Public Access

The top focus for the Hoosier State Press Association during the 2016 Indiana General Assembly was H.E.A. 1019, which establishes the rules for public access to police cruiser and body camera video.

Rarely does anyone get everything they want in legislation, and that was the case with the police camera bill this session.

Both the House and Senate passed H.E.A. 1019 unanimously. It isn’t a perfect bill from HSPA’s viewpoint, but is an improvement over current law, according to Steve Key, executive director and general counsel.

“The bill still gives law enforcement the ability to deny all requests from the public or media, but creates a mechanism where that denial may be challenged in court,” Key said. “If that happens, the burden will be on the police agency to convince the judge that the video requested should be kept confidential.”

That burden of proof was a key change made while the bill was in the Senate under the control of sponsor Sen. Rodric Bray, R-Martinsville. The Senate also requires any lawsuit get an expedited hearing with a judicial decision on the access question within 30 days of the filing with the court.

Key said those were the major improvements made in the bill from its introduced version as authored by Rep. Kevin Mahan, R-Hartford City. Sen. Bray and Rep. Mahan were both on the summer interim committee that examined the question of how police body camera and cruiser camera video should fit into the Access to Public Records Act and how long should police departments be required to maintain video footage.

After two meetings of testimony, a subcommittee drafted what became the initial version of H.B. 1019. The draft was passed unanimously at the third and final meeting of the interim committee, but several legislators called it a “work in progress.” Mahan was asked to introduce the bill.

HSPA voiced several concerns with the original draft, which gave law enforcement the discretion on public requests and put the burden on the public to convince a judge the video should be released – a position contrary to all other Access to Public Records Act cases where the burden is on the public agency to argue for confidentiality.

Mahan fought off all attempts in the House to amend the bill, later saying he felt like the bill’s trustee with the task of getting the bill in its introduced version to Sen. Bray, who chaired the summer committee.

Mahan rebuffed a floor amendment from Rep. Ed Delaney, D-Indianapolis, who also was on the summer committee. With no amendments, House Democrats and Republican Reps. Tom Saunders, R-Lewisville, and Bruce Borders, R-Jasonville, voted against H.B. 1019, but it passed with a 65-30 vote.

The bill was sent to the Senate Judiciary Committee chaired by Sen. Brent Steele, R-Bedford, who set the tone for change by starting the bill’s hearing with a reading of the Access to Public Records Act preamble that focuses on government’s role as a servant of the people.

Sen. Steele assigned Sens. Bray, Sue Glick, R-LaGrange; Greg Taylor, D-Indianapolis; and Lonnie Randolph, D-East Chicago; to a subcommittee to amend the bill. The subcommittee shifted the legal burden, added the expedited hearing, and delineated a presumption that certain incidents should be made available to the public. With the amendments, the Senate passed H.B. 1019 with a 49-1 vote. Sen. Mike Delph-R-Carmel, was the lone dissenting vote.

Law enforcement representatives bristled at the language requiring the automatic release of certain videos.

Mahan, a former sheriff, filed a dissent, which created a conference committee to determine the final form the bill would take. He insisted on the removal of the automatic release section. The other conferees, Rep. Linda Lawson, D-Hammond; and Sens. Bray and Taylor, signed off on the conference committee report.

Mahan and Bray have pledged to monitor how police agencies handle video footage requests and come back to the General Assembly with changes if the discretion to keep videos confidential is abused.

Key has voiced concern that a sheriff or police chief who doesn’t want to be bothered with video requests could follow a policy of denying all request made – waiting to see if the requester is serious enough to spend hundreds of dollars on a filing fee and attorney costs to fight the denial. The sheriff or police chief could then examine the video and decide whether to submit or fight the lawsuit. Either way, the person filing the case is paying the price for access.

“The sheriff or chief can say no and see if the person asking will call his bluff,” Key said. “Without a reimbursement of court costs, there isn’t any disincentive for the police to adopt a ‘just say no’ policy.”

Even with its flaws, HSPA supported the passage of H.B. 1019. The conference committee report was passed by the House 96-0 and the Senate 50-0.

Gov. Mike Pence signed the bill into law on March 21.

Co-authors were Reps. John Price, R-Greenwood, Sharon Negele, R-Attica; Ed Delaney, D-Indianapolis. Co-sponsors were Sens. Greg Taylor, D-Indianapolis; Travis Holdman, R-Markle; Rodric Bray, R-Martinsville; Michael Crider, R-Greenfield; and Lonnie Randolph, D-East Chicago.

