Bill ends in veto


HSPA efforts to preserve the publication of budget hearing notices took an unexpected turn May 8 with a veto by Gov. Mike Pence.

“I vetoed SEA 369 over fee for public records searches. The cost of public records should never be a barrier to the public’s right to know,” Gov. Pence’s office tweeted.

The governor was referring to language added to the bill authored by Sen. Pete Miller, R-Brownsburg.

That search fee was part of an Access to Public Records Act package that HSPA worked out with Speaker of the House Brian Bosma, R-Indianapolis, in 2013. The other part of the package would allow citizens to ask that records available electronically, such as Excel or Word documents, be emailed to them with no copying fee.

The proposed fee would start if a records request took more than two hours to fulfill. The first two hours would have been free. Any search fee after that point would be limited to the hourly rate of the public employee making the search, with a $20 cap.

The fee would have been just for the search, not any time taken by the agency to determine whether it would redact or refuse to divulge the record.

“I understand Gov. Pence’s position and respect it, but this language has been passed by the House three times and Senate twice in the last three sessions, and Friday was the first time anyone involved knew of any concern from the governor’s office,” said Steve Key, executive director and general counsel for HSPA. “If we had been alerted during the session or the two previous sessions, I’m sure we could have addressed the issue.”

The veto of S.B. 369 also killed language giving local government units an option to publish the notice of budget hearing. That language had initially passed the Senate in S.B. 288, authored by Sen. Sue Glick, R-LaGrange.

That bill died in the House when Ways and Means Chairman Tim Brown, R-Crawfordsville, refused to give it a hearing. Miller was agreeable to adding the language to his S.B. 369 in a conference committee report.

Miller also had included the language of H.B. 1013, authored by Rep. Jerry Torr, R-Carmel. Torr’s bill would have made free publications like The Current in Carmel eligible to carry public notice advertising. That bill died in the Senate when Sen. Jim Buck, R-Kokomo, refused to give it a hearing. Torr added it to the ill-fated S.B. 369.

HSPA will use the setback as a means to test the effectiveness of posting important public information on government websites as an alternative to newspaper publication.

“HSPA will be putting together a toolkit of ways newspapers can better show the value of public notice advertising,” Key said. “Meanwhile, the lack of unique visitors on websites like the Department of Local Government Finance’s site will illustrate that posting only serves to hide information in plain sight.”

HSPA worked on more than 30 other bills during the 2015 Indiana General Assembly in its efforts to protect the interests of newspapers and the public’s right to know what its leaders are doing or contemplating. See below for a synopsis of each bill.

S.B. 288 –HSPA’s bill to preserve the requirement of publication of the notice of budget hearing. Passed Senate with “option” language. Mandatory requirement restored in House Local Government Committee, but House Ways and Means chair, Rep. Tim Brown, refused to give bill a hearing.

H.B. 1610 – Would replace publication of all public notices with posting on government websites. Rep. Kevin Mahan, R-Hartford City, did not give bill a hearing in House Government and Regulatory Reform Committee.

H.B. 1527 – Was Rep. Bruce Borders’, R-Jasonville, bill to restore publication of notice of budget hearing. Did not receive a hearing in House Government and Regulatory Reform Committee chaired by Rep. Mahan.

S.B. 500 – School officials’ “wish list” bill attempted to eliminate school requirements to publish public notices by declaring school districts “qualified publications” and eliminate publication of the annual school performance report. Sen. Miller agreed to remove this language from the bill.

H.B. 1542 – The Alcohol & Tobacco Commission bill was amended in the House to eliminate the requirement to publish notice of local permit hearings. Motive was speeding up permitting process. Rep. Tom Dermody, R-LaPorte, and Sen. Ron Alting, R-Lafayette, agreed to compromise suggested by HSPA to reduce time between publication and hearing from 15 days to five days to speed up process without eliminating the notice. Sen. Mark Messmer, R-Jasper, drafted and moved the amendment with HSPA-suggested changes.

S.B. 450 – Original version would have allowed county not to publish properties up for tax sale. Sen. Rick Niemeyer, R-Lowell, and Sen. Randy Head, R-Logansport, agreed to HSPA suggestion that gave county option to not publish repeat properties on the list.

S.B. 530 – Bill originally set circulation minimum of 1 percent of government unit’s population as a threshold for eligibility to carry public notice advertising. Sen. Rodric Bray, R-Martinsville, agreed to HSPA suggestion to change threshold to 200 paid circulations.

