Indiana’s Access to Indiana’s Access to Public Records ActPublic Records Act

Heather Willis NealHeather Willis Neal

Indiana Public Access CounselorIndiana Public Access Counselor

Presented to Presented to

Delaware County Human ResourcesDelaware County Human Resources

January 8, 2008January 8, 2008

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Access to Public Records Act Access to Public Records Act (APRA)(APRA)

The public policy of the APRA states, The public policy of the APRA states, "(p)roviding persons with information is an "(p)roviding persons with information is an essential function of a representative essential function of a representative government and an integral part of the government and an integral part of the routine duties of public officials and routine duties of public officials and employees, whose duty it is to provide the employees, whose duty it is to provide the information." I.C. §5-14-3-1. information." I.C. §5-14-3-1.

Any person has the right to inspect and copy Any person has the right to inspect and copy the public records of a public agency during the public records of a public agency during regular business hours unless the public regular business hours unless the public records are excepted from disclosure as records are excepted from disclosure as confidential or otherwise nondisclosable confidential or otherwise nondisclosable under the APRA. I.C. §5-14-3-3(a).under the APRA. I.C. §5-14-3-3(a).

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Access to Public Records ActAccess to Public Records Act

Key definitionsKey definitions– ““Public Record” means any writing, Public Record” means any writing,

paper, report, study, map, photograph, paper, report, study, map, photograph, book, card, tape recording, or other book, card, tape recording, or other material that is created, received, material that is created, received, retained, maintained, or filed by or with retained, maintained, or filed by or with a public agency and which is generated a public agency and which is generated on paper, paper substitutes, on paper, paper substitutes, photographic media,...photographic media,...

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APRA OverviewAPRA Overview

““Public record” continued:Public record” continued:– chemically based media, magnetic or chemically based media, magnetic or

machine readable media, electronically machine readable media, electronically stored data, or any other material, stored data, or any other material, regardless of form or characteristics.regardless of form or characteristics.

– Indiana Court of Appeals has added to Indiana Court of Appeals has added to this definition materials created this definition materials created for or for or on behalf ofon behalf of a public agency. a public agency. Knightstown Banner v. Town of Knightstown Banner v. Town of KnightstownKnightstown, 838 N.E.2d 1127 (Ind. Ct. , 838 N.E.2d 1127 (Ind. Ct. App. 2005)App. 2005)

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APRA OverviewAPRA Overview

““Inspect” includes the right to make Inspect” includes the right to make notes, abstracts and memoranda, and in notes, abstracts and memoranda, and in the case of aural public records, to listen the case of aural public records, to listen and manually transcribe or make notes.and manually transcribe or make notes.

““Copy” includes photocopying, Copy” includes photocopying, transcribing by hand, and duplicating transcribing by hand, and duplicating electronic data onto disk, and electronic data onto disk, and reproducing by any other means, reproducing by any other means, including by digital camera or handheld including by digital camera or handheld scanner.scanner.

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APRA OverviewAPRA OverviewGeneral RuleGeneral Rule

Any person may inspect and copy Any person may inspect and copy the public records of any public the public records of any public agency during the regular business agency during the regular business hours of the agency, except as hours of the agency, except as provided in section 4.provided in section 4.

A request must (1) identify the A request must (1) identify the record with record with reasonable particularityreasonable particularity; ; (2) be, at the discretion of the (2) be, at the discretion of the agency, in writing or on agency form.agency, in writing or on agency form.

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APRA OverviewAPRA Overview

The agency shall either make the The agency shall either make the requested copy or allow the person to requested copy or allow the person to make a copy on the agency’s equipment make a copy on the agency’s equipment or on the person’s own equipment.or on the person’s own equipment.

Electronic data storage systems--agency Electronic data storage systems--agency shall make reasonable efforts to provide shall make reasonable efforts to provide copy of data to a person if medium copy of data to a person if medium requested is compatible with agency’s requested is compatible with agency’s system.system.

