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Monday, April 10, 2006

Ind. Law - More on the demise of the Indiana Register

The lead article in this week's edition of Indiana Legislative Insight (4/10/06, Vol. 18, No. 18, paid subscription only), begins:

At the end of June, the Indiana Register will cease to exist as you have known it for the past three decades. Beginning in the next fiscal year, it won’t be – to steal an overused advertising phrase – your father’s Register any more.

As a result of a 2005 change in the law, the Legislative Services Agency will be required to publish the Indiana Register “in electronic form only.” While the 2005 law also required LSA to distribute a printed copy of the Register to each federal depository library in Indiana, the requirement for that printed copy was deleted courtesy of legislation that passed this year.

The Indiana Law Blog has taken a close look at what the changes to the Register may mean, and, with their permission, we’re leaning heavily on that coverage here, and expanding upon it as well.

The Register is the legally mandated method for keeping Hoosiers apprised of proposed and final changes to state regulations. The publication – which is the state’s official legal record – includes notices of intent to adopt rules, proposed rules, and final rules; non-rule policy documents; agency bulletins; gubernatorial executive orders; and Attorney General official opinions. * * *

As the Indiana Law Blog points out, the Register is currently “a ‘paged’ document, formatted just as it has been for 29 years. The electronic edition has the added virtues of a linked Table of Contents (or ‘bookmarks’) in the left column, and the Adobe PDF search feature.” The paper version has been phased out for most subscribers in favor of a CD-ROM version that duplicates the .pdf version that has been available on-line.

According to the ILB’s original reporting, the Register will no longer be available on CD-ROM via subscription, but only via accessIndiana – but we understand that those plans have changed since (and perhaps as a result of) the ILB report.

The new Register will no longer be a paged publication, but rather will consist of individual documents – notices, proposed rules, executive orders, etc., will be posted as individual components. The Register also “will no longer be ‘published’ monthly. There will in fact be no fixed publication dates.”

As I wrote in the March 31, 2006 ILB entry to which the Indiana Legislative Insight (ILI) article refers:
My overall impression was that: (1) although the date of the changeover is to be July 1, 2006, nothing is clear yet about what precisely the LSA is planning to do; and (2) July 1 may be only the beginning of a period of experimentation with the availability and accessibility of these Indiana rules (laws).
That impression is strengthened after reading more of the ILI article, including information the ILI obtained via its own inquiries to the Legislative Services Agency late last week. For instance, according to ILI it remains unclear how often information, now available on a fixed, first-of-of-the-month publication schedule, will be posted once the Indiana Register publication format is abandoned on July 1st:
The legislature has been promised that all documents would be published at least as fast as they would have been published under the hard-copy Register program, and LSA will surpass the old standard easily. But that does not mean that it will change immediately to a daily posting of documents.

Indeed, LSA has not yet officially determined what the interval will be for officially posting documents (the “publication” dates). Current programming is premised on the thought that the Agency may “publish” on a daily basis – possible from a technological standpoint – but officials have discussed other options, e.g. publishing every second Friday, or every Wednesday at noon.

In my opinion, the frequency of publication needs to be decided now by LSA, and publicly announced, and then not changed again without at least 6-months' advance notice. The issue is not so much how often documents are to be posted, but a dependable and reliable posting schedule.

To explain it graphicly, this 2-page chart of the Indiana environmental rulemaking process shows how inextricably tied it is to publication of various documents in the Indiana Register and opportunities for submission of public comments and public hearings that are to occur at various times such as "no less than 30 days" or "21 days" thereafter.

The ILI article also hits on the issues raised by the Indiana Law Blog about dropping pagination and volumes:

Because there will no longer be any paginated monthly issues or annual volumes, citation will apparently be by URL – which is likely to become extremely unwieldy – and line numbers may also be added by LSA for more specific cites.

As one über-user of the Register points out to us, a URL is based on what folder a document is stored in on the server – and these frequently change, even when one assumes that they are in place for eternity. A shift in URLs over the past year by the U.S. Court of Appeals for the Seventh Circuit, for example, caused considerable confusion – and some long-lasting problems – for the Hoosier legal community.

“Dropping pagination and volumes and instead posting individual documents on the internet ‘as they come in’ seems incredibly short-sighted,” suggests the Indiana Law Blog. “Yes, it is possible to cite documents posted on the internet by their URL. But is it realistic to use that method as the only way of referencing the contents of the Indiana Register in the future?” Expect the folks at LSA to devote a good bit of attention to the pagination/citation issue over the next six weeks.

The Law Blog also questions whether eliminating the paper publication entirely – even to libraries – “and relying entirely upon the internet (or more specifically, the website of the general assembly) [raises] concerns about the security and authenticity of the documents – again this is the law of the State we are talking about.”

Later this week the Indiana Law Blog will look at the disappointing performance of the LSA and General Assembly in fulfilling their role as custodians of the Indiana Code -- the statute law of the State.

Posted by Marcia Oddi on April 10, 2006 03:14 PM
Posted to Administrative Law | Indiana Government | Indiana Law