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Statute of Limitations Indiana


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									     Indiana’s Public Access Laws
The Role of the Public Access Counselor

                    Presented to
         Indiana School Boards Association
Indiana Association of Public School Superintendents

                  October 2, 2007

    Heather Willis Neal, Public Access Counselor
           Contact Information

    On the Web:
    By telephone: 317.234.0906
    By fax: 317.233.3091
    By e-mail:
    By mail: 402 West Washington Street W460
              Indianapolis, IN 46204
2/2/2011                                    2
Open Door Law
    Reference: I.C. § 5-14-1.5
    Public Policy: It is the intent of the
     [Open Door Law] that the official
     action of public agencies be conducted
     and taken openly, unless otherwise
     expressly provided by statute, in order
     that the people may be fully informed.
     I.C. § 5-14-1.5-1
2/2/2011                                   3

General rule: All meetings of the
 governing bodies of public agencies
 must be open at all times for the
 purpose of permitting members of the
 public to observe and record them.

2/2/2011                                4
General Principles of ODL

Three conditions must be met in order for
 public meeting, notice and memoranda
 requirements to apply:
       – Gathering of a majority of a governing body
       – to take official action
       – on public business.

2/2/2011                                         5
General Principles of ODL

    A member of a governing body who is not
     physically present at a meeting but who
     communicates with members during the
     meeting via telephone, computer, video
     conferencing, or other electronic means
       – may not vote unless expressly authorized by
       – may not be considered present unless
         expressly authorized by statute
2/2/2011                                               6

Official action is
       – Receiving information,
       – deliberating,
       – making recommendations,
       – establishing policy,
       – making decisions, or
       – taking final action

2/2/2011                           7

These gatherings of a majority of a governing body are
  excluded from the definition of meeting:
  – on site inspections
  – traveling to and attending meetings of organizations
    devoted to betterment of government
  – a caucus
  – a social or chance gathering not intended to avoid ODL
  – gathering to discuss an industrial or commercial prospect
    that does not include a conclusion as to recommendations,
    policy, decisions, or final action

     2/2/2011                                            8

       – a gathering for the sole purpose of
         administering an oath of office
       – a gathering between less than a quorum
         of members intended solely for members
         to receive information and deliberate on
         whether a member or members may be
         inclined to support a member’s proposal
         or piece of legislation and at which no
         other official action will occur
2/2/2011                                            9
Executive Sessions

    Reference: I.C. § 5-14-1.5-6.1
    Members of the public do not have right to
    12 instances where E.S. may be held
    Common instances:
      – to discuss strategy for the following:
       purchase or lease of real estate; collective
        bargaining or initiation of litigation or
        litigation pending or threatened in writing.
2/2/2011                                          10
Executive Sessions

    To receive information about and
     interview prospective employees
    With respect to any individual over
     whom the governing body has
       – to receive information concerning the
         individual’s alleged misconduct;
       – to discuss status as an employee
2/2/2011                                         11
Executive Sessions

    For discussion of records classified as
     confidential by state or federal statute
    To discuss a job performance
     evaluation of an individual employee.
     This does not include a discussion of
     salary, compensation, or benefits of
     employee during a budget process.

2/2/2011                                        12
Executive Sessions

    When considering the appointment of
     a public official, to
       – Develop a list of prospective appointees;
       – Consider applications; and
       – Make one initial exclusion of prospective
         appointees from further consideration.
       – A “public official” is a member of a
         governing body or whose tenure and
         compensation are fixed and who executes 13

         an oath.
Executive Sessions

    Final action must be taken at a public
    A governing body may not conduct an
     executive session during a meeting,
     except as otherwise permitted by
     applicable statute. A meeting may not
     be recessed and reconvened with the
     intent of circumventing this subsection.
2/2/2011                                   14
Notice Requirements
under ODL
    Reference: I.C. § 5-14-1.5-5
    Requires notice of the date, time,
     and place of any meetings, executive
     session, or of any rescheduled or
     reconvened meeting at least 48
     hours (excluding Saturdays, Sundays,
     and legal holidays) before the
    Emergency meetings: I.C. § 5-14-1.5-5(d)
2/2/2011                                        15
Notice Requirements
Under ODL

    Notice must be posted at the principal
     office of the public agency holding the
     meeting, or at the building where the
     meeting is to be held.
    Notice must be delivered to all news
     media which deliver by Jan. 1 to public
     agency an annual written request for
     such notices.
2/2/2011                                   16
Notice Requirements
under ODL

    Notice of regular meetings need be
     given only once each year except
     where the date, time or place of the
     meeting changes. Annual notice is not
     applicable to executive sessions.

