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Indiana's Open Door Law: Understanding Public Access and Meetings

Learn about Indiana's Open Door Law, the role of the Public Access Counselor, what constitutes a meeting, executive sessions, notice requirements, and agenda and memoranda guidelines.

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Indiana's Open Door Law: Understanding Public Access and Meetings

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  1. Indiana’s Open Door Law Heather Willis Neal Indiana Public Access Counselor July 27, 2009

  2. Role of Public Access Counselor • Office established by Governor in 1998 and statute in 1999 • Duties and powers of PAC: • Train and educate members of the public and public officials; prepare materials • Conduct research • Respond to informal inquiries from the public and public agencies • Issue advisory opinions to interpret public access laws • Make recommendations to the general assembly

  3. Open Door Law Basics • The governing body of a public agency has a duty to observe the public policy of the Open Door Law: that official action be conducted and taken openly. • The full text of the Open Door Law can be found at Ind. Code 5-14-1.5.

  4. Open Door LawBasics • What is a meeting? • A gathering of a majority of the governing body for the purpose of taking official action upon public business. I.C. § 5-14-1.5-2(c).

  5. Open Door LawBasics • What is not a meeting? • Any social or chance gathering not intended to avoid this chapter; • Example: Chandler Town Council, Advisory Opinion 08-FC-102 • any on-site inspection of project, program or facilities of applicants for assistance; • traveling to and attending meetings of organizations devoted to the betterment of government • a caucus;

  6. Open Door LawBasics • What is not a meeting? • A gathering to discuss an industrial or commercial prospect that does not include a conclusion as to recommendations, policy, decisions or final action on the terms of a request or an offer of public financial assistance; • An orientation of members on their role and responsibilities as public officials; or • A gathering for the sole purpose of administering an oath

  7. Open Door LawBasics • What is “official action?” • receiving information • deliberating • making recommendations • establishing policy • making decisions • taking final action (i.e. voting) Any one of these items constitutes official action.

  8. Open Door LawBasics • Serial meetings (I.C. § 5-14-1.5-3.1) In 2007 the legislature added new language to prohibit serial meetings. All of the following must be present to violate the serial meeting law: • three members but less than a quorum meet • subsequent meetings involve at least 2 members • sum of all meeting attendees constitutes a quorum • all meetings held within 7 days • to take official action on public business The serial meeting law does not apply to governing bodies with fewer than six members.

  9. Open Door LawBasics • Executive session (I.C. § 5-14-1.5-6.1) • A meeting from which the public is excluded, except for persons necessary to carry out business • There are 13 executive session instances • The instances are narrowly construed • The governing body may not take final action in an executive session but may make decisions in the executive session (Baker v. Town of Middlebury, 753 N.E.2d 67 (Ind. Ct. App. 2001))

  10. Open Door LawBasics • Common executive sessions • Discussion of strategy with respect to initiation of litigation or litigation that is pending or has been threatened in writing (I.C. § 5-14-1.5-6.1(b)(2)(B)) • To receive information about and interview prospective employees (I.C. § 5-14-1.5-6.1(b)(5)) • To discuss a job performance evaluation (I.C. § 5-14-1.5-6.1(b)(9))

  11. Open Door Law Basics • Time for Notice (I.C. § 5-14-1.5-5) • The notice requirements apply to open meetings, reconvened meetings, rescheduled meetings, and executive sessions • Must post notice of date, time and location of meeting 48 hours in advance of meeting, not including Saturdays, Sundays, or legal holidays

  12. Open Door Law Basics • Special notice requirements for executive sessions: • The notice must contain the same information as for an open meeting, but must also state the subject matter by specific reference to the enumerated instance(s) for which executive sessions may be held. (e.g., “to interview prospective employees pursuant to I.C. § 5-14-1.5-6.1(b)(5)”) Note: There is no executive session instance to “discuss personnel matters” or to “meet with the Council’s attorney” – specific instances must be cited

  13. Open Door Law Basics • Agenda and Memoranda (I.C. § 5-14-1.5-4) • The ODL does not require an agency to utilize an agenda. • If the governing body utilizes an agenda, the agenda must be posted outside the meeting before the meeting begins – the ODL does not provide a time by when the agenda must be posted.

  14. Open Door Law Basics • Agenda and Memoranda • An agency may deviate from its posted agenda unless a specific statute provides otherwise. • A final action adopted by reference to agenda number or item alone is void (e.g. “all in favor of item III?”)

  15. Open Door Law Basics • Agenda and Memoranda Requirements • Memoranda must be kept as the meeting progresses and must contain . . . • Date, time and location of meeting • Members present and absent • The general substance of all matters, proposed, discussed, or decided • A record of all votes taken, by individual members if there is a roll call

  16. Open Door Law Basics • Agenda and Memoranda • The memoranda are to be available within a reasonable period of time after the meeting. • The minutes, if any, are to be open for inspection and copying. • Draft minutes of a public meeting are disclosable public records despite not being in final form or adopted by the governing body.

  17. Open Door Law Basics • Special memoranda requirements for executive sessions: • Same requirements as for meetings, except the memoranda and minutes must identify the subject matter considered by specific reference to the enumerated instance or instances for which public notice was given. • The memoranda and minutes must certify no other matter was discussed.

  18. Open Door LawBasics • A right of the public to record meetings, found at I.C. § 5-14-1.5-3(a) includes the right to audio or video record the meeting. (Berry v. Peoples Broadcasting Corp., 547 N.E.2d 231 (Ind. 1989)) • The right to record does not extend to executive sessions; neither does the right to observe. • A governing body may place reasonable restrictions on the use of such equipment but may not ban the use of audio or video recorders.

  19. 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.

  20. Open Door LawUse 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

  21. 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. • Indiana courts have not addressed the issue, but the Virginia high court ruled that email communications did not constitute a meeting. Beck v. Shelton, 593 S.E.2d 195 (Va. 2004). Email communication lacked simultaneity. • The Fifth Circuit Court of Appeals is considering use of email by members of a governing body versus restrictions on members’ free speech rights.

  22. ODL Enforcement Provisions • A person may file a complaint with the public access counselor alleging a denial of a right under the ODL. • The PAC sends formal complaint to the agency for response and issues a formal advisory opinion within thirty days. • A person may file a lawsuit in superior court to declare an action void.

  23. ODL Enforcement Provisions • If a person prevails in court and has received an advisory opinion from the Public Access Counselor prior to going to court, the person shall be awarded reasonable attorney’s fees, court costs, and other reasonable costs of litigation.

  24. Office of the Public Access Counselor • Our contact information • 402 West Washington Street, W470 Indianapolis 46204 • Fax: 317.233.3091 • Toll free: 800.228.6013 • Phone: 317.234.0906 • Visit our website at www.in.gov/pac for the Handbook on Indiana’s Public Access Laws, advisory opinions, and other resources.

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