By Steve Key
The new Indiana public access counselor has added another link to a chain of opinions that severely limits the public’s ability to review email exchanges of government officials and employees.
The problem began with a 2009 opinion by then-PAC Heather Neal that addressed email and the question of “reasonable particularity.”
Neal’s view was that email records requests should be tied to the subject matter sought.
Consequently, she believed a request for all email of a specific government employee, even if limited to a certain time frame, did not fit the requirement that public records requests be reasonably particular.
Neal’s ruling uses a dictionary definition as the guidepost for the intent of the law. Her opinion strays from the legislative mandate that the Access to Public Records Act be tilted toward citizen desires and the common-sense intent of legislators that government be transparent.
The first section of the Access to Public Records Act says the statute “shall be liberally construed to implement this policy and place the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record and not on the person seeking to inspect and copy the record.”
Neal’s 2009 opinion, followed by the next PAC, Andrew Kossack, and current PAC Joe Hoage, deviates from that philosophy by crimping the public’s ability to investigate what public officials are doing.
Their opinions require the requester to either know the names of two parties exchanging email or the subject matter of the emails to make a valid records request.
In defense of her opinion, Neal used the example that a request for all mail a public agency received in a 100-day period would lack reasonable particularity.
I agree that hard-copy mail received by an office over that time frame or even shorter would not be reasonably particular because the agency would be hard-pressed to identify that mail after it had been opened, distributed, filed, shredded, etc.
But building on Neal’s mail rationale, if the mail was allowed to collect in a basket for a day or so before it was distributed and I came into the office and requested a copy of all the documents in the basket, the public agency could easily identify the records I’ve requested and make copies for inspection unless some of it fell under a category allowing confidentiality.
An informal opinion request by The Banner (Knightstown) sparked Hoage’s response that follows Neal’s view.
As Jeff Eakins of The Banner pointed out, I could ask for copies of checks written by a public agency over a specific time period and, based on the check ledger, the agency could determine exactly what records I want.
Similarly, I could ask for copies of the contents of a particular file cabinet, and the agency would know exactly what records I requested.
I may have no idea what records are contained in the checks or file cabinet, but that’s irrelevant to the question of reasonable particularity.
Email by its nature allows one to easily determine when a message was received or sent. A requester doesn’t have to know both parties of the email to identify that record.
The reasonable particularity standard was established by the legislature to protect government units from futilely trying to meet an impossible request because they couldn’t determine which records fit the request.
Email lacks any quality that makes it different from paper documents, yet Neal, Kossack and now Hoage have defined it differently with a string of opinions based on a flawed interpretation.
Their opinions fail to take into account the legislative intent of government transparency.
Steve Key is executive director and general counsel for HSPA.
