Changes in access laws add welcome provisions


Judges will have the authority to levy a civil fine against public officials who deliberately violate the Open Door Law or Access to Public Records Act starting July 1.

The new remedy for violations is the most significant change to the state’s public access laws approved by the state legislature this year.

“I don’t expect to see a lot of fines issued, but it’s significant that the General Assembly has sent the message that compliance with public access laws is important,” said Steve Key, executive director and general counsel for the Hoosier State Press Association. “If public officials want to ignore the law now, they will face personal consequences.”

A judge can fine a public official up to $100 for the first offense and up to $500 for a repeat offender if a public access case is filed. 

The fine will be paid by the offender, not by the public agency, unless the judge decided to fine the agency rather than an individual.

Key said a government official would have to make an effort to become eligible for a fine because the legislature installed several safeguards to protect individuals who accidentally violate either of the access laws.

Before a judge could consider a fine, the issue must have been addressed by the state’s public access counselor.

If PAC Joe Hoage rules against a mayor, for example, the mayor has the opportunity to correct the error so that there is no deliberate violation of the law.

If the public official is relying on the opinion of legal counsel or the state attorney general, a judge could not find a deliberate violation, even if those opinions were incorrect.

If a counter clerk was ordered by a supervisor to illegally deny a records request, the clerk would not be subject to a fine for following that order.

There is one exception to fine eligibility: work product of the legislature. The Legislative Services Agency, legislators and legislators’ partisan staffs cannot be fined if the subject of a complaint concerns their work product.

The civil fines remedy was part of H.E.A. 1003, authored by Rep. Suzanne Crouch, R-Evansville.

The language originally was filed as H.B. 1093, authored by Rep. Kevin Mahan, R-Hartford City; and S.B. 92, authored by Sen. Beverly Gard, R-Greenfield.

When those bills died, the concept was added to Crouch’s bill during the conference committee segment of the legislative session.

Other changes to the Access to Public Records Act include language that specifically says citizens should receive records requested “within a reasonable time after the request is received” by the public agency.

If the question in a lawsuit is whether a public agency properly blacked out certain information on a document, a judge will now inspect an unredacted copy of the document to determine whether the agency action was proper.

The legislature added two subject areas that can be kept confidential at the discretion of a public agency:

• Personal information of law enforcement officers, judges or their families if the requester is a criminal offender.

• Identifying information of individuals younger than 18 who are participating in state university programs.

The Open Door Law was amended to allow governing bodies of state agencies to adopt a policy that would let members participate via long distance if certain criteria are met.

The legislature also now allows local government units to approve a policy of giving email notice of meeting to citizens who request it or posting such notices on the government unit’s website.

This option for citizen notice was less than what HSPA had hoped to accomplish, Key said.

“It will be interesting to see if any governing body voluntarily chooses to send email notification to interested citizens,” he said.