By Steve Key
Hoosier State Press Association

Marion Superior Court Judge Cynthia Ayers has been asked to determine whether a series of emails sent by state Board of Education members equates to a meeting under the Open Door Law.

At the conclusion of a hearing on the lawsuit in late June, Ayers reportedly asked both sides to submit proposed final orders.

Indianapolis attorney Willliam Groth filed the lawsuit in December for Indiana residents Ed Eiler, Anthony Lux, Catherine Fuentes-Rohwer and Julie Hollings­worth.

The lawsuit alleges the board violated the Open Door Law through an exchange of emails in October initiated by Claire Fiddian-Green, special assistant to the governor for education innovation.

Fiddian-Green asked board members to approve a letter asking State Senate President Pro Tem David Long, R-Fort Wayne, and Speaker of the House Brian Bosma, R-Indianapolis, to instruct its Legislative Services Agency to obtain data from the state Department of Education to calculate the A-F grades for schools.

The concern was in reaction to delays in the calculation of the grades by the department under the jurisdiction of Superintendent of Public Instruction Glenda Ritz.

According to the lawsuit, the emails from Fiddian-Green asked the 10 board members appointed by Gov. Mike Pence to authorize the use of their signatures in the letter and ratify the sending of the letter to the two legislative leaders.

Groth’s filing argued that the email exchange constitutes a meeting under the Open Door law because it was a “gathering” of a majority of the board for the purpose of taking official action on public business.

Groth argues that the email exchanges would be equivalent to a physical gathering of a board majority, which triggers the Open Door Law if the purpose is to conduct action on public business.

Prior to filing the lawsuit, the plaintiffs asked for an opinion from state Public Access Counselor Luke Britt.

Britt noted that the question had not been addressed by a court and therefore he couldn’t say if a violation had occurred.

I would agree with that conclusion. Emails are considered records under the Access to Public Records Act. I would not be able to argue that the legislature intended emails to trigger the Open Door Law with its requisite 48 hours notice to the public and public right to observe and record.

A ruling by Ayers in favor of the plaintiffs would change the landscape dramatically as to the definition of a meeting.

I expect a ruling in favor of the Board of Education, but the problem remains of how to handle boards that conduct business via email rather than at a public meeting.

If all the public sees is a vote ratifying the decisions reached through an email consensus, will they be robbed of the opportunity to hear the debate on the issue and see which members advocated a position or opposed it?

The public can ask to inspect and copy the emails, but those emails may not be produced for days, maybe weeks.

This type of accountability also requires the public at large to know what it is entitled to see under the Access to Public Records Act.

I don’t believe the legislature wants to discourage the convenience of emails to get public business done, but maintaining government transparency becomes an issue when decisions by boards are only aired as a public vote with no debate seen or heard by Hoosiers.

The situation doesn’t satisfy the legislative intent that “all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials.”

Steve Key is executive director and general counsel for HSPA.

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