The Indiana Publisher

Page 8 April 9, 2015 The following questions came from the Journal and Courier (Lafayette), North Vernon Plain Dealer and Sun, and Lebanon Reporter: A public school employee was accused of something and then resigned. That employee was communicating on his public email account with his attorney. In a records request, we included a request for any email communication between that employee and his attor- ney. The school district is currently seeking legal counsel on how to respond to that portion of our request. The attorney won't speak with me, but I'm assuming he'll claim it is non- disclosable due to attorney-client privi- lege. Does a public agency have the obliga- tion to withhold from disclosure public email communication between a public employee and the employee's attorney if the agency in possession of that communication was not a party to the attorney-client discussion? You have raised a unique question that I don't think I've seen before. And I don't believe our state courts have addressed this situation. As you noted, I'm sure the employ- ee's attorney will argue all correspon- dence would fall under the attorney- client provisions, but I see the pos- sibility that the employee effectively waived the privilege by using the pub- lic email account. If we look at public records like a library, you have the following situa- tion: The books in the library are avail- able to all in the community to read, just like the general principle in the Access to Public Records Act is that the records of state and local govern- ment units are available for inspection and copying by the public. Now the library may have some rare or old books that are set aside and either unavailable to anyone to pre- serve them or available upon appoint- ment to protect them from damage. Similarly, the legislature has deter- mined that records that cover certain subject matters should be confidential at the discretion of the government unit or are mandated to be confiden- tial. One of those subject matters would be the work product of an attorney working for the public agency. In your situation the question is, Was the attorney working for the employee or the government unit? If the attorney was working for the employee, was it concerning his actions as a government employee or a private matter? If the attorney was representing the government unit, then it probably falls under the attorney work-product exception and could be kept confiden- tial. The same probably would apply if the attorney were representing the employee in a lawsuit concerning the actions taken by the employee in the course of his or her work. But if the attorney were represent- ing the employee for actions outside the scope of work (either a personal matter like a divorce or defending the employee for an illegal act, such as misappropriation of public monies), then I would argue the work product of an attorney representing a public agency would not apply. You're then left with the attorney- client privilege and whether the employee was negligent enough to con- duct his legal correspondence through public email, which falls under the scope of the Access to Public Records Act. Then that employee has effective- ly waived the privilege for those emails because he knowingly put them into an area open to the public. It would be like leaving his legal file on the library shelf where anyone could look at it. I'm publishing our county property tax rates next week. In the past we've run the notice two weeks in both papers (Sun on Tuesday and Plain Dealer on Thursday). When the auditor emailed it to me this time she said to run it one time in each paper. What is the requirement? The county needs to run it two times in both news- papers since you have two separate newspapers in Jennings County. The Zionsville Fire Department refuses to give us the names of the home- owners in a March 29 house fire. They are contending that we need to file a public records request for an incident report. They said they rely on information dispatch sends out and never give names in press releases. Government agencies can always require the filing of an Access to Public Records Act request if they want to insist on it. In the case of most police or fire departments, they know the beat reporter is going to be asking every day, so they generally work out a sys- tem for the reporter to get the reports without having to make the same writ- ten request over and over again. I think you need to talk to the fire chief and possibly the mayor about the newspaper's desire to get copies of the "INFIRS" reports. Those are the state's version of the National Fire Incident Reporting System. They should be completing these forms so they are eligible for Fire Act grants. These are disclosable records, according to an attorney for the Indiana Department of Homeland Security, although there are some exceptions. If the fire run is to provide medical service, then there's a concern with HIPAA. Erring on the side of caution, they may withhold information about an injured person in those cases. The other exception is that if the fire was intentionally set, the report may be considered an investigatory record, which means they would have the dis- cretion to keep it confidential (but they don't have to). Most of the fire runs are not going to bump into either situation, so you should be able to set up a system to get copies of the reports and then deal with the exceptions when they pop up. Contact Steve Key, HSPA executive director and general counsel, with