) A state agency shall provide enhanced
inspect and copy records. Opinion of the Public            access to public records only through the
Access Counselor, 98-4.                                    computer gateway administered by the office
                                                           of technology.
I.C. § 5-14-3-3.5 ENHANCED ACCESS TO                       (As added by P.L.58-1993, § 3; P.L.77-1995,
PUBLIC RECORDS; STATE AGENCIES                             § 4; P.L.19-1997, § 2; P.L.14-2004, § 183;
(a) As used in this section, "state agency" has            P.L.177-2005, § 15.)
the meaning set forth in IC 4-13-1-1. The
term does not include the office of the                    COMMENTARY
following elected state officials:                         While there are no reported decisions on
  (1) Secretary of state.                                  enhanced access, in 1997 the Indiana General
  (2) Auditor.                                             Assembly amended this section to apply only to
  (3) Treasurer.                                           state agencies and enacted I.C. §5-14-3-3.6 to
  (4) Attorney general.                                    govern enhanced access to records of other
  (5) Superintendent of public instruction.                public agencies covered by the APRA.
However, each state office described in
subdivisions (1) through (5) and the judicial              I.C. § 5-14-3-3.6 ENHANCED ACCESS TO
department of state government may use the                 PUBLIC RECORDS; PUBLIC AGENCIES
computer gateway administered by the office                (a) As used in this section "public agency" does
of technology established by I.C. §4-13.1-2-               not include a state agency (as defined in section
1, subject to the requirements of this section.            3.5(a) of this chapter).
(b) As an additional means of inspecting and               (b) As an additional means of inspecting and
copying public records, a state agency may                 copying public records, a public agency may
provide enhanced access to public records                  provide enhanced access to public records
maintained by the state agency.                            maintained by the public agency.
(c) If the state agency has entered into a                 (c) A public agency may provide a person with
contract with a third party under which the                enhanced access to public records if any of the
state agency provides enhanced access to the               following apply:
person through the third party's computer                    (1) The public agency provides enhanced
gateway or otherwise, all of the following                 access to the person through its own computer
apply to the contract:                                     gateway and provides for the protection of
                                                           public records under subsection (d).


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  (2) The public agency has entered into a                 state statute.
contract with a third party under which the                      (6) Information concerning research,
public agency provides enhanced access to the              including actual research documents, conducted
person through the third party's computer                  under the auspices of a state educational
gateway or otherwise, and the contract between             institution, including information:
the public agency and the third party provides                      (A) concerning any negotiations made
for the protection of public records in                    with respect to the research; and
accordance with subsection (d).                                     (B) received from another party involved
(d) A contract entered into under this section and         in the research.
any other provision of enhanced access must                      (7) Grade transcripts and license
provide that the third party and the person will           examination scores obtained as part of a
not engage in the following:                               licensure process.
  (1) Unauthorized enhanced access to public                     (8) Those declared confidential by or under
records.                                                   rules adopted by the supreme court of Indiana.
  (2) Unauthorized alteration of public records.                 (9) Patient medical records and charts
  (3) Disclosure of confidential public records.           created by a provider, unless the patient gives
(e) A contract entered into under this section or          written consent under IC 16-39 or as provided
any provision of enhanced access may require               under IC 16-41-8.
the payment of a reasonable fee to either the                   (10) Application information declared
third party to a contract or to the public agency,         confidential by the board of the Indiana
or both, from the person.                                  economic development corporation under IC 5-
(f) A public agency may provide enhanced                   28-16.
access to public records through the computer                    (11) A photograph, a video recording, or an
gateway administered by the office of                      audio recording of an autopsy, except as
technology established by IC 4-13.1-2-1. (As               provided in IC 36-2-14-10.
added by P.L.19-1997, § 3; P.L.177-2005, § 16.)                  (12) A Social Security number contained in
                                                           the records of a public agency.
IC 5-14-3-4 RECORDS EXCEPTED FROM                                (13) The following information that is part
DISCLOSURE REQUIREMENTS; NAMES                             of a foreclosure action subject to IC 32-30-10.5:
AND ADDRESSES; TIME LIMITATIONS;                                     (A) Contact information for a debtor, as
DESTRUCTION OF RECORDS                                     described in IC 32-30-10.5-8(d)(2)(B).
    Sec. 4. (a) The following public records are                     (B) Any document submitted to the
excepted from section 3 of this chapter and may            court as part of the debtor's loss mitigation
not be disclosed by a public agency, unless                package under IC 32-30-10.5-10(a)(3).
access to the records is specifically required by a              (b) Except as otherwise provided by
state or federal statute or is ordered by a court          subsection (a), the following public records shall
under the rules of discovery:                              be excepted from section 3 of this chapter at the
      (1) Those declared confidential by state             discretion of a public agency:
statute.                                                         (1) Investigatory records of law
      (2) Those declared confidential by rule              enforcement agencies. However, certain law
adopted by a public agency under specific                  enforcement records must be made available for
authority to classify public records as                    inspection and copying as provided in section 5
confidential granted to the public agency by               of this chapter.
statute.                                                         (2) The work product of an attorney
      (3) Those required to be kept confidential           representing, pursuant to state employment or an
by federal law.                                            appointment by a public agency:
      (4) Records containing trade secrets.                         (A) a public agency;
      (5) Confidential financial information                        (B) the state; or
obtained, upon request, from a person. However,                     (C) an individual.
this does not include information that is filed                  (3) Test questions, scoring keys, and other
with or received by a public agency pursuant to            examination data used in administering a


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licensing examination, examination for                       background, previous work experience, or dates
employment, or academic examination before                   of first and last employment of present or former
the examination is given or if it is to be given             officers or employees of the agency;
again.                                                                (B) information relating to the status of
      (4) Scores of tests if the person is identified        any formal charges against the employee; and
by name and has not consented to the release of                       (C) the factual basis for a disciplinary
the person's scores.                                         action in which final action has been taken and
      (5) The following:                                     that resulted in the employee being suspended,
         (A) Records relating to negotiations                demoted, or discharged.
between the Indiana economic development                           However, all personnel file information
corporation, the ports of Indiana, the Indiana               shall be made available to the affected employee
state department of agriculture, the Indiana                 or the employee's representative. This
finance authority, an economic development                   subdivision does not apply to disclosure of
commission, a local economic development                     personnel information generally on all
organization (as defined in IC 5-28-11-2(3)), or             employees or for groups of employees without
a governing body of a political subdivision with             the request being particularized by employee
industrial, research, or commercial prospects, if            name.
the records are created while negotiations are in                  (9) Minutes or records of hospital medical
progress.                                                    staff meetings.
         (B) Notwithstanding clause (A), the                       (10) Administrative or technical
terms of the final offer of public financial                 information that would jeopardize a record
resources communicated by the Indiana                        keeping or security system.
economic development corporation, the ports of                     (11) Computer programs, computer codes,
Indiana, the Indiana finance authority, an                   computer filing systems, and other software that
economic development commission, or a                        are owned by the public agency or entrusted to it
governing body of a political subdivision to an              and portions of electronic maps entrusted to a
industrial, a research, or a commercial prospect             public agency by a utility.
shall be available for inspection and copying                      (12) Records specifically prepared for
under section 3 of this chapter after negotiations           discussion or developed during discussion in an
with that prospect have terminated.                          executive session under IC 5-14-1.5-6.1.
         (C) When disclosing a final offer under             However, this subdivision does not apply to that
clause (B), the Indiana economic development                 information required to be available for
corporation shall certify that the information               inspection and copying under subdivision (8).
being disclosed accurately and completely                          (13) The work product of the legislative
represents the terms of the final offer.                     services agency under personnel rules approved
      (6) Records that are intra-agency or                   by the legislative council.
interagency advisory or deliberative material,                     (14) The work product of individual
including material developed by a private                    members and the partisan staffs of the general
contractor under a contract with a public agency,            assembly.
that are expressions of opinion or are of a                        (15) The identity of a donor of a gift made
speculative nature, and that are communicated                to a public agency if:
for the purpose of decision making.                                   (A) the donor requires nondisclosure of
      (7) Diaries, journals, or other personal               the donor's identity as a condition of making the
notes serving as the functional equivalent of a              gift; or
diary or journal.                                                     (B) after the gift is made, the donor or a
      (8) Personnel files of public employees and            member of the donor's family requests
files of applicants for public employment, except            nondisclosure.
for:                                                               (16) Library or archival records:
         (A) the name, compensation, job title,                       (A) which can be used to identify any
business address, business telephone number,                 library patron; or
job description, education and training                               (B) deposited with or acquired by a