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APRA OverviewAPRA Overview

Public agency’s responsibility under Public agency’s responsibility under APRA:APRA:– Respond to requests in person or over Respond to requests in person or over

telephone within 24 hours of receipt;telephone within 24 hours of receipt;– Respond to mailed, faxed, or e-mailed Respond to mailed, faxed, or e-mailed

requests within 7 calendar days of requests within 7 calendar days of receipt; receipt;

– Best practice is to respond in writing to Best practice is to respond in writing to all requests; must respond in writing to all requests; must respond in writing to deny written requests for records.deny written requests for records.

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APRA OverviewAPRA Overview

Agency’s Responsibility, continuedAgency’s Responsibility, continued– If denying records, state reason for If denying records, state reason for

denial with citation to statutory denial with citation to statutory authority and give name and title or authority and give name and title or position of person responsible for denial.position of person responsible for denial.

– Produce records in reasonable time; Produce records in reasonable time; communicationcommunication with person requesting with person requesting is keyis key

– If time for production will be lengthy, If time for production will be lengthy, provide groups of records in the interim provide groups of records in the interim as they are available.as they are available.

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APRA OverviewAPRA Overview

Exemptions to Disclosure: I.C. § 5-14-3-4Exemptions to Disclosure: I.C. § 5-14-3-44(a) Confidential categories:4(a) Confidential categories:– Declared confidential by state statuteDeclared confidential by state statute– Required to be kept confidential by federal Required to be kept confidential by federal

lawlaw– Declared confidential by ruleDeclared confidential by rule– Patient medical records created by a Patient medical records created by a

providerprovider– A social security number contained in an A social security number contained in an

agency’s recordsagency’s records

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APRA OverviewAPRA Overview

Exemptions to Disclosure, continuedExemptions to Disclosure, continued

4(b) Discretionary categories:4(b) Discretionary categories:– Investigatory Records of Law EnforcementInvestigatory Records of Law Enforcement– Attorney work productAttorney work product– Inter or intra-agency deliberative materialInter or intra-agency deliberative material

Expressions of opinion or speculative in Expressions of opinion or speculative in nature nature andand communicated for purpose communicated for purpose of decisionmakingof decisionmaking

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APRA OverviewAPRA Overview

Personnel file information may be Personnel file information may be withheld at discretion of the agency, withheld at discretion of the agency, but some portions but some portions mustmust be disclosed: be disclosed:– Name, compensation, job title, business Name, compensation, job title, business

address, business telephone number, address, business telephone number, job description, education and training, job description, education and training, previous work experience, or dates of previous work experience, or dates of first and last employment;first and last employment;

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APRA OverviewAPRA Overview

– Information relating to status of formal Information relating to status of formal charges against employee; andcharges against employee; and

– The factual basis for a disciplinary action The factual basis for a disciplinary action in which final action has been taken and in which final action has been taken and that resulted in the employee being that resulted in the employee being suspended, demoted, or discharged.suspended, demoted, or discharged.

*Personnel file must always be made *Personnel file must always be made available to the affected employee or available to the affected employee or applicant.applicant.

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Denial of AccessDenial of Access

– If denying records, state reason for If denying records, state reason for denial with citation to authority, and denial with citation to authority, and give name and title or position of person give name and title or position of person responsible for denial.responsible for denial.

– Agency bears the burden of proving the Agency bears the burden of proving the records are excepted from disclosure records are excepted from disclosure under the APRA or other applicable under the APRA or other applicable authority. authority.

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APRA OverviewAPRA Overview

FeesFees– State agencies may charge $.10 per page.State agencies may charge $.10 per page.– Other political subdivisions may enact an Other political subdivisions may enact an

ordinance charging actual costordinance charging actual cost– APRA’s general provisions regarding fees APRA’s general provisions regarding fees

are superseded by a specific statute are superseded by a specific statute allowing other fees. For example, $5 fee allowing other fees. For example, $5 fee for motor vehicle accident report. I.C. § 9-for motor vehicle accident report. I.C. § 9-29-11-1.29-11-1.

