Q&A: Records of government units


Indiana Legislative Insight (Indianapolis):

Q: If a state office holder decides to release a record that the Access to Public Records Act classifies as within an agency’s discretion to do so (but one that is not subject to mandatory release), can a previous office holder who might have withheld that record challenge its disclosure?

For example, then-Indiana Superintendent of Education Tony Bennett and his administration may have refused to release a specific calendar item a year ago based on a legitimate discretionary exemption, but once an administration changes hands, can the new occupant release any (non-confidential) record from the prior administration?

A: Yes. A public record is a record of the government unit, not the personal record of an office holder. So the current administration might reach a different decision on whether to claim a discretionary exception that would allow it to keep a record confidential.

For example, a current sheriff might release an investigatory record that was created during a previous sheriff’s tenure to squash claims that the department acted improperly during that investigation.

As to a previous administration’s claims of confidentiality, someone could file a lawsuit to ask the court to prohibit the records’ release, but I don’t see how the suit would succeed.

Contact Steve Key, HSPA executive director and general counsel, with media law questions at skey@hspa.com or (317) 624-4427.