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library upon a condition that the records be                 and wastewater systems; and
disclosed only:                                                       (K) detailed drawings or specifications of
            (i) to qualified researchers;                    structural elements, floor plans, and operating,
            (ii) after the passing of a period of            utility, or security systems, whether in paper or
years that is specified in the documents under               electronic form, of any building or facility
which the deposit or acquisition is made; or                 located on an airport (as defined in IC 8-21-1-1)
            (iii) after the death of persons                 that is owned, occupied, leased, or maintained
specified at the time of the acquisition or                  by a public agency. A record described in this
deposit.                                                     clause may not be released for public inspection
      However, nothing in this subdivision shall             by any public agency without the prior approval
limit or affect contracts entered into by the                of the public agency that owns, occupies, leases,
Indiana state library pursuant to IC 4-1-6-8.                or maintains the airport. The public agency that
      (17) The identity of any person who                    owns, occupies, leases, or maintains the airport:
contacts the bureau of motor vehicles                                    (i) is responsible for determining
concerning the ability of a driver to operate a              whether the public disclosure of a record or a
motor vehicle safely and the medical records and             part of a record has a reasonable likelihood of
evaluations made by the bureau of motor                      threatening public safety by exposing a
vehicles staff or members of the driver licensing            vulnerability to terrorist attack; and
medical advisory board regarding the ability of a                        (ii) must identify a record described
driver to operate a motor vehicle safely.                    under item (i) and clearly mark the record as
However, upon written request to the                         "confidential and not subject to public disclosure
commissioner of the bureau of motor vehicles,                under IC 5-14-3-4(b)(19)(J) without approval of
the driver must be given copies of the driver's              (insert name of submitting public agency)".
medical records and evaluations.                                   This subdivision does not apply to a record
      (18) School safety and security measures,              or portion of a record pertaining to a location or
plans, and systems, including emergency                      structure owned or protected by a public agency
preparedness plans developed under 511 IAC                   in the event that an act of terrorism under IC 35-
6.1-2-2.5.                                                   47-12-1 or an act of agricultural terrorism under
      (19) A record or a part of a record, the               IC 35-47-12-2 has occurred at that location or
public disclosure of which would have a                      structure, unless release of the record or portion
reasonable likelihood of threatening public                  of the record would have a reasonable likelihood
safety by exposing a vulnerability to terrorist              of threatening public safety by exposing a
attack. A record described under this subdivision            vulnerability of other locations or structures to
includes:                                                    terrorist attack.
         (A) a record assembled, prepared, or                      (20) The following personal information
maintained to prevent, mitigate, or respond to an            concerning a customer of a municipally owned
act of terrorism under IC 35-47-12-1 or an act of            utility (as defined in IC 8-1-2-1):
agricultural terrorism under IC 35-47-12-2;                           (A) Telephone number.
         (B) vulnerability assessments;                               (B) Address.
         (C) risk planning documents;                                 (C) Social Security number.
         (D) needs assessments;                                    (21) The following personal information
         (E) threat assessments;                             about a complainant contained in records of a
         (F) intelligence assessments;                       law enforcement agency:
         (G) domestic preparedness strategies;                        (A) Telephone number.
         (H) the location of community drinking                       (B) The complainant's address. However,
water wells and surface water intakes;                       if the complainant's address is the location of the
         (I) the emergency contact information of            suspected crime, infraction, accident, or
emergency responders and volunteers;                         complaint reported, the address shall be made
         (J) infrastructure records that disclose the        available for public inspection and copying.
configuration of critical systems such as                          (22) Notwithstanding subdivision (8)(A),
communication, electrical, ventilation, water,               the name, compensation, job title, business


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address, business telephone number, job                      SEC.2; P.L.54-1985, SEC.3; P.L.50-1986,
description, education and training background,              SEC.2; P.L.20-1988, SEC.12; P.L.11-1990,
previous work experience, or dates of first                  SEC.111; P.L.1-1991, SEC.38; P.L.10-1991,
employment of a law enforcement officer who is               SEC.9; P.L.50-1991, SEC.1; P.L.49-1991,
operating in an undercover capacity.                         SEC.1; P.L.1-1992, SEC.11; P.L.2-1993,
      (23) Records requested by an offender that:            SEC.50; P.L.58-1993, SEC.4; P.L.190-1999,
         (A) contain personal information relating           SEC.2; P.L.37-2000, SEC.2; P.L.271-2001,
to:                                                          SEC.1; P.L.201-2001, SEC.1; P.L.1-2002,
            (i) a correctional officer (as defined in        SEC.17; P.L.173-2003, SEC.5; P.L.261-2003,
IC 5-10-10-1.5);                                             SEC.7; P.L.208-2003, SEC.1; P.L.200-2003,
            (ii) the victim of a crime; or                   SEC.3; P.L.210-2005, SEC.1; P.L.1-2006,
            (iii) a family member of a correctional          SEC.102; P.L.101-2006, SEC.4; P.L.2-2007,
officer or the victim of a crime; or                         SEC.101; P.L.172-2007, SEC.1; P.L.179-2007,
         (B) concern or could affect the security            SEC.9; P.L.3-2008, SEC.29; P.L.51-2008,
of a jail or correctional facility.                          SEC.2; P.L.98-2008, SEC.4; P.L.120-2008,
   (c) Nothing contained in subsection (b) shall             SEC.2; P.L.94-2010, SEC.1; Amended by Sec. 1,
limit or affect the right of a person to inspect and         SEA 582(2011)).
copy a public record required or directed to be
made by any statute or by any rule of a public               COMMENTARY
agency.                                                      The rules of discovery do not allow discovery of
   (d) Notwithstanding any other law, a public               privileged matters such as those protected by the
record that is classified as confidential, other             attorney-client privilege and, therefore, I.C. §5-
than a record concerning an adoption or patient              14-3-4(a) does not permit a court to order
medical records, shall be made available for                 disclosure of such privileged information. Board
inspection and copying seventy-five (75) years               of Trustees of Public Employees’ Retirement
after the creation of that record.                           Fund of Indiana v. Morley, 580 N.E.2d 371 (Ind.
   (e) Only the content of a public record may               Ct. App. 1991).
form the basis for the adoption by any public
agency of a rule or procedure creating an                    Animal research applications and references in
exception from disclosure under this section.                a university committee’s meeting minutes are
   (f) Except as provided by law, a public agency            exempt from disclosure under I.C. §5-14-3-
may not adopt a rule or procedure that creates an            4(a)(6). Robinson v. Indiana University, 659
exception from disclosure under this section                 N.E.2d 153 (Ind. Ct. App. 1995).
based upon whether a public record is stored or
accessed using paper, electronic media,                      A board of voter registration is not required to
magnetic media, optical media, or other                      publish a list of registered voters by statute and,
information storage technology.                              therefore, is not required to create or provide a
   (g) Except as provided by law, a public                   copy of its computer tapes. The general public is
agency may not adopt a rule or procedure nor                 entitled to inspect the board’s records and make
impose any costs or liabilities that impede or               memoranda abstracts from those computer
restrict the reproduction or dissemination of any            records. Laudig v. Marion County Board of
public record.                                               Voters Registration, 585 N.E.2d 700 (Ind. Ct.
   (h) Notwithstanding subsection (d) and                    App. 1992).
section 7 of this chapter:
      (1) public records subject to IC 5-15 may              Subpoenas do not automatically fall within the
be destroyed only in accordance with record                  investigatory records of a law enforcement
retention schedules under IC 5-15; or                        agency exception under I.C. §5-14-3-4(b)(1).
      (2) public records not subject to IC 5-15              The State must prove that nondisclosure is
may be destroyed in the ordinary course of                   essential by submitting appropriate evidence.
business. (As added by P.L.19-1983, SEC.6.                   Evansville Courier v. Prosecutor, Vanderburgh
Amended by P.L.57-1983, SEC.1; P.L.34-1984,                  County, 499 N.E.2d 286 (Ind. Ct. App. 1986).


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In Robinson v. Indiana Univ., 659 N.E.2d 153,             Investigatory records of law enforcement
157 (Ind. Ct. App. 1995) the court held that              agencies are exempt from disclosure even
information from research applications was                though there was designated evidence of little or
information concerning research conducted                 no chance of prosecution because the plain
under a university’s auspices and therefore not           language of I.C. §5-14-3-4(b)(1) makes no
subject to disclosure under the APRA.                     mention of the likelihood of prosecution. An
                                                          Unincorporated Operating Division of Indiana
City has the burden of proving that its denial of         Newspapers, Inc. v. The Trustees of Indiana
access to 1993 phone records was supported by             University, 787 N.E. 2d 893, 902 (Ind. Ct. .App.
statutory authority. The court in City of Elkhart         2003).
v. Agenda: Open Gov’t, Inc., 683 N.E.2d 622,
627 (Ind. Ct. App. 1997) found that the public            The Court of Appeals found that the Family
records access statute exception prohibiting              Educational Rights and Privacy Act of 1974
disclosure of administrative or technical                 (“FERPA”) requires education records be kept
information which would jeopardize record                 confidential. An Unincorporated Operating
keeping or security systems did not include               Division of Indiana Newspapers, Inc. v. The
telephone numbers contained on public officials’          Trustees of Indiana University, 787 N.E. 2d 893,
cellular phone bills.                                     904 (Ind. Ct. .App. 2003). Further, the Court of
                                                          Appeals found that both the APRA and FERPA
The APRA provides law enforcement agencies                require redaction of nondisclosable information.
with the discretion to disclose certain categories        Id. at 908. Specifically, information identifying
of documents, called “investigatory records.” A           or which could lead to the identity of a former or
law enforcement agency must be conscious of               present student must be redacted. Id. at 909.
the fact that, upon review of the denial of access
based upon the investigatory record exception,            The Court of Appeals determined that when a
the person denied access can bring forward                document contains both factual and deliberative
proof that the denial was “arbitrary and                  materials the public agency must separate the
capricious” under I.C. §5-14-3-9(f). For this             factual information from the non-disclosable
reason, it is important that a law enforcement            and make the factual information available for
agency exercise consistency in any policies               public access. See generally, An Unincorporated
concerning the disclosure of public records.              Operating Division of Indiana Newspapers, Inc.
Opinion of the Public Access Counselor 99-FC-             v. The Trustees of Indiana University, 787 N.E.
7.                                                        2d 893, 913-914 (Ind. Ct. .App. 2003).

