The Indiana Publisher

Page 4 December 5, 2013 Public notices face new opposition T he publication of public notices was under attack Monday from an unlikely source – Department of Local Government Finance Commissioner Micah Vincent. Unlikely because the department has been an advocate of government transparency for several years. I hope the reason is a lack of understanding of the purpose and value of publication in local newspapers. That's what my testimony focused on Dec. 2 before a joint meeting of two legislative committees charged with studying state taxes. The point of public notice is to put information in places where people not necessarily looking for it are likely to find it. A Department of Local Government Finance website – as Vincent advocated for – is not that place. The four elements of effective public notice are: • Distribution by an independent third party • Historical preservation of the records •Accessibility to all segments of society • Verifiability. A Department of Local Government Finance website doesn't meet those standards. Vincent's argument that a website is better ignores the preference of the public. The American Opinion Research poll (from 2004, the most recent Indiana figures) found that 73 percent of Hoosiers said local and state governments should be required to publish public notice advertising in newspapers. When a follow-up question pointed out that government units must pay for the publication, 73 percent continued to say the notices should be placed in newspapers. Bob Sigelow of the Legislative Services Agency reported to the committees that the estimated cost of the notice of budget hearing ads was $427,000. That's an average of $4,641 per county. In Adams County, for example, that would represent 23 notices for 23 units of government. State Sen. Brandt Hersh man, R-Buck Creek, expressed surprise that the cost wasn't greater. Key Points By Steve Key I pointed out that the General Assembly since 1927 has capped the price newspapers can charge government entities for publication of public notices and that cap doesn't take into account the impact of circulation like normal advertising rates. Comparing the cost of a 3-inch deep, 1-inch wide notice set in 7 point type in the Pharos-Tribune (Logansport) to comparable dailies in surrounding states would find the Indiana newspaper charging $7.66 compared to a range of $28.35 to $41.58 in Illinois, Michigan, Ohio and Kentucky. The state legislature has mandated a bargain for local and state government units. Based on Association of Indiana Counties numbers presented to the General Assembly in the 1990s and HSPA Hotline The following questions came from the South Bend Tribune, Daily Reporter (Greenfield), and Mount Vernon Democrat: Q I'm going to be reporting on the expanded police powers of school resource officers. I'm hearing that students as young as fourth grade are being given misdemeanor citations for things as benign as using profanity. This has real-life implications in terms of fees and creating a criminal record. Are the citations given to students a public record? Should we be able to get copies of those from the police department that employs the school resource officers? A If school resource officers have been given arrest powers, then they fall under the definition of a law enforcement agency. Therefore the same requirements for releasing information should apply to them as they do for a city police or sheriff's department. I would argue that the citations are public records accessible to the public for inspection and copying because we don't allow the police in Indiana to operate in secret. Who processes the citations can impact the availability of records. If the juvenile court is in charge, then we'll have to look at the statute that gives the judge discretion as to openness of cases where the juvenile is not being accused of an act that would be a felony if committed by an adult. In general, court records are open for inspection and copying. If a juvenile gets a speeding ticket, it isn't handled any differently than an adult ticket. Where it becomes different is if the prosecutor has filed a petition alleging juvenile delinquency. Then the judge has discretion to close proceedings unless the allegation was for an act that would be a felony if committed by an adult. I'd approach the court with a request to inspect or copy the records of citations issued by the school resource officer during a specific time frame. Let's see what the response is. If it's a denial, ask for the statutory basis for the denial so you can understand why it would be kept secret. See if the court can produce one. Q A grand jury convened last week and delivered indictments for two Hancock County parents – one count of neglect resulting in death each. We know grand jury proceed- ings are sealed, but the prosecutor has told us the original police report was never introduced into evidence and therefore should be a public record. Our local police folks, and even the judge, say that grand juries are so rare around here that no one knows what should be public and what is not. Police for now have denied us the report. Can you provide some guidance? A Grand jury proceedings are secret, but the indictment would be a record that should be available for inspection and copying. The original police report, regardless of the fact it became the subject of a grand jury, would be an investigatory record, which the police have the discretion to make available to the public or keep