Silent meeting fails to meet Open Door Law requirement


Send your questions to Steve Key, HSPA executive director and general counsel, or call (317) 624-4427.

The following questions were submitted by The Herald Republican (Angola), The Times of Northwest Indiana (Munster), Shelby County freelancer, Indianapolis Business Journal:

Emails OK for annual letters requesting notice of meetings

Q: We have prepared the annual letters to local government agencies requesting notice of meetings for 2021. Do the letters have to be sent by the U.S. mail or can they be emailed to the agencies?

A: The statute (IC 5-14-1.5-5(b)(2) says the newspaper must “deliver an annual written request …” to the government unit. The language was passed before the Internet was invented, but I would contend written would include an email. It’s verifiable and easy for you to keep a copy to show notice was sent if it becomes an issue.

Based on the above, I would say do the email for entities you don’t expect to be a problem in 2021 and ask for a reply to confirm they received it. If you’ve got a contentious relationship with a particular governing body, then I’d consider doing a letter and email to avoid an attempt to circumvent the statute on a technicality. If you have that type of concern with the unit of government, put a copy of both the email and the letter in your files.

Customer needs ‘no purchase necessary’ option for contest

Q: We have a client that is planning a contest that will give out daily prizes to customers. I just want to confirm – does the client need a No Purchase Necessary option for entry? They were wanting to tie it to their Rewards program and pick a customer that visited the store on a particular day to get the prize.

A:I recommend you suggest they include a no purchase necessary option for the public. Otherwise, they are creating an illegal lottery where the player must give consideration for the chance to win the prize. Unless they are a non-profit entity with a permit to do so, they could get in trouble with the state of Indiana.

The customer should appreciate you catching this and saving them from a legal problem.

Silent meeting fails to meet Open Door Law requirement

Q: The mayor has locked down Shelbyville City Hall; it’s closed to the public except by appointment due to COVID-19. City government meetings are being held virtually and streamed on the city’s Facebook page, including the Shelbyville Redevelopment Commission.

Problem was, there was no sound for the RDC meeting. Several people complained online about it, and there have been complaints about sound problems at previous other meetings as well. The city has acknowledged the complaints. Question is: Was the silent RDC meeting legal?

A: While the technical glitch effectively robbed the public of its right to “observe and record” under the Open Door Law. I’m not sure there’s a remedy for the problem. If they recorded the meeting, it could be made available to the public. They could perform a “do-over,” but the subsequent meeting would probably be short and perfunctory. The same debate over an issue probably wouldn’t be repeated because the participants already heard the arguments at the “silent” meeting.

If a citizen sought an opinion from the Public Access Counselor saying the silent meeting violated the law, would a local judge order them to do it over or recognize that the effort was made to comply during extremely unusual times, concluding that a violation didn’t occur. The citizen then would be stuck with a legal bill and no satisfaction.

This is an opportunity for you or a media outlet to fill the breach. Reach out to the council and fill in the silence with a story.

On the other hand, if the glitch becomes the normal occurrence, a citizen would be able to make the argument that malice is involved by the council and action needs to be taken. The court would be more likely to issue an injunction requiring them to abide by the rules set out by the governor’s executive order for electronic meetings, perhaps even consider a civil fine for the malicious strategy of muting the public meetings.

Conclusion: Technically, the meeting failed to meet the requirements of the executive order because the public could not hear what happened. Practically, how do you fix it is more problematic.

Maintain public notices for at least two years on your website

Q: How many months/years of public notices do we need to maintain on our website? Our current database goes back to 2017. Is it required that we archive back any farther than that?

A: The statute does not set a specific time frame. My recommendation at this time would be two years, which covers the statute of limitations for most civil actions that would be tied to a failure to give proper notice. That would allow you to roll off the older notices to reduce the amount of storage space needed.