The Court in South Bend Tribune v. South Bend             Substantial evidence supported determination by
Community School Corporation, 740 N.E. 2d                 Indiana Utility Regulatory Commission that
937, 938 (Ind. Ct. App. 2000) found that I.C. §5-         local telephone service provider's responses to
14-3-4(b)(8)(A) requires public agencies to               survey undertaken by commission to gather
disclose designated information only with                 competitive information for Indiana legislature
regard to present or former officers or                   did not constitute protected confidential
employees of the agency. According to the                 information or trade secrets but were simply
Court, applicants for public employment are               public record. Ind. Bell Tel. Co. v. Ind. Util.
specifically excepted from the disclosure                 Regulatory Comm'n, 810 N.E.2d 1179, 2004
requirements.                                             Ind. App. LEXIS 1265 (Ind. App. 2004),
                                                          transfer denied, Und. Bell Tel. Co. v. Ind. Util.
The Marion County Prosecutor’s written                    Regulatory Comm'n, 831 N.E.2d 734, 2005 Ind.
manual of plea negotiations policies for criminal         LEXIS 43 (Ind. 2005).
cases are exempt from disclosure as deliberative
materials. Newman v. Bernstein, 766 N.E. 2d 8,            I.C. § 5-14-3-4.3 JOB TITLE OR JOB
12 (Ind. Ct. App. 2002).                                  DESCRIPTIONS OF LAW ENFORCEMENT


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OFFICERS                                                    IC 5-14-3-4.8 RECORDS EXEMPT FROM
Nothing contained in section 4(b)(8) of this                DISCLOSURE REQUIREMENTS; OFFICE
chapter requires a law enforcement agency to                OF TOURISM DEVELOPMENT
release to the public the job title or job                  NEGOTIATIONS; FINAL OFFERS PUBLIC
description of law enforcement officers. (As                     Sec. 4.8. (a) Records relating to negotiations
added by P.L. 35-1984, § 1.)                                between the office of tourism development and
                                                            industrial, research, or commercial prospects are
I.C. § 5-14-3-4.5 RECORDS RELATING TO                       excepted from section 3 of this chapter at the
NEGOTIATIONS BY THE INDIANA                                 discretion of the office of tourism development
ECONOMIC DEVELOPMENT                                        if the records are created while negotiations are
CORPORATION                                                 in progress.
(a) Records relating to negotiations between the                (b) Notwithstanding subsection (a), the terms
Indiana economic development corporation and                of the final offer of public financial resources
industrial, research, or commercial prospects are           communicated by the office of tourism
excepted from section 3 of this chapter at the              development to an industrial, a research, or a
discretion of the corporation if the records are            commercial prospect shall be available for
created while negotiations are in progress.                 inspection and copying under section 3 of this
(b) Notwithstanding subsection (a), the terms of            chapter after negotiations with that prospect
the final offer of public financial resources               have terminated.
communicated by the corporation to an                           (c) When disclosing a final offer under
industrial, a research, or a commercial prospect            subsection (b), the office of tourism
shall be available for inspection and copying               development shall certify that the information
under section 3 of this chapter after negotiations          being disclosed accurately and completely
with that prospect have terminated.                         represents the terms of the final offer. (As added
(c) When disclosing a final offer under                     by P.L.229-2005, SEC.3).
subsection (b), the corporation shall certify that
the information being disclosed accurately and              I.C. § 5-14-3-4.9 RECORDS OF THE PORTS
completely represents the terms of the final                OF INDIANA
offer. (As added by P.L.4-2005, § 29.)                      (a) Records relating to negotiations between the
                                                            ports of Indiana and industrial, research, or
IC 5-14-3-4.7 NEGOTIATION RECORDS;                          commercial prospects are excepted from section
FINAL OFFERS; CERTIFICATION OF                              3 of this chapter at the discretion of the ports of
FINAL OFFER DISCLOSURE                                      Indiana if the records are created while
    Sec. 4.7. (a) Records relating to negotiations          negotiations are in progress.
between the Indiana finance authority and                   (b) Notwithstanding subsection (a), the terms of
industrial, research, or commercial prospects are           the final offer of public financial resources
excepted from section 3 of this chapter at the              communicated by the ports of Indiana to an
discretion of the authority if the records are              industrial, a research, or a commercial prospect
created while negotiations are in progress.                 shall be available for inspection and copying
   (b) Notwithstanding subsection (a), the terms            under section 3 of this chapter after negotiations
of the final offer of public financial resources            with that prospect have terminated.
communicated by the authority to an industrial,             (c) When disclosing a final offer under
a research, or a commercial prospect shall be               subsection (b), the ports of Indiana shall certify
available for inspection and copying under                  that the information being disclosed accurately
section 3 of this chapter after negotiations with           and completely represents the terms of the final
that prospect have terminated.                              offer.
   (c) When disclosing a final offer under                  (As added by P.L. 98-2008, § 5.)
subsection (b), the authority shall certify that the
information being disclosed accurately and
completely represents the terms of the final
offer. ( As added by P.L.235-2005, SEC.85).


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I.C. § 5-14-3-5 INFORMATION RELATING                             (C) the factual circumstances surrounding
TO ARREST OR SUMMONS; JAILED                                 the incident; and
PERSONS; AGENCY RECORDS;                                         (D) a general description of any injuries,
INSPECTION AND COPYING                                       property, or weapons involved.
Section 5(a) If a person is arrested or summoned             The information required in this subsection shall
for an offense, the following information shall              be made available for inspection and copying in
be made available for inspection and copying:                compliance with this chapter. The record
  (1) Information that identifies the person                 containing the information must be created not
including the person’s name, age, and address.               later than twenty-four hours after the suspected
  (2) Information concerning any charges on                  crime, accident, or complaint has been reported
which the arrest or summons is based.                        to the agency.
  (3) Information relating to the circumstances of           (d) This chapter does not affect IC 5-2-4, IC 10-
the arrest or the issuance of the summons, such              13-3, or IC 5-11-1-9. (As added by P.L. 19-1983,
as the:                                                      § 6. Amended by P.L. 39-1992, § 1; P.L. 2-2003,
     (A) time and location of the arrest or the              § 24.)
issuance of the summons;
     (B) investigating or arresting officer (other           COMMENTARY
than an undercover officer or agent); and                    A police department’s duty to disclose the
     (C) investigating or arresting law                      location of rape in daily record did not require
enforcement agency.                                          the exact street address. The department’s
(b) If a person is received in a jail or lock-up, the        obligation was satisfied by giving the most
following information shall be made available                specific location which also reasonably
for inspection and copying:                                  protected the privacy of the victim. Post-Tribune
  (1) Information that identifies the person                 v. Police Department of City of Gary, 643
including the person’s name, age, and address.               N.E.2d 307 (Ind. 1994).
  (2) Information concerning the reason for the
person being placed in the jail or lock-up,                  I.C. § 5-14-3-5.5 SEALING OF CERTAIN
including the name of the person on whose order              RECORDS BY COURT; HEARING; NOTICE
the person is being held.                                    (a) This section applies to a judicial public
  (3) The time and date that the person was                  record.
received and the time and date of the person’s               (b) As used in this section, “judicial public
discharge or transfer.                                       record” does not include a record submitted to a
  (4) The amount of the person’s bail or bond, if            court for the sole purpose of determining
it has been fixed.                                           whether the record should be sealed.
(c) An agency shall maintain a daily log or                  (c) Before a court may seal a public record not
record that lists suspected crimes, accidents, or            declared confidential under section 4(a) of this
complaints, and the following information shall              chapter, it must hold a hearing at a date and time
be made available for inspection and copying:                established by the court. Notice of the hearing
  (1) The time, substance, and location of all               shall be posted at a place designated for posting
complaints or requests for assistance received by            notices in the courthouse.
the agency.                                                  (d) At the hearing, parties or members of the
  (2) The time and nature of the agency’s                    general public must be permitted to testify and
response to all complaints or requests for                   submit written briefs.
assistance.                                                  A decision to seal all or part of a public record
  (3) If the incident involves an alleged crime or           must be based on findings of fact and
infraction:                                                  conclusions of law, showing that the remedial
     (A) the time, date, and location of                     benefits to be gained by effectuating the public
occurrence;                                                  policy of the state declared in section 1 of this
     (B) the name and age of any victim, unless              chapter are outweighed by proof by a
the victim is a victim of a crime under Ind. Code            preponderance of the evidence by the person
35-42-4;                                                     seeking the sealing of the record that:


