Sheriff must cite legal basis for denial of public records

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Have a question about access, public records or other issues? Send your questions to Steve Key, HSPA executive director and general counsel, skey@hspa.com or call 317-624-4427.

 

The following questions were submitted by the Lebanon Reporter, The Reflector (University of Indianapolis), Brookville American and Brookville Democrat, The Herald Bulletin (Anderson):

Sheriff must cite legal basis for denial of public records

Q: I submitted a request for personnel records and included information about the federal Health Insurance & Portability Act (HIPAA) because a jailer was fired after an inmate died of a heart attack. (The sheriff likes to claim he can’t release medical information.)

It’s my understanding that they have seven calendar days to respond but find this Access to Public Records Act language confusing: “The Act requires only a response, and not the actual production of records, within a specified time period.” Does that mean they have to tell me if they will or will not share the information within seven days but not actually share the information? If that is the case, what is the deadline for producing the information? Or does it mean they have to produce the information, or give me a reason with statutory back-up why they won’t within seven days?

A: Since the request was emailed, the seven days is the deadline to acknowledge your request and let you know what the sheriff intends to do – give you the requested records, deny the request or turn over to the attorney for review.

If it’s a denial, they have to cite the legal basis for the denial because the assumption is that public records are disclosable. The burden is on the sheriff to have a legal reason to deny you access. If the response is the attorney is reviewing, I’d press for a timeline on attorney’s decision.

If he’s going to give you the records, the question is when. The statute says records must be made available in a “reasonable” time. What’s reasonable depends on the complexity of the request, how the records are stored, will they need redaction, etc.

If the jailer was fired, the sheriff should be providing records out of the personnel file that relate to the reason for the termination. See I.C. 5-14-3-4 (b)(8)(C).

As to HIPAA, the sheriff isn’t a medical provider who bills electronically, so HIPPA doesn’t apply, but medical records are confidential in general.

State’s Access to Public Records Act doesn’t apply to private university

Q: My university newspaper heard through the grapevine that our student government president has been accused of rape. We heard that the alleged victim filed a complaint with the university’s Title IX office. This is all we know, but we want to look into this further. How should we proceed? We are a private university so I am not sure if we can get a hold of Title IX records or disciplinary records. We have been keeping an eye out for a police report, but have not seen anything yet.

A: The state’s Access to Public Records Act doesn’t apply to a private university, although there are some suggestions I can make:

If the university has a police department, they do have to make certain information public under the Clery Act. You won’t get any details about the alleged sexual assault, but you could confirm that an assault had been reported – assuming the victim did contact the university police department. If a report was made to the Indianapolis police, you could get the information required to be made public under the “daily log or report” provision of the Access to Public Records Act [See I.C. 5-14-3-5(c)]. You won’t get the victim’s or suspect’s name, but you should get a general description of what allegedly happened.

Of course, if the victim didn’t file a complaint with any police department, the above is moot.

As to the Title IX complaint process, my expertise is nil. I would suggest you reach out to the Student Press Law Center for an explanation of how the process works and what records, if any, must be made available to the public and when. I’ve found the SPLC to be an excellent resource in the past.


No basis for keeping petition given to Town Council confidential

Q: We have a controversy in Brookville regarding annexation. People who owned a golf course near town wanted to shut down the golf course and sell their land as lots. Neighboring property owners were concerned this would devalue their land. Others felt it would hurt tourism – one of the major economic engines in the area. A group of individuals formed an LLC and purchased the golf course with the understanding the Town of Brookville would purchase the golf course from the LLC and maintain it as a municipal golf course. The town said it would do this if it is allowed to annex the area.

This has raised a couple of questions:
At the Brookville Town Council meeting, two representatives of the LLC dropped off completed petitions sent to residents asking whether they were for or against annexation. Are those completed petitions public documents?

My publisher wants us to do a fact page on annexation. Do you have any idea how we can find an expert on annexation in Indiana?

A: Yes, the petitions given to the Town Council are public records and I don’t know of any basis for keeping them confidential, so they should be disclosed upon request.

You could go a couple of ways on trying to identify an expert on annexation:

You could call Accelerate Indiana Municipalities (AIM – formerly known as the Indiana Association of Cities and Towns). They have one or two staff attorneys who probably would be willing to answer your questions. If they aren’t comfortable being on record, they probably could give you an attorney or two who is known for doing annexation work.

Or you could call Indiana’s largest law firm, Barnes and Thornburg in Indianapolis. I’m sure they would have an attorney who knows annexation law and might be willing to help. It’s free publicity for them.


No problem with American Legion expressing preference to hire a veteran in ad

Q: I have an American Legion post that wants to state they are looking for a veteran with an accounting background for an open position they have. I don’t believe they can put that into the recruitment ad, but because it’s a Legion hall I’m not sure. Advise please?

A: Non-veterans are not a protected class under any anti-discrimination laws. And some states have bid procurement laws that give extra points to veteran-owned businesses. So there’s no problem with the American Legion advertising its preference in hiring a veteran.

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