By Kris Cundiff
Under Indiana’s Access to Public Records Act, members of the press and the public can obtain an array of records from state and local public agencies. These public records are a crucial tool for reporting on public business, including how the government is spending taxpayer money. But what should you, as a journalist, do when you think your public records request has been wrongly denied?
In this column, I’m going to answer that question. Here are three things you should know to help you pry loose public records from secretive government agencies.
If an agency ignores your written public records request for more than seven days, the request is considered denied.
Under APRA, no response is a response. If you submit a written public records request, the agency has seven days to acknowledge your request before it is deemed denied. (If you submit an oral request, the time limit is 24 hours.)
It’s important to note that the agency isn’t required to turn over the requested records within seven days — it just has to respond to your request. Once an agency acknowledges your request, APRA requires it to produce the records within a “reasonable time,” which is not defined.
APRA has both mandatory exemptions and discretionary exceptions to disclosure.
If an agency denies your public records request, the law says it must cite a specific statutory exception. But not all statutory exemptions are created equal.
APRA contains both mandatory exemptions and discretionary exceptions. The latter exceptions don’t prohibit disclosure but allow government agencies to justify withholding public records in certain circumstances. For example, a police department may deny a public records request for a law enforcement recording if it determines that the recording, if released, may compromise a fair trial.
The Reporters Committee’s Open Government Guide for Indiana has a list of APRA’s exemptions. If your request is denied, the guide can be a handy tool to understand the statutory basis for the denial.
If you believe your request has been wrongly denied, you have 30 days to file a complaint with the Public Access Counselor.
Indiana’s public records law doesn’t have an administrative appeals process. It does, however, allow journalists and other requesters to file a formal complaint with the Office of the Public Access Counselor, which responds to inquiries from the public and state agencies on public access issues.
If your request is denied, you must file a formal complaint within 30 days of the denial. Then, the PAC may investigate the complaint. The PAC is required to issue an advisory opinion no more than 30 days after the complaint is filed.
If you later decide to sue for access to public records under APRA, it’s important that you file a complaint with the PAC first. Doing so helps ensure that you are eligible to recover attorney’s fees if your lawsuit is ultimately successful.
I’m available to field any questions you have in the course of newsgathering — APRA or otherwise. Don’t hesitate to reach out to me at kcundiff@rcfp.org.
Kris Cundiff is the Indiana Local Legal Initiative attorney at the Reporters Committee for Freedom of the Press. He lives just outside of Indianapolis.
