Public access legislation barely alive

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The Hoosier State Press Association is locked in discussions with House and Senate Republican leadership over a potential amendment that would clear the way for pro-public access legislation.

The bill would add a civil fine for deliberate violations of the Open Door Law and Access to Public Records Act.

Senate Republican fears over the impact of S.B. 92 (authored by Sen. Beverly Gard, R-Greenfield) and H.B. 1093 (authored by Rep. Kevin Mahan, R-Hartford City) on its ability to protect certain legislative records lead to the death of both bills in the Senate.

The legislation remained alive Feb. 29 because H.B. 1093 was passed by the House. This means it can be added to a surviving bill that’s eligible for a conference committee in the waning weeks of the General Assembly.

Legislative concern was sparked by an Indiana Supreme Court decision to listen to a lawsuit filed by House Democrats attempting to block the imposition of fines by the House Republicans over the Right to Work walkout by the Democrats earlier in the session.

If the Supreme Court deviates from its past stance of not getting involved in the internal workings of the legislature under the separation of powers doctrine, that could impact the Masariu decision of 1993.

In that case, the Supreme Court said it would not enforce the state’s public access laws against the legislature.

In other words, the court won’t tell the legislature how to conduct legislative

business and reserves the right to ignore attempts by the legislature to tell it how to conduct judicial business.

Republican leadership in the Senate and House seeks protection in the Access to Public Records Act for constituent correspondence and work product. Work product already is covered in the statute but not defined.

The four legislative caucuses declared constituent correspondence protected under the First Amendment right to petition the government for redress of grievances in 2001.

They reserved the right to protect mail and email from public disclosure at their discretion.

Otherwise, the leadership argued that there might be a chilling effect of Hoosiers’ willingness to share intimate details of health or other family issues when they seek help in dealing with state agencies or suggest legislative action.

HSPA believes the constituent correspondence and work product issues could be adequately addressed.

HSPA’s concern is that the Republican Senate leadership may seek broad language that effectively removes the legislature from the Access to Public Records Act.

“While the current situation prevents the public from suing the legislature for abuses in public records requests, there remains the leverage of the court of public opinion because the General Assembly still takes the position that it complies with the public access laws,” said Steve Key, HSPA executive director and general counsel. “Removal of the legislature from the access laws would eliminate the court of public opinion as the last check on legislative abuse.”

While caught up in the concern over the looming Supreme Court decision, HSPA maintains that the provisions of H.B. 1093 did not impact the legislature’s ability to protect records from public inspection.

What H.B. 1093 and S.B. 92 did was allow a judge to levy a civil fine of up to $100 ($500 for a repeat offender) against a public official who deliberately violates either the Open Door Law or Access to Public Records Act.

“With all the safeguards in the legislation to protect against accidental violations or legitimate arguments as to the application of the law, the only ones who should have any concern are those who intend to ignore the public’s right to know,” Key said.

The bill also allows a citizen to request email notice of the meetings of public agencies. Agencies could opt to post notices on the web instead.

“You wouldn’t think legislation would be required for something that’s just good public service, but some Hoosiers who have asked for such simple notification have been rebuffed,” Key said.