Schools are not ‘public forums,’ can control access to events


The following questions were submitted by and The Indianapolis Star, WANE 15 News (Fort Wayne), Pomona College (CA) student from Carmel (IN), North Vernon Sun and North Vernon Plain Dealer:

Schools are not ‘public forums,’ can control access to events

Q: We are suddenly being denied access to events such as high school graduations that normally people would be thrilled to have us cover. I’m pretty sure it’s out of fear – not that someone will catch COVID-19, but that we will catch them not practicing social distancing guidelines, etc. Tickets are required for the public – and typically only made available on a limited basis to students. If it’s a public school, do we have a particular right to cover?

A: While school facilities may be public buildings they are not “public forums” under First Amendment law. You don’t have right to enter schools and roam the halls. They can ticket and control attendance to their functions.

I’m afraid you’re going to have to convince them of the benefits of having pictures of their graduation ceremonies posted on website galleries or in the print edition. May have to get school board president/board involved since they would get the calls when you explain to readers that the school prevented The Star from having access to memorialize this event for the parents/students, etc.

Access to Public Records Act requires a law enforcement agency to maintain a daily log or record

Q: Can you clarify what information emergency dispatch is required to give when we call? We understood time, type of event, and victim condition were all public information. Our local agency seems to (suddenly) disagree.

A: I don’t know if your dispatch center is a stand-alone entity or part of the sheriff’s or city police department, but the records request should be made through the law enforcement agency or agencies. The Access to Public Records Act requires a law enforcement agency to maintain a daily log or record [See IC 5-14-3-4(c)].

The log must include:
• Time, substance and location of all calls for assistance or complaints;
• Time and nature of the agency’s response;
• And if the call concerns an alleged crime or information:
• Time, date, and location of the event,
• Name and age of any victim unless it’s a sex crime,
• The factual circumstances surrounding the incident, and
• A general description of any injuries, property or weapons involved.

The log for an incident must be created within 24 hours of the call.
Now this requirement may be met by a sharing of the dispatch log and a redacted version of an incident report or it can be a specially created document.

If you’re having a problem, you might want to check with other media outlets to see if they also are having the same problem. A united front might get the law enforcement agency’s attention.

County commissioners reason for calling an executive session bears scrutiny

Q: I’m sending you an edited version of a story concerning discussions on how a development involving the city and county should be handled that includes the basis given for the county commissioners to call for an executive session to resolve it (strategy with respect to a property transaction). Does it seem legitimate to you?

A: I didn’t see anything in the story indicating the county commissioners are purchasing or leasing private property or negotiating the sale or lease of county property, so I would question their reason given for an executive session.

Avenues available to dispute PAC’s conclusion on Dept. of Health public records request

Q: I recently received an opinion from the Public Access Counselor regarding a public record request I submitted to the Indiana State Department of Health for data submitted through the EMResource platform, which includes information such as ICU beds. The PAC didn’t seem to contest ISDH’s argument that the reports are confidential financial information, though I wondered if a court would agree with this assessment. Do you agree with the PAC?

A: There are two avenues to explore if one wanted to dispute the conclusion reached by the PAC:

  1. Is there a statute that was invoked by ISDH to get the hospitals to provide the EMResource information or was it voluntary. I don’t know if there’s any statutory power that required the provision of the documents by the hospitals when a health emergency occurs. That would change the analysis of IC 5-14-3-4(a)(5).
  2. Is the number of ICU beds and inventory of PPE or ventilators really “financial information.” The opinion seems to accept this premise as a matter of fact. I don’t know whether any accounting principles would counter that position.

School board cannot restrict ability to report on an open meeting

Q: I have a question about school board work sessions. Our reporter was told last night at the regularly scheduled school board meeting that yes, she could attend their work session Tuesday as the board goes over their plan to reopen schools in August or September. However, the superintendent told her that anything said at the work session could not be reported because the board will be voting on the document on Thursday during a special public meeting. Naturally, our paper comes out Wednesday, in-between the two meetings. So what’s the deal with “work sessions?”

A: You won’t find “work sessions” in the Open Door Law. It’s just another name for a meeting. A rose by any other name would smell just as sweet.
Since they aren’t trying to claim it’s an executive session, anyone can attend as the statute gives the public the right “to observe and record.” They can’t restrict your ability to report on an open meeting unless you agree to it.

If they suddenly claim it’s an executive session, ask for the statutory basis (code citation) because I can’t think of one that would apply to plans to re-open the school in the aftermath of a health emergency.

There is a provision for discussions of implementation of school safety and security measures [I.C. 5-14-1.5-6.1(b)(3)], but that was geared toward protecting information from someone who could use that information to harm the staff and students. COVID-19 has neither eyes nor ears, so why would the discussion be needed to be held in secret?