Under current law, the video from body or police cruiser cameras falls under the “investigatory records” exception allowing discretion to keep it confidential by law enforcement agencies. Key said there was no legal way to challenge a denial – the only option was to bring public pressure demanding the disclosure of the video, but that hasn’t proved to be effective.

H.E.A. 1022, allowing private universities to keep more police records secret than other law enforcement, was introduced at the beginning of the legislative session by Rep. Pat Bauer, D-South Bend.

Rep. Bauer had publicly criticized the University of Notre Dame for keeping crime information secret when ESPN filed a lawsuit against the school in January 2015.

Despite his stand, Bauer told HSPA that he asked the Independent Colleges of Indiana to write the language for the bill. Prior to the bill’s first committee hearing in the House Government and Regulatory Reform Committee, he told HSPA that Independent Colleges of Indiana representatives told him the legislation put private university police department reporting requirements on a par with other police agencies.

And that was the testimony given by private university officials before the committee. Although HSPA countered that position, pointing out that the language specifically excluded Independent Colleges of Indiana members’ police from IC 5-14-3-5(c), the House Government and Regulatory Reform Committee moved the bill, 13-0. It then passed the House, 95-0 with the support of co-authoring Reps. Casey Cox, R-Fort Wayne; Tim Harmon, R-Bourbon; and Christina Hale, D-Indianapolis.

The code, part of the Access to Public Records Act, requires police, when a crime is reported, to make available the time when calls for help are received, who is dispatched to the scene and when, the reported time and location of the alleged crime, the victim unless it’s a sex crime, the factual circumstances surrounding the incident, and general description of any injuries, property or weapons involved.

This contrasts with the federal Clery Act, which limits daily reporting requirements to the nature of the crime, general location and disposition by the police (“Burglary, Campus Center, report taken” would suffice.) H.E.A. 1022 will require private universities to give additional details if an arrest is made, but most crime reports don’t result with an arrest.

Sen. Sue Glick, R-LaGrange, was the bill’s sponsor. While she seemed sympathetic to HSPA arguments, she said Bauer was pushing for passage of the bill without significant changes. HSPA suggested language that would have included private university police under 5(c) while recognizing that the Clery Act prohibited the release of victim information.

During the Senate Civil Law Committee hearing, the Independent Colleges of Indiana continued to assert the bill equalized the reporting requirements, and HSPA pointed out the limited information that would be made available under the Clery Act. The committee passed H.B. 1022, 7-0.

Independent Colleges of Indiana representatives also told HSPA that H.B. 1022 was a proactive effort and not related to the ESPN v. Notre Dame case, even though the language effectively inoculated the private colleges from a potential adverse ruling in the case.

Sen. Glick didn’t offer the HSPA amendment on the Senate floor, and it was passed 49-1. Co-sponsors were Sens. Dennis Kruse, R-Auburn; and John Broden, D-South Bend. Broden discussed the bill with HSPA but didn’t take any action to amend it.

The lone dissent was from Sen. Liz Brown, R-Fort Wayne. Glick did tell HSPA that she believed Bauer was going to file a dissent, which would have given time to improve the bill in a conference committee.

Instead, Bauer filed a concurrence immediately. The House approved the concurrence on March 3 with a 93-0 vote.

Fortunately, Gov. Mike Pence vetoed the bill on March 24 on grounds that the private university police departments would not be as transparent as other law enforcement agencies.

S.E.A. 380 will allow redevelopment commissions to hold meetings when a majority of the members could participate remotely. Sen. Ryan Mishler, R-Bremen, was author. Rep. Dale DeVon was sponsor.

HSPA testified against the bill in both its Senate and House committee hearings to no avail. Key said transparency suffers when you could have commission members voting against the wishes of citizens attending a meeting without even being present. HSPA is also concerned about where the line will be drawn and expects other local government lobbyists to line up in 2017 to ask for similar legislation, something House Government and Regulatory Reform Committee chair Rep. Kevin Mahan, R-Hartford City, said he would not favor.

S.E.A. 380 was passed by the House, 64-33, and the Senate, 50-0. Gov. Mike Pence signed the bill on March 21.

In similar fashion to S.E.A. 380, H.E.A. 1154 allows airport authority board members to have meetings where a majority isn’t physically present. HSPA opposes the concept as a step backward for government transparency. The bill’s author was Rep. Mike Braun, R-Jasper; and the sponsor was Sen. Ryan Mishler, R-Bremen.

The bill was passed by the House, 93-0, and the Senate, 50-0. Gov. Pence signed the legislation on March 23.

