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Thursday, January 22, 2009

Ind. Gov't. - More on: Fine officials who keep documents under wraps

Updating this ILB entry from yesterday on SB 232, several papers today have stories on yesterday's committee hearing.

Patrick Guinane of the NWI Times reports:

A state Senate panel heard Wednesday from groups that want to put some "teeth" behind Indiana's open government laws, but local officials say their budgets can't withstand the bite.

Senate Bill 232 would allow a judge to impose fines of up to $1,000 against officials or government agencies that blatantly flout requests for public records or ignore requirements to make meetings open to the public. The measure also would require local governments to e-mail or otherwise make available meeting notices to citizens who request them.

"This bill really just helps to tweak a few things and improve our access to public information," Times Executive Editor William Nangle testified on behalf of the Hoosier State Press Association.

But municipal and county officials told the Senate Local Government Committee the meeting notice requirement could put an undue financial or administrative burden on their peers. And they called it unfair to potentially hold a government employee personally liable for a decision not to release records or to conduct business behind closed doors.

The Senate panel did not vote on the measure Wednesday but is likely to do so next week.

Bryan Corbin of the Evansville Courier & Press writes:
Citizen activists in Indiana long have complained the state's open records laws have no clear method for punishing government officials who flout the law and refuse to release public documents. * * *

When Hoosiers request public records under current law and a government official refuses, the recourse is to file a lawsuit and ask a judge to release the records. Courts can impose attorneys' fees against violators but not fines or punitive damages that would serve as a deterrent.

Senate Bill 232, which would create fines of up to $1,000 for willful record concealers, was heard Wednesday by the Senate Local Government Committee. Lawmakers heard lengthy testimony and likely will vote on the bill next week. The bill would do several other things:

* If a government agency blacks out information from a public record before releasing it, the state public access counselor's office could review the unedited document and issue a nonbinding legal opinion on what should be disclosed. If the agency still declines to release the full record, the person requesting them could ask a judge to decide.

* Members of the public could ask a government board or agency to put them on its yearly contact list for 48-hour notification of any board meetings. News organizations already file such annual requests, but the bill would extend that opportunity to anyone, via e-mail, fax or mail. * * *

Clarke Kahlo, an Indianapolis neighborhood activist, showed lawmakers a document he requested from a municipal water utility several years ago. Almost all of the text had been marked out by an attorney, he said, rendering it useless.

"It's the people's business; it's not their private domain," Kahlo said. "Most officials are well-meaning, but you've got (officials) who have bad blood or there's some political issues going on there, and they're not going to give it to you. They know that you're going to have to go hire a lawyer as a remedy ... and as likely as not, you're not going to do that."

Anthony Fargo, an Indiana University journalism professor who serves on the Indiana Coalition for Open Government, conducted a survey of those who sought nonbinding legal opinions from the public access counselor's office.

A common complaint, Fargo said, was that the office lacks enforcement power if an obstinate official doesn't release records.

"An Indiana Code provision that has no enforcement capability is like a toothless dog that barks loud but has no bite," said Fargo.

Much of Wednesday's debate focused on whether local governments should be forced to notify individuals of meetings, rather than sending notice to the news media and posting a written notice on the door of town hall, as is the case now.

Sen. Mike Young, R-Indianapolis, questioned whether a better approach would be a Web page where a local government could post Web notices of its meetings.

From an AP story by Deanna Martin:
The bill would allow judges to fine public agencies or agency workers who intentionally violate open-meeting rules or public-records laws, which citizens and the media use to obtain many government documents. An agency could pay for the fines from its budget, while a fine on an employee would come from the worker's wallet. * * *

Opponents of the proposal -- including associations representing county and city governments -- worry that the law would mean steep fines for workers who withheld records at the request of their bosses.

"They may be intentionally denying the record, but they're acting under the orders of their superior in the office," said Andrew Berger, a lobbyist for the Association of Indiana Counties.

But Sen. Beverly Gard, R-Greenfield, said lawmakers should trust judges to determine if individual employees were blatantly ignoring the laws or an agency was directing them to do so.

"We give judges discretion, and I don't see any reason to not give a judge discretion here," said Gard, the bill's sponsor. * * *

The law already allows judges to order the public official or agency that violated the law to pay the plaintiff's legal fees -- but they can't impose civil penalties.

Posted by Marcia Oddi on January 22, 2009 08:24 AM
Posted to Indiana Government