Hoosier State Press Association - The Indiana Publisher
Issue link: https://www.ifoldsflip.com/i/71021
Page 4 Thursday, June 21, 2012 Records exemption shouldn't be abused P the Access to Public Records Act beyond its legislative intent – to the detriment of good public accountability. A case in point: Marion County Sheriff John Layton recently fired Deputy David Carrico. Layton said Carrico assaulted inmate Harry Hooks, who was handcuffed, in the outer bay area of the Marion County Arrestee Processing Center receiving room. Layton told the media that Carrico filed a report that falsely described what hap- pened when Hooks sustained facial injuries. The sheriff also has asked the FBI to look into possible civil rights viola- tions by Carrico. Layton's determination was based on video that captured olice agencies tend to stretch the "investigato- ry records" exception in the incident. The outer bay is equipped with a video surveillance camera that operates con- tinually. The Indianapolis Star requested to view the video, but Layton denied the request, calling the footage an investigatory record. But under Indiana's Access Points By Steve Key Key to Public Records Act, a pub- lic record that becomes part of a criminal investigation isn't necessarily an "investigatory record" that can be shielded from inspection and copying. The video no doubt will be evidence in any criminal pros- ecution of Carrico. But the definition of an "investigatory record" is information "compiled in the course of the investigation of a crime." There was no investigation occurring when the 24/7 video camera was recording what- HSPA Hotline from the South Bend Tribune, The Daily Reporter (Greenfield) and The Indianapolis Star: The following questions came Q A board president told me there are 13 applicants, but he refused to release their names. He said he will do so after the dead- Bend school board member resign. The school board is taking applications to replace her. The school We recently had a South line. Does he legally have to give us the names now? If so, could you cite the code that requires this? related provision under the Access to Public Records Act (IC 5-14-3-4(b)(12). The Open Door Law provision Open Door Law provision for executive sessions (IC 5-14-1.5.6.1(b)(10) and a allows a governing body to hold an executive session when considering the appointment of a public official to: • Develop a list of prospects • Consider applications • Make a first cut of the candidates to narrow the field. The Access to Public Records provi- sion allows a public agency to keep records prepared for an executive ses- sion confidential. But after the first cut, the govern- ing body under both provisions is required to provide identifying infor- mation regarding the remaining can- didates. They also can't cut the num- ber of candidates to fewer than three unless there were fewer than three to begin with. Also note that any interviews of This would fall under the sion, but he doesn't say when that will be. sioners are regularly scheduled to meet every Tuesday morning, they can simply come into an open meeting at any point and make a decision. Can commissioners do this, or do The attorney says because commis- they need to set an exact time for an open meeting? A Q the candidates by the governing body must be done in a meeting open to the public. So the president doesn't have to [IC 5-14-3-4(b)(10) & (19)], but I don't believe it would give the fair commis- sion a blank check to deny a records request. For example, (b)(10) allows confi- A provisions that provide confidentiality of records when it comes to security give you any of the names until they have an executive session to make an initial cut of the more than 13 candi- dates. If he gives you the full list after the deadline, he's doing more than he would be required to do by law. Q they have called an executive session for 8 a.m. to discuss a personnel mat- ter. The county attorney says the com- Board of Commissioners normally meets at 8 a.m. every Tuesday. Next Tuesday, however, The Hancock County to the Open Door Law provisions to give notice of meetings (other than administrative function gatherings) and cannot claim they are in continu- ous session to avoid the law's notice requirement. I believe that if they are going counselor issued an opinion in 1998 that said county commissioners are subject to take a final action on a person- nel matter, the public has a right to attend that meeting, which they reasonably can't do if there isn't a specific start time for the public meeting. refused to release any part of the plan. They say state law allows for the Commission has revamped its emergency procedures in light of the stage collapse, but the commission has The Indiana State Fair secrecy. Are they correct? There are a couple of The Indiana public access ever transpired in front of its lens in that bay area where police unload those who have been arrested, so the tape should not be considered an investigatory record. When a public agency cre- mandates or gives the agency the discretion to declare that record confidential. When the video recorded Carrico slamming Hooks to the ground, according to Layton's account, there wasn't any statutory exclusion pre- scribing or allowing secrecy. This legislative-limited defi- ates a record, its status under the Access to Public Records Act is also created. The presumption