2/2/2011                                 17
Memoranda and Agenda
Requirements Under the
    Reference: I.C. § 5-14-1.5-4
    No agenda required, but if utilizing
     one must post at the entrance to the
     meeting prior to the meeting
    A rule, regulation, ordinance or other
     final action adopted by reference to
     agenda item alone is void

2/2/2011                                      18
Memoranda and Agenda
Requirements Under the
    As the meeting progresses, the
     following memoranda must be kept:
       – The date, time, place of the meeting
       – Members present or absent
       – General substance of all matters
         proposed, discussed, or decided
       – A record of all votes taken
       – Other information specified by other
         statute                                19
Executive Session
    Memoranda must be maintained in
     same format as for meetings, except
       – memoranda and minutes must identify
         the subject matter considered by specific
         reference to the enumerated instance for
         which public notice was given
       – must contain statement certifying that no
         other matters were discussed

2/2/2011                                         20
Serial Meetings

    The governing body of a public agency
     violates the ODL if members
     participate in a series of at least two
     gatherings and those gatherings meet
     all the following criteria:
       – One gathering is attended by at least
         three but less than a quorum of members
         and the others are attended by at least
         two members
2/2/2011                                       21
Serial Meetings

       – The sum of the number of different
         members attending any gathering equals
         at least a quorum
       – All gatherings concern the same subject
       – All gatherings are held within a seven-day
       – The gatherings are held to take official
         action on public business

2/2/2011                                          22
Remedies for Violation of
    Complaint filed with Public Access Counselor
     within 30 days of denial of access or of
     learning about the meeting
    File lawsuit:
       – obtain declaratory judgment
       – enjoin continuing, threatened, or future
         violations of ODL
       – declare void any policy, decision or final action

2/2/2011                                                     23
Remedies for Violation of
    No need to prove special damage
     different from that suffered by public
    Generally, must file lawsuit within 30
     days of violation of ODL, but before
     the delivery of warrants, notes, bonds,
     or obligations if relief would invalidate
     any of those
    Courts have applied a “substantial
     compliance” standard
2/2/2011                                     24
Access to Public Records
Act (APRA)
    Reference: I.C. § 5-14-3
    Policy: All persons are entitled to full
     and complete information regarding
     the affairs of government

2/2/2011                                        25
“Public Record,”
Broadly Defined
    I.C. § 5-14-3-2: Any writing, paper,
     report, study, map, photograph, book,
     card, tape recording, or other material
     that is created, received, retained,
     maintained, or filed by or with a public
     agency and is generated on paper,
     papers substitutes, …or any other
     material, regardless of form or
2/2/2011                                    26
APRA’s Basic Rules

    Anyone has the right to inspect and
     copy the public records of any public
     agency during regular business hours.
    The request must identify with
     reasonable particularity the record
     being requested.
    The request must be, at the discretion
     of the agency, on a form provided by
     the agency.
2/2/2011                                  27
Miscellaneous Access
    A public agency may not deny or
     interfere with the exercise of the right
     to inspect and copy.
    The public agency shall either provide
     the requested copies or allow the
     person to make copies on the agency’s
     equipment or the person’s own
2/2/2011                                    28
Miscellaneous Access
    The agency shall make reasonable
     efforts to provide to a person making
     a request a copy of all disclosable data
     contained in the records on paper,
     disk, tape, drum, or any other method
     of electronic retrieval if the medium
     requested is compatible with the
     agency’s data storage system.
2/2/2011                                    29
Miscellaneous Access
    Lists of names and addresses
       – public agency only required to permit
         inspection, not copying
       – three types of lists may not be disclosed
         to commercial entities for commercial
            list of employees of public agency
            list of persons attending meetings at state
2/2/2011    list of students enrolled in public school    30

