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Wednesday, June 14, 2006

Ind. Law - Part II of: Should the General Assembly make the law available to the citizens of the State?

[Note: Access Part I here.]

Making the Online Versions the "Official Versions" is a Very Bad Idea

I have been told that the LSA plans to make the online versions of the Indiana Register, Indiana Administrative Code, and the Indiana Code, the "official versions" of the Indiana rules and statutes.

Out-of-Date? Given the current state of the LSA's online efforts, that news is frightening indeed. As I wrote in this entry last week:

The printed version of the IAC, when it was available, came out annually. The online version of the IAC is updated monthly and thus is always current.

Or at least it has been in the past. Today I was reviewing some water rules and discovered that the rules I was looking at, in 327 IAC 8, do not include amendments that I know took effect May 23, 2006.

Then I looked back to the main page and read that the entire online IAC was last updated "April 26th, 2006"! [Note: Today (6/13/06) which I looked again to check to see if this was still true, I could find no "last updated" information, which is of course even worse.]

When a number of us at the LSA meeting last month, run by Phil Sachtleben, executive director of the Legislative Services Agency, complained about the cutbacks the General Assembly was making in the services it has traditionally provided to the public involving access to the statute law and rules, and how those changes were damaging the historical record, he said: "Aren't there private publishers doing this?"

The clear implication was -- this is not our responsibility. Sachtleben, BTW, is reportedly leaving the LSA for a lobbying job with Ball State shortly.

Retention Issues. With printed sets of rules and statutes, librarians (and knowledgable attorneys) retain the old volumes when new editions or replacement volumes come out. Why do this? Because how else will you know, in 6 months or 50 years, what the repealed or prior version of a rule or statute was?

This is important with environmental permits, which incorporate by reference the rules and statutes in existance at the time they were issued. This is important with insurance policies. This is absolutely essential when you are reading caselaw and need to know what the statute referenced said at the time of the decision, or when you are reading a case construing a section of the Indiana Constitution and need a copy of the version of that constitutional section then in effect.

All this history is lost when each year the LSA takes down the last year's version of the Indiana Code and all you have to look at is the current online version. Where do you go to look for the old version? And where will you go in 6 months, or 50 years?

At the two public meetings LSA director Phil Sachtleben held on the changes being made to the Indiana Register, people tried to explain these concerns. He said that the Register change was saving a lot of money and that it was not the responsibility of the legislature to make sure these items remained available. Weren't there private publishers we could go to, he asked. Again.

When asked "What do we do when we need to find a replaced version of a rule," Sachtleben responded, "You look at its history line and go and pull the old version off the shelf." The response was "That is easy for you to say, you live in the LSA where you still have printed volumes you can access."

Error-ridden? At the second meeting, which I could not attend, I hear that people told him they didn't trust the online versions. The told him to look at online at IC 34-8, the rules of civil procedure, and he would see what the "official law" looked like, that it was full of printing codes, which caused concern to people relying on it. Here is an example:

&DNM.IC 34-8
&YENC.
&YAMD.
ARTICLE 8. RULES OF PROCEDURE
&DNM.IC 34-8-1
&YENC.
&YAMD.
Chapter 1. Authority of Courts to Adopt Rules of Procedure
&DNM.IC 34-8-1-1
&YENC.1998
&YAMD.1998
Purpose of chapter
IC 34-8-1-1 Sec. 1. The purpose of this chapter is to enable the supreme court to:
(1) simplify and abbreviate the pleadings and proceedings;
(2) expedite the decision of causes;
(3) remedy abuses and imperfections that exist in the practice;
(4) abolish unnecessary forms and technicalities in pleading and practice; and
(5) abolish fictions and unnecessary process and proceedings.
&HST.As added by P.L.1-1998, SEC.3.&EHST.
Sachtleben reportedly was astonished. But a month later, the errors remain.

As is evident from the example of the printing codes, little care goes into the public online version of the Code. The LSA staff has its own online system for bill drafting and research. On the public system, items appear and disappear, links are broken, links lead to nothing (try looking at the Journals).

Note: One thing that it done well is the public bill system, allowing users to access legislation as it goes through the session, along with committee reports, etc. I have nothing but praise for this part of the system. It is good, I think, because it is intensively used during the session by people who know who to talk to if they run into problems. (Although even here I have suggestions - like why should it be necessary to continually reference tables going back and forth between enrolled act and public law numbers?)

Indiana Code and IAC have no expanatory materials. A printed copy of the Indiana Code tells you right up front the date it is current through. Plus it has introductory material telling you, for example in the case of the Code, that the headnotes are not to be considered part of the law. The online version of the Indiana Code does not contain any of the preliminary, explanatory material the printed publication did. It does not say "These documents are current through ___." It does not explain the significant of headnotes and history lines.

This can confuse even the most sophisticated user. Take a look at this ILB entry commenting on a Court of Appeals opinion from earlier this year, where the judge's opinion interprets a headnote in "the official version of I.C. ยง 24-4.5-7-409 on www.in.gov."

What to do? Many things could be done to provide better service to the public users of the Indiana Code. One big one would be to keep it current. There seems no reason why the language of the online Indiana Code could not be revised as the new laws take effect each year. Laws taking effect July 1 should be incorporated into the online Indiana Code on that date (and the prior version preserved). At a minimum, immediately after the end of each session, notations should be posted preceding each section amended or repealed, indicating that a change has been made and referencing the enrolled act. The same for totally new material.

Further, it would be a simple thing to maintain the replaced version of the Indiana Code online each year. This should be done now, going back as far as LSA has files for, which should be quite a number of years. In addition, the Acts of Indiana should be posted online. All the Acts.

Security should be an issue, particularly with the unsettling talk of making the online version the "official" version. With a printed volume of the Acts of Indiana, or the Indiana Code, what is on a page will stay the same, forever. You do not have to worry that a page in the Acts of 1941 has been changed, inadvertently or intentionally. You can not say the same about the current online documents. It is hard to see how a court could take judicial notice of such material.

Making the Law Available and Accessible to the Citizens of Indiana. At some point over the past decade, the General Assembly and its staff agency moved into the position that it was not their responsibility to maintain the laws of the State and to make those laws available and accessible to Indiana's citizens. At one time, this responsibility was understood.

For example, I have reread an article I wrote for Res Gestae in 1969, when I headed the staff of the Statute Revision Commission, the group responsible for producing the Indiana Code of 1971, the first official codification in Indiana since 1852. A quote:

The Indiana statutes are in such poor order that the only possible way to find something in the Acts is by first finding it in the privately published, unofficial compilation of the Indiana statutes and checking the cros-references back to the Acts. In practical effect, then, the Indiana General Assembly has placed itself and the Indiana bench and bar in the position of having become completely dependent upon a private publishing company for the only usable source of the Indiana statute law. * * * [T]he Legislature does have the duty to keep the statute law in order and to make it available and accessible to the persons who desire to use it.
What do I suggest?

For starts, an immediate moratorium on eliminating the serial, paginated Indiana Register. Next, creation of a committee to look at where we are in Indiana, and where we should be, with respect to making the state's laws and rules available to its citizens.

Posted by Marcia Oddi on June 14, 2006 03:31 PM
Posted to Indiana Law