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 (1) a public interest will be secured by sealing           subsection (a).
the record;                                                 (c) A public agency may charge a person who
 (2) dissemination of the information contained             makes a request for disclosable information the
in the record will create a serious and imminent            agency’s direct cost of reprogramming a
danger to that public interest;                             computer system if:
 (3) any prejudicial effect created by                       (1) the disclosable information is stored on a
dissemination of the information cannot be                  computer tape, computer disc, or a similar or
avoided by any reasonable method other than                 analogous record system; and
sealing the record;                                          (2) the public agency is required to reprogram
 (4) there is a substantial probability that sealing        the computer system to separate the disclosable
the record will be effective in protecting the              information from nondisclosable information.
public interest against the perceived danger; and           (d) A public agency is not required to reprogram
 (5) it is reasonably necessary for the record to           a computer system to provide:
remain sealed for a period of time.                          (1) enhanced access; or
Sealed records shall be unsealed at the earliest             (2) access to a governmental entity by an
possible time after the circumstances                       electronic device.
necessitating the sealing of the records no longer          (As added by P.L. 19-1983, § 6. Amended by
exist. (As added by P.L. 54-1985, § 4. Amended              P.L. 54-1985, § 5; P.L. 58-1993, § 5; P.L. 77-
by P.L. 68-1987, § 1.)                                      1995, § 5.)

COMMENTARY                                                  COMMENTARY
Trial court is permitted to seal public records             Any factual information which can be separated
which fall within a mandatory exception to the              from the non-disclosable matters in a record
APRA without conducting a hearing required by               must be made available for public access. An
I.C. § 5-14-3-5.5 either before or after records            Unincorporated Operating Division of Indiana
are admitted into evidence; interested third                Newspapers, Inc. v. The Trustees of Indiana
persons may request records to be sealed after              University, 787 N.E.2d 893, 914 (Ind. Ct. App.
they are admitted into evidence, but this right             2003).
can be waived. Bobrow v. Bobrow, 810 N.E.2d
726, 2004 Ind. App. LEXIS 1110 (Ind. App.                   I.C. § 5-14-3-6.5 CONFIDENTIALITY OF
2004).                                                      PUBLIC RECORDS
                                                            A public agency that receives a confidential
I.C. § 5-14-3-6 PARTIALLY DISCLOSABLE                       public record from another public agency shall
RECORDS; COMPUTER OR MICROFILM                              maintain the confidentiality of the public record.
RECORD SYSTEMS; FEES                                        (As added by P.L. 34-1984, § 3.)
Section 6. (a) If a public record contains
disclosable and nondisclosable information, the             I.C. § 5-14-3-7 PROTECTION AGAINST
public agency shall, upon receipt of a request              LOSS, ALTERATION, DESTRUCTION AND
under this chapter, separate the material that              UNAUTHORIZED ENHANCED ACCESS
may be disclosed and make it available for                  (a) A public agency shall protect public records
inspection and copying.                                     from loss, alteration, mutilation, or destruction,
(b) If a public record stored on computer tape,             and regulate any material interference with the
computer disks, microfilm, or a similar or                  regular discharge of the functions or duties of
analogous record system is made available to:               the public agency or public employees.
  (1) a person by enhanced access under section             (b) A public agency shall take precautions that
3.5 of this chapter; or                                     protect the contents of public records from
  (2) a governmental entity by an electronic                unauthorized enhanced access, unauthorized
device;                                                     access by an electronic device, or alteration.
the public agency may not make the record                   (c) This section does not operate to deny to any
available for inspection without first separating           person the rights secured by section 3 of this
the material in the manner required by                      chapter. (As added by P.L. 19-1983, § 6.


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Amended by P.L. 58-1993, § 6.)                              the public record to the person. However, if a
                                                            public agency does not have reasonable access
I.C. §5-14-3-8: FEES; COPIES                                to a machine capable of reproducing the record
(a) For the purposes of this section, “state                or if the person cannot reproduce the record by
agency” has the meaning set forth in I.C. §4-13-            use of enhanced access under section 3.5 of this
1-1.                                                        chapter, the person is only entitled to inspect and
(b) Except as provided in this section, a public            manually transcribe the record. A public agency
agency may not charge any fee under this                    may require that the payment for copying costs
chapter:                                                    be made in advance.
  (1) to inspect a public record; or                        (f) Notwithstanding subsection (b), (c), (d), (g),
  (2) to search for, examine, or review a record to         (h), or (i), a public agency shall collect any
determine whether the record may be disclosed.              certification, copying, facsimile machine
(c) The Indiana department of administration                transmission, or search fee that is specified by
shall establish a uniform copying fee for the               statute or is ordered by a court.
copying of one page of a standard-sized                     (g) Except as provided by subsection (h), for
document by state agencies. The fee may not                 providing a duplicate of a computer tape,
exceed the average cost of copying records by               computer disc, microfilm, or similar or
state agencies or ten cents per page, whichever is          analogous record system containing information
greater. A state agency may not collect more                owned by the public agency or entrusted to it, a
than the uniform copying fee for providing a                public agency may charge a fee, uniform to all
copy of a public record. However, a state agency            purchasers, that does not exceed the sum of the
shall establish and collect a reasonable fee for            following:
copying nonstandard-sized documents.                          (1) The agency’s direct cost of supplying the
(d) This subsection applies to a public agency              information in that form.
that is not a state agency. The fiscal body (as               (2) The standard cost for selling the same
defined in IC 36-1-2-6) of the public agency, or            information to the public in the form of a
the governing body, if there is no fiscal body,             publication if the agency has published the
shall establish a fee schedule for the certification        information and made the publication available
or copying of documents. The fee for                        for sale.
certification of documents may not exceed five                (3) In the case of the legislative services
dollars ($5) per document. The fee for copying              agency, a reasonable percentage of the agency’s
documents may not exceed the greater of:                    direct cost of maintaining the system in which
  (1) ten cents ($0.10) per page for copies that            the information is stored. However, the amount
are not color copies or twenty-five cents ($0.25)           charged by the legislative services agency under
per page for color copies; or                               this subdivision may not exceed the sum of the
  (2) the actual cost to the agency of copying the          amounts it may charge under subdivisions (1)
document.                                                   and (2).
As used in this subsection, "actual cost" means             (h) This subsection applies to the fee charged by
the cost of paper and the per-page cost for use of          a public agency for providing enhanced access
copying or facsimile equipment and does not                 to a public record. A public agency may charge
include labor costs or overhead costs. A fee                any reasonable fee agreed on in the contract
established under this subsection must be                   under section 3.5 of this chapter for providing
uniform throughout the public agency and                    enhanced access to public records.
uniform to all purchasers.                                  (i) This subsection applies to the fee charged by
(e) If:                                                     a public agency for permitting a governmental
  (1) a person is entitled to a copy of a public            entity to inspect public records by means of an
record under this chapter; and                              electronic device. A public agency may charge
  (2) the public agency which is in possession of           any reasonable fee for the inspection of public
the record has reasonable access to a machine               records under this subsection or the public
capable of reproducing the public record; the               agency may waive any fee for the inspection.
public agency must provide at least one copy of             (j) Except as provided in subsection (k), a public