S.B. 352 would have created a new process for determining judges for Marion County courts – replacing an election with an appointive process by a newly created committee. The bill was in response to a federal 7th Circuit Court ruling the current election process, which effectively insures all judges on the ballot win, was unconstitutional.

In the House, a change was made to make secret the meetings of the special Marion County Judicial Selection Committee, which would select candidates for judge. HSPA contacted Speaker Brian Bosma’s office to voice its concern and suggest the process track that of the Indiana Judicial Nominating Commission that recommends candidates for appellate judge vacancies.

An unusual 3rd reading amendment, offered by bill sponsor Rep. Dave Frizzell, R-Indianapolis, made such a change.

The bill was highly partisan and died on the final day of the legislative session. The bill’s author was Sen. Mike Young, R-Indianapolis.

HSPA testified in favor of S.E.A. 131, authored by Sen. John Broden, D-South Bend. The bill included language intended to remove barriers to the release of information by the Department of Child Services when a child has been severely injured or died while under the protection of the DCS.

The Senate passed S.E.A. 131, 49-0, and the House passed it, 94-0. The bill’s sponsor was Rep. Dale DeVon, R-Granger. Gov. Pence signed the bill March 21.

S.E.A. 232 requires local land bank boards to approve any conveyance of property in an open meeting. Land banks are designed to help local government manage and improve the marketability of distressed homes or other real estate.

The bill’s author was Sen. Tim Lanane, D-Anderson. The sponsor was Rep. John Price, R-Greenwood. The bill was passed by the Senate, 50-0, and the House, 95-0. Gov. Pence signed the law on March 24.

S.E.A. 160 creates a process where juvenile cases automatically assigned to adult court would be returned to juvenile court jurisdiction. Author was Sen. Mike Young, R-Indianapolis; and the sponsor was Rep. Tom Washburne, R-Evansville.

HSPA was concerned about the possibility that a juvenile case open to the public in adult court could be transferred to a juvenile court for sentencing and be closed from public view, which would be contrary to the situation for a juvenile delinquency proceeding for an act that would be a felony if committed by an adult.

The possibility was confirmed by Marion County Juvenile Court Judge Marilyn Moores, who added that the likelihood of the adult court case being downgraded to a misdemeanor level act upon transfer would be rare.

Sen. Young agreed to examine the potential loophole to transparency if it manifested itself.

S.E.A. 160 was passed by the Senate, 50-0, and the House, 93-0. Gov. Pence signed the bill on March 21.

H.B. 1004 was an education bill authored by Rep. Bob Behning, R-Indianapolis. In the House, the bill was amended to add language giving school districts the ability to hold executive sessions to discuss supplemental pay awards for teachers. The language was vague as to whether the award information would be available for public inspection and copying.

HSPA brought its concern to the attention of Rep. Behning, who agreed to ask sponsor Sen. Dennis Kruse, R-Auburn, to amend it in the Senate, which occurred. The bill died for lack of passage by the Senate.

S.B. 10, authored by Sen. Jeff Raatz, R-Centerville, contained the original language that was added to H.B. 1004 concerning supplemental pay for teachers. HSPA raised its concern about the level of secrecy possible. Sen. Raatz was sympathetic, but added that S.B. 10 would not be moving forward. It did barely pass the Senate, 26-24, then died in the House without a floor vote.

HSPA had discussed the needed change with House Education chair Rep. Bob Behning, R-Indianapolis, who along with bill sponsor Rep. Tony Cook, R-Cicero, agreed to make the same change that was made to H.B. 1004.

In the end, Republican leadership in the House and Senate decided that the controversial supplemental pay proposal would not move forward in this session.

HSPA voiced a concern with S.E.A. 126, authored by Sen. Pete Miller, R-Brownsburg. The bill included a provision allowing city- or county-owned hospitals to keep secret the salaries of individual employees. Sen. Miller explained the hospital’s contention that the information put those facilities at a competitive disadvantage to private hospitals, who were obtaining the information and then poaching employees with better paying job offers.

Based on Sen. Miller’s rationale, HSPA did not oppose the confidentiality provision. S.E.A. 126 was passed by the Senate, 48-0, and the House, 97-0. Gov. Pence signed it into law on March 24.

HSPA contacted Sen. Jon Ford, R-Terre Haute, concerning a confidentiality provision involving use or threat of deadly force by police officers in S.B. 247. Sen. Ford noted the concern but added the bill was not moving. S.B. 247 died for lack of a hearing in the Senate Judiciary Committee, chaired by Sen. Brent Steele, R-Bedford.

