How to Avoid Pitfalls and Correct Mistakes - PowerPoint PPT Presentation

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How to Avoid Pitfalls and Correct Mistakes

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... complaint procedure: ... Complaints are forwarded to the agency that is the subject of ... Handbook. Advisory opinions. Complaint form. Contact information ... – PowerPoint PPT presentation

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Title: 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 students
    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 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.

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 dont regard this as a public
    record is insufficient and a violation.

35
Office 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.

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
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