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Friday, September 26, 2008

Ind. Gov't. - When are meeting minutes public documents?

An interesting question was posed yesterday on the national FOIA listsevr - When are meeting minutes public documents? The details:

Q - We have an odd law in Utah that keeps meeting minutes as "protected" documents until they are officially approved by the government body. I need examples of states where the minutes are readily available after a meeting and are considered a public document.
This is an issue I have run into in Indiana on occasion. Here are some of the answers posted to the listserv from other states - these are all quotes:
A - Oklahoma’s attorney general, Drew Edmondson, told The Oklahoman in 2005 that minutes become records available to the public when they are first created. He said public bodies often mistakenly believe they can withhold minutes from the public until the minutes are approved by the public body. “It’s a document, and once it’s created, it’s subject to the Open Records Act,”

A - In Kansas meeting notes, recordings and draft versions prior to approval by the governing body would be drafts. Drafts normally are excluded from “mandatory disclosure” under the Kansas Open Records Act. I suppose even drafts would be subject to “mandatory disclosure” if they were to be cited during an open meeting. Meeting minutes would not be considered such until approved by the governing body as accurately recording the previous meeting’s discussions and decisions. The Utah law does not seem odd at all to me. Sometimes, errors happen, especially if a meeting is not recorded on tape or digitally and the clerk is taking notes only – the governing body should have an opportunity to correct errors so that official minutes accurately document its decisions and how it reached them. No confusion or dispute on this that I know of here in Kansas.

A - I've heard this issue come up every now and then in different states, and it's all over the map. From what I can tell, and I might not have all of this correct, some states require by law that the minutes be recorded and provided to the public promptly, within a reasonable time, or without delay (e.g., California, Florida, Indiana, Alabama, Louisiana, New Jersey, West Virginia). In Arizona minutes or a recording are required to be provided to the public three working days after the meeting. Some states require disclosure within 30 days. In Hawaii, Mississippi and Idaho, draft minutes (or even "raw notes" in Idaho) are specifically named as subject to public disclosure. In Illinois, it's public within seven days of formal approval by the body, and in Michigan they separate between draft (eight days) and approved minutes (five days from approval).

What about Indiana? From opinions of the Indiana Public Access Counselor:
4/16/04 (04-FC-45) - "The draft minutes of a governing body are a public record of the public agency and are thus subject to disclosure upon request. There is no exemption available to withhold production of a public record because it is in “draft.” Accordingly, if your request sought the unapproved or draft minutes, the Trustee would be obligated to provide them, and because they are apparently immediately available, the Trustee could not reasonably be heard to delay production."

2/28/05 (05-FC-23) - The Department wrote you in denying you the record that “Minutes to Board meetings are not public records until approved by the Health Board, per Dr. Louck.” This determination that unapproved minutes are not public records was not consistent with the plain language of the APRA. Hence, the Department’s denial of the rough draft minutes or notes of the meeting was in violation of the APRA. You had the right to inspect the notes of the meeting and to copy them. As this office has frequently stated, a public agency may mark draft minutes as “draft” or “subject to approval” to assuage the concern that its draft minutes will be misconstrued as adopted minutes of the governing body.

4/10/06 (06-FC-51) - "Minutes or memoranda from a public meeting, even in draft form, do not fit the definition of “advisory or deliberative material that are expressions of opinion.” Draft minutes are statements of what transpired at a public meeting. This office has stated many times that such draft minutes are not exempt from disclosure. The minutes may not be denied merely because they have not been approved by the Board. The refusal to provide you with an electronic copy of unapproved minutes constituted a denial of access in violation of the Access to Public Records Act."

6/17/08 (08-FC-134) - To the contrary, my predecessors and I have repeatedly advised and opined that draft documents are public records just as completed or finalized documents are public records. See Opinions of the Public Access Counselor 01-FC-65 and 07-FC-45 for a discussion of draft meeting minutes. The City is free to mark the list with a “draft” designation, but the City may not withhold the list on the basis it is a draft or unapproved document.

Posted by Marcia Oddi on September 26, 2008 10:27 AM
Posted to Indiana Government