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Thursday, February 27, 2014

Ind. Gov't. - Public Access Counselor on records, emails, meetings; bill to charge for public records requests on verge of passing

Margaret Fosmoe reports in the South Bend Tribune:

ELKHART — Many public records requests these days in Indiana aren't for budgets, minutes or agendas, but rather for the contents of e-mails between individual public officials or employees.

Those e-mails are public documents, even if a public official uses a private e-mail account, Indiana Public Access Counselor Luke Britt said during an information session held Wednesday at the Greater Elkhart Chamber of Commerce. * * *

In some ways, technology is progressing faster than laws are being crafted in response to the changes, he said.

"The legislation hasn't quite caught up to the ramifications of what technology can do as far as communication is concerned," said Britt, who provided a general overview of Indiana's public records and open door laws, and answered questions from the audience. * * *

Public officials should make every effort to make public meetings as open as possible, including moving them to a larger venue if they know a large crowd is expected when a major issue will be discussed, Britt said.

He described one Indiana town council that scheduled a meeting about a controversial issue in a small room, a space council members knew wouldn't contain the crowd that was expected. The council was urged to move the meeting to a nearby school gymnasium to accommodate the audience, but declined, he said.

"To me, that's a violation of what the open-door law is all about," Britt said. * * *

There's a bill being considered in this session of the General Assembly — House Bill 1306 — that would allow government agencies to charge a fee to members of the public, the media and anyone else for a public records request that takes more than two hours to fulfill. The measure would allow a governmental office to charge the hourly salary of the employee handling the search or $20 per hour, whichever is less.

Britt said he's concerned about the potential for abuse if the measure passes. "If it passes, I hope it doesn't discourage governmental entities from putting information online because (Bill 1306) produces a revenue stream," he said.

Britt described himself as a proponent of government placing as much public information — such as agendas, reports, budgets and meeting minutes — online as possible, so citizens can access the information without haven't to make formal requests. "If you can put it up on your web site, you should put it up on your web site," he said.

ILB: House Bill 1306 is now on third reading. Unfortunately, it has received little to no coverage. The digest:
Search fee for public records requests. Allows a state or
local government public agency to charge a fee for the time required by
the public agency in excess of two hours, to search for a public record.
Restricts the hourly rate charged for the search. Prohibits a public
agency from charging a fee for the public agency to: (1) transmit a
public record by electronic mail; or (2) permit a person (not including
a commercial entity) to use a cellular phone to copy a public record that
contains the person's name. Provides that if a public record is in an
electronic format, a public agency (excluding the office of the county
recorder) shall provide an electronic copy or a paper copy, at the option
of the person making the request for a public record. Provides that a
search fee collected by a department, agency, or office of a county, city,
town, or township shall be deposited in the general fund of the county,
city, town, or township.
There is more. For example, the bill includes provisions allowing an agency to charge a person using a cell phone for photographing a record (unless it contains the person's name)!

This bill was considered last year but thankfully died. It was then numbered HB 1075. Last year the Indianapolis Star editorialized against it. Incredibly, the Hoosier State Press Assocation was for it. From last year's Star editorial:

Aside from voting, for which fees long ago were declared unconstitutional, there is no American right more basic than access to information about the actions of elected officials and their appointees. To erect a toll gate in front of that information would set a grave precedent for a state that has prided itself on open records and open meetings, however compromised those laws sometimes may have been.

Turning to practicalities, there is a need up front to differentiate between charging for copies of records – which the state allows, within limits – and charging for staff time, which House Bill 1175 would authorize. The former entails extra cost and is not an access matter; the latter does not add to personnel nor to the workday and thus is not a cost item in itself.

Given a new revenue tool, agencies may be tempted to take their time responding, perhaps to keep the meter running or to punish customers for inconvenience or bad press.

The staff is there to serve a fundamental need. Society as a whole – the taxpayers – should make sure that staff is sufficient. This point has been made by First Amendment and open government organizations large and small, and it relates to the issue of the “mere” $20-an-hour maximum fee.

For large news operations, the tab might be manageable – except that they may make hundreds of records checks in the course of a year and might be impelled to curtail their watchdog efforts in light of the budgetary burden.

And how about the little guys – independent journalists, citizen groups or the engaged individual who simply wants to know how his school board is spending his money? As John Loflin, with an Indianapolis grass-roots education coalition called Parent Power, puts it:

“Charging the public $20 an hour to search for its own records seems contradictory. After all, the taxes of citizens already provide the building and office used by researchers, and their general wages. Pool state and county taxes so no citizen is charged.

“Let’s have an open and easily accessible democracy, not one that favors persons or groups because of ability to pay.”

Posted by Marcia Oddi on February 27, 2014 09:22 AM
Posted to Indiana Government