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agency may charge a fee, uniform to all                    BY ORDINANCE; PURPOSE
purchasers, for providing an electronic map that           (a) The fiscal body of a political subdivision
is based upon a reasonable percentage of the               having a public agency that charges a fee under
agency’s direct cost of maintaining, upgrading,            section 8(j) of this chapter shall adopt an
and enhancing the electronic map and for the               ordinance establishing an electronic map
direct cost of supplying the electronic map in the         generation fund. The ordinance must specify that
form requested by the purchaser. If the public             the fund consists of fees collected under section
agency is within a political subdivision having a          8(j) of this chapter. The fund shall be
fiscal body, the fee is subject to the approval of         administered by the public agency that collects
the fiscal body of the political subdivision.              the fees.
(k) The fee charged by a public agency under               (b) The electronic map generation fund is a
subsection (j) to cover costs for maintaining,             dedicated fund with the following purposes:
upgrading, and enhancing an electronic map                  (1) The maintenance, upgrading, and
may be waived by the public agency if the                  enhancement of the electronic map.
electronic map for which the fee is charged will            (2) The reimbursement of expenses incurred by
be used for a noncommercial purpose, including             a public agency in supplying an electronic map
the following:                                             in the form requested by a purchaser. (As added
  (1) Public agency program support.                       by P.L. 58-1993, § 9.)
  (2) Nonprofit activities.
  (3) Journalism.                                          I.C. § 5-14-3-9 DENIAL OF DISCLOSURE;
  (4) Academic research.                                   ACTION TO COMPEL DISCLOSURE;
(As added by P.L.19-1983, § 6; P.L.54-1985, §              INTERVENORS; BURDEN OF PROOF;
6; P.L.51-1986, § 2; P.L.58-1993, § 7; P.L.78-             ATTORNEY’S FEES AND COSTS
1995, § 1; P.L.151-1999, § 1; P.L.89-2001, § 1;            (a) A denial of disclosure by a public agency
P.L.215-2007, § 1; P.L. 16-2008, § 1.)                     occurs when the person making the request is
                                                           physically present in the office of the agency,
I.C. § 5-14-3-8.3 ENHANCED ACCESS                          makes the request by telephone, or requests
FUND; ESTABLISHMENT BY ORDINANCE;                          enhanced access to a document and:
PURPOSE                                                      (1) the person designated by the public agency
(a) The fiscal body of a political subdivision             as being responsible for public records release
having a public agency that charges a fee under            decisions refuses to permit inspection and
section 8(h) or 8(i) of this chapter shall adopt an        copying of a public record when a request has
ordinance establishing an enhanced access fund.            been made; or
The ordinance must specify that the fund                     (2) twenty-four hours elapse after any
consists of fees collected under section 8(h) or           employee of the public agency refuses to permit
8(i) of this chapter. The fund shall be                    inspection and copying of a public record when
administered by the public agency or officer               a request has been made;
designated in the ordinance or resolution. Money           whichever occurs first.
in the fund must be appropriated and expended              (b) If a person requests by mail or by facsimile a
in the manner authorized in the ordinance.                 copy or copies of a public record, a denial of
(b) The fund is a dedicated fund with the                  disclosure does not occur until seven days have
following purposes:                                        elapsed from the date the public agency receives
  (1) The replacement, improvement, and                    the request.
expansion of capital expenditures.                         (c) If a request is made orally, either in person or
  (2) The reimbursement of operating expenses              by telephone, a public agency may deny the
incurred in providing enhanced access to public            request orally. However, if a request initially is
information.                                               made in writing, by facsimile, or through
(As added by P.L. 58-1993, § 8.)                           enhanced access, or if an oral request that has
                                                           been denied is renewed in writing or by
I.C. § 5-14-3-8.5 ELECTRONIC MAP                           facsimile, a public agency may deny the request
GENERATION FUND; ESTABLISHMENT                             if:


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  (1) the denial is in writing or by facsimile; and        under this section is whether a public agency
  (2) the denial includes:                                 properly denied access to a public record
     (A) a statement of the specific exemption or          because the record is exempted under section
exemptions authorizing the withholding of all or           4(a) of this chapter, the public agency meets its
part of the public record; and                             burden of proof under this subsection by
     (B) the name and the title or position of the         establishing the content of the record with
person responsible for the denial.                         adequate specificity and not by relying on a
(d) This subsection applies to a board, a                  conclusory statement or affidavit.
commission, a department, a division, a bureau,            (g) If the issue in a de novo review under this
a committee, an agency, an office, an                      section is whether a public agency properly
instrumentality, or an authority, by whatever              denied access to a public record because the
name designated, exercising any part of the                record is exempted under section 4(b) of this
executive, administrative, judicial, or legislative        chapter:
power of the state. If an agency receives a                  (1) the public agency meets its burden of proof
request to inspect or copy a record that the               under this subsection by:
agency considers to be excepted from disclosure                 (A) proving that the record falls within any
under section 4(b)(19) of this chapter, the                one (1) of the categories of exempted records
agency may consult with the counterterrorism               under section 4(b) of this chapter; and
and security council established by IC 10-19-8-                 (B) establishing the content of the record
1. If an agency denies the disclosure of a record          with adequate specificity and not by relying on a
or a part of a record under section 4(b)(19) of            conclusory statement or affidavit; and
this chapter, the agency or the counterterrorism             (2) a person requesting access to a public
and security council shall provide a general               record meets the person's burden of proof under
description of the record being withheld and of            this subsection by proving that the denial of
how disclosure of the record would have a                  access is arbitrary or capricious.
reasonable likelihood of threatening the public            (h) The court may review the public record in
safety.                                                    camera to determine whether any part of it may
(e) A person who has been denied the right to              be withheld under this chapter.
inspect or copy a public record by a public                (i) In any action filed under this section, a court
agency may file an action in the circuit or                shall award reasonable attorney's fees, court
superior court of the county in which the denial           costs, and other reasonable expenses of litigation
occurred to compel the public agency to permit             to the prevailing party if:
the person to inspect and copy the public record.            (1) the plaintiff substantially prevails; or
Whenever an action is filed under this                       (2) the defendant substantially prevails and the
subsection, the public agency must notify each             court finds the action was frivolous or vexatious.
person who supplied any part of the public                 The plaintiff is not eligible for the awarding of
record at issue:                                           attorney's fees, court costs, and other reasonable
  (1) that a request for release of the public             expenses if the plaintiff filed the action without
record has been denied; and                                first seeking and receiving an informal inquiry
  (2) whether the denial was in compliance with            response or advisory opinion from the public
an informal inquiry response or advisory opinion           access counselor, unless the plaintiff can show
of the public access counselor.                            the filing of the action was necessary because
Such persons are entitled to intervene in any              the denial of access to a public record under this
litigation that results from the denial. The person        chapter would prevent the plaintiff from
who has been denied the right to inspect or copy           presenting that public record to a public agency
need not allege or prove any special damage                preparing to act on a matter of relevance to the
different from that suffered by the public at              public record whose disclosure was denied.
large.                                                     (j) A court shall expedite the hearing of an
(f) The court shall determine the matter de novo,          action filed under this section. (As added by
with the burden of proof on the public agency to           P.L.19-1983, § 6; Amended by P.L.54-1985, § 7;
sustain its denial. If the issue in de novo review         P.L.50-1986, § 3; P.L.68-1987, § 2; P.L.58-


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1993, § 10; P.L.19-1997, § 4; P.L.70-1999, § 2;           confidential or erroneous information in
P.L.191-1999, § 2; P.L.173-2003, § 6; P.L.261-            response to a request under IC 5-14-3-3(d) or
2003, § 8; P.L.22-2005, § 2.)                             who discloses confidential information in
                                                          reliance on an advisory opinion by the Public
COMMENTARY                                                Access Counselor is immune from liability for
If a coroner could not satisfy one of the                 such a disclosure.
conditions listed in the autopsy statute, nor             (d) This section does not apply to any provision
demonstrate that the requested records are                incorporated into state law from a federal
otherwise related to a criminal investigation, the        statute. (As added by P.L. 17-1984, § 2.
records are not “investigatory records,” and the          Amended by P.L. 54-1985, § 8; P.L. 68-1987, §
requesting party may have access to the records           3; P.L. 77-1995, § 6; P.L. 191-1999, § 3.)
on the grounds that the coroner’s denial of
access was arbitrary and capricious. Althaus v.           SECTION FIVE: OVERVIEW OF THE
Evansville Courier Co., 615 N.E.2d 441 (Ind.              OFFICE OF THE PUBLIC ACCESS
Ct. App. 1993).                                           COUNSELOR; FORMAL COMPLAINTS

The attorney's fees provisions of APRA are                INTRODUCTION
directed toward public agencies. There is no              Effective July 1, 1999, the Indiana General
corollary provision for assessment of attorney's          Assembly created the Office of Public Access
fees against a private party in the event of              Counselor. This office serves as a resource for
improper nondisclosure. Absent a fee shifting             members of the public and public officials and
statute or contractual provision for the payment          their employees regarding Indiana’s laws
of attorney's fees, the American Rule - that each         governing access to meetings of public bodies
party ordinarily must pay his or her own                  and to the records of public agencies. The office
attorney's fees - is applicable. Indianapolis             provides advice, assistance, training and
Newspapers       v.    Indiana   State    Lottery         education regarding the Open Door Law and
Commission, 739 N.E.2d 144, 156 (Ind. Ct.                 Access to Public Records Act, as well as other
App. 2001),                                               state statutes or rules governing access to public
                                                          meetings and public records. The office does not
I.C. § 5-14-3-10 CONFIDENTIAL                             have binding authority but is intended to serve
INFORMATION; UNAUTHORIZED                                 as a resource for members of the public as well
DISCLOSURE OR FAILURE TO PROTECT;                         as public agencies throughout the state.
OFFENSE; DISCIPLINE                                         This section provides an overview of the office
(a) A public employee, a public official, or an           and its functions. For more detailed information,
employee or officer of a contractor or                    consult I.C. § 5-14-4-1, et seq., and I.C. § 5-14-
subcontractor of a public agency, except as               5-1, et seq., set forth at Section 6 of this
provided by IC 4-15-10, who knowingly or                  handbook.
intentionally discloses information classified as
confidential by state statute commits a Class A           FREQUENTLY ASKED QUESTIONS
misdemeanor.
(b) A public employee may be disciplined in               What is the role of the Public Access Counselor?
accordance with the personnel policies of the               The Public Access Counselor has several
agency by which the employee is employed if               powers and duties under I.C. § 5-14-4-10:
the employee intentionally, knowingly, or                 1. To establish and administer a program to train
recklessly discloses or fails to protect                  public officials and educate the public on the
information classified as confidential by state           rights of the public and the responsibilities of
statute.                                                  public agencies under public access laws.
(c) A public employee, a public official, or an           2. To conduct research.
employee or officer of a contractor or                    3. To prepare and distribute interpretative and
subcontractor of a public agency who                      education materials, such as this guide, and
unintentionally and unknowingly discloses                 conduct programs in cooperation with the Office


