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Sunday, October 14, 2007

Law - A survey of several state public access laws, including Indiana's

Columnist Rox Laird of the DesMoines Register had a column this week on state public access laws, because an Iowa legislative committee is "studying the possibility of creating a state agency to aid Iowa citizens with open-government questions and problems." Some quotes from the column:

While Iowa law is unambiguous in declaring that government meetings and records are, with certain exceptions, open to the public, the law is almost never enforced unless citizens or news organizations file a lawsuit at their own expense. State or county prosecutors ordinarily enforce state laws, but because they also represent state and local governments, prosecuting their clients often presents a conflict of interests.

Other states, facing this same problem, have turned to alternatives to prosecution to enforce their sunshine laws. Connecticut's Freedom of Information Commission is one of several models adopted by states, including New York, Maryland, Indiana and Virginia. With an annual operating budget approaching $2 million and a staff of 19 that includes 11 lawyers, the commission is the envy of other states.

Of the states that have created agencies to help the public gain access to their state and local governments, Connecticut's 32-year-old commission is among the oldest, has the most resources and enjoys the toughest enforcement powers.

Its process for filing and resolving complaints requires no lawyers for the citizens or the governments involved, and, unless a commission ruling is appealed, no courtrooms or judges.

Connecticut's is not necessarily the only way to go, however. The more common model is what's typically called a "public access counselor," who is not empowered to enforce the law but instead gives advice on open-government questions and complaints, conducts training and educational sessions and issues formal opinions when a citizen believes the law has been violated by a government body.

Indiana offers training, opinions

Indiana has had a public-access counselor since 1998. The agency consists of two employees, a lawyer appointed by the governor to a four-year term and one assistant, who divide their time between training, handling questions and complaints from citizens and government officials alike, and issuing advisory opinions based on formal complaints.

In the past six months, for example, the access counselor has issued opinions on school disciplinary records, inadequate notice of public hearings, access to county real-estate records and the availability of court records in a divorce case. About half the opinions come down on the side of the citizen, half for the government.

Either side has the option of appealing to state court, but in Indiana, as well as in other states with similar processes, that doesn't happen very often. Indeed, the Indiana process is designed to avoid court by forcing parties to get an advisory opinion before filing a records or meetings lawsuit. In any case, the vast majority of complaints about access issues are resolved in a phone call or e-mail or through informal mediation.

Indiana's Public Access Counselor has a budget of just $150,000 a year. Public Access Counselor Heather Willis Neal said the Indiana Legislature has never increased the budget, mostly, she believes, because the agency is not a high priority for many legislators. "We are a rounding error to most people," she said. Still, the agency has seen a huge increase in business: In the first year it issued 41 opinions; it has issued nearly three times that in just the past three months.

In N.Y., opinions rarely challenged

In New York state, the New York Committee on Open Government has a budget of about $350,000 for a staff of four, including director Robert Freeman, who has been in the job since 1976. Like Indiana, the New York committee has no enforcement powers, but with Freeman's personal credibility and long tenure, its opinions are typically considered the final word.

The advisory processes in Indiana and New York no doubt eliminate costly and time-consuming litigation over open-government disputes, either through mediation or giving free legal advice, but it's hard to say whether those states are more or less effective than Connecticut in achieving the ultimate goal of open government. While the outcome of the Connecticut commission's decisions has the force of law, states that use the advisory approach typically do not know whether the advice is followed because there is no mechanism for follow-up.

The Connecticut model, with enforcement authority, puts teeth in the law but is 10 times more expensive than the alternative. The Indiana and New York models are efficient, but ultimately rely on good will and responsible public officials for compliance with the law.

Either way, these agencies are a vast improvement over the situation in Iowa, where citizens are left to their own devices in open-government disputes, whether they need information, advice or a powerful ally. They have none of that now.

Posted by Marcia Oddi on October 14, 2007 01:38 PM
Posted to General Law Related | Indiana Government | Indiana Law