is it's a record that the public has a right to inspect and copy. The burden lies with the public agency to find a statuto- ry basis that existed when the record was created or received by the agency that either nition of investigatory records is intentional. In the Marion County incident, residents fortu- nately have a sheriff who was repulsed by what occurred. He acted immediately to fire Carrico and initiate a crimi- nal investigation. But what if Marion County had a sheriff who was more concerned about how disclo- sure of the reported assault might impact a re-election bid or who believed Carrico's account and didn't see a need to verify through a viewing Training Continued from Page 1 Office, the Indiana Public Access Counselor's Office, the Hoosier State Press Association and local newspa- pers sponsor this year's Public Access Seminar series. "Strong attendance at last year's seminars by citizens makes it clear that Hoosiers want to know how their government officials make decisions and spend their tax dollars, but they need the tools to gain access to that valuable information," said Indiana Attorney General Greg Zoeller. "Government officials and their law- yers may need to brush up on their obligations to keep meetings open and records public and learn about the new legislation passed this year, so the free Public Access Seminar series is good training on transpar- ency for both audiences." Accountability is key to a function- The Indiana Attorney General's ing democracy, said Steve Key, execu- tive director and general counsel of the Hoosier State Press Association. "The state's public access laws give citizens the ability to know what gov- ernment officials and employees are doing or contemplating with taxpayer dollars," Key said. At the kickoff sessions June 19 in Indianapolis, sponsored by The Indianapolis Star, the public has had two opportunities to attend. A morning session at the Indiana Government Center South drew near- ly 250 registrants, and 60 signed up for an evening session at The Star. At the Public Access Seminar work- dentiality for records whose release would jeopardize a record-keeping or security system, and (b)(19) allows confidentiality of records whose dis- closure could threaten public safety by revealing a vulnerability to terror- ists. High winds and tornados don't read emergency plans, so the fair commis- sion should have no reason not to reveal the plans to deal with weather threats – unless members are con- cerned that someone might point out a flaw in the plan. Of course, that's an argument for missioners may come out of executive session and vote on the personnel issue immediately after the executive ses- director and general counsel, with media law questions at skey@ hspa.com or (317) 624-4427. shops, which will be held around the state through October, experts will discuss citizens' rights and officials' responsibilities under the Indiana Access to Public Records Act and Indiana Open Door Law. The panelists will include: • Joe Hoage, Indiana public access of the video or was insulated from the event by a depart- mental culture that protects its own? Public access to the mind- lessly-operated video might be the only way the incident would have come to light. That's the only way to verify a story told by an inmate but discounted by public officials. Release of the video is the right thing to do. It won't hinder the ability of the FBI to interview witnesses or for Carrico to receive a fair trial. It will recognize the fact that government officials serve the public, which has the right to know what pub- lic officials and employees are doing with the authority granted them by the public in a democracy. director and general counsel for HSPA. Steve Key is executive counselor, the state official who issues opinions on whether actions violate access and meeting laws. • Deputy Attorney General Anne Mullin O'Connor, who also serves in the attorney general's Advisory Division and previously was the state's first public access counselor. • Steve Key, executive director and general counsel of the HSPA. • Deputy Attorney General Matt Light, chief counsel of the Advisory Division of the Attorney General's Office. Here is an initial itinerary of addi- tional Public Access Seminar sites and dates. Additional details will be announced soon. • South Bend: Tuesday, June 26, Center for History, 808 W. Washington St., sponsored by the South Bend Tribune. • Bloomington: Thursday, July 26, Ernie Pyle Hall, Indiana University, sponsored by the Center for International Media Law and Policy Studies at the IU School of Journalism. • Sellersburg: Thursday, Aug. 16, location to be determined, spon- sored by the News and Tribune (Jeffersonville) • Auburn: Thursday, Aug. 23, National Military History Center, 5634 County Road 11A, sponsored by KPC Media Group. • Logansport: Thursday, Sept. 6, location to be determined, sponsored by the Kokomo Tribune and Pharos- Tribune. • Washington: Thursday, Sept. 20, location to be determined, sponsored by the Washington Times Herald. • Portland: Thursday, Oct. 4, Arts Place, 131 E. Walnut St., sponsored by the Commercial Review. To register, contact the Attorney General's Office at 317.233.6143 or register online at http://www.in.gov/ attorneygeneral/2840.htm. Attorneys who register and attend can qualify for 2.0 hours of free CLE. 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