secret. What you do have the right to get from the police is the "daily log or record" created 24 hours after the request for assistance came to them concerning the case, if the police were called. That's created under the Access to Public Records Act at IC 5-14-3-5(c). The provision outlines what needs to be included in the daily log when an incident has been reported. So armed with the code citation, I'd ask the police for the daily log report on the incident that would have been created the day the police were called, or no later than the next day. They probably don't create a separate "daily log" but take the original police report and redact it to protect certain items that aren't required under the Access to Public Records Act. That should be OK with you because you still get some details from the daily log, even if it is a redacted police report. Q A extrapolated out to account for allowed legislative increases, the average cost of publication of public notices per adult Hoosier would be 41 cents a year. Even if the association's number was off 50 percent, the cost would still only be 61 cents, less than the cost of a hamburger off the value menu at Wendy's or McDonald's. Vincent, like some other public officials, declare that posting on a website effectively puts information into the hands of the public. This belief is shared by bureaucrats at the Indiana Department of Environmental Management, who dropped the publication of federal air quality notices in favor of website posting. But IDEM's webpage containing 133 notices averaged only 105 unique visitors a week over a six-month period when HSPA checked earlier this year. For comparison, the Rising Sun Recorder in southeast Indiana has a circulation of approximately 1,100. The 2004 poll found that 66.7 per- Notices Continued from Page 1 Hesson, a member of the advisory commission, supported Vincent's contentions. He called newspapers a "creature of the 19th century." No members of either commission asked Vincent any questions after his presentation. State Sen. Brandt Hershman, R-Buck Creek, chairman of the State Tax and Financing Policy commission, had a question for Key following his defense of newspaper publication of public notices. "Some people would say taxpayers pay twice for publication in newspapers: once to place the ad and once to buy the newspaper compared to the free access to an Internet site," Hershman said. "Any comment you'd like to make to that contention?" Readers don't purchase a newspaper just for public notices, Key said. They pay for a newspaper to get all the stories about their community, whether it's a story about Friday's football game, the weekly grocery store ad or news about a council meeting, he said. "That's the strength of publishing notices in the newspaper," he said. "People don't know that budget hearing notices are published in cent of Hoosiers recall seeing public notices and that seven out of 10 of those individuals said they read the notices. Out of that group, seven of 10 said they read public notices always, often or sometimes. That puts public notice advertising readers at 32.7 percent of Ohio County's adult population of 4,777 (2011 census) – that's 1,562 adults. Even if you argue it should only be 32.7 percent of subscribers, that's 366 Rising Sun Recorder readers. So putting a public notice advertisement in the largest county newspaper that has the smallest circulation of any county still will get the notice seen by more eyeballs than see it on a state government website. That shouldn't be surprising since 62 percent of Hoosiers told pollsters they would be less or much less likely to see public notices posted on government websites. Website posting effectively hides notices in plain sight. Steve Key is executive director and general counsel for HSPA. September, but they discover the notices while reading the rest of the newspaper." Key pointed out that most Hoosiers don't know a state Department of Local Government Finance even exists and therefore aren't likely to go to its website to check on budget hearing notices. The committee took no action on proposals to improve the notice of budget hearings or to eliminate the publication requirement at the meeting. In other discussion, committee members agreed that tax rates currently published by local government entities generally are inflated. State law says the advertised rate can be decreased but cannot be increased, even if assessed valuations of properties fall short of the amount on which the government unit based its budget. The timing of the budget process puts governing bodies in the position of approving a budget before knowing what assessed valuations will be, even though that number is the key to how much the tax rate will be and how much tax revenue will be generated. Key testified that this is a decades-old issue, recalling his days as a reporter who would write stories about advertised tax rates with comments from local officials that the real rate would likely be much lower. Can we use an image of Betty Boop in a birthday ad? Betty Boop is a copyrighted creation. Unless you are using it to illustrate a news story, you run the risk of receiving a letter asking for compensation for violation of that copyright. That's particularly risky with an advertisement for which the newspaper received payment. Contact Steve Key, HSPA executive director and general counsel, with media law questions at skey@hspa.com or (317) 624-4427. 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

• Cover