Keeping records secret gets expensive


By Steve Key

A fuss by the Montgom­ery County Board of Commis­sioners over the cost of copies of emails indicates an attitude problem more than a flaw in the Access to Public Records Act.

According to The Paper of Montgomery County (Craw­fordsville), commissioners Jim Fulwider, Phil Bane and Terry Hockersmith expressed unhappiness with a $7,907 cost associated with requests by Indiana newspapers and TV stations for emails between Montgomery County Assessor Kelly Ewolt and David McCartney, an employee of the Madison County assessor’s office.

The county email system reportedly had been used by the two to exchange messages of a sexual nature, according to a story by Frank Phillips in The Paper.

Hockersmith told The Paper that the cost was for county attorney Dan Taylor to review more than 1,000 emails to see what information should be kept confidential.

Here’s where I think attitude toward government transparency comes into play.

The Access to Public Records Act starts with the assumption that all records should be made available for inspection or copying except for certain subjects where the law mandates secrecy or allows discretion concerning confidentiality.

Overt flirting and personal messages of an elected official and a public employee using taxpayer-owned equipment and presumably on the taxpayers’ clock is not subject matter that the General Assembly designated for secrecy.

So why would the review of all the emails be assigned to an attorney who will charge Montgomery County his contracted hourly rate?

A county official or employee could have conducted the initial review at no additional cost above the person’s normal pay.

I’m afraid it’s because many public officials approach records requests from the point of view of trying to maximize the number of records they can declare confidential.

Any reasonably intelligent person could review the list of 12 subjects where confidentiality is required and the 23 subjects where discretion to keep records secret is available.

The vast majority of topics on both lists wouldn’t come into play when examining the emails in question.

I doubt subjects such as trade secrets, university research, police investigatory records, autopsy photos, economic development negotiation documents, computer programming codes or school safety plans were found in the emails in question.

So anyone with some common sense could have reviewed the emails and flagged those that might require a look by the county attorney.

This approach could have resulted in a handful of emails that might require the prudence of an attorney review.

The cost to review a few emails compared to more than 1,000 obviously would be significant at $100 or more an hour.

So why turn them all over to the attorney?

Because an attorney would be most adept at ferreting out any possibility where access could be denied.

Too often I see public officials apply no discretion when it comes to subjects that can be kept confidential.

If it’s possible to declare the record secret, they do. End of story.

They give no thought to the benefits of public knowledge of the record in question.

Some officials ignore the legislative directive that “all persons are entitled to full and complete information regarding the affairs [no pun intended] of government and the official acts of those who represent them as public officials and employees.”

And that’s why you see public officials complaining about the cost of making information available to the public – information that really belongs to Hoosiers.

Steve Key is executive director and general counsel for HSPA.