GREENSBURG – Indiana’s top public records expert encouraged civility and cooperation from government officials and residents to avoid antagonistic situations when residents request public records or want to speak at public meetings.
“The best way to have an open exchange … is through cooperation,” said Luke Britt, Indiana’s public access counselor, an office that is publicly funded and provides advice and assistance concerning Indiana’s public access laws to members of the public and government officials and their employees.
Britt, appointed by Gov. Mike Pence in August, was at Greensburg’s City Hall Friday morning to give a presentation about the Open Door Law and the Access to Public Records Act and to answer questions from government officials and residents. About 30 people attended, including city and county officials and people who had filed complaints with Britt’s office.
Britt’s office also publishes advisory opinions regarding access to public records and Indiana’s Open Door law — though he cannot compel public agencies to provide records to residents or to open meetings to them. Only a court can force a public agency to disclose a record or provide access to a meeting.
Britt previously served as an attorney and operations manager for the Indiana State Department of Health and as an attorney for the Department of Child Services, but said that he is not beholden to any political party or office but acts independently and is simply charged with interpreting the law.
Britt said recently that he sometimes receives invitations from communities around the state to provide general information about access to public records, but he decided to give a presentation in Greensburg because he had received about a dozen complaints from the Greensburg area in the last few months and has issued three or four advisory opinions on complaints from the area.
Britt briefly explained the two primary laws on which he provides guidance:
• The Open Door Law, originally passed by the Indiana General Assembly in 1977, was enacted to permit the public access to meetings held by public agencies.
• The Access to Public Records Act, passed in 1983, gives residents broad and easy access to public records — applications for permits and licenses, contracts to which the state or local unit of government is a party, survey plats, commission, board and committee reports and recommendations, and transcripts of public hearings in which testimony was taken — so that they can more fully participate in the governmental process.
Britt said that while the ODL allows members of the public access to public meetings — except executive sessions, where officials can discuss certain matters such as hirings, firings and disciplinary actions, though they cannot make decisions in such sessions — the statute does not provide residents with the right to speak at such meetings.
Britt said, however, that he encourages public agencies to allow members of the public to speak at public meetings. Agencies generally can adopt their own procedures for how the meetings are run.
When he fields complaints about public meetings, Britt said that sometimes the public agency’s attitude matters. If an agency expects a large turnout to a public meeting, and despite repeated requests refuses to change the venue and because of space issues prevents people from attending that meeting, it may be in violation of the Open Door Law. If, however, an agency is blindsided by a tremendous turnout and cannot accommodate all visitors, it may not be in violation of the law.
The Access to Public Records Act spells out what documents public agencies must disclose and which they can hold back, and Britt said that he tends to scrutinize closely when a public agency says it does not want to disclose a record because it its “deliberative,” meaning it is a work product that helps the agency reach a decision.
But residents also must make their requests “reasonably particular,” and they should not expect to receive a favorable ruling from Britt if it appears that they are on a fishing expedition or on a witch hunt.
The purpose of the law is to provide citizens access to records so that they know what their officials are doing, he said.
Residents can ask, for example, for a specific document, such as the city’s budget from 2009, or minutes from a public meeting, but they can also request emails sent between two public officials during a certain period pertaining to a certain subject. Resident cannot expect to successfully request all records an agency has stored in a certain room.
Agencies also do not have to provide the specific information that residents are seeking if the record does not already exist. For example, a resident may request to see the city’s budgets for the last few years (because that record already exists) — but if the resident wants to know the average annual increase in the budget, he will have to obtain the proper records and do the math himself.
“You have to make it available,” Britt told the public officials who were present. “That’s all you have to do.”
Public officials also can ask that residents who are trying to obtain public records, go through a particular process, such as filling out a form or filing the request with a specific office.
If a resident files a request in person, the agency has to acknowledge within 24 hours that it has received the request. If the request is made by email, mail or phone, the agency has seven days to acknowledge receipt of the request — but that does not mean the agency has to produce the records in that time frame.
Agencies have a “reasonable time to respond” to provide the requested records, Britt said.
He acknowledged the term was vague, but said the time frame depends on the records that are being requested. Whereas fulfilling a request for minutes of last month’s city council meeting should take no longer than a week to 10 days, disclosing all minutes of all city meetings in the last five years may take a little longer, because agencies have duties other than to respond to public records requests.
To avoid antagonistic situations and threats of lawsuits, Britt suggested that public officials establish clear procedures and that both officials and residents communicate with one another civilly.
Greensburg Mayor Gary Herbert and a local resident who has filed a complaint with Britt’s office said they appreciated the Access Counselor’s visit.
“I think the meeting was very informative,” Herbert said.
He said he thought it the session proved helpful for both city and county officials and local residents.
“We want transparency. We want to help,” the mayor said.
“I thought (the session) was great,” said Hershel Houk, who filed a complaint last year because he thought a city office did not properly and fully respond to his records request.
“I got information I wasn’t aware of,” Houk said.
Houk said he is considering legal action against the city because he believes it has continued to keep records from him.
More information about the Public Access Counselor’s office: in.gov/pac
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