Title: How to Avoid Pitfalls and Correct Mistakes
1How to Avoid Pitfalls and Correct Mistakes
- Common Problems in Public Access
- Heather Willis Neal
- Indiana Public Access Counselor
2Open 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.
3Use 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
4Use 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.
5Use 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.
6Use 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.
7Use 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.
8Other 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
9Other 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.
10Other Issues on Open Meetings
- Committees
- - Any advisory commission, committee, or body
created by statute, ordinance or executive order
to advise the governing body.
11Other Issues on Open Meetings
- Committees
- - Any committee appointed directly by the
governing body or its presiding officer. - - Exception committees appointed to conduct
collective bargaining.
12Other Issues on Open Meetings
- Administrative function exception
- - Only applies to county commissioners and town
boards - - Public notice not required
- - Meeting still open to public
13Other Issues on Open Meetings
- Administrative function exception
- - Not well-defined
- - Cannot award contract or create obligation
that binds county or town
14Other Issues on Open Meetings
- Executive sessions
- Notice of meetings
- - Must state subject matter and refer
enumerated instance in ODL allowing
executive session
15Other Issues on Open Meetings
- Executive sessions
- Memoranda and minutes
- - must identify subject matter by statutory
reference - - must certify no other discussion took place
16Other Issues on Open Meetings
- Executive sessions
- Memoranda and minutes
- - Date, time, location
- - Members recorded as absent or present
17Other Issues on Open Meetings
- Executive sessions
- Baker v. Middlebury
- - Expanded what can be done in an executive
session
18Other 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.
19Access 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
20Access 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 students
educational record. Social security numbers may
not be released without consent.
21Access 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).
22Access 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).
23Access 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.
24Access 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.
25Access 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
26Access 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
27Common 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
28Common 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
29Procedural IssuesResponding to Requests
- Time for agencys 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.
30Procedural 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.
31Procedural 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.
32Procedural 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.
33Procedural 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
34Procedural 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 dont regard this as a public
record is insufficient and a violation.
35Office of the Public Access Counselor
- Established in 1998 by Gov. OBannon.
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.
36Office 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.
37Office 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.
38Office 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