Every year, Gerry Lanosga, director of journalism at The Media School at Indiana University – Bloomington, cautions his students, “The legislature is in session. Hold on to your access.”
The Indiana General Assembly has lengthened the list of exemptions to the state’s public access laws in the past, but Lanosga sees an amendment dropped into a bill less than two weeks before the 2024 session ended as potentially wrenching the Open Door Law and the Public Records Act from the strongest of grips.
Lanosga noted that the preambles to public access laws emphasize the value Indiana places on transparency and openness, adding that the access laws “at least on paper in this state are really pretty strong, with some major, glaring exceptions.”
However, he said he’s worried that the new amendment “is prying open the door a little bit” with the possibility of state legislators “tinkering with the access laws” in the future.
At the Feb. 27 meeting of the Senate Corrections and Criminal Law Committee, Sen. Aaron Freeman, R-Indianapolis, offered the amendment to House Bill 1338, which allows local governmental bodies to enforce rules of conduct at public meetings. The amendment mandates that the state’s public access counselor consider only “plainly written” Indiana law and “valid” court opinions. It also changes the appointed counselor position from a fixed four-year term to one serving at the pleasure of the governor.
The House passed HB 1338, with the amendment attached, on a concurrence vote of 58 to 36. Six Republicans joined all 30 Democrats in the lower chamber to oppose the measure.
HB 1338, authored by Rep. J.D. Prescott, R-Union City, is now headed to Gov. Eric Holcomb’s desk.
The Indiana Coalition for Open Government is calling on Holcomb to veto HB 1338. In a statement, the group’s president, Zachary Baiel, said the amendment “introduces potential for political pressure and retribution, undermining the (public access counselor’s) role as an impartial arbiter of public access disputes in the State of Indiana.”
Luke Britt, Indiana’s current public access counselor, declined to comment. Freeman and Prescott did not respond to requests for comment.
Public access varies across the nation
A review of public access procedures across the country by the Associated Press and CHNI News found Indiana is a bit of an outlier because it has an office that can help resolve Hoosiers’ complaints about being denied a public record or being blocked from attending meeting of public officials. The survey found less than a third of the states have such offices and that residents in most states have to file a lawsuit to get access to public records.
Of Indiana’s neighbors, Illinois, Ohio and Kentucky give the job of handling public access complaints to the offices of their attorneys general, according to AP and CNHI.
The public access counselor in the Illinois AG’s office can issue binding and non-binding opinions, while the public records unit in the Ohio AG’s office can only provide guidance with enforcement left to the courts, AP and CNHI reported. Kentucky’s attorney general can issue binding opinions in response to public complaints. Conversely, in Michigan, residents can only fight access denials through the courts.
Increased restrictions on public access that Lanosga fears is already happening in Kentucky.
The Bluegrass State’s legislature is working on House Bill 509, which would narrow the scope of their open records law, according to the Kentucky Open Government Coalition. In particular, only records contained on an agency device or email account will be considered a public record, which, the coalition believes, will drive Kentucky public officials to use their personal devices and email accounts to conduct government business.
https://kyopengov.org/blog/hopes-fade-lawmakers-and-advocates-reach-impasse-hb-509
When introducing the amendment in the Indiana Senate committee hearing, Freeman did not explain why he wanted to restrain the public access counselor.
However, he told The Indianapolis Star that some recent opinions from the counselor took “some very liberal interpretations of the statute.” Also, the senator mentioned the public access counselor’s October 2023 opinion that found the state’s Open Door Law had been violated when two members of the Hamilton East Public Library Board met with the board’s attorney at a local coffee shop.
While Freeman dismissed the incident as “two people having lunch,” Lanosga agreed with the public access counselor’s assessment, saying two board members sitting and talking with their attorney “doesn’t seem to me like a casual cup of coffee.”
Lanosga also noted the irony of the situation. Although the public access counselor had found the library board members had violated the law, he does not, under current Indiana law, have the ability to impose a sanction or fine.
“That’s the funny thing about this is that the office has no teeth,” Lanosga said. “So, the agencies can always simply ignore the access counselor. And then, in these days when media organizations are not spending money on (Freedom of Information Act) lawsuits, they can probably get away with a lot of that anyway.”
‘A resource for your ordinary Hoosier’
The public access counselor amendment that got attached to HB 1338 was not as restrictive as one Freeman said he initially wanted to insert into the bill. That proposed amendment included the same restrictions as the amendment that was adopted but also would have removed the language in the Open Door Law and Public Records Law that called for the laws’ provisions to be “liberally construed.”
Although Freeman told the Senate committee he “would love” to have added the more limiting amendment, he said he was not introducing it, because “there are some that believed that it went too far and was too much of a swing for what this bill would do.”
Michael Hurst, an attorney and former Indiana public access counselor for nine months in 2003 and 2004, said whenever his office received a complaint, he would consult the state’s public access statutes and previous opinions by former counselors before writing his own opinion. He would be looking at the Indiana Code to see what was required under the public access law and if a government agency or activity named in the complaint was exempted from public access mandates. Also, he wanted to know if other counselors had addressed a similar issue, so he could make sure his determination was consistent with what came before.
If the Indiana Code was vague, Hurst said he might then look to other laws from other states for guidance. He pointed to the example from his tenure of determining whether the Indiana public access law covering correspondence extended to emails. He looked to statutes in other states to see how they defined “correspondence” and if they specifically mentioned “electronic communications.”
Often, Hurst said, he did not have to write an opinion. Most complaints the office received during his tenure, he said, resulted from communication issues, meaning he spent much of his time trying to facilitate agreements between a constituent or nonprofit agency and a governmental body or public official.
If that failed, Hurst would issue an opinion. He still sought to facilitate an understanding between the two parties, because the written opinions did not carry any enforcement mechanism. Hurst said he would try to persuade the losing party to stop doing whatever act was causing the problem and offer recommendations for what the prevailing party should do.
Hurst did not remember any effort by the legislature to limit the scope of the public access counselor while he was in the office. The pushback on his opinions, he said, usually came from the losing party – either the constituent whose request was not covered by the public access law, or the public government agency or board that was not happy about having to fill a public records request or to open a meeting.
Before the House concurrence vote, Rep. Jerry Torr, R-Carmel, encouraged his colleagues to vote for HB 1338 with the amended language. He pointed to his effort to get a birth certificate from Allen County many years ago, including tangling with the local health department and its attorney and eventually getting into “a letter writing contest.” He was finally able to present a document from the Indiana State Department of Health, which said a birth certificate is a public record.
“That was before the public access counselor, which I don’t even understand why that office was created. I don’t think this is a significant change,” Torr said of the amendment. “People have rights under the law and the public access counselor’s opinion doesn’t really mean anything.”
However, Rep. Sue Errington, D-Muncie, countered that many Hoosiers could not navigate public access laws without help.
“The public access counselor is a resource for your ordinary Hoosier who wants to know why something is being done in the way it is,” Errington said. “Now, most people aren’t going to know, first of all, there are protections in statute and secondly, know how to research that. And that’s what the public access counselor does. He researches the evidence, what’s happening and what the law says. So I believe that this would take away a resource that our citizens need for public access.”
Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.
