indiana’s access to public records act heather willis neal public access counselor city and town...

Indiana’s Access to Indiana’s Access to Public Records ActPublic Records Act

Heather Willis NealHeather Willis Neal

Public Access CounselorPublic Access Counselor

City and Town Court ConferenceCity and Town Court Conference

October 16, 2008October 16, 2008

22

Access to Public Records ActAccess to Public Records ActBasicsBasics

““Providing persons with the Providing persons with the information is an essential function of information is an essential function of a representative government and an a representative government and an integral part of the routine duties of integral part of the routine duties of public officials and employees, whose public officials and employees, whose duty it is to provide the information.”duty it is to provide the information.”

The full text of APRA can be found at The full text of APRA can be found at Ind. Code 5-14-3.Ind. Code 5-14-3.

33


““Public records” are broadly defined: can Public records” are broadly defined: can be summarized as “any material that is be summarized as “any material that is created, received, retained, maintained or created, received, retained, maintained or filed by or with a public agency.”filed by or with a public agency.”

The Indiana Court of Appeals has added to The Indiana Court of Appeals has added to this definition any material created this definition any material created for or for or on behalf ofon behalf of a public agency. a public agency. Knightstown Knightstown Banner, LLC v. Town of KnightstownBanner, LLC v. Town of Knightstown, 838 , 838 N.E.2d 1127 (Ind. Ct. App. 2005). N.E.2d 1127 (Ind. Ct. App. 2005).

44


““Copy” includes photocopying as well Copy” includes photocopying as well as making a digital copy using a digital as making a digital copy using a digital camera or a hand-held scanner.camera or a hand-held scanner.

““Inspect” includes the right to make Inspect” includes the right to make notes, abstracts and memoranda, or notes, abstracts and memoranda, or to listen to an audiotape.to listen to an audiotape.

55


The agency may require a person to The agency may require a person to submit a request for a public record in submit a request for a public record in writing, on or in a form supplied by writing, on or in a form supplied by the agency.the agency.

The agency shall either make the The agency shall either make the requested copy or allow the person to requested copy or allow the person to make a copy on the agency’s make a copy on the agency’s equipment or on the person’s own equipment or on the person’s own equipment.equipment.

66


An agency must make reasonable efforts An agency must make reasonable efforts to provide a copy of electronic data to a to provide a copy of electronic data to a person if the medium requested is person if the medium requested is compatible with the agency’s system.compatible with the agency’s system.

If a record contains disclosable and If a record contains disclosable and nondisclosable information, the agency nondisclosable information, the agency shall separate the disclosable material and shall separate the disclosable material and make it available for inspection and make it available for inspection and copying.copying.

77


Public Agency’s ResponsibilityPublic Agency’s Responsibility– Respond to requests made in person or Respond to requests made in person or

over telephone within 24 hours of receipt.over telephone within 24 hours of receipt.– Respond to mailed, faxed, or e-mailed Respond to mailed, faxed, or e-mailed

requests within 7 calendar days of receipt.requests within 7 calendar days of receipt.– Respond in writing to written requests for Respond in writing to written requests for

records; best practice is to respond to all records; best practice is to respond to all requests in writing.requests in writing.

– Responding is not necessarily producing Responding is not necessarily producing the record – no deadlines for production.the record – no deadlines for production.

88


Agency’s Responsibility, continuedAgency’s Responsibility, continued– If denying records in response to a If denying records in response to a

written request, state reason for denial written request, state reason for denial with citation to authority, and give name with citation to authority, and give name and title or position of person responsible and title or position of person responsible for denial.for denial.

– Produce records in reasonable time; Produce records in reasonable time; communication with person requesting is communication with person requesting is key.key.

99


Exemptions to disclosure I.C. § 5-14-3-Exemptions to disclosure I.C. § 5-14-3-44– Section 4(a) categories are confidentialSection 4(a) categories are confidential

Declared confidential by state statuteDeclared confidential by state statute Required to be kept confidential by federal lawRequired to be kept confidential by federal law Declared confidential by rule adopted by Declared confidential by rule adopted by

Indiana supreme court (Administrative Rule 9)Indiana supreme court (Administrative Rule 9) Social security number contained in the Social security number contained in the

records of a public agencyrecords of a public agency

1010

Access to Public Records Act Access to Public Records Act BasicsBasics

Exemptions to disclosure I.C. § 5-14-Exemptions to disclosure I.C. § 5-14-3-43-4– Section 4(b) are discretionary categoriesSection 4(b) are discretionary categories

Attorney work productAttorney work product Personnel file information, except for Personnel file information, except for

information that must be disclosedinformation that must be disclosed Inter or intra-agency deliberative material, Inter or intra-agency deliberative material,

which is expression of opinion and is which is expression of opinion and is communicated for the purpose of decision communicated for the purpose of decision makingmaking

1111


FeesFees– Local agencies may charge only the fee Local agencies may charge only the fee

on a schedule adopted by the fiscal on a schedule adopted by the fiscal body.body.

– May not exceed the May not exceed the actual costactual cost for for providing a copy of the public record.providing a copy of the public record.

– Actual costActual cost is the cost of the paper and is the cost of the paper and per page cost for use of the equipment.per page cost for use of the equipment.

1212


Fees, continuedFees, continued– APRA’s general provisions on fees are APRA’s general provisions on fees are

superseded by a specific statute superseded by a specific statute allowing higher fee.allowing higher fee. For example, a specific statute allows county For example, a specific statute allows county

clerks to charge a higher fee (I.C. § 33-37-5-clerks to charge a higher fee (I.C. § 33-37-5-1)1)

– Agencies may require advance Agencies may require advance payment.payment.

1313

Access to Public Records Act Access to Public Records Act BasicsBasics

Retention of recordsRetention of records– The APRA requires an agency to protect The APRA requires an agency to protect

records from loss, alteration, mutilation, records from loss, alteration, mutilation, or destruction.or destruction.

– Each county should have a commission Each county should have a commission on public records to adopt retention on public records to adopt retention schedules. The state oversight schedules. The state oversight committee on public records has set committee on public records has set general retention schedules for cities general retention schedules for cities and towns which can be found at and towns which can be found at www.in.gov/icpr/county/coretention. www.in.gov/icpr/county/coretention.

1414

Access to Public Records ActAccess to Public Records ActEnforcement ProvisionsEnforcement Provisions

A person may file a complaint with the A person may file a complaint with the public access counselor alleging a public access counselor alleging a denial of a right under APRA. The PAC denial of a right under APRA. The PAC sends formal complaint to the agency sends formal complaint to the agency for response and issues a formal for response and issues a formal advisory opinion within 30 days.advisory opinion within 30 days.

A person may file a lawsuit to compel A person may file a lawsuit to compel the agency to produce a record.the agency to produce a record.

1515

Office of the Public Access Office of the Public Access CounselorCounselor

Our contact informationOur contact information– 402 West Washington Street, W460402 West Washington Street, W460

Indianapolis 46204Indianapolis 46204– Fax: 317.233.3091Fax: 317.233.3091– Toll free: 800.228.6013Toll free: 800.228.6013– Phone: 317.234.0906Phone: 317.234.0906

Visit our website at www.in.gov/pac for the Visit our website at www.in.gov/pac for the Public Access Handbook Public Access Handbook (updated in (updated in 2008)2008), , advisory opinions and other advisory opinions and other reference materialsreference materials

indiana’s access to public records act heather willis neal public access counselor city and town...

Documents