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of the Attorney General.                                      Once received, a copy of the complaint is
4. To respond to informal inquiries made by the             forwarded to the public agency which is the
public and public agencies concerning the public            subject of the complaint, and the counselor
access laws.                                                requests a response from the agency. The
5. To interpret the public access laws and to               counselor has thirty days to issue an advisory
issue advisory opinions upon the request of a               opinion on the complaint.
person or a public agency. The counselor may                  If the complaint has priority, as determined
not issue an advisory opinion concerning a                  under the administrative rules adopted by the
matter if a lawsuit has been filed under the Open           counselor, an advisory opinion will be issued
Door Law or the Access to Public Records Act.               within seven days following receipt of the
6. To make recommendations to the General                   complaint. See Section 6 of this guide for the
Assembly concerning ways to improve public                  text of the administrative rule. See Appendix G
access.                                                     for the Formal Complaint Form.
  In addition to these powers and duties, the
Public Access Counselor is required to prepare              NOTE: The filing of a formal complaint does
an annual report by June 30th concerning the                not delay the running of any statute of
activities of the office over the past year. This           limitations that applies to lawsuits filed under
report is filed with the Legislative Services               the ODL or the APRA concerning the subject
Agency.                                                     matter of the complaint.

Who may utilize the services of the office?                 Must I file a formal complaint to obtain
  Members of the public, including the media, as            assistance?
well as representatives of public agencies may                Members of the public and representatives of
contact the office for the purpose of making an             public agencies need not file a formal complaint
informal inquiry or filing a formal complaint.              against a public agency to seek assistance from
                                                            the office. Informal inquiries and questions
What is the process for filing a formal                     about rights to access or the responsibilities of
complaint?                                                  public officials are submitted when there is no
  A formal complaint may be filed against any               need for a formal written opinion. The informal
public agency for denial of access to a public              inquiry may concern a general question about
record or denial of the right to attend a public            the state’s public access laws or a question or
meeting of a public agency in violation of the              complaint about a public agency. If necessary,
Access to Public Records Act, the Open Door                 the counselor will contact the public agency in
Law or another statute or rule that governs                 question in an effort to resolve the matter
access to public records or public meetings. A              without issuing a written formal opinion.
person denied the right to inspect documents
under I.C. 5-14-3 or denied the right to attend an          What is the significance of filing a formal
otherwise public meeting as defined in I.C. 5-14-           complaint or seeking an informal opinion from
1.5 may a file a formal complaint with the                  the counselor?
counselor.                                                     Under the 1999 statutory amendments to the
  A formal complaint must be filed within 30                Open Door Law and the Access to Public
days after:                                                 Records Act, contacting the Public Access
1. the denial; or                                           Counselor through an informal inquiry or by
2. the person filing the complaint receives notice          filing a formal complaint is significant for both
that a meeting was held by a public agency and              members of the public and representatives of
that the meeting was held secretly or without               public agencies. A person or a public agency
notice.                                                     seeking access to a public meeting or public
  A complaint is considered filed on the date it            record may contact the counselor, but since the
is received by the Public Access Counselor or               counselor’s opinions are not binding on public
the date of the postmark, if the date of receipt is         agencies, the person may wish to file a civil
later than thirty days after the date of the denial.        action under I.C. § 5-14-1.5-7 (Open Door Law)


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or I.C. § 5-14-3-9 (Access to Public Records
Act). If the person seeking access prevails in the          I.C. § 5-14-4-2 “OFFICE” DEFINED
court action, the judge must award reasonable               As used in this chapter, “office” refers to the
attorney’s fees, court costs and cost of litigation.        office of the public access counselor established
If the person has not contacted the counselor               under section 5 of this chapter. (As added by
prior to filing a civil action, these fees and costs        P.L. 70-1999, § 4 and P.L. 191-1999, § 4).
will not be awarded unless the person can show
that the filing of an action was necessary:                 I.C. § 5-14-4-3 “PUBLIC ACCESS LAWS”
1. to prevent a violation of the Open Door Law;             DEFINED
or                                                          As used in this chapter, “public access laws”
2. because the denial of access to a public record          refers to:
would prevent the person from presenting that                 (1) Indiana Code 5-14-1.5;
record to another public agency preparing to act              (2) Indiana Code 5-14-3; or
on a related matter. See I.C. § 5-14-1.5-7(f) and             (3) any other state statute or rule governing
I.C. § 5-14-3-9(i).                                         access to public meetings or public records. (As
  For public agencies it may also be significant            added by P.L. 70-1999, § 4 and P.L. 191-1999,
to contact the counselor. Under the Open Door               § 4).
Law, a court will consider whether the public
agency acted in accordance with an informal                 I.C. § 5-14-4-4 “PUBLIC AGENCY”
inquiry response or an advisory opinion in its              DEFINED
determination as to whether to declare any                  As used in this chapter, “public agency” has the
action or policy void. I.C. § 5-14-1.5-7(d)(4).             meaning set forth in :
  In cases concerning denial of access to public              (1) I.C. §5-14-1.5-2 for purposes of matters
records, the public agency is required to notify            concerning public meetings; and
any person who has supplied any part of the                   (2) I.C. §5-14-3-2 for purposes of matters
public record at issue and inform that person               concerning public records. (As added by P.L. 70-
whether the denial was in compliance with an                1999, § 4 and P.L. 191-1999, § 4.)
informal or formal response from the counselor.
See I.C. § 5-14-3-9(e)(2).                                  I.C. § 5-14-4-5 ESTABLISHMENT OF
                                                            OFFICE
How do I contact the counselor?                             The office of the public access counselor is
  You may contact the Public Access Counselor               established. The office shall be administered by
by telephone, email, facsimile or mail with                 the public access counselor appointed under
informal inquiries. Contact information appears             section 6 of this chapter. (As added by P.L. 70-
at the back of this handbook. If you wish to file           1999, § 4 and P.L. 191-1999, § 4.)
a formal complaint, you must use the form
prescribe by the counselor pursuant to I.C. § 5-            I.C. § 5-14-4-6 APPOINTMENT; TERM
14-5-11. A copy of the complaint form is                    The governor shall appoint the public access
included in this handbook and is available via              counselor for a term of four years at a salary to
the counselor’s website: www.IN/gov/pac.                    be fixed by the governor. (As added by P.L. 70-
                                                            1999, § 4, and P.L. 191-1999, § 4.)
SECTION SIX: OFFICE OF THE PUBLIC
ACCESS COUNSELOR AND FORMAL                                 I.C. § 5-14-4-7 REMOVAL FOR CAUSE
COMPLAINT     ACT    AND   LEGAL                            The governor may remove the counselor for
COMMENTARY                                                  cause. (As added by P.L. 70-1999, § 4, and P.L.
                                                            191-1999, § 4.)
I.C. § 5-14-4-1 “COUNSELOR” DEFINED
As used in this chapter, “counselor” refers to the          I.C. § 5-14-4-8 VACANCIES IN OFFICE
public access counselor appointed under section             If a vacancy occurs in the office, the governor
6 of this chapter. (As added by P.L. 70-1999 § 4            shall appoint an individual to serve for the
and P.L. 191-1999, § 4).                                    remainder of the counselor’s unexpired term. (As


