Politics and varying levels of influence create illogical oddities in state law.
A growing number of such head-scratchers exist in Indiana’s laws concerning public access. With the 2019 legislative session now in the rearview mirror, it’s a good time to review some of these blips that to me are contrary to good public policy.
In the 1990s, HSPA worked with the legislature to institute a provision giving Hoosiers reimbursement for legal costs if they were forced to file a lawsuit to exert their rights to records or meetings under the state’s public access laws and won that case. This makes sense since it’s up to citizens to serve as the enforcement arm of the state’s public access laws. If you’ve been wronged, it’s up to you to act – not the police, county prosecutor or state Attorney General.
There’s now an exception to that public policy. If the case involves public access to video taken from a police body camera or cruiser camera, the courts cannot award reasonable court and attorney costs to the citizen that wins the right to inspect or obtain a copy of the video.
Rep. Kevin Mahan, R-Hartford City, added the exception while he and now Senate President Pro Tem Rod Bray, R-Martinsville, shepherded the police body camera language through the legislature a few years ago. The idea was to balance out the expenses law enforcement agencies were going to have to deal with records requests of the video by saving them money on potential legal costs if they denied a request.
While the exception is a problem, the bill they crafted remains an improvement over the old law, which gave the police total discretion on the release of video as “investigatory records.”
Speaking of police video, the definition in the Access to Public Record Act, now has created a hole for police drone video. It’s not included in the definition of “law enforcement recording.” This means it falls solely under the “investigatory records” definition and the sheriff/chief/marshal can control its release.
HSPA worked with Rep. Bob Morris, R-Fort Wayne, to correct this situation, but it didn’t come together in H.E.A. 1258’s conference committee report this session.
Another law enforcement issue concerns private police departments with arrest powers. Stinging from the secrecy employed by Star Chamber justice of the English crown, Americans have long frowned upon a secret police operation.
That’s reflected in section 5 of the state’s Access to Public Records Act, which sets out the information that must be made public when a person is jailed or arrested and when someone has contacted the police for assistance, particularly when a crime may have occurred.
It makes sense to require information be made available that could help citizens protect themselves from crime and monitor the performance of local law enforcement officers.
But the legislature’s permission given to private universities and hospitals to establish police departments has created different levels of public knowledge depending upon which officer has been dispatched to the scene.
For example, Let’s say a young woman was assaulted near her car in a parking garage located near a private university and hospital in an Indiana city. If city police respond to the call for help, they will be required under the state’s Access to Public Records Act to make information available to the public within 24 hours that includes a general description of what happened, where, injuries and weapons involved.
If the incident is covered by the private university’s police, The Section 5(c) requirement does not apply. The university police only have to make available information required under the federal Clery Act, which is much more limited. The public would know that an assault was reported, but not details as to where or what happened.
If the incident is covered by the private hospital’s police, there are no reporting requirements under the APRA or Clery Act. HSPA pointed this out to Sen. Dennis Kruse, R-Auburn, who authored the bill allowing hospitals to create police departments. While sympathetic to the issue, Sen. Kruse declined to address it over fears it might add controversy that could kill the bill.
Purdue University has a special exception it requested during its purchase of the online Kaplan University. Purdue asked and the state legislature acquiesced for this new school to not be subject to the state’s public access laws. A couple of years later and I’ve still not heard any explanation why this new Purdue-affiliated online school should be permitted to operate behind a veil of secrecy.
On another front, all public universities are exempt from the state’s retention schedules for maintaining records and what must be eventually presented to the state archives. My understanding is that this exception has been in existence for a long time.
I’m guessing universities were concerned with being able to protect from public disclosure their research documents, which may have been why the exception was created. If so, it’s unnecessarily broad since it includes all records, research or otherwise.
This means emails discussing a policy issue by the county hospital don’t have to be kept for a couple of years like every other local government unit. It’s hard for the public to push for accountability when the records aren’t available because the hospital didn’t have to retain them.
The problem with legislative oddities is that they become difficult to remedy. They solidify with time as bureaucrats grow accustomed to the benefit of the exception.