H.B. 1013 – Rep. Torr’s bill to give The Current eligibility to carry public notice advertising. Sen. Buck did not give bill a hearing in Senate Technology and Commerce Committee.

H.B. 1341 –Annual Department of Insurance bill. Did not include this year the elimination of the publication of statements of condition by out-of-state insurance companies. Rep. Matt Lehman, R-Berne, agreed to preserve those notices another year.

S.B. 423 – Bill concerning tax rules contained outdated public notice advertising language referencing newspapers’ political affiliation. HSPA worked with Sen. Luke Kenley, R-Noblesville, to update the language.

Public Access

S.B. 369 – Bill originally required local governments to post certain data to state Department of Local Government’s transparency portal. Sen. Pete Miller added the language from 2014’s H.B. 1306. That bill was language worked out by HSPA and Speaker Bosma. It gives the public the right to demand electronic records in that format and allows government units to charge a search fee if it takes more than two hours to find the requested records.

S.B. 288 – The bill concerning the publication of notice of budget hearing had the H.B. 1306 language added by committee amendment by Rep. Borders with blessing of House Local Government Committee chair Rep. John Price, R-Greenwood. Bill died when House Ways and Means chairman Brown refused to give it a hearing. Language was added to S.B. 369.

S.B. 500 – School deregulation bill initially included in the “wish list” language creating a search fee that could be assessed by all public agencies for voluminous records requests and a copying fee for the emailing of electronic records to requesters. HSPA pointed out to Sen. Miller that school officials had excluded language that HSPA had worked out with Speaker Bosma concerning public’s ability to obtain electronic records that was part of the package for two previous legislative sessions that included the search fee language. Miller amended the language to reflect HSPA and Busman’s language from 2014’s H.B. 1306. The language was removed from the bill in the House since it affected all government units when the bill concerned school deregulation. Language was added to S.B. 369.

S.B. 528 – This bill for the Commission on Public Records had added language that makes certificates of death (including the cause of death) held by the state Department of Health available for inspection and copying. HSPA worked with health department’s Brian Carnes on the language, which Sen. Miller agreed to add to bill. Rep. Lehman also agreed to the change. This bill almost became the home for language that legislative leaders were considering to expand the confidentiality of their “work product.” They halted that effort prior to a scheduled conference committee hearing, but HSPA expects the idea to resurface in 2016’s legislative session.

H.B. 1002 – The ethics reform bill initially raised a concern about duplicative confidential investigatory steps in the complaint process and the meaning of another confidentiality section. HSPA expressed its concern with the two chamber’s chief of staffs, Jeff Papa in the Senate and Lesley Crane in the House.

The two questions were resolved with a Senate amendment by President Pro Tem David Long, R-Fort Wayne, but the same amendment raised an issue over a perjury threat for those who filed a complaint. HSPA testified as to its concern with that language. The perjury language was changed to require the complaint be “verified.”

H.B. 1302 – This bill makes some adjustments to state’s expungement law. HSPA asked Rep. Jud McMillin, R-Brookville, to amend bill to make it clear that the expungement hearings were open to public. He agreed and did the amendment.

H.B. 1304 – Bill establishes rules for custodial interrogations of juveniles. HSPA raised question about mandated confidentiality of recordings because it would tie hands of law enforcement trying to defend against accusations of improper behavior. HSPA worked out language to make accessibility to tapes possible if judge agreed. Sen. Brent Steele, R-Bedford, accepted the compromise language.

H.B. 1104 – This state Board of Accounts bill initially said exit conferences would not fall under the Open Door Law and had language mandating secrecy for calls into a fraud hotline. HSPA convinced Reps. Lehman and Gail Riecken, D-Evansville, and Sen. Head, and State Examiner Paul Joyce to make hotline information confidential at discretion of the agency and make exit conferences executive sessions under the Open Door Law with an exception on the 48-hour notice.

H.B. 1472 – This Department of Revenue bill contained language that appeared to broaden the “work product of an attorney” exception in the Access to Public Records Act. HSPA raised its concern with Rep. Sharon Negele, R-Attica, and Department of Revenue lobbyist Andrew Kossack. Kossack provided legal research showing change merely codified decisions already reached by state appellate courts.