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added by P.L. 70-1999, § 4, and P.L. 191-1999,              951 (Ind. Ct. App. 2001). The Court, however,
§ 4.)                                                       stated that I.C. §5-14-4-10(6) does not prohibit
                                                            the filing of an affidavit by the counselor
I.C. § 5-14-4-9 REQUIREMENTS FOR                            outlining the dictates of an advisory opinion
POSITION                                                    issued prior to the filing of such lawsuit. Id.
(a) The counselor must be a practicing attorney.
(b) The counselor shall apply the counselor’s               A response as defined in I.C. § 5-14-1.5-7(f)
full efforts to the duties of the office and may            does not mean that the public access counselor
not be actively engaged in any other occupation,            must state affirmatively whether the public
practice, profession, or business. (As added by             access laws have been violated. Gary/Chicago
P.L. 70-1999, § 4, and P.L. 191-1999, § 4.)                 Airport Board of Authority v. Maclin, 772 N.E.
                                                            2d 463, 471 (Ind. Ct. App. 2002).
I.C. § 5-14-4-10 POWERS AND DUTIES
The counselor has the following powers and                  I.C. § 5-14-4-11 ADDITIONAL PERSONNEL
duties:                                                     The counselor may employ additional personnel
  (1) To establish and administer a program to              necessary to carry out the functions of the office
train public officials and educate the public on            subject to the approval of the budget agency. (As
the rights of the public and the responsibilities of        added by P.L. 70-1999, § 4 and P.L. 191-1999,
public agencies under the public access laws.               § 4.)
The counselor may contract with a person or a
public or private entity to fulfill the counselor’s         I.C. § 5-14-4-12 ANNUAL REPORT BY
responsibility under this subdivision.                      COUNSELOR
  (2) To conduct research.                                  The counselor shall submit a report in an
  (3) To prepare interpretive and educational               electronic format under IC 5-14-6 not later than
materials and programs in cooperation with the              June 30 of each year to the legislative services
office of attorney general.                                 agency concerning the activities of the counselor
  (4) To distribute to newly elected or appointed           for the previous year. The report must include
public officials the public access laws and                 the following information:
educational materials concerning the public                   (1) The total number of inquiries and
access laws.                                                complaints received.
  (5) To respond to informal inquiries made by                (2) The number of inquiries and complaints
the public and public agencies by telephone, in             received each from the public, the media, and
writing, in person, by facsimile, or by electronic          government agencies.
mail concerning the public access laws.                       (3) The number of inquiries and complaints
  (6) To issue advisory opinions to interpret the           that were resolved.
public access laws upon the request of a person               (4) The number of complaints received about
or a public agency. However, the counselor may              each of the following:
not issue an advisory opinion concerning a                       (A) State agencies.
specific matter with respect to which a lawsuit                  (B) County agencies.
has been filed under IC 5-14-1.5 or IC 5-14-3.                   (C) City agencies.
  (7) To make recommendations to the general                     (D) Town agencies.
assembly concerning ways to improve public                       (E) Township agencies.
access. (As added by P.L. 70-1999, § 4 and P.L.                  (F) School corporations.
191-1999, § 4.)                                                  (G) Other local agencies.
                                                              (5) The number of complaints received
COMMENTARY                                                  concerning each of the following:
In Azhar v. Town of Fishers, the Court stated                    (A) Public records.
that I.C. §5-14-4-10(6) prohibits the issuance of                (B) Public meetings.
an advisory opinion concerning a matter with                  (6) The total number of written advisory
respect to which a lawsuit has been filed under             opinions issued and pending. (As added by
I.C. 5-14-1.5 or I.C. 5-14-3. 744 N.E.2d 947,               P.L.70-1999, § 4; P.L.191-1999, § 4; P.L.28-


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Handbook on Indiana’s Public Access Laws
Updated November 2011

2004, § 58.)
                                                            I.C. § 5-14-5-6 GROUNDS FOR COMPLAINT
I.C. § 5-14-4-13 STATUTE OF LIMITATIONS                     A person or a public agency denied:
An informal inquiry or other request for                      (1) the right to inspect or copy records under IC
assistance under this chapter does not delay the            5-14-3;
running of a statute of limitation that applies to a          (2) the right to attend any public meeting of a
lawsuit under IC 5-14-1.5 or IC 5-14-3                      public agency in violation of IC 5-14-1.5; or
concerning the subject matter of the inquiry or               (3) any other right conferred by IC 5-14-3 or IC
other request. (As added by P.L. 70-1999, § 4               5-14-1.5 or any other state statute or rule
and P.L. 191-1999, § 4.)                                    governing access to public meetings or public
                                                            records;
FORMAL COMPLAINTS TO THE PUBLIC                             may file a formal complaint with the counselor
ACCESS COUNSELOR                                            under the procedure prescribed by this chapter or
                                                            may make an informal inquiry under I.C. §5-14-
I.C. § 5-14-5-1 “COUNSELOR” DEFINED                         4-10(5). (As added by P.L. 70-1999, § 5 and
As used in this chapter, “counselor” refers to the          P.L. 191-1999, § 5.)
public access counselor appointed under I.C. §5-
14-4-6. (As added by P.L. 70-1999, § 5 and P.L.             COMMENTARY
191-1999, § 5.)                                             See Opinion of the Public Access Counselor 00-
                                                            FC-11 for a discussion of standing to file a
I.C. § 5-14-5-2 “PERSON” DEFINED                            formal complaint.
As used in this chapter, “person” means an
individual, a business, a corporation, an                   I.C. § 5-14-5-7 TIME FOR FILING
association, or an organization. The term does               (a) A person or a public agency that chooses to
not include a public agency. (As added by P.L.              file a formal complaint with the counselor must
70-1999, § 5 and P.L. 191-1999, § 5.)                       file the complaint not later than thirty days after:
                                                              (1) the denial; or
I.C. § 5-14-5-3 “PUBLIC AGENCY”                               (2) the person filing the complaint receives
DEFINED                                                     notice in fact that a meeting was held by a public
As used in this chapter, “public agency” has the            agency, if the meeting was conducted secretly or
meaning set forth in:                                       without notice.
  (1) IC 5-14-1.5-2, for purposes of matters                  (b) A complaint is considered filed on the date
concerning public meetings; and                             it is:
  (2) IC 5-14-3-2, for purposes of matters                    (1) received by the counselor; or
concerning public records. (As added by P.L. 70-              (2) postmarked, if received more than thirty
1999, § 5 and P.L. 191-1999, § 5.)                          days after the denial that is the subject of the
                                                            complaint. (As added by P.L. 70-1999, § 5 and
I.C. § 5-14-5-4 COMPLAINT NOT                               P.L. 191-1999, § 5.)
REQUIRED TO FILE ACTION
A person or a public agency is not required to              I.C. § 5-14-5-8 COMPLAINT FORWARDED
file a complaint under this chapter before filing           TO PUBLIC AGENCY
an action under IC 5-14-1.5 or IC 5-14-3. (As               When the counselor receives a complaint under
added by P.L. 70-1999, § 5 and P.L. 191-1999,               section 7 of this chapter, the counselor shall
§ 5.)                                                       immediately forward a copy of the complaint to
                                                            the public agency that is the subject of the
I.C. § 5-14-5-5 COOPERATION FROM                            complaint. (As added by P.L. 70-1995, § 5 and
PUBLIC AGENCIES                                             P.L. 191-1999, § 5.)
A public agency shall cooperate with the
counselor in any investigation or proceeding                I.C. § 5-14-5-9 ADVISORY OPINION
under this chapter. (As added by P.L. 70-1999, §            Except as provided in section 10 of this chapter,
5 and P.L. 191-1999, § 5.)                                  the counselor shall issue an advisory opinion on


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Indiana Public Access Counselor
Handbook on Indiana’s Public Access Laws
Updated November 2011

the complaint not later than thirty days after the
complaint is filed. (As added by P.L. 70-1995, §          I.C. § 5-14-5-11 FORM OF COMPLAINT
5 and P.L. 191-1999, § 5.)                                The public access counselor shall determine the
                                                          form of a formal complaint filed under this
I.C. § 5-14-5-10 PRIORITY OF COMPLAINTS                   chapter. (As added by P.L. 70-1999, § 5 and
(a) If the counselor determines that a complaint          P.L.191-1999, § 5.)
has priority, the counselor shall issue an
advisory opinion on the complaint not later than          I.C. § 5-14-5-12 STATUTE OF LIMITATIONS
seven days after the complaint is filed.                  The filing of a formal complaint under this
(b) The counselor shall adopt rules under I.C. 4-         chapter does not delay the running of a statute of
22-2 establishing criteria for complaints that            limitation that applies to a lawsuit under I.C. 5-
have priority.                                            14-1.5 or I.C. 5-14-3 concerning the subject
(As added by P.L. 70-1999,§ 5 and P.L.191-                matter of the complaint. (As added by P.L. 70-
1999, § 5.)                                               1999, § 5 and P.L.191-1999, § 5.)




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Indiana Public Access Counselor
Handbook on Indiana’s Public Access Laws
Updated November 2011

APPENDICES

APPENDIX A

OFFICE OF THE PUBLIC ACCESS COUNSELOR ADMINISTRATIVE RULE

62 IAC 1-1-1: DEFINITIONS
Authority: IC 5-4-5-10
Affected: IC 5-14-1.5; IC 5-14-3; IC 5-14-5
Section 1. The following definitions apply throughout this rule:
(1) “Complainant” means a person who files a complaint under 5-14-5.
(2) “Formal complaint” means a complaint filed under IC 5-14-5.

