By Steve Key
Hoosier State Press Association
City officials in Terre Haute have stumbled in an attempt to improve compliance with the state’s Access to Public Records Act.
Arthur Foulkes, a reporter with the Tribune-Star, bumped into a city policy concerning public record requests when he asked for a copy of the newly drafted city master plan.
The document is featured on the city’s website, where citizens are encouraged to review it. Foulkes was told the request would have to first be reviewed by the city legal department.
Officials weren’t trying to be difficult, they said. They just wanted to comply with a July memo reminding city departments that all records requests be in writing and routed through the legal department for processing.
Why the change?
“It really was implemented to make it quicker and better because we had situations in which requests weren’t being responded to at all,” city attorney Chou-il Lee said. “So (my department) wanted to get them so we could make sure that we complied with the statute.”
The intent of the Access to Public Records Act is that government agencies respond to records requests made in person within 24 hours. Failure to make any response is considered a denial of the request.
But Foulkes reports that many city officials interpreted the memo to mean all document requests, even routine ones, should be submitted to the legal department.
Not so, Lee said.
“This isn’t for the everyday stuff,” Lee said, listing examples of public meeting minutes or traffic accident reports.
Lee said the new policy was designed for complex requests – for example, a request for all information surrounding the municipality’s trash contract.
I don’t have a problem with Lee’s intent, but there was a simpler solution than making city employees hesitant to share records.
Train city officials on the intent of the Access to Public Records Act – 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 and employees.”
The presumption should be that citizens have a right to inspect or receive copies of public records.
Record requests should only need to be routed through Lee’s office if an employee believes the record may contain information the law says must be kept confidential or that falls into a discretionary category where the city could evoke confidentiality if it chooses.
With this attitude, Vigo County residents should run into no roadblocks when making routine requests. Only more complicated requests would be referred to Lee.
Lee’s memo also may have worried city employees with its mention of the civil fine for deliberate violations of the Access to Public Records Act, enacted by the Indiana General Assembly in 2012.
Training would put employees at ease when they learn of all the safeguards protecting public employees that the legislature included in the final version of H.B. 1003.
A public employee who has any doubt as to the public’s right to a document can always get advice from the city attorney or the state’s public access counselor before he or she makes a copy of a requested document.
That employee also has the ability to rectify a mistake without risking the fine.
Let’s say she denied a request and the citizen decides to challenge the denial with Public Access Counselor Luke Britt. If the access counselor believes the record should be released, the employee can comply with no legal ramifications.
If the employee disagrees with the access counselor’s opinion and is backed up by her legal counsel, there still can be no fine levied, even if a judge rules the denial was wrong.
The possibility of a fine doesn’t exist unless the denial is challenged in court by the record requester.
The judge at that point would have to determine that the violation was intentional. In other words, there would have to be some proof that the employee knew the denial was wrong but decided to violate the law deliberately.
By the way, the maximum fine for an access violation is $100. That’s less than the speeding ticket I got on Interstate 465 earlier this year.
The city of Terre Haute should consider another memo encouraging public engagement with city employees. Training employees on the intent of the state’s public access laws wouldn’t hurt either.
Steve Key is executive director and general counsel for HSPA.