S.B. 438 – This version of Department of Revenue bill contained both work product language seen in H.B. 1472 and included language creating an executive privilege exception to disclosure of records. HSPA expressed its concern over this new concept with Sen. Brandt Hershman, R-Buck Creek, who removed the language with a committee amendment.

S.B. 289 – This bill allows law enforcement agencies to share reports on domestic violence with support organizations without losing ability to keep investigatory records confidential. Sen. Jim Arnold, D-LaPorte, reached out to HSPA prior to session and accepted HSPA-suggested changes to the preliminary bill draft. HSPA vetted the changes with Laura Berry of the Indiana Coalition Against Domestic Violence.

S.B. 312 – Bill would collect information on storage tanks to avoid catastrophe that hit West Virginia when tank leak shut down city’s water supply. HSPA had concern with confidentiality provision. Rep. David Wolkins, R-Winona Lake, and Sen. Ed Charbonneau, R-Valparaiso, accepted amendment that HSPA worked out with Bose McKinney lobbyist David Pippin, who represented water utilities.

H.B. 1181 – Purdue University’s industrial hemp bill contained overly broad secrecy provision. HSPA worked with the Purdue lobbyist John Baugh and State Chemist/Seed Commissioner Bob Waltz to narrow the confidentiality to sites of hemp crops to protect research efforts. Rep. Don Lehe, R-Brookston, and Sen. Jean Leising, R-Oldenburg, cooperated on the amendment.

H.B. 1403 – Bill creates a regional cities fund to provide economic development grants and loans. It contained overly broad confidentiality language on information submitted by applicants. HSPA worked with Rep. Torr and Sen. Charbonneau on amendment to tighten language.

H.B. 1452 – Department of Natural Resources bill contained language mandating secrecy as to the location of endangered species. HSPA worked with DNR lobbyist Sam Hyer to make confidentiality discretionary instead of mandated. Rep. Sean Eberhardt, R-Shelbyville, and Sen. Glick accepted amendment.

H.B. 1432 – Bill regulating e-liquids contained incorrect language concerning the status of some public records. HSPA worked with Rep. Mahan on a fix in an amendment.

S.B. 216 – Bill allows the St. Joseph River Basin Commission to have members participate in public meetings through electronic means. HSPA worked with Sen. Joe Zakas, R-Granger, to align the language with rules currently applying to state entities.

H.B. 1196 – This bill creates a process where a juvenile delinquency case can be changed into a child-in-need-of-services (CHINS) case. HSPA questioned the ability of the public to track the decision. Judicial and Department of Child Services officials assured HSPA that the filing would be public. Rep. Wendy McNamara, R- Mount Vernon, and Sen. Head were attentive to HSPA concerns.

H.B. 1281 – Bill makes two governing bodies the trustees for community foundations. HSPA asked Rep. Ed Soliday, R-Valparaiso, if intent was to make the foundation boards subject to Open Door Law. He confirmed that was his intent.

H.B. 1531 – Bill allows judges to interact with detainees through video conferencing. HSPA raised question as to public’s ability to observe criminal proceedings if done in this fashion. Rep. Steve Davisson, R-Salem, and Sen. Steele were agreeable to amendment, but Senate Judiciary chair Sen. Michael Young, R-Indianapolis, said existing law already covers the question and decided not to include HSPA-suggested amendment.

H.B. 1371 – Bill makes home addresses of public officials contained in electronic databases confidential to protect against bogus liens filed by tax protesters. HSPA asked Rep. Kathy Richardson, R-Noblesville, about ability for public to verify home addresses for residency requirements to run for office. She assured HSPA that verification still possible through paper records.

S.B. 59 – Made some changes to thresholds for reporting by candidates for political office. HSPA spoke with Sen. Miller and Julia Vaughn of Common Cause Indiana and determined the changes were limited and acceptable.

S.B. 474 – Bill concerns requirements for water utilities to create long-range plans. HSPA asked Sen. Charbonneau about purpose behind a confidentiality clause. Charbonneau explained need was security of data from terrorist action. HSPA satisfied concern was legitimate.

S.B. 566 – Bill concerning education matters included language that concerned HSPA as to the possibility that it would take certain educational entities outside the scope of the state’s public access laws. Sen. Ryan Mishler, R-Bremen, was able to show HSPA that similar language already existed in the code and had not been used to evade the public access laws. Mishler agreed to work with HSPA if a problem developed concerning the issue.