HSPA discussed S.B. 316 with Sen. Ed Charbonneau, R-Valparaiso. The bill concerned a nursing home registry and would have kept certain “personally identifying” information about complaints secret. Sen. Charbonneau noted the bill was not moving. The bill died for lack of a hearing in the Senate Health and Provider Services Committee, chaired by Sen. Patricia Miller, R-Indianapolis.

S.E.A. 327, authored by Sen. Eric Bassler, R-Washington, requires local government units to upload contracts to Indiana’s transparency portal website if they are either greater than $50,000 or exceed 10 percent of the unit’s property tax levy.
It was passed by the Senate, 48-1 (the nay vote was Sen. Phil Boots, R-Crawfordsville), and the House, 94-0. Gov. Pence signed the bill on March 23.

Rep. Cindy Ziemke, R-Batesville, authored H.B. 1184, which would have required the state Department of Local Government Finance to post on the Internet a contract for a government unit when the contract amount payable for that agency exceeded 25 percent of its property tax levy. The bill died for lack of a hearing in the House Government and Regulatory Reform Committee, chaired by Rep. Kevin Mahan, R-Hartford City.

Similarly, Rep. Dan Leonard, R-Huntington, introduced H.B. 1315, which would have made more financial data for state agencies available on the Internet. The bill died for lack of a hearing in the House Government and Regulatory Reform Committee, chaired by Rep. Kevin Mahan, R-Hartford City.

S.B. 32, authored by Sen. Frank Mrvan, D-Hammond, would have opened the door for the public to learn more information concerning the economic development efforts in the state – including greater transparency concerning job creation incentives and the work of the Indiana Economic Development Corporation.
The bill died for lack of a hearing in the Senate Commerce & Technology Committee, chaired by Sen. Jim Buck, R-Kokomo.

HSPA raised a concern over a confidentiality provision in S.B. 179 with bill author Sen. Mark Messmer, R-Jasper. The bill would have made secret certain information about retail applicants for video gaming terminals. Sen. Messmer noted our concern and informed HSPA that the bill was dead – having been assigned to the Senate Rules and Legislative Procedure Committee, chaired by President Pro tem David Long, R-Fort Wayne.

Public notice advertising

Two public notice advertising bills occupied HSPA’s attention during the 2016 General Assembly session – H.E.A. 1017 and S.E.A. 355.

H.E.A. 1017 will make certain free mailed circulation publications eligible to carry public notice advertising. It was authored by Rep. Jerry Torr, R-Carmel, to help the free Current publication headquartered in Carmel.

HSPA was unsuccessful in an attempt to amend Rep. Torr’s bill to limit the eligibility to the location of the free publication office. Sen. Jim Smith, R-Charlestown, as acting chair of the Senate Local Government Committee, offered the amendment on behalf of Sen. Randy Head, R-Logansport, during H.B. 1017’s hearing. Sen. Head was absent – presenting a bill in another committee hearing. Sen. Jim Merritt, R-Indianapolis, was the bill’s sponsor in the Senate.

The amendment failed with a 4-4 vote. Voting for the amendment were Sens. Smith; Doug Eckerty, R-Yorktown; Jim Buck, R-Kokomo; and Jean Breaux, D-Indianapolis. Voting against it were Sens. Erin Houchin, R-Salem; Chip Perfect, R-Lawrenceburg; John Broden, D-South Bend; and Greg Taylor, D-Indianapolis.

After H.B. 1017 emerged from the Senate committee, it was passed by the Senate 46-4. Supporting HSPA’s opposition were Sens. Phil Boots, R-Crawfordsville; Jim Buck, R-Kokomo; Sue Glick, R-LaGrange; and Scott Schneider, R-Indianapolis.

Since there were no amendments, the bill then moved to the governor’s office, where Gov. Pence signed it into law on March 23.

Based on information publishers provided to HSPA, The Current and The Bristol Bugle will become eligible to carry public notices in Hamilton and Elkhart counties starting July 1, 2016. Any new free and mailed publications wanting to become eligible would have to be in operation for three years before becoming eligible.

Without the amendment, the Current and Bugle can approach local government units that don’t include a town or city with a paid-circulation newspaper within their boundary to carry public notice advertisements. They are not eligible to carry county public notice advertisements.

H.B. 1017 was passed initially by the House, 88-6. Supporting HSPA’s opposition were Reps. Charlie Brown, D-Gary; Terry Goodin, D-Austin; Clyde Kersey, D-Terre Haute; Chuck Moseley, D-Portage; Ryan Dvorak, D-South Bend; and Kathy Richardson, R-Noblesville.

