How to Avoid Pitfalls and Correct Mistakes

1. How to Avoid Pitfalls and Correct Mistakes Common Problems in Public Access Heather Willis Neal Indiana Public Access Counselor

2. Open Door LawUse of Technology • Access Laws do not always keep pace with technological advances. • But the purpose behind the law is constant and should be kept in mind when addressing new issues in public access.

3. Use of Technology • Teleconferencing or videoconferencing of meetings • Generally, a member of a governing body who is not physically present but communicates by electronic or telephonic means may not vote and may not be counted present • Some specific statutes allow for teleconferencing or videoconferencing

4. Use of Technology • Electronic mail • Members of governing body must be cautious in use of email when it is used between and among members to conduct official business. • Virginia high court ruled that email communications did not constitute a meeting in Beck v. Shelton, 593 S.E.2d 195. E-mail communication lacked simultaneity.

5. Use of Technology • Simultaneous communication by email among a majority of members of a governing body might be a “meeting” within the meaning and spirit of IC 5-14-1.5-2(c). • Indiana appellate courts have not ruled on the question.

6. Use of Technology • Electronic Mail • Any record, including electronic media, created received, retained, maintained, or filed by or with a public agency is a public record. • Therefore, electronic mail is a public record if it is created, received, retained, maintained, or filed with a public agency, including a governing body.

7. Use of Technology • Electronic mail must be available for inspection and copying by the governing body. • Electronic mail must be maintained in accordance with records retention schedules, under IC 5-15.

8. Other Issues on Open Meetings • Serial meetings violate the ODL. A serial meeting occurs when all of the following are take place: • At least two gatherings • One gathering is attended by at least three members but less than a quorum • The sum of attendees of all meetings equals at least a quorum

9. Other Issues on Open Meetings • Serial meetings continued • All gatherings concern the same subject matter • All gatherings are held within seven consecutive days • The gatherings are held to take official action on public business *Attendance may be in person or by telephone or electronic means, excluding email.

10. Other Issues on Open Meetings • Committees - Any advisory commission, committee, or body created by statute, ordinance or executive order to advise the governing body.

11. Other Issues on Open Meetings • Committees - Any committee appointed directly by the governing body or its presiding officer. - Exception – committees appointed to conduct collective bargaining.

12. Other Issues on Open Meetings • Administrative function exception - Only applies to county commissioners and town boards - Public notice not required - Meeting still open to public

13. Other Issues on Open Meetings • Administrative function exception - Not well-defined - Cannot award contract or create obligation that binds county or town

14. Other Issues on Open Meetings • Executive sessions Notice of meetings - Must state subject matter and refer enumerated instance in ODL allowing executive session

15. Other Issues on Open Meetings • Executive sessions Memoranda and minutes - must identify subject matter by statutory reference - must certify no other discussion took place

16. Other Issues on Open Meetings • Executive sessions Memoranda and minutes - Date, time, location - Members recorded as absent or present

17. Other Issues on Open Meetings • Executive sessions Baker v. Middlebury - Expanded what can be done in an executive session

18. Other Issues on Open Meetings • How to correct a problem once it has occurred - “Intent of this chapter that the official action of public agencies be conducted and taken openly . . . In order that the people may be fully informed.”

19. Access to Public Records ActPrivacy • Social Security Numbers • APRA exempts social security numbers from disclosure for all public agencies. • Upon request for access to a record, an agency must redact social security number from record if other information contained in the record is disclosable

20. Access to Public Records ActPrivacy • FERPA (Family Educational Rights and Privacy Act) 20 U.S.C. §1232g • Applies to all schools that receive funds under a program of U.S. Department of Education. • Generally, schools must have written permission from the parent or eligible student (over age 18) to release any information from a student’s educational record. Social security numbers may not be released without consent.

21. Access to Public Records ActPrivacy • HIPAA (Health Insurance Portability and Accountability Act) • If agency is a covered entity under HIPAA, may deny access to protected health information without a valid patient authorization. However, very few public agencies are covered entities (health plans, health care clearinghouses, or health care providers who perform covered transactions electronically).

