Hoosier State Press Association - The Indiana Publisher
Issue link: https://www.ifoldsflip.com/i/103941
Page 4 January 17, 2013 Who's protecting our right to know? T he Environmental Protection Agency responded to HSPA's letter of concern about IDEM's decision to replace public notice advertising with government website posting to give notice of hearings, as required by the Clean Air Act. Unfortunately and not surprisingly, Deputy Assistant Administrator Janet McCabe didn't acknowledge any need to step into the fray or change the EPA's current regulations and guidance pertaining to public notification. In broad terms, she spoke of the EPA policy to be "media neutral on the method of notice … as long as the state has determined that the public would have routine and ready access to such alternative publishing venues." The answer is illustrative of the lack of understanding many have concerning public notice and the difference between placing that notice in someone's hands compared to making that notice accessible to someone. In my letter to the EPA, I argued that media neutrality should apply only when it can be shown that the alternative to newspaper publication actually fulfills the requirement for public notice. Indiana Department of Environmental Management Commissioner Thomas Easterly made it clear he believes the posting of the notices on the agency website adequately reaches those known to regularly comment or attend the hearings. As Rep. Matt Pierce, D-Bloomington, said – IDEM's website reaches "the usual suspects." So IDEM is satisfied that its web-posted notices are viewed by an average of 105 unique visitors a week. This is compared to the Key Points By Steve Key combined circulation of the five Indiana newspapers IDEM was using to publicize the notices – 382,100. Taking into account the average number of people who read a particular copy of a newspaper, IDEM was placing notices in the hands of 802,400 people a week. Public notice is a policy intended to reach citizens in general, not those with a special interest in compliance with the Clean Air Act. The public in general may trust government officials to do right by them, may be too busy to act, or may be apathetic to government actions. HSPA Hotline The following questions came from The Rochester Sentinel, The Star-Press (Muncie), and The NewsDispatch (Michigan City): Q A school board announced its intention to hold an executive session under IC 5-141.5-6.1(b)(6) to discuss the possible misconduct of an employee. The person in question, the school treasurer, is dead – apparently a suicide. Would the executive session be proper under the Open Door Law? A No. The statute cited starts with the limitation: "With respect to any individual over whom the governing body has jurisdiction …" The connection between the school district and the individual was broken with the individual's death. This provision was added to allow governing bodies to investigate allegations of misconduct behind closed doors to prevent the tainting of an employee's reputation by making the claim public before determining whether the allegation has validity. With the death of the school treasurer, the school board's discussion no longer centers on whether she embezzled funds, for instance; the discussion focuses on where money is missing, how much, and whether the loss is covered by insurance. The death means no discussion as to the future status of an individual as an employee, which the provision in question allows. You may want to suggest the school board contact Indiana Public Access Counselor Joe Hoage for confirmation of this before members hold an illegal meeting. Q The Delaware County Board of Commissioners gave us notice of an executive session that just contains the code citation – I.C. 5-14-1.5-6. Is that sufficient notice, or do they need to include an explanation as to the subject matter? On a related note, our county health board routinely issues notice of its meetings with a note that the meeting will start with an executive session. There is no time given as to when the public meeting will begin. Is this proper notice? A In both situations, the notice doesn't meet the intent of the Open Door Law. The commissioners' notice misses the mark on a couple of fronts. First, there is no section 6 to the Open Door Law – the reference should have been to section 6.1, which lists the subjects that can be discussed behind closed doors. Secondly, the code citation should be more specific. There are 14 different subject matters listed under section 6.1. The commissioners need to let people know why they are closing the doors on the public. The views of Indiana's public access counselors have consistently stated the preference that both the code citation and text should be included in notices of executive session so that the public doesn't have to track down the Indiana code to determine the purpose for the closeddoor meeting. As for the health board, it misses the mark by attempting to use one notice to cover two meetings. The executive session and open meeting are separate, and the notice of when those meetings start needs to be noted. For example, the executive session can start at 7 p.m., but there needs to be a stated time for the beginning of the open meeting; otherwise, the public has no clue as to when they should arrive to observe the meeting. The newspaper needs to help educate both boards on how to give proper notice. Q We have