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.ILB: Here are some ILB observations, in no particular order:
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.
- Five months is indeed a long time to wait. And the Department still has not yet begun to fill the request.
- Although the opinion does not identify the entity making the request, the address on the opinion is 555 New Jersey Avenue NW, Washington, D.C. 20001. That is the address of the American Federation of Teachers. The out-of-state location make this appear to be a harder case, but one assumes the answers would have been the same for an Indiana inquirer.
- As the public access counselor notes in the opinion:
[Y]ou submitted to the Department a request for considerable amount of communication from January 2009 to the date of your request. In the first part of your request, you listed over 15 named separate senders of communication (as well as the catch-all “other immediate staff of the Office of the Superintendent”) and approximately 80-named recipients as well as an indefinite number of unnamed “group” recipients such as the Foundation for Excellence in Education and the Foundations for Florida’s Future. You also included 23 key phrases to narrow the search. Additionally, you requested a copy of all proposals, schedules and attachments received by the Department’s Office of School Improvement and Turnaround.
- Fulfilling this public records request presumably would exceed many times over the two-hour limit after which the agency may charge a fee under the changes proposed by the pending HB 1306.
- It appears that a number of the requests the Department has received relate to the same debate. From the opinion:
I am aware the Department’s incoming administration has received abundant requests for information very similar to your request.
- Would the Department be under any obligation under HB 1306, if it became law, not to charge $20 per hour for producing the same information over and over? And if so, does that mean that the first inquirer would bear the brunt of the costs?
- IC 5-14-3-7(a), cited above to support the PAC statement that the public records law "is not intended to interfere with the regular discharge of the functions or duties of the public agency or public employees," actually reads: "A public agency shall protect public records from loss, alteration, mutilation, or destruction, and regulate any material interference with the regular discharge of the functions or duties of the public agency or public employees."
- Doesn't "the regular discharge of the functions or duties of the public agency" include serving the public - making its public records accessible to the public? When did this duty begin to fall outside the definition?
Posted by Marcia Oddi on March 3, 2014 02:32 PM
Posted to Indiana Government