The Indiana Publisher

October 2021 Page 9 Britt, who was appointed as the state public access counselor in August 2013 by then-Gov. Mike Pence and has served in the role since. The Office of the Public Access Counselor serves as a steward of the state's access law concerning both Open Door Law regulating government meetings and Access to Public Records Act allowing for access to govern- ment documents. The access counselor's office also serves as a resource for gov- ernment officials, journalists and members of the general public to answer questions about access topics and also accepts, reviews and vets complaints when allega- tions of violations are brought forward. In its response to Britt's office regarding the complaint, Fremont contended that it was allowed to hold an emergency closed-door session. "The FCS Board argues that it had legitimate reason to hold an emergency executive session, and the subject matter of the meeting warranted the exclusion of the public. The Board contends that it scheduled an emergency executive session in response to the quickly rising number of positive COVID cases among students and staff along with the direct exposures suffered by those individuals. The Board argues the meeting was excepted from the usual 48-hour notice requirement because it was held to formulate and implement an action plan addressing the ongo- ing public health emergency," Britt summarized in his opinion. Britt noted Fremont relied in part on a past decision from his office related to the Delaware County Election Board, in which that panel held a meeting inside the usual 48-hour window in order to address testing of voting machines for the 2020 primary election. Fremont also said it opted to hold the meeting privately because it might discuss confidential personal and medical information about students."The Board asserts it was under the impression that holding the meeting as soon as possible to address the health and safety concerns of students and staff outweighed waiting the ordinary 48 hours' notice requirement and risking further spread of COVID in Fremont Community Schools," Britt wrote of the school district's response. In his analysis of the com- plaint, Britt notes that Fremont Community Schools is public agency and is therefore required to follow the Open Door Law concerning open meetings and executive sessions, which are only allowed in certain cases specifically codified in the law. "Unless an exception applies, all meetings of the school board must be open at all times to allow members of the public to observe and record," Britt wrote. Although not at issue in this particular case since Fremont did not provide any code citation, Britt addressed an issue that has come up elsewhere in the state with districts attempting to meet in private to discuss COVID-19 policy by citing an exemption that allows for private discussion of school safety plans. In previous opinions, Britt had ruled that exemption is meant for "active threats and responses," which would typically constitute things like security systems, cam- era placement and emergency response procedures in the event of situations like an active shooter. The threat from COVID-19 is not the same and therefore does not warrant private discussion, Britt said. He also noted that the Indiana School Board Association has agreed with his stance on that interpretation"While serious and not to be dismissed, COVID-19 is a passive threat insofar as public knowledge of public health plans will not give COVID a heads-up to target a child or a building. The virus, thankfully, does not have eyes and ears. The harm comes from the virus itself and not from knowledge of mitigation efforts," Britt said. "It is difficult to imagine a scenario wherein those plans — or safety considerations generally — would be compromised if dis- cussions were held during a public meeting." The Indiana General Assembly, during its 2021 ses- sion as it worked on numerous COVID-19 matters, could have provided a new exception in the executive session code to allow for private meetings to discuss virus policy, but did not do so. "Although the Indiana General Assembly addressed the intersec- tion of public health emergency and public meetings during the 2021 legislative session, it did not add any provision to include back-to-school plans under the executive session subsection of the Open Door Law. It very well could have but the appetite to do so was nonexistent. Therefore, this opinion follows the previous informal guidance," Britt said. As to the issue raised in the Fremont case regarding an emer- gency executive session falling within the normal 48-hour notice window, Britt ruled there is nothing in state law that would allow for such closed-door meetings within the two-day period. Notably, the emergency meet- ing statute found in Indiana code section 5-14-1.5-5(d) makes no mention of a potential emergency executive session. Nor does the executive session section 6.1(b) contemplate emergen- cies either. Read as a whole, it does not appear as if the General Assembly intended emergency executive sessions to be a poten- tial construct," Britt wrote. Numerous government agen- cies across the state have held emergency meetings throughout the pandemic to address issues as they happened in real time, but Britt noted he was aware of none that were being held behind closed doors. By August 2021, public officials should not be caught "flat- footed" by changes in infection rates that might warrant changes in public policy, he said. Britt also discounted the notion that a meeting would need to be private because personal informa- tion might be discussed, as the district could reasonably discuss its schoolwide policy in generalities to accomplish the desired outcomes. "Given the meeting took place on a Thursday evening, it does not appear that the community would have been in increased imminent danger if the Board had waited until Monday evening to hold the meeting," Britt said. "Even still, each community knows its situa- tion better than this office and if there was a pending emergency threat with some relative measure of immediacy, perhaps the board could have called an emergency public meeting, but not an execu- tive session." KPC Media Group Executive Editor Steve Garbacz thanked Britt for his review and findings. "As journalists covering many government boards in northeast Indiana, KPC Media Group's staff takes Open Door Law and public access very seriously," he said. "Our goal is always to protect the public's right to know. Usually we can accomplish that in cooperation with local offi- cials, but even in cases when we do seek the opinion of the public access counselor via complaint, we do so in the hope that a defin- itive ruling will serve to help all government officials across all of Indiana avoid similar violations of access laws in the future." "As journalists covering many government boards in northeast Indiana, KPC Media Group's staff takes Open Door Law and public access very seriously." — Steve Garbacz, KPC Media Group executive editor Open Door Continued from Page 8

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