– Agencies may require advance paymentAgencies may require advance payment

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APRA OverviewAPRA Overview

Remedies for Violations: I.C. § 5-14-3-9Remedies for Violations: I.C. § 5-14-3-9 A person may file lawsuit to compel the A person may file lawsuit to compel the

agency to permit inspection and copying.agency to permit inspection and copying. Court shall expedite hearing.Court shall expedite hearing. Attorney fees, court costs, and Attorney fees, court costs, and

reasonable expenses of litigation to reasonable expenses of litigation to prevailing plaintiff but must seek and prevailing plaintiff but must seek and receive PAC advisory or informal inquiry receive PAC advisory or informal inquiry response.response.

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Common Problems in APRACommon Problems in APRA

Improperly requiring a subpoena from Improperly requiring a subpoena from the requester. The law does not require the requester. The law does not require that a person obtain a subpoena in order that a person obtain a subpoena in order to get disclosable records.to get disclosable records.

When records contain partially When records contain partially disclosable and partially nondisclosable disclosable and partially nondisclosable information, denying access to entire information, denying access to entire record; the agency must separate and record; the agency must separate and disclose the public portion of the record.disclose the public portion of the record.

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Common Problems in APRACommon Problems in APRA

Not responding within prescribed timeNot responding within prescribed time

Denying access to records but not Denying access to records but not indicating the statutory authorityindicating the statutory authority

Not regularly communicating with Not regularly communicating with requester when the request is requester when the request is voluminous and agency is taking time voluminous and agency is taking time to review and compile recordsto review and compile records

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Common Problems in APRACommon Problems in APRA

Requiring requester to indicate why Requiring requester to indicate why he/she wants the recordshe/she wants the records

Assuming certain records are Assuming certain records are

confidential or proprietary absent confidential or proprietary absent legal authoritylegal authority

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Public Access CounselorPublic Access CounselorEstablishment and AuthorityEstablishment and Authority Ind. Code 5-14-4 Office established; Ind. Code 5-14-4 Office established;

19991999 Powers and dutiesPowers and duties

– Train public officialsTrain public officials– Educate members of the publicEducate members of the public– Respond to informal inquiriesRespond to informal inquiries– Issue advisory opinionsIssue advisory opinions– Make recommendations to General Make recommendations to General

Assembly on ways to improve accessAssembly on ways to improve access

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Complaint ProceduresComplaint Procedures

Ind. Code 5-14-5Ind. Code 5-14-5 Complaint must be timely filedComplaint must be timely filed Complaint must allege denial of accessComplaint must allege denial of access PAC must send complaint to agencyPAC must send complaint to agency

– No statutory requirement to invite or No statutory requirement to invite or consider response, but it is our practice to consider response, but it is our practice to do sodo so

PAC must issue advisory opinion within PAC must issue advisory opinion within 30 days, or 7 days if priority (62 IAC 1)30 days, or 7 days if priority (62 IAC 1)

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Enforcement AuthorityEnforcement Authority

Opinions are advisory onlyOpinions are advisory only A public agency is required to A public agency is required to

cooperate with counselor in any cooperate with counselor in any investigation or proceeding (I.C. § 5-investigation or proceeding (I.C. § 5-14-5-5)14-5-5)

Attorney fees, costs, and reasonable Attorney fees, costs, and reasonable expenses of litigation are preserved expenses of litigation are preserved for prevailing plaintiffs in a lawsuit for prevailing plaintiffs in a lawsuit (I.C. § 5-14-1.5-7; I.C. § 5-14-3-9)(I.C. § 5-14-1.5-7; I.C. § 5-14-3-9)

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Office of the Public Access Office of the Public Access CounselorCounselor

What we doWhat we do– AdviseAdvise– MediateMediate– EducateEducate

Contact us Contact us – (317) 234-0906 Telephone(317) 234-0906 Telephone– (317) 233-3091(317) 233-3091– www.IN.gov/pacwww.IN.gov/pac– e-mail: pac@icpr.IN.gove-mail: pac@icpr.IN.gov