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Monday, March 03, 2014

Ind. Gov't - What is a "timely" period for a response under the Public Records Act? More than five months?

On Feb. 28th the Public Access Counselor issued a 3-page opinion re Formal Complaint 14-FC-15; Alleged Violation of the Access to Public Records Act by the Indiana Department of Education.

The complaint to the PAC was dated a month earlier, Jan. 29th, and said that although a request had been submitted to the DOE on August 8, 2013:

The Department acknowledged receipt of your request; however, as of the date of your formal complaint they had not produced any documentation responsive to your request. The Department responded to your complaint on February 12, 2014 stating they were still in the process of satisfying numerous other requests received and had not processed your request.
More from the opinion:
Your request is presumably pursuant to a debate sparked in August 2013 regarding the Department’s A-F school accountability grading system administered by the previous Indiana Superintendent of Public Instruction Tony Bennett. Most of the materials you are seeking appear to be related to that particular situation. The alleged controversy was widely covered in local and national press. Consequently, I am aware the Department’s incoming administration has received abundant requests for information very similar to your request.

I point this out because the Department’s claim they have received “numerous requests for information and we process the requests in the order we receive them” is likely under these circumstances. And while you are entitled to the records you seek (notwithstanding any confidential or deliberative material) it is to be expected the Department would be the recipient of a large number of public records request related to this controversy. * * *

Reasonableness is a subjective standard which changes on a case-by-case basis. To conclude the Department has not yet caught up with the numerous requests for information would not be beyond reason. Moreover, the APRA is not intended to interfere with the regular discharge of the functions or duties of the public agency or public employees. See Ind. Code § 5-14-3-7(a). It is my understanding the Department has only a limited number of staff members assigned to address public records requests. Considering the amount of attention this matter has generated, your request may still be waiting in queue.

You are likewise correct stating an agency should produce portions of a response as they become available in situations where the request is large. This has been my standing opinion as well as former Public Access Counselors. As your response is being processed, I encourage the Department to release the disclosable information in a piecemeal manner. However, as they have not begun to work on your request, this is not practical at this time.

Five months is certainly a long time to wait for records production. In normal circumstances, even for a request as large as yours, I would find a violation if the agency had not produced any records responsive to the request. Given the unprecedented amount of attention and public records requests received by the Department in light of Augusts’ news cycle, I do not find it unreasonable the Department has taken this amount of time to even commence investigation into the response to your request.

ILB: Here are some ILB observations, in no particular order:

Posted by Marcia Oddi on March 3, 2014 02:32 PM
Posted to Indiana Government