S.E.A. 355 concerns the publication of properties eligible for a commissioners’ sale of tax certificates. It was authored by Sen. Rick Niemeyer, R-Lowell, and sponsored by Rep. Hal Slager, R-Schererville. Both live in Lake County.

HSPA worked with the two legislators last session on a similar Lake County issue – the treasurer’s notice of tax sale and its accompanying list of eligible properties for sale. Due to some economic and bureaucratic factors in Lake County, Key said the treasurer’s tax sale list had grown to a crazy length – taking up more than 100 pages in The Times (Munster) and Post-Tribune (Crown Point).

The problem is that more than 10,000 properties are unsellable – the tax liability being greater than the value of the property. The publication was costing Lake County several hundred thousand dollars a year.

Niemeyer and Slager worked last year with HSPA to pass legislation allowing the county auditor an option to eliminate from publication properties that previously had been published in an earlier tax sale. What wasn’t addressed last year was the commissioners’ sale.

Properties not sold at tax sale are eligible for sale by the county commissioners. At that point, purchasers don’t have to cover the tax liability, only the minimum price set by the county – $500 in Lake County. Unfortunately, thousands of properties aren’t sold even at that minimum price.

If not purchased in the commissioners’ sale, an additional year’s worth of taxes is added to the property’s liability and it goes back on the list for the next treasurer’s tax sale. HSPA and the two Lake County legislators didn’t take this into account last year, so Niemeyer filed S.E.A. 355 this session.

HSPA and Niemeyer butted heads though because Niemeyer didn’t want to require any property list publication for the county sale, mistakenly believing the sale price to be identical in both sales and feeling the second publication was unnecessary.

The bill moved through the Senate and to the House, where it was assigned to the House Ways and Means Committee. Committee member Rep. Mike Karickhoff, R-Kokomo, agreed to file an amendment requiring one publication of a property when it first appeared eligible for the commissioners’ sale and support was building within the committee. Reps. Steve Davisson, R-Salem; Ed Clere, R-New Albany; Cherrish Pryor, D-Indianapolis; Greg Porter, D-Indianapolis; and Steve Stemler, D-Jeffersonville; were supportive of HSPA’s effort.

Niemeyer and Slager then agreed to make the HSPA-requested change. The bill sailed through the House, 95-0, and a Senate concurrence, 48-1. Sen. Glick, R-LaGrange, was the lone dissent.

The bill originally passed the Senate 49-0 after emerging from the Senate Local Government Committee. Sen. Randy Head, R-Logansport, gave the bill a hearing but held for a week to give Niemeyer and HSPA time to work out an amendment. But final resolution couldn’t be reached until the bill went to the House.

Auditors now have the option with either sale to remove from the publication list repeat properties as long as they note that a complete list can be obtained from the county. Other than Lake County, HSPA has not heard of any interest in this option.

Sen. Lonnie Randolph, D-East Chicago, authored S.B. 118. This bill would have required public notice of the opening of an estate in the county where the individual died, not just the county where the estate would be probated in court.

The bill died for lack of a hearing in the Senate Judiciary Committee, chaired by Sen. Brent Steele, R-Bedford.

First Amendment

HSPA was opposed to H.B. 1348, which set up a special libel process for someone subjected to a defamatory consumer review. It included a $500 a day fine against the consumer review website for failure to remove a posting.

HSPA discussed its concern over the modification to Indiana’s libel law to bill author Rep. Wes Culver, R-Goshen, who said the bill wasn’t going to get a hearing from House Commerce, Small Business and Economic Development Committee by chair Rep. Ben Smaltz, R-Auburn.

Culver indicated the bill may have been filed to send a message to Yelp, which he said fails to respond to complaints concerning false reviews filed by individuals from other states who don’t even utilize the service that they pan. He said the reviews were in response to political positions taken during the Religious Freedom Restoration Act debate during the 2015 legislative session.

HSPA informed bill author Sen. Brent Steele, R-Bedford, of its support for S.B. 29. The bill provided that Indiana courts would not enforce foreign law if it violated guarantees given by the federal or state constitutions. For newspapers, this would prohibit a court from enforcing a libel ruling from another country whose law didn’t recognize press freedom.

The bill did not get a hearing in the Senate Judiciary Committee, chaired by Sen. Steele.

Sen. Mike Delph, R-Carmel, authored S.B. 390, which would have allowed legislators the ability to file a civil action for “economic intimidation” and created a felony offense if someone caused a legislator to lose their employment because the person didn’t like the legislator’s opinion or vote on legislation.

The bill never got a hearing in the Senate Rules and legislative Procedure Committee, chaired by President Pro tem David Long, R-Fort Wayne.

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