a local summer festival volunteer board that serves as the organizational entity for community parades, festivals and other events each year. They are not paid and do not receive any funding from city or state entities. A local attorney says the volunteer board's meetings should be subject to the Open Door Law. Is that true? Engraved invitations handdelivered to homes wouldn't guarantee a crowd at an IDEM hearing. But attendance isn't necessarily the goal of public notices. The opportunity to be involved is the key. It's an obligation of government agencies in a democracy to let citizens know what is being contemplated, proposed or acted upon. The public can become involved or not, but they have the opportunity to hold their government accountable. Public notice also serves to protect the public agency from accusations that it acted secretly because it can show that notice was placed in the hands of a large cross-section of the public. The posting of notices on a government website that the public doesn't know exists doesn't do the job. Common sense says average Legislation Continued from Page 1 will create a search fee for voluminous records requests. HSPA has been working with Bosma's office on guidelines that attempt to prevent such a search fee from being a barrier to public access. HSPA voices opposition On the flip side, some bills contain troubling language. State Rep. Dan Leonard, R-Huntington, has filed H.B. 1116. This bill would eliminate the requirement for the Department of Local Government Finance to hold public hearings before it acts on local government budgets, tax rates or tax levies. The burden would shift to citizens, who would have to request a hearing be held for a particular government agency's budget. State Sen. Ron Alting, R-Lafayette, has filed S.B. 139 at the behest of the Indiana School Boards Association. This bill would allow governing bodies to have an executive session to discuss the potential sale of government property. A If it's just a loosely knit group of volunteers that are not subsidized by local government and wasn't created by a government agency, the board would not be subject to the requirements of the Open Door Law even though it does a public good or service. Contact Steve Key, HSPA executive director and general counsel, with media law questions at skey@ hspa.com or (317) 624-4427. citizens have no inkling that they need to check IDEM's website periodically on the chance that there may be an upcoming hearing that would spur them to action. Numerous surveys conducted in different states show that the public expects and wants its government units to place public notices in their local newspapers rather than be solely on a government website. Pulse Research of America this year in Indiana found more than 70 percent of adults preferred public notices in newspapers while less than 2 percent preferred government website postings. IDEM and the EPA don't appear to hear or care what most taxpayers want in this case. Steve Key is executive director and general counsel for HSPA. HSPA believes this would allow for decisions to be reached behind closed doors that could be followed with a public vote before the public ever knew that the sale was under consideration. State Rep. Dan Forestal, D-Indianapolis, would make the causes of death contained in county health records confidential with H.B. 1195. State Rep. Steve Davisson, R-Salem, has introduced H.B. 1102, which would expand the litigation strategy provision allowing for executive sessions. Davisson would include sessions with attorneys to discuss potential liability for proposed actions in the provision. State Sen. Tom Wyss, R-Fort Wayne, has a trio of bills that would limit public access to certain records. He has reached out to HSPA for a meeting so he can explain the rationale for the legislation – S.B. 241, S.B. 243, and S.B. 369. HSPA also is trying to clarify whether the concept embodied in S.B. 178 – losing party in civil cases must pay other side's attorney fees and court costs – would override fees language in the Open Door Law and Access to Public Records Act. If it does, there would be a chilling effect on the ability of citizens to defend their right to know. The bill was filed by State Sen. Jim Banks, R-Columbia City. S.B. 391, authored by State Sen. Carlin Yoder, R-Middlebury, would make it a crime to take photos of an agricultural operation without the owner's permission. State Sen. Travis Holdman, R-Markle, has filed similar legislation with S.B. 373. State Sen. Greg Taylor, D-Indianapolis, would allow drivers to petition the courts to close their driving records, similar to recent laws that allow for restricted access to criminal records, with S.B. 397. "As with any session, good and bad ideas are pursued," Key said. "That's why the HSPA was created in 1933 – to give Indiana newspapers a unified voice when proposals either threaten newspapers or the public's right to information on what the government is doing or contemplating." Without publishing anything new, the Fayetteville Observer ad package created new, year-long revenue in just one week! Contact Advantage Newspaper Consultants today to learn more about creating NEW annual revenue with your existing core products. Fayetteville Observer's Platinum TV ad package exceeded revenue goal in less than a week! Ask us about our digital editions! 910-323-0349 | info@newspaperconsultants.com | www.newspaperconsultants.com