« Environment - Weakening the Toxics Release Inventory program | Main | Ind. Law - Status of wine shipping in Indiana, and nationally »

Sunday, March 12, 2006

Law - This is public access week, nationwide. PART I

Kicking off "National Sushine Week" is this editorial in the Fort Wayne Journal Gazette, headlined "Reopen Government." Some quotes:

Officials at all levels of government performing the people’s business hide far too much information from the public they are supposed to serve. With George W. Bush promoting an imperial presidency and state government aggressively privatizing formerly public government functions, access to information is only getting worse. * * *

President Bush has notoriously concealed records and misled the public about information he has revealed. In recent years, Indiana’s lawmakers have closed the door on some public employee disciplinary records and on the amount of money taxpayers dole out to retired public employees. Although Gov. Mitch Daniels’ administration has chosen the winning bidder for the Indiana Toll Road, it refused to disclose the competing bids.

Locally, a charter school hid behind its private operator to withhold records, and county commissioners agreed to force consultants to disclose the amount of money they earn related to government business only after public criticism – and then only for the future, not years past.

The Journal Gazette is running two other related stories today. A lengthy report by AP reporter Keith Robinson is headlined: "Access better in Indiana since ’01 - But nationwide analysis shows states tightening reins on public records." Some quotes from the story:
An Associated Press analysis of bills passed in the state legislature from 2002 to 2005 – four legislative sessions after the attacks – showed that 10 restricted access to public records and 15 loosened access, while nine were neutral or mixed. * * *

For agencies wanting to restrict information that should be open to the public, [Fred H. Cate, a law professor at Indiana University] said the newspapers’ report sent a message that “we’re not going to take that here.”

That message was sent again after legislators in April 2001 passed a bill to exempt themselves from the state’s Access to Public Records Act in a dispute over whether their correspondence with constituents should be confidential. Open-records advocates said the bill went too far in allowing the legislature to set its own rules for releasing public records.

Gov. Frank O’Bannon, who owned a newspaper and was an advocate of open government, vetoed the bill, setting the stage for an override vote in the next legislative session. News organizations and other open-government advocates heavily lobbied their legislators to thwart an override.

Their campaign helped to persuade legislators in March 2002 to sustain the veto, killing the bill.

Before the terrorist attacks, reasons to close public records typically involved concerns about privacy and identity theft. Since then, homeland security has entered the equation.

“There’s been a lot more concern and a lot more willingness for legislators to be swayed by arguments of identity theft, homeland security or personal privacy ... than what had occurred before 9/11,” said Steve Key, general counsel for the newspaper industry group Hoosier State Press Association. * * *

While legislators passed more bills to keep public records open than to close them – often at the urging of government watchdogs – what the numbers don’t show is the extent to which some bills restrict access. A 2003 law makes records of disciplinary action against public employees secret except for final action of suspension, demotion or discharge, and a 2001 law makes information about public-employee pension funds confidential.

Among bills that legislators have passed this year in a session scheduled to end Tuesday is a measure making e-mail address lists created by public agencies confidential. The bill is expected to be sent to Gov. Mitch Daniels for his consideration.

The bill is SEA 205. The short background to this bill is that it is the outgrowth of a legal victory in court by a Kokomo teenager attempting to access an email list maintained by the Mayor of Kokomo. From an Indianapolis Star editorial on Feb. 22nd:
The Kokomo teenager won his legal fight with Mayor Matt McKillip this week, securing the right to review the city's list of e-mail addresses used to distribute an electronic newsletter. Nees asked for a copy of the subscriber list in July after he became concerned that the city was using his e-mail address for political purposes.
In reaction, the Mayor pushed changes to the law in the General Assembly. For more information, see this ILB entry from Feb. 28th, and particularly the last part of the entry, pointing out that under the proposed revisions, "e-mail lists are to be treated differently than other public records - the public may not even look at them, whereas with other similar lists the public may at least, under the law, "inspect and make memoranda abstracts from the list." Further, the proposed revisions now on the Governor's desk would prohibit access to certain records to anyone with "a political purpose."

The second Fort Wayne Journal Gazette story today is headed "Records access applies to all: Being in prison no bar to getting documents." A few quotes from the story by Dan Stockman:

Among the information that has come to light in The Journal Gazette, thanks to the Access to Public Records Act, was that thousands of Indiana school bus drivers have moving violations and some even have drunken-driving convictions but are still allowed to transport children. The law has also been used by the newspaper to show how businesses doing city work contributed heavily in the last mayoral campaign, and that of 30 high-risk dams in the region, 20 need at least basic repairs. * * *

Many of the complaints prisoners file with Davis involve the fees agencies charge for copies of records, and Davis often finds the fees are illegal.

In June 2005, [PAC Karen] Davis said the $3 per police report the Fort Wayne Police Department was charging violates the Access to Public Records Act, which limits fees to the actual cost of copies. That fee is still being charged today, however.

Associate City Attorney Carol Taylor said the city is in the process of changing the fee, which must be approved by the City Council, but it is complicated because there are so many departments and so many reports they charge for, and each one has to accurately reflect the costs associated with producing it. “It’s something we’re working on,” Taylor said. * * *

In the end, filing a lawsuit is often the only recourse for anyone denied public records, whether the person is in prison or not. Davis’ office exists only to advise on the law, not enforce it. If she finds that access was denied illegally and a lawsuit is filed and won, the agency that denied the records has to pay the requester’s court costs and attorney fees, which could be thousands of dollars.

But Davis’ lack of enforcement power means agencies, even those who illegally deny inmates records they’re entitled to, can get away with denying records even after Davis finds their actions in the wrong unless someone takes them to court.

Former inmate Foust, however, said that’s because inmates don’t realize they can file suit – and don’t even have to pay the filing fee. He said he often took that course of action from behind bars. He said that once he filed suit, the agencies would usually settle out of court and he would get the records he had asked for.

Posted by Marcia Oddi on March 12, 2006 08:36 AM
Posted to General Law Related | Indiana Government | Indiana Law