media law questions at skey@hspa.com or (317) 624-4427. I n 23 years with the Hoosier State Press Association, I thought I'd heard every argument for keeping a public record confi- dential. I was wrong. According to columnist Dave Bangert at the Journal and Courier (Lafayette), the West Lafayette school dis- trict created what I'd call the "Cover Your Butt" exception to public disclosure. Here's the background: A West Lafayette citizen- activist, Zach Baiel, asked for a copy of the district's record- ing of a December school board meeting. The initial response was that the copy would cost Baiel between $75 and $100 because the school district would have to spend three to four hours, at $27 an hour, to review and redact the audio recording. What would they be redact- ing from a recording of a pub- lic meeting? Superintendent Rocky Killion argued that he want- ed to protect the district from possible violations of the fed- eral Family Education Rights and Privacy Act, which pro- tects student educational records. While it would be concern- ing if the school board in a public meeting were discuss- ing the educational records of individual students, the Indiana legislature has not listed an attempt to cover one's butt as a basis to keep public records confidential. On the contrary, public records are available for inspection and copying so that citizens can monitor the actions of elected officials and public employees. Public Access Counselor Luke Britt easily concluded that the contents of a pub- lic meeting should not be redacted. After Britt released his opinion, the school district offered Baiel an audio record- ing for $43, but he declined. Bangert writes that the school district's defense given to Britt through their attorney Bob Reiling listed other concerns with satisfy- ing Baiel's frequent record requests: • Baiel had asked for cop- ies of the school packets pre- pared for board members for four school board meetings. Reiling said legal reviews of Baiel's multiple requests took 21 hours and cost $5,500, not including staff time to respond. • Baiel attended the December meeting so there was no need for him to have a recording of the public meet- ing. • Baiel directly contacted school board members at their homes. (Baiel has noted that home numbers are listed under contacts on the school district website.) • Baiel isn't a member of the media. The school district appar- ently doesn't appreciate the intent of the Access to Public Records Act that "all persons are entitled to full and com- plete information regarding the affairs of government and the official acts of those who represent them as public offi- cials and employees." There should be no need to have an attorney review the board packets before release. Records prepared for an executive session could be removed, but the other records, if presented at a public meeting, are subject to disclosure. It would be easy for the administration to print an extra copy of the school pack- et at the same time it is copy- ing for the board members. Certainly there's no need for $5,500 in legal review of public records. Attendance at a public meeting doesn't eliminate the right to request records of that meeting, including an audio recording made of the meeting. As Bangert reported, Baiel wanted an accurate record of the responses to his questions asked during the board's public comment portion of the meeting. I'm at a loss to explain a concern with citizens con- tacting elected officials and why the school district would object to contacts made to one's home if the school board listed home numbers with their contact information. It's correct that Baiel isn't a member of the media, but the law serves the public – that's everyone, not just the media. West Lafayette school offi- cials can review the Access to Public Records Act. They should focus on the following in the first section: "Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employ- ees, whose duty it is to pro- vide the information." Steve Key is executive director and general counsel for HSPA. Key Points By Steve Key Public meeting needs no redaction HSPA Hotline A A A Q Q Q T he Indiana State Library announced that over 1 million Indiana newspaper pages are currently available online. As part of an agreement with Ancestery.com, the state library provides a portal through Newspapers.com that allows any Indiana resident to view the digitized newspapers. Residents of Indiana can go to http://blog.newspapers.library. in.gov/access/inspire/ and follow the easy instructions on how to access the Newspaper.com content through Inspire, the state's virtual library. "This is an exciting resource for Hoosiers," said Chandler Lighty, the state library's digital initiatives manager. "This resource should have over 2.5 million pages by the end of 2016." Currently, there are titles available from Fort Wayne, Greenfield, Charleston and Logansport. Titles from Angola, Argos, Brazil, Bremen, Bristol, Brookville, Clinton, Columbia City, Culver, Edinburgh, Evansville, Fairmount and Garret will be available over the next year. In addition to the titles avail- able through the Newspapers. com portal via Inspire, the Indiana State Library has another collection of over 225,000 digitized newspaper pages available at www. HoosierStateChronicles.org. Both collections are growing monthly. To track recent uploads and developments, visit the project's blog at blog.newspapers. library.in.gov. Library offers over 1M newspaper pages online

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