Hoosier State Press Association - The Indiana Publisher
Issue link: https://www.ifoldsflip.com/i/115209
Page 4 March 14, 2013 Public has right to disciplinary files A series of opinions from Indiana public access counselors have eroded the ability of citizens to determine what misbehavior led to the discipline of public employees. The question centers on the meaning of "factual basis" in the Access to Public Records Act provision explaining what must be made available for inspection and copying when final disciplinary action has been taken by a government unit. [See IC 5-14-3-4(b)(8)(C).] The problem originates with the 2003 Indiana General Assembly. Shortly after the start of the session, The Indianapolis Star requested all records concerning disciplinary action that had occurred over several years from school districts in about 30 Indiana counties. At the time, the Access to Public Records Act required public agencies to make available to the public "information concerning disciplinary actions in which final action has been taken and that resulted in the employee being disciplined or discharged." The school districts complained to their legislators about what some called a fishing expedition by the newspaper, and the General Assembly responded. During S.B. 169's conference committee, lawmakers changed the wording to read: "the factual basis for a disciplinary action in which final action has been taken and that resulted in the employee being suspended, demoted, or discharged." I asked whether "factual basis" would be interpreted as only the disciplinary determination, but local government representatives assured me it would include the background materials supporting the disciplinary action. Regardless, the 2003 bill was a step backward in government transparency because only discipline that reached the level of suspension, demotion or termination would be open to public scrutiny. Reprimands or other smaller disciplinary actions could be kept confidential. But a citizen or reporter could in theory still obtain documented background behind the more serious disciplinary actions – a key to determining whether an Key Points By Steve Key action was overly severe, possibly indicating political motivation; correct for the misdeed; or not strong enough. Then-House Minority Leader Brian Bosma, R-Indianapolis, spoke against the disciplinary records provision on the House floor. A March 1 informal opinion [13-INF-07] of Public Access Counselor Joe Hoage outlines how previous access counselor opinions have reduced what that office says government units should release. The opinion was requested by Noblesville attorney David Day based on a records request from Jeff Eakins of The Banner (Knightstown). Eakins wanted information on the firing of two school bus drivers by Charles A. Beard Memorial School Corp. in Henry County. Before the statute was changed in 2003, original HSPA Hotline The following questions came from the North Vernon Plain Dealer, Herald-Republican (Angola), Boonville Standard and Post-Tribune (Merrillville): Q The school board intends to visit a school that isn't part of its district but one that it has an affiliation to provide certain classes and services that its students can attend and use. Do they have to give notice of their visit to this facility? A The Open Door Law exempts from the definition of a meeting "any on-site inspection of any: project, program; or facilities of applicants for incentives or assistance from the governing body." See IC 5-14-1.5-2(c) (2). The school board can tour the facility but shouldn't get into any discussion concerning future funding of the school because it would then go beyond the scope of the exception. Q A murder trial has started. The father of the defendant has given the newspaper a copy of his deposition with the county prosecutor in which he says he, not his son, shot the victim in a struggle over a weapon drawn by the victim. Can the newspaper run the story on this deposition? A Yes, the newspaper has done nothing illegal to obtain the deposition, and it's obviously newsworthy since it refutes the charges made against the son, although one could question whether the father is telling the truth. With the jury already selected, the judge can always admonish them not to read any newspapers or even sequester them to prevent them from hearing information not presented as evidence in the trial, if you are concerned about its impact on the ongoing trial. Q Does a governmental agency have to physically post a public hearing notice, for instance on the main door? A The Open Door Law requires a governing body, in addition to giving the media 48 hours notice, to post a copy of the notice at the principal office of the public agency. If no such office exists, the notice should be posted at the building where the meeting is held. See IC 5-14-.15-5. Q The Porter County Council was scheduled to meet recently for an executive session for an interview with a prospective employee and a regular meeting. The meetings were canceled due to snow and rescheduled for this evening. One of the members of the county council said the meetings are being held illegally because notice wasn't given 48 hours in advance. Does the council need to give 48 hours notice to reschedule, even for an emergency cancellation like a storm? A If the meeting was canceled, there should be 48 hours notice given before the next meeting. If the meeting was started, but then they decided to recess it and reconvene at a later date, they don't have to give 48 hours notice but just announce at the aborted meeting when they plan to meet again. It could be an hour later, the