22. Access to Public Records ActPrivacy • HIPAA does not provide an exemption to public agencies that maintain medical information, where the public agency is not a HIPAA covered entity, or is otherwise not covered by the privacy regulations (such as is a business associate).

23. Access to Public Records ActPrivacy • However, state law requires a public agency to deny “patient medical records and charts created by a provider, unless the patient gives written consent…” IC 5-14-3-4(a)(9). • Note that not all medical information maintained by a public agency is created by a provider. Hence, unless specific statutory authority exists for nondisclosure, a request must be honored.

24. Access to Public Records ActPrivacy • Privacy vs. Confidentiality • Indiana law does not contain a general privacy exemption to protect from disclosure sensitive information. • There are various confidentiality statutes that recognize privacy interests, but APRA requires disclosure unless a specific statute makes the information confidential.

25. Access to Public Records ActCommon questions • Law enforcement records - Investigatory records may be withheld • Some law enforcement records must be disclosed • “Daily log or record” v. incident report - 911 tapes

26. Access to Public Records ActCommon questions • Personnel records and disciplinary actions - Generally, personnel file disclosure is discretionary - Must release Basic work information Status of formal charges Factual basis for discipline leading to demotion, suspension or discharge

27. Common questions • Deliberative materials exception - Opinions or speculative comments communicated for purpose of decision-making. - IU case: Court limits exception and requires release of redacted documents

28. Common questions • Records prepared for governing bodies – when and what is disclosable? - Board packets are public records when created - Can be requested prior to board receipt - Can exclude confidential records

29. Procedural IssuesResponding to Requests • Time for agency’s response: • 24 business hours if in person or phone request is made • 7 calendar days if requested by mail, facsimile or e-mail. • Written requests, if denied, must be denied in writing.

30. Procedural IssuesResponding to Requests • Agency denial of a record • Must contain a statement of the specific exemption or exemptions authorizing the withholding of all or part of the public record; and • the name and the title or position of the person responsible for the denial.

31. Procedural IssuesResponding to Requests • Response is acknowledgment of the request and what efforts the agency is making toward production, including a specific timeframe for further response or production. • Time for response does not necessarily mean production of the record.

32. Procedural IssuesResponding to Requests • APRA does not contain a time within which an agency must produce the records. Records must be produced in a reasonable period of time under the circumstances.

33. Procedural IssuesResponding to Requests • Common violations of APRA regarding agency response: • No response at all. • Denying because the requester cited to FOIA (federal law). No citation is necessary to invoke APRA. • Denying all the record when part of the record must be disclosed

34. Procedural IssuesResponding to Requests • Common violations regarding agency response: • Denials because the requester can use civil or criminal discovery procedures. APRA is an independent legal basis for obtaining records. • Not citing to any statutory exemption allowing nondisclosure. “We don’t regard this as a public record” is insufficient and a violation.

35. Office of the Public Access Counselor • Established in 1998 by Gov. O’Bannon. Legislature made it a statutory office in 1999. • Statutory authority is at IC 5-14-4. • Duties are to educate, interpret public access laws, issue advisory opinions.

36. Office of the Public Access Counselor • Formal complaint procedure: IC 5-14-5. • Persons who have been denied any right under IC 5-14-3 for records or IC 5-14-1.5 for meetings, or any other state statute or rule governing access to public meetings or public records, may file a complaint.

37. Office of the Public Access Counselor • Complaints are forwarded to the agency that is the subject of the complaint. PAC encourages responses, but response is not required under the statute. • Advisory opinion must be issued within 30 days of receipt of complaint, or within 7 days if priority complaint under 62 IAC 1.

38. Office of the Public Access Counselor • Educational and informational materials available on web: www.in.gov/pac • Handbook • Advisory opinions • Complaint form • Contact information • Annual reports