The Indiana Publisher

Page 4 December 8, 2011 Case opens private emails of public officials I llinois' public access counselor has ruled that private email of public officials, if the subject mat- ter is public business, falls under the scope of the state's Freedom of Information Act. The binding opinion was sparked by a request for emails and text messages sent and received by the Champaign mayor and city council members during council meetings and study sessions over a two-month period. The request was made by The News Gazette (Cham- paign) reporter Patrick Wade. Deputy City Attorney Trisha Crowley argued that emails and texts sent from private phones and on pri- vate email accounts were not public records under Illinois' Freedom of Information Act and that messages that were of a personal nature and not relating to public business also should not be subject to the access law. Michael Luke, chief of the Public Access and Opinions Division in the Illinois attor- ney general's office, agreed that emails relating to a public official's personal life – messages about family matters or personal business meetings, for example – were not public records under Illinois law. But he said emails con- cerning the transaction of city business were subject to the act and copies should be made available to the reporter. The city of Champaign, at the writing of this column, had the opportunity to appeal Luke's opinion to a circuit court. Since public business performed on private email accounts has been an issue in Indiana, how would have the reporter's request played out under Indiana law? As to the exclusion of non- public business emails or texts from public scrutiny, I think a ruling would be dif- ferent under Indiana law if private email of public offi- cials was found to be a public record. Key Points By Steve Key Illinois' Freedom of Infor- ma tion Act defines public records as "[a]ll records … and all other documentary materials pertaining to the transaction of public busi- ness, regardless of physical form or characteristics, hav- ing been prepared by or for, or having been or being used by, received by, in the posses- sion of, or under the control of any public body." Luke excluded the personal emails because they didn't pertain to "the transaction of public business." Indiana's Access to Public Records Act defines public records as "any writing, paper, report, study, map, photograph, book, card, tape recording, or other mate- rial that is created, received, retained, maintained, or filed HSPA Hotline These questions came from The Republic (Columbus), The Banner (Knightstown) (two inquiries), and the Cedar LakeLowell Star (Crown Point): Q A Q A Do you know if there is a record retention requirement for public notice advertise ment affidavits? Our cur rent policy is to keep them for seven years, which seems to be overkill to me. Seven years has always been the rule of thumb for the time to preserve tax records, but I think most actions that could be initiated concerning matters requiring public notice would be two years. Factoring the court time elapsed before discovery starts in earnest, I'd say three years would be a safe time period to maintain your records. If a request came in for proof of publication after three years, the newspaper could always rely on its archives to find the notice in ques- tion. Does the day after Thanksgiving qualify as a "holiday" under the Open Door Law's notice provi sion? Would the answer vary depending on whether an individual town treats it as one for its employ ees, or is it recognized as such by the state? I don't know of any public agencies that were open that day. The Open Door Law pro- vision lists "legal holidays," and there is a statute (IC 1-1-9-1) that lists the legal holidays for Indiana. That code sec- tion states they are holidays "for all purposes." So I think a judge would rely on this list and not days taken by various local government units in attempting to interpret the legisla- ture's intent. Q A town wants to hire a utility rate consultant in connection with a sewer improvement project, and the council wants to receive information about and interview one or more prospective consultants in executive session. The town cited IC 5141.56.1(b)(5) as the basis for an executive session, but since the consultant is an inde pendent contractor and not a town employee, that doesn't seem right. I wondered if (b)(4) might work for them but wasn't sure whether rate consultants qualify as "industrial or commercial prospects" as that subsec tion requires. Do you know if that subsection is generally read to allow interviews and negotiations with all sorts of inde pendent contractors, including rate consultants? Or is it restricted to industrial or commercial prospects that are geared toward economic growth and develop ment? boards [(b)(10)], but not for indepen- dent contractors. Interviews and discussion about A SAVE THE DATE! Annual Meetings Feb. 16-17, 2012 Indianapolis Fayetteville Observer's Platinum TV ad package exceeded revenue goal in less than a week! 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 those types of positions should be done in open meetings. There are executive ses- sion provisions for hiring employees [(b)(5)] and mak- ing appointments to other If they want to have a formal inter- view process and not give one candi- date an advantage over another, they can ask that candidates stay outside the meeting room until it's their turn. I believe the rationale for not hav- ing closed sessions with consultants is to prevent the possibility of consul- tants tempting governing bodies with incentives to pick them – money for election campaigns, kickbacks, etc. I don't think (b)(4) is appropriate because the hiring of a consultant is separate from discussions about the industrial or commercial project. Q A few years ago the Indiana public access coun selor chastised the prede cessor of a new community development corporation for holding closeddoor meetings that also were not accessible to people with dis abilities. The current city administration decided to disband that corporation and incorporated the new Crown Point Community Development Corp. to handle passthrough loan money for economic growth in the city. The new corporation's president and the mayor's chief of staff insist that the corporation is not a part of city government. Not all of the corpo ration's funds will be taxgenerated. Some will be private. The Crown Point Community Development Corp. was incorporated with city hall listed as the mailing address, and the cost of incorporation was paid for by a check from the city's clerktreasurer. Even if the corporation takes dona tions from private parties, will the way it was set up tie it to public scru tiny, and will all meetings be subject to the Open Door Law? A I'll give you my take on it so you can do some follow- up. If the city officially created this corporation and controls its board appointments, oversees its budget, etc., that would make me believe it is a public agency under the state's pub- lic access laws and is subject to their provisions. If the old corporation board voted to dissolve and a different set of play- ers created the new corporation, even though the city may be a player, it might fall outside the scope of the access laws. How are the board members select- ed? Have you checked with the secre- tary of state's division of corporations to see what papers have been filed with it by this new corporation? What are the new entity's bylaws? How much money is the new corpo- ration getting from the city or other local government units in the form of a subsidy? Or is the money received based on a fees-for-services basis? Is the new corporation subject to audits by the state board of accounts? Until we know more about the cre- ation of the new corporation, I can't say whether they've successfully avoided the Open Door Law or not. If they have, obviously that's a story as to why it was created to allow secrecy. Contact Steve Key, HSPA executive director and general counsel, with media law questions at skey@ hspa.com or (317) 6244427. by or with a public agency and which is generated on paper, paper substitutes, photographic media, chemi- cally based media, magnetic or machine readable media, electronically stored data, or any other material, regard- less of form or characteris- tics." There isn't a subject mat- ter limit in our definition, so regardless of the subject mat- ter all of the emails would fall under the scope of the Access to Public Records Act if the private emails were deemed to be public records. Indiana's definition keeps the door open to access records that might indicate ghost employment, use of public resources for private gain and inappropriate use of public email accounts. On the question of whether the personal email accounts and text messages would fall under Indiana's law, I'd say no. The scope of the Access to Public Records Act is based on the connection of the record with the public agency, either through its creation or reception. The personal emails of offi- cials would have to be sent to a public agency's email account before they would fall under the scope of the law. Does this open the way for public officials to avoid government transparency by conducting business through private communication chan- nels? Yes, but that's always been the case, whether through clandestine meetings or phone conversations on home phones in the evening. Legislators in the past have loudly voiced their concerns over the public's ability to seek personal emails. They almost excluded the General Assembly from the Access to Public Records Act over this very issue. So while the Illinois ruling is intriguing, I don't see it impacting Indiana practice or law. Steve Key is executive direc tor and general counsel for HSPA.

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