The following questions were submitted by The Paper of Montgomery County (Crawfordsville), North Vernon Plain Dealer and North Vernon Sun; Connersville News-Examiner.
No response to a records request is easily a violation of the Access to Public Records Act
Q: I have filled out the proper records request forms but the county auditor has decided not to answer or follow through with my requests. The repeated basis of denial from her is not answering emails or returning phone calls requesting copies of the county council or commissioners’ minutes. I have no issue getting minutes emailed from the town boards of Francesville, Winamac, and Medaryville. Not sure why I am having such an issue with the Council and Commissioners?
A: No response to a records request is easily a violation of the Access to Public Records Act. I suggest you ask for a Public Access Counselor opinion. It shouldn’t take PAC Luke Britt long to respond. Once you have the opinion, share it with the auditor and ask if her office will comply. If not, the next step is to seek an injunction from the circuit or superior judge ordering the county/auditor to comply with the Access to Public Records Act.
You should win the case, get your legal costs reimbursed and if the judge issues the injunction any ongoing failure to comply with APRA could lead to a contempt of court finding. Judges dislike having their orders ignored and are prone to issuing fines or putting people behind bars to reflect upon the decision not to abide by the judge’s order. Hopefully, it won’t get that far, but you apparently need to take action to break through the current stonewalling.
Notice has to be given under the Open Door Law 48 hours in advance of a meeting
Q: When the county council or city council calls a “special meeting,” when do they have to announce the subject matter of the special meeting”? And can they change it at their whim?
A: A special meeting is treated the same as a regular, open meeting. Notice has to be given under the Open Door Law 48 hours in advance of the meeting (don’t include weekends, holidays) to media outlets that requested notice of meetings. The governing body isn’t required to provide subject matter in the notice, just when and where. If there is an agenda, it must be posted at the door when the meeting begins. They can still add or subtract things from the agenda during the meeting unless it’s the continuation of a meeting that had been previously recessed. A recessed meeting can only have matters that were listed in the agenda discussed. Special meetings are open to the public.
For an executive session, the notice must include the code citation that gives them the authority to meet in closed session. The specific code section will give you the general subject matter – for example, to receive information about alleged employee misconduct, but not the name of the employee.
Official interviewing another official for a newspaper column via email is not a ‘meeting’
Q: We have a county commissioner who writes a column that goes in both papers. This week, he did an interview with a fellow commissioner. The question a reader sent in is —Does that violate the open meeting law? I did talk to the commissioner and he said the “interview” was done by e-mail over a couple of weeks.
A: Since the “interview” was conducted through an exchange of emails, there was no meeting as defined by the state’s Open Door Law because there was no gathering of a majority of the Board of County Commissioners. Even if the interview had been conducted in person, unless the discussion included a question by one commissioner of the other for specific information or an opinion on a county project, the interview probably would fall outside the definition of meeting because no “official action” occurred.
I do always caution public officials though that official action in the Open Door Law is broadly defined and includes receiving information about public business. There doesn’t have to be a vote taken for official action to have occurred by a gathering of a majority of the governing body.
[Note: relevant code citations – definition of meeting at I.C. 5-14-1.5-2(c) and definition of official action at I.C. 5-14-1.5-2(d).]
Public records are disclosable unless a statutory basis for confidentiality is provided
Q; I’m trying to get the SB-1 that a local company has put in to apply for a property tax abatement. The city/county grants administrator, who is in charge, says the document contains confidential information and has refused to let me see it. The company president, likewise, says he does not want it made public. I thought the SB-1 was a public document and so I should be entitled to a copy, right?.
A You’re ahead of me on the terminology of economic development and property tax abatement. I’m not sure what an SB-1 is and where I might find it in the state statutes. Without the benefit of a specific statute, I’d start from the general provision that public records are disclosable unless the agency can provide you with a statutory basis for confidentiality.
The fact that there might be legitimately confidential information included in the document only allows the public agency to redact that portion of the record – not refuse access to the entire document. The fact the company president doesn’t want the document released is not relevant unless he made some sort of claim of confidentiality based on trade secrets, for example, that he’s seeking to have the public agency recognize in its response to you.
I’d put the request in writing and hand-deliver it to the office to earn a 24-hour response with a statutory basis for any denial/redaction. Once they give you the specific code cite for a denial/redaction, I can check on that code citation to see if it fits or not to what you’ve requested.
(Follow up to above question.)
Q:I found the SB1 form online at the Dept. of Local Government Affairs and it has some small type citing Ind. Code, stating that information about the value of the machinery or property they are buying and the individual salaries of anyone listed on the form is confidential, but the rest of the form appears to be public. The form is an “application” for a property tax abatement, which, if approved, allows the applicant to phase in the amount of property tax paid on a new investment for a period of years – for instance, paying $0 the first year, 10% the 2nd, and so on, until tax on the full value is paid after 10 years. It becomes important because the rest of the taxpayers will be paying incrementally more in order to support this abatement; the government doesn’t reap the full benefit of the increase in assessed valuation for however many years the abatement stays in effect (10 is the max). Please review the form and let me know your thoughts on the level of confidentiality given.
A: Looking at IC 6-1.1-12.1-5.1, it clearly lists information that must be made available for inspection and copying under (c) and what they can redact as confidential under (d). [See below.] Take them a copy of the form and statute and tell them you’d like a copy of the completed form, understanding that they can redact the information in (d).
Sec. 5.1. (a) This subsection applies to all deductions under section 3 of this chapter for property located in a residentially distressed area. In addition to the requirements of section 5(c) of this chapter, a deduction application filed under section 5 of this chapter must contain information showing the extent to which there has been compliance with the statement of benefits approved under section 3 of this chapter.
(b) This subsection applies to each deduction (other than a deduction for property located in a residentially distressed area) for which a statement of benefits was approved under section 3 of this chapter. In addition to the requirements of section 5(c) of this chapter, a property owner who files a deduction application under section 5 of this chapter must provide the county auditor and the designating body with information showing the extent to which there has been compliance with the statement of benefits approved under section 3 of this chapter. This information must be included in the deduction application and must also be updated each year in which the deduction is applicable at the same time that the property owner is required to file a personal property tax return in the taxing district in which the property for which the deduction was granted is located. If the taxpayer does not file a personal property tax return in the taxing district in which the property is located, the information must be provided before May 15.
(c) Notwithstanding IC 5-14-3 and IC 6-1.1-35-9, the following information is a public record if filed under this section:
(1) The name and address of the taxpayer.
(2) The location and description of the property for which the deduction was granted.
(3) Any information concerning the number of employees at the property for which the deduction was granted, including estimated totals that were provided as part of the statement of benefits.
(4) Any information concerning the total of the salaries paid to those employees, including estimated totals that were provided as part of the statement of benefits.
(5) Any information concerning the assessed value of the property, including estimates that were provided as part of the statement of benefits.
(d) The following information is confidential if filed under this section:
(1) Any information concerning the specific salaries paid to individual employees by the property owner.
(2) Any information concerning the cost of the property.
Send your questions to Steve Key, HSPA executive director and general counsel, skey@hspa.com.