next day or longer. If the meeting is an "emergency" meeting, then 48 hours notice isn't necessary, but the media must get the same notice as the members of the governing body. But snowy roads do not make the meeting an emergency – the subject matter must concern "actual or threatened injury to person or property, or actual or threatened disruption of the governmental activity" of the public agency by an event. Interviewing a prospective employee is not an emergency, nor is regular meeting of the council. Contact Steve Key, HSPA executive director and general counsel, with media law questions at skey@hspa.com or (317) 624-4427. Public Access Counselor Anne Mullin O'Connor made clear that a description of misconduct and whether it violated personnel rules or another code of conduct should be made available upon request. [02-FC-22] O'Connor's view was endorsed in 2005 by Public Access Counselor Karen Davis after the statutory change, according to Hoage's research. The office's view had changed by 2010, when thenPublic Access Counselor Andrew Kossack wrote about a question involving the Indiana Department of Natural Resources: "I agree with (my predecessor) Counselor (Heather) Neal in so far as I do not believe that the (Access to Public Records Act) requires public agencies to release every piece of information related to a disciplinary action. … It is my opinion that the DNR has disclosed that chief component to you by informing you that the suspension was the result of the officer's disobeying a direct order." [10-FC-212] Based on the history of public access counselor opinions, Hoage ruled that the school Access Continued from Page 1 The cost is capped at the lesser of the hourly rate of the public employee making the search or $20 an hour. "Adding a records search fee is not on HSPA's public access agenda, but the bill attempts to strike a balance between fairness to a government agency's time commitments and avoiding a high cost that would effectively close off public access," said Steve Key, HSPA's executive director and general counsel. Key called the second part of the bill – allowing better access to electronic files – a clear step in favor of citizen access to government records. Under current law, if a citizen asks for a copy of an Excel spreadsheet containing budgetary information so she can run data comparisons, for instance, the citizen has no right to receive the spreadsheet as an electronic document. A government official could insist that the citizen come to the office and receive a paper copy of the spreadsheet. Under H.B. 1175, the citizen Amicus Continued from Page 1 newspaper to turn over information that would identify an anonymous poster to its website to a plaintiff in a libel lawsuit. The Star isn't the defendant in the case, but plaintiff Jeffery Miller sought the name of the poster who commented on Miller's departure from Junior Achievement, whom Miller is suing. The question for the court is whether The Star can appeal immediately the adverse ruling, rather than comply with the subpoena and wait until the close of the case to appeal. district satisfied the access law requirement by telling The Banner that one driver was terminated for violating state law prohibiting texting while driving and the second for violating a specific school board policy. But he doesn't believe the school district has to provide supporting documentation about what happened or when it occurred. The combined access counselor opinions now give government agencies the cover to merely reveal what rule or law led to a final disciplinary action but provide no facts supporting it. So when a deputy is disciplined for violating a sheriff's department policy, the public has no opportunity to look at documents that would either confirm the sheriff's discipline was appropriate, overly lenient, or a political payback for the deputy supporting the sheriff's opponent in a past election, for instance. That wasn't the intent when the law changed in 2003. Steve Key is executive director and general counsel for the Hoosier State Press Association. could request that the document be sent via email. On another front, it appears S.B. 162 – the bill attempting to bring greater transparency to the workings of the Indiana Economic Development Corp. – will move forward in the House without its sponsor offering any amendments to strengthen the bill. State Rep. Woody Burton, R-Greenwood, sponsors the bill, and State Sen. Mike Delph, R-Carmel, authored it. Burton said this week he doesn't anticipate amending S.B. 162. The Indiana Economic Development Corp. is resistant to language put together by Delph as a Senate second-reading amendment. Delph didn't offer the amendment because it likely would have killed the bill in the Senate. "The bill remains a step forward in transparency in its current state," Key said. "This may be an example of getting a half-loaf of bread. It's not as good as the full loaf but better than no bread." The bill has been assigned to the House Commerce, Small Business and Economic Development Committee, chaired by State Rep. Mark Messmer, R-Jasper. Waiting would make the appeal moot because the damage in revealing the identifying information would already be done. "This anonymous poster issue pales in comparison to orders compelling non-party reporters to testify about their non-percipient newsgathering and nonparty newspapers to produce notes or drafts," said Jan Carroll, Barnes & Thornburg attorney in Indianapolis, who represents The Star. Steve Badger of Benesch Law in Indianapolis has written the HSPA Foundation's brief asking the Indiana Supreme Court to rule on the question.