62 IAC 1-1-2: FORMAL COMPLAINTS THAT HAVE
PRIORITY; PROCEDURE
Section 2. (a) Formal complaints may be filed with the public access counselor by hand delivery, United
States Mail, facsimile, or electronic mail.
(b) A complainant shall file a formal complaint on the form prescribed by the public access counselor. If
any of the criteria for priority enumerated in section 3 of this rule are met, the complainant shall include
the information in the complaint.
(c) A formal complaint is considered received when date stamped by the office of the public access
counselor.
(d) If a formal complaint meets any of the criteria for priority listed under section 3 of this rule, the public
access counselor shall issue a written advisory opinion within seven (7) days of receipt of that complaint.

62 IAC 1-1-3 PRIORITY COMPLAINTS; CRITERIA
Section 3. A formal complaint has priority if one (1) of the following criteria are met:
(1) The complainant intends to file an action in circuit or superior court under IC 5-14-1.5-7 to declare
void any policy, decision, or final action of a governing body or seek an injunction that would invalidate
any policy, decision, or final action based upon a violation of IC 5-14-1.5. A formal complaint must be
filed under this subsection:
(a) before the delivery of any warrants, notes, bonds, or obligations if the relief sought would have the
effect of invalidating those warrants, notes, bonds, or obligations; or
(b) within thirty (30) days of either:
(i) the date of the act or failure to act complained of; or
(ii) the date the complainant knew or should have known that the act or failure to act complained of had
occurred.
(2) The complainant has filed a complaint concerning the conduct of a meeting or an executive session of
a public agency for which notice has been posted, but the meeting or executive session has not yet taken
place.
(3) The complainant has filed a complaint concerning denial of access to public records and at least one
(1) of the public records requested was sought for the purpose of presenting the public record in a
proceeding to be conducted by another public agency.




                                                      50
Indiana Public Access Counselor
Handbook on Indiana’s Public Access Laws
Updated November 2011

APPENDIX B

CHECKLIST FOR PUBLIC AGENCIES RESPONDING TO REQUESTS FOR ACCESS TO
OR COPIES OF PUBLIC RECORDS

Time Period for Response
If the request was made orally or a written request was hand-delivered, the public agency must
respond within 24 business hours after the request was received.
If a written request was received by the public agency by facsimile, mail, or electronic mail, the
public agency must respond within 7 calendar days after the request was received.

Substance of Response
Any or all of the following statements that apply to the request should be included in the
response. If a statement does not apply, you need not include it in your response.
(A) A statement identifying the public records maintained by the agency that will be provided in
response to the request and the estimated date the records will be produced.
(B) A statement indicating the record request is denied and the record will be withheld because
the record is confidential or nondisclosable; include the statutory authority for the claim that the
record is confidential or otherwise nondisclosable.
(C) A statement that the public agency does not have a record responsive to the records request.
(D) A statement that the public agency may have records responsive to the request and is in the
process of
        (i) reviewing the agency’s files;
        (ii) retrieving stored files; or
        (iii) both items (i) and (ii);
in response to the request and an additional response will be provided on or before specific date
to advise the requestor of the agency’s progress on the request.

Copy Fees
Notify the requestor of the estimated copy fee, if any and whether the fee must be provided before
the copies of public records will be produced, or if the fee can be paid upon delivery of the public
records.

Denial of Access to Any or All of the Public Records Requested
If the public agency is denying access to any or all of the requested public records, the response
should include the name and title of the person responsible for the nondisclosure of the records
and how that person may be contacted. If the request was made in writing, or if an oral request
was renewed in writing, any denial, even of only a portion of a record, must be made in writing
by the public agency.




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Indiana Public Access Counselor
Handbook on Indiana’s Public Access Laws
Updated November 2011

APPENDIX C

SAMPLE LETTER
Requesting Access or Copy of Public Record

Date

Public Official or Agency
Title
Address
City, Indiana Zip Code

Dear Public Official:

Pursuant to the Access to Public Records Act (Ind. Code 5-14-3), I would like to (inspect or
obtain a copy of) the following public records:

(Be sure to describe the records sought with enough detail for the public agency to be able to
respond.)

I understand that if I seek a copy of this record, there may be a copying fee. Could you please
inform me of that cost prior to making the copy? I can be reached at (phone number and/or email
address).

According to the statute, you have ____ days to respond to this request. (If this letter was
delivered personally to the public official’s office, the agency has 24 hours to respond to the
request. If the letter is delivered by U.S. Mail, email or facsimile, the agency has seven days to
respond to the request.) If you choose to deny the request, you are required to respond in writing
and state the statutory exception authorizing the withholding of all or part of the public record and
the name and title or position of the person responsible for the denial.

Thank you for your assistance on this matter.

Respectfully,




                                                 52
Indiana Public Access Counselor
Handbook on Indiana’s Public Access Laws
Updated November 2011

APPENDIX D

SAMPLE NOTICES


Regular or Special Meetings Open to the Public

Meeting (or Special Meeting) of the
Any Town City Council
Wednesday, April 9, 2008
5:30 p.m.
City Hall Meeting Room; Two North Main Street; Any Town, Indiana



Executive session

Notice of Executive Session of the
Anytown City Council
Wednesday, April 9, 2009
4:30 p.m.
City Hall Meeting Room; Two North Main Street, Anytown, Indiana

          The Council will meet to discuss a job performance evaluation of an individual employee
          as authorized under I.C. §5-14-1.5-6.1(b)(9).




                                                53
Indiana Public Access Counselor
Handbook on Indiana’s Public Access Laws
Updated November 2011

APPENDIX E

Nonexclusive List of Helpful Indiana Code Statutes

Records Access Restricted
4-6-9-4 Complaints and correspondence with Consumer Protection Division of the Attorney
General’s Office are confidential with certain exceptions.
5-2-4-6 Criminal intelligence information is confidential.
5-2-9-6 County clerks’ and sheriffs’ information about a protected order is confidential.
6-1.1-35-9 All information concerning earnings, profits, losses or expenditures and which is
either given by a person to an assessing official is confidential.
6-4.1-12-12 The Department of Revenue shall not divulge any information disclosed concerning
inheritance taxes, with exceptions.
6-8.1-7-1 Department of Revenue may not divulge amount of tax paid, terms of settlement
agreement, investigation records/reports, or other information disclosed by reports filed under the
law relating to any of the listed taxes when it is agreed that the information is to be confidential.
9-14-3.5-7 Personal information or social security number in connection with a motor vehicle
record may not be disclosed by the BMV.
9-26-3-4 Accident reports filed with the ISP by a driver involved in an accident are confidential.
10-13-3-27 Restrictions on the release of limited criminal histories.
31-39-1-2 Except under certain circumstances (see IC 31-39-2) juvenile court records are
confidential.
31-39-3-4 Except under certain circumstances (see IC 31-39-3-2, 31-39-3-3, and 31-39-4)
juvenile law enforcement records are confidential.
35-38-1-13 Pre-sentence reports or memoranda; report of physical/mental exam are confidential,
except as provided by 35-38-1-13(b).
36-8-16-16 Unless under a court order, customer data provided to implement or update an
enhanced emergency telephone system may not be used or disclosed.

Records Specifically Required to be Disclosed
3-7-28-7 Voter registration lists are available for public access.
9-26-2-3 Accident reports filed with the Indiana State Police by a law enforcement agency
are disclosable public records.
15-5-9-4 List of dogs and names of dog owners must be made available for public inspection.
16-31-2-11 Ambulance report or record regarding an emergency patient that must be
disclosed if services provided by or under a contract with a public agency.
20-6.1-4-3 Contracts entered into by a teacher are open to inspection by the people of each
school corporation.
36-2-14-18 Information required to be disclosed by a coroner regarding the investigation of a
death.

Meetings
20-5-3-2 Limitation on location of school board meetings.
36-2-2-9 Limitations on the location of county commissioner meetings.

Fees
9-29-11-1 Sets a minimum of $5.00 as fee for accident reports.
36-2-7-10 Sets fee for county recorders.
33-37-5-1 Sets fees for county circuit court clerks and court records.




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Indiana Public Access Counselor
Handbook on Indiana’s Public Access Laws
Updated November 2011

APPENDIX F

CONTACT INFORMATION FOR THE PUBLIC ACCESS COUNSELOR’S OFFICE

If you have a question or concern about obtaining access to public meetings or to public
records, you may contact the state’s Public Access Counselor for advice or assistance.

Public Access Counselor
Indiana Government Center South
402 West Washington Street, Room W470
Indianapolis, Indiana 46204

Toll Free: 800-228-6013
Telephone: 317-234-0906
Facsimile: 317-233-3091

Email: pac@icpr.IN.gov
Website: www.IN.gov/pac


Handbook last updated November 2011.




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