The Indiana Publisher

Page 4 November 24, 2011 Opinions on obtaining emails burden citizens T he new Indiana public access counselor has added another link to a chain of opinions that severe- ly limits the public's ability to review email exchanges of government officials and employees. The problem began with a 2009 opinion by then-PAC Heather Neal that addressed email and the question of "reasonable particularity." Neal's view was that email records requests should be tied to the subject matter sought. Consequently, she believed a request for all email of a specific government employee, even if limited to a certain time frame, did not fit the requirement that public records requests be reason- ably particular. Neal's ruling uses a dic- tionary definition as the guidepost for the intent of the law. Her opinion strays from the legislative mandate that the Access to Public Records Act be tilted toward citizen desires and the common-sense intent of legislators that gov- ernment be transparent. The first section of the Access to Public Records Act says the statute "shall be liberally construed to imple- ment this policy and place the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record and not on the person seeking to inspect and copy the record." Neal's 2009 opinion, fol- lowed by the next PAC, Andrew Kossack, and current PAC Joe Hoage, deviates from that philosophy by crimping the public's ability to investi- gate what public officials are doing. Their opinions require the requester to either know the names of two parties exchang- ing email or the subject mat- ter of the emails to make a HSPA Hotline The following ques- tions came from the Daily Journal (Franklin), Princeton Daily Clarion, Vevay Reveille-Enterprise and The Switzerland Democrat (Vevay), and Sullivan Daily Times: Q A A school dis- trict held an executive session under the Open Door Law provi- sion concerning litigation. We understand that the school board used that session to hold a hearing on a grievance filed by the teachers union concern- ing benefits for substitute teachers. Does that fit the excep- tion noted for the executive session? A grievance complaint gen- erally doesn't include a threat of litigation. The exception in ques- tion would require the school board to limit dis- cussion to ongoing litiga- tion, litigation that has been threatened in writing or litigation the board is considering filing against someone else. Without a written threat as part of the complaint, the school board should not have met behind closed doors. Even if the grievance contained the required threat, the school board would be in viola- tion with the executive session because it appears to have included the union representatives in the ses- sion and conducted a hear- ing on the issue. The litigation provision, found at IC 5-14-1.5-6.1(b), states the session can be used only for discussion of strategy and cannot include the other side to the dispute. Q We received a tip that a newly elected official in the county was arrested on felony charges in Illinois in the past. When we checked with the Illinois court, we were told the records have been sealed. How do I verify this? A It sounds like you have a situation where someone who was arrested years ago has taken advantage of a state law that allows records to be sealed or expunged. Indiana recently expand- ed its expungement law. The idea is to give indi- viduals a second chance at employment without having to reveal that they were either arrested or convicted, depending on the state's law, of a felony. The best bet to track down whether there was an arrest is to check with the newspaper in the Illinois county where the reported crime took place to see if the person's name pops up in the paper's archives. Q A Would an unannounced meeting of the school board to discuss items it wants placed on the agen- da by the school superin- tendent for the next public meeting be in violation of the Open Door Law? Yes. Even though the school board argues that it wasn't a meeting because no votes were taken, the elements of a meeting under the Open Door Law [IC 5-14-1.5-2(c)] are a quorum taking official action on public business. Official action is defined in IC 5-14-1.5-2(d) as receiving information, deliberating, making recommendations, estab- lishing policy, making decisions or taking final action. Deciding what items should be discussed or not at the regular meeting of the school board would be official action on public business. If a majority of the school board was gath- ered for that purpose, they had a meeting, and the board should have prop- erly notified the media and public. Q A A family is upset with the newspaper because an obitu- ary published a cause of death as a type of cancer that can result from a sexually transmitted disease. Another member of the deceased's family submit- ted the information. The unhappy family members made a threat of a law- suit. Is there any liability in what the paper published? I don't see the basis for a law- suit. The family can't file a libel lawsuit because the victim is deceased. You can't hurt the feelings of the dead. The question of medical privacy is moot because the federal Health Insurance Privacy and Portability Act covers medical providers, not family members. While the newspaper doesn't have any legal liability in the publication of the obituary, the staff might consider the extent of the facts it wants to include when there may be a stigma attached to a cause of death. Just saying the death was the result of cancer