Send your questions to Steve Key, HSPA executive director and general counsel, firstname.lastname@example.org or call (317) 624-4427.
The following questions were submitted by the Evansville Courier & Press, and three from a former Kokomo publisher:
Ask public access counselor for a ruling if denied access to ‘third party agreement’
Q: A local school district settled a civil suit outside of court last year. I asked for the settlement agreement, and here’s what they told me: “The document you requested is a third party agreement entered into by the School Corporation’s insurance carrier and the plaintiff in the lawsuit you cite. Under the School Corporation’s agreement with its insurance carrier, the carrier had the right to effect settlement of the above-referenced lawsuit without the authority of the School Corporation. Accordingly, the School Corporation has no documents that are responsive to your request.”
I am no lawyer, but I believe I was wrongly denied this record, in part because the district didn’t cite a specific exemption under state statute. In your opinion, was the district right to deny me the agreement? If not, I wanted to reach out to you to ask whether I should engage in some back-and-forth with the district before going to Public Access Counselor Luke Britt for an opinion.
A: Your situation is very similar to a case already decided (Knightstown Banner v. Town of Knightstown). The court’s ruling ordered the town to retrieve a copy of the settlement from its insurance company and make it available to the newspaper. Since the town was the defendant in that case, it’s council had to approve the settlement, even though the council effectively had to go along with the insurance company’s decision or it would step aside from the case.
I don’t know if the insurance contract in your case would effectively sidestep the Knightstown Banner case, but would start from the premise that it doesn’t. In general, a government unit cannot negotiate away its obligations under the state’s Access to Public Records Act.
Since you’ve been denied the document, you have two options:
• Go immediately to the Public Access Counselor for a ruling, which hopefully will match the Knightstown Banner case (Be sure to remind the PAC of that decision when you file).
• Bring the Knightstown Banner case to the attention of the school district and ask them to reconsider your request. If they concede, you get the document. If they stand firm, you go to the PAC.
Public universities are subject to requests under Indiana’s Access to Public Records Act
Q: Are universities and colleges supported with taxpayer money subject to public records requests. I have several questions about the student body make up at Purdue and IU, for example. I am interested in the number of foreign students enrolled, in what schools they are enrolled in, and the finances involved. What prompted this was an article about IU receiving about $80 million a year for tuition and fees from mainland Chinese students.
A: Public universities are subject to requests under Indiana’s Access to Public Records Act (IC 5-14-3), with one exception. When Purdue University purchased what was then known as Kaplan University, Purdue president Mitch Daniels successfully lobbied the state legislature to exempt what was Kaplan from the Access to Public Records Act. I’ve never gotten an answer as to why.
A couple of things to remember, they don’t have to create a document that doesn’t exist to satisfy your request, but if you know the answers to the question is in a database, you can ask for that information, although you may be asked to pay for any programming cost to pull the data fields you want. You also want to avoid asking for records that would identify a particular student. They can block you by invoking the Family Education Rights and Privacy Act (FERPA). So ask for aggregated information, not student specific.
University must comply with records request, not school’s foundation
Q: Both Purdue and IU have foundations. Are these subject to public records requests? I think that research dollars are funneled through the foundations. I am interested in information about what grants there are, how much, and for what research. I am interested in who the faculty members are that are receiving such grants.
A: There’s an old lawsuit involving the IU Foundation that makes it clear it isn’t subject to the Access to Public Records Act. You should explore what records might exist within IU as to the grants its faculty receive. That might get to the money the faculty might receive from the Foundation. Be careful about making an overly broad request or they’ll deny it as being not “reasonably particular.” You might have to start with a small department and make a request for the grants received by that small number of professors.
Private universities not subject to APRA
Q: Finally, I am an alum of Culver Academy. I was shocked to read in the most recent alum magazine that the top four recognized students this past year were all from Communist China. I am wondering if the state’s Access to Public Records Act would apply to Culver, a private school?
A: Sorry, but the Access to Public Records Act applies to state and local government units. A private university would not be subject to an APRA request. Just because a private entity – be it school or business – received money from the state or local government units, doesn’t automatically make them subject to the state’s transparency statutes.