             corp.(under certain conditions)
Exceptions to Access
I.C. § 5-14-3-4(a)
    Confidential Records
       – declared confidential by state law
       – declared confidential by Federal Law
       – Patient Medical Records
       – Under rules adopted by public agency
         under specific statutory authority to
         classify records as confidential
2/2/2011                                         31
Exceptions to Access
I.C. § 5-14-3-4(a)
    Trade secrets
    Confidential financial information
     obtained, upon request, from a person
    Information concerning research
     conducted under auspices of an
     institution of higher education
    Grade transcripts and license exam
2/2/2011                                 32
Discretionary Exceptions
I.C. § 5-14-3-4(b)
    Discretionary: 20 Exceptions
       – Deliberative materials privilege
       – Personnel records, except
            name, compensation, job title, business
             address; phone number; job description,
             education and training background, work
             experience, dates of first and last employment
            information relating to status of any formal
             charges against the employee;
            the factual basis for final action to suspend,
2/2/2011                                                    33
             demote or discharge
Discretionary Exceptions
I.C. § 5-14-3-4(b)
    Employees have access to their own
     complete personnel files

2/2/2011                                  34
Discretionary Exceptions
I.C. § 5-14-3-4(b)
    Diaries, journals, personal notes
    Computer programs, codes, and other
     software owned by the public agency
     or entrusted to it
    Administrative or technical information
     that would jeopardize a record
     keeping or security system

2/2/2011                                   35
Discretionary Exceptions
I.C. § 5-14-3-4(b)
    Records specifically prepared for
     discussion or developed during
     discussion in an executive session
    Records that would expose
     vulnerability to terrorist attack

2/2/2011                                  36
Duties of Public Agency

    Duty to provide disclosable parts of record
     while protecting non-disclosable portions
    Duty to preserve records from loss,
     alteration, destruction and regulate material
     interference with regular discharge of duties
    Duty to observe the confidentiality of
     records received from another public agency

2/2/2011                                         37
Copy Fees

    Agencies may require payment in
    Public agency need copy only when it
     has “reasonable access to a machine
     capable of reproducing the record”
    School board may set a fee schedule for
     copies, but may not exceed the actual
     cost of copying (excluding labor and
2/2/2011                                       38
Denial of Access
I.C. § 5-14-3-9
    Time for agency’s response:
      – 24 hours if in person or by phone
      – 7 days if requested by mail, facsimile or
    Response does not mean production
    Response is acknowledgment of request and
     efforts toward production, or specific
     reasons for denial, including citation
    Written requests must be denied in writing
2/2/2011                                        39
Remedies for Denial of
I.C. § 5-14-3-9
    Seek a formal advisory opinion or
     informal inquiry response from the
     Public Access Counselor
    File lawsuit in circuit or superior court
     of county in which denial of access
    Burden of proof is on agency to
     sustain its denial
2/2/2011                                         40
Remedies for Denial of
    A court shall expedite the hearing of
     an action filed under APRA
    A court shall award attorney fees,
     court costs, and reasonable expenses
     of litigation to the prevailing party if
       – the plaintiff substantially prevails; or
       – the defendant substantially prevails and
         the action was frivolous or vexatious
2/2/2011                                            41
Remedies for Denial of
    However, the plaintiff is not eligible for
     attorney fees, court costs, and
     reasonable costs of litigation if the
     plaintiff filed the court action without
     first seeking and receiving an informal
     inquiry response or advisory opinion
     from the PAC, unless the person can
     show the record was needed to
     present to a public agency preparing
2/2/2011                                      42

     to act.
Public Access Counselor

    Current Public Access Counselor’s term
     expires June 30, 2011
    Appointed by Governor to four year
     term beginning July 1, 2007
    One other staff member – Amy Miller

2/2/2011                                  43
Public Access Counselor

    Duties of the Public Access Counselor
       – Advise, assist, educate
    Formal complaint procedure
    Informal inquiries
    Written opinions posted on website
    Handbook on website
2/2/2011                                     44
Response of PAC to
    PAC is required to issue advisory
     opinion within 30 days of receiving
    Priority advisory opinions issued within
     7 days of receipt: see 62 IAC 1 for
     priority situations
    Complaint form at
    Statute of limitation not tolled by filing
     complaint or contacting the PAC
2/2/2011                                      45

           Thank you!

2/2/2011                46

             Thank you!

11/18/2010                46

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