without listing the type may have been a better course of action in this case. Contact Steve Key, HSPA executive director and general counsel, with media law questions at skey@hspa.com or (317) 624-4427. Fayetteville Observer's Platinum TV ad package exceeded revenue goal in less than a week! Key Points By Steve Key valid records request. In defense of her opinion, Neal used the example that a request for all mail a public agency received in a 100-day period would lack reasonable particularity. I agree that hard-copy mail received by an office over that time frame or even shorter would not be reason- ably particular because the agency would be hard-pressed to identify that mail after it had been opened, distributed, filed, shredded, etc. But building on Neal's mail rationale, if the mail was allowed to collect in a basket for a day or so before it was distributed and I came into the office and requested a copy of all the documents in the basket, the public agency could easily identify the records I've requested and make copies for inspection unless some of it fell under a category allowing confidenti- ality. An informal opinion request by The Banner (Knightstown) sparked Hoage's response that follows Neal's view. As Jeff Eakins of The Banner pointed out, I could ask for copies of checks writ- ten by a public agency over a specific time period and, based on the check ledger, the agency could determine exact- ly what records I want. Similarly, I could ask for copies of the contents of a par- ticular file cabinet, and the agency would know exactly what records I requested. I may have no idea what records are contained in the checks or file cabinet, but that's irrelevant to the ques- Dues Continued from Page 1 attempts to place punitive tax burdens on newspapers, and the association's efforts protect the ability of citizens and the press to know about government actions, he said. Timmons also reminded pub- lishers that HSPA represents newspapers before advertis- ing agencies through Midwest Advertising Placements. This advertising arm of HSPA facilitates the purchase of ad space in Indiana newspapers and promotes such placements with advertising agencies, government units and specific advertisers. In 2011, MAP will have placed directly more than $400,000 in advertising with Indiana newspa- pers and facilitated the placement by agencies of thousands of addi- tional advertising, he said. The dues packet also includes information on a suggested dona- tion for HSPA Foundation and Budgets Continued from Page 1 director and general counsel. "This could flag parts of a local budget that seem out of line, and that can point reporters to ques- tions to ask," Key said. The site allows anyone to access data by property address, view budget summary information and download customizable reports, said Brian Bailey, commissioner of Indiana's Department of Local Government Finance. Local officials also will use Gateway to submit annual reports to the state board of accounts, allowing users to tie budget infor- tion of reasonable particular- ity. Email by its nature allows one to easily determine when a message was received or sent. A requester doesn't have to know both parties of the email to identify that record. The reasonable particular- ity standard was established by the legislature to pro- tect government units from futilely trying to meet an impossible request because they couldn't determine which records fit the request. Email lacks any quality that makes it different from paper documents, yet Neal, Kossack and now Hoage have defined it differently with a string of opinions based on a flawed interpretation. Their opinions fail to take into account the legislative intent of government trans- parency. Steve Key is executive director and general counsel for HSPA. information on a free web-based advertising sales training program the Foundation will offer in 2012. HSPA Foundation hopes to increase the number of newspa- pers contributing to the mission of fostering public understanding of a free press and enhancing the ability of Indiana newspapers to educate and inform the public. Despite the challenges the newspaper industry faces, the majority of members continue to give to the Foundation annually, said Henry Bird, president of the HSPA Foundation board of direc- tors, in a letter to members. "Please know your dona- tion goes directly toward the Foundation's 2012 operating fund," said Bird, senior vice presi- dent for CNHI. "We express our gratitude for your generosity as it allows us to continue and improve our educational services, events, contests and programs." Please contact Steve Key, HSPA executive director and general coun- sel, about any dues questions at skey@hspa.com or (317) 624-4427. mation to expenditure data. In addition, they will report debt information through Gateway. This data, which local officials must submit by March 1, will be made available through the web- site in the spring. "Once Gateway is fully imple- mented, with a few mouse clicks, citizens can obtain local govern- ment budgets, property tax infor- mation, debt tallies, and spending reports," Bailey said. The initiative is a joint effort of the Indiana Department of Local Government Finance, the Indiana Business Research Center at Indiana University and the State Board of Accounts. 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. Ask us about our digital editions! 910-323-0349 | info@newspaperconsultants.com | www.newspaperconsultants.com

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