AN ACT to amend the Indiana Code concerning state and local administration.
who are social workers and create records concerning the family
background of children who may need assistance.
(m) (n) "Public agency", except as provided in section 2.1 of this
chapter, means the following:
(1) Any board, commission, department, division, bureau, committee, agency, office, instrumentality, or authority, by whatever name designated, exercising any part of the executive, administrative, judicial, or legislative power of the state.
(A) county, township, school corporation, city, or town, or any board, commission, department, division, bureau, committee, office, instrumentality, or authority of any county, township, school corporation, city, or town;
(B) political subdivision (as defined by IC 36-1-2-13); or
(C) other entity, or any office thereof, by whatever name designated, exercising in a limited geographical area the executive, administrative, judicial, or legislative power of the state or a delegated local governmental power.
(3) Any entity or office that is subject to:
(A) budget review by either the department of local government finance or the governing body of a county, city, town, township, or school corporation; or
(B) an audit by the state board of accounts that is required by statute, rule, or regulation.
(4) Any building corporation of a political subdivision that issues bonds for the purpose of constructing public facilities.
(5) Any advisory commission, committee, or body created by statute, ordinance, or executive order to advise the governing body of a public agency, except medical staffs or the committees of any such staff.
(6) Any law enforcement agency, which means an agency or a department of any level of government that engages in the investigation, apprehension, arrest, or prosecution of alleged criminal offenders, such as the state police department, the police or sheriff's department of a political subdivision, prosecuting attorneys, members of the excise police division of the alcohol and tobacco commission, conservation officers of the department of natural resources, gaming agents of the Indiana gaming commission, gaming control officers of the Indiana gaming commission, and the security division of the state lottery commission.
(7) Any license branch staffed by employees of the bureau of
motor vehicles commission under IC 9-16.
(8) The state lottery commission established by IC 4-30-3-1, including any department, division, or office of the commission.
(9) The Indiana gaming commission established under IC 4-33, including any department, division, or office of the commission.
(10) The Indiana horse racing commission established by IC 4-31, including any department, division, or office of the commission.
(n) (o) "Public record" means any writing, paper, report, study, map,
photograph, book, card, tape recording, or other material that is
created, received, retained, maintained, or filed by or with a public
agency and which is generated on paper, paper substitutes,
photographic media, chemically based media, magnetic or machine
readable media, electronically stored data, or any other material,
regardless of form or characteristics.
(o) (p) "Standard-sized documents" includes all documents that can
be mechanically reproduced (without mechanical reduction) on paper
sized eight and one-half (8 1/2) inches by eleven (11) inches or eight
and one-half (8 1/2) inches by fourteen (14) inches.
(p) (q) "Trade secret" has the meaning set forth in IC 24-2-3-2.
(q) (r) "Work product of an attorney" means information compiled
by an attorney in reasonable anticipation of litigation. The term
includes the attorney's:
(1) notes and statements taken during interviews of prospective witnesses; and
(2) legal research or records, correspondence, reports, or memoranda to the extent that each contains the attorney's opinions, theories, or conclusions.
This definition does not restrict the application of any exception under section 4 of this chapter.
employment, or academic examination before the examination is
given or if it is to be given again.
(4) Scores of tests if the person is identified by name and has not consented to the release of the person's scores.
(5) The following:
(A) Records relating to negotiations between the Indiana economic development corporation, the ports of Indiana, the Indiana state department of agriculture, the Indiana finance authority, an economic development commission, a local economic development organization (as defined in IC 5-28-11-2(3)), or a governing body of a political subdivision with industrial, research, or commercial prospects, if the records are created while negotiations are in progress.
(B) Notwithstanding clause (A), the terms of the final offer of public financial resources communicated by the Indiana economic development corporation, the ports of Indiana, the Indiana finance authority, an economic development commission, or a governing body of a political subdivision to an industrial, a research, or a commercial prospect shall be available for inspection and copying under section 3 of this chapter after negotiations with that prospect have terminated.
(C) When disclosing a final offer under clause (B), the Indiana economic development corporation shall certify that the information being disclosed accurately and completely represents the terms of the final offer.
(6) Records that are intra-agency or interagency advisory or deliberative material, including material developed by a private contractor under a contract with a public agency, that are expressions of opinion or are of a speculative nature, and that are communicated for the purpose of decision making.
(7) Diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal.
(8) Personnel files of public employees and files of applicants for public employment, except for:
(A) the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, or dates of first and last employment of present or former officers or employees of the agency;
(B) information relating to the status of any formal charges against the employee; and
(C) the factual basis for a disciplinary action in which final
action has been taken and that resulted in the employee being
suspended, demoted, or discharged.
However, all personnel file information shall be made available to the affected employee or the employee's representative. This subdivision does not apply to disclosure of personnel information generally on all employees or for groups of employees without the request being particularized by employee name.
(9) Minutes or records of hospital medical staff meetings.
(10) Administrative or technical information that would jeopardize a record keeping or security system.
(11) Computer programs, computer codes, computer filing systems, and other software that are owned by the public agency or entrusted to it and portions of electronic maps entrusted to a public agency by a utility.
(12) Records specifically prepared for discussion or developed during discussion in an executive session under IC 5-14-1.5-6.1. However, this subdivision does not apply to that information required to be available for inspection and copying under subdivision (8).
(13) The work product of the legislative services agency under personnel rules approved by the legislative council.
(14) The work product of individual members and the partisan staffs of the general assembly.
(15) The identity of a donor of a gift made to a public agency if:
(A) the donor requires nondisclosure of the donor's identity as a condition of making the gift; or
(B) after the gift is made, the donor or a member of the donor's family requests nondisclosure.
(16) Library or archival records:
(A) which can be used to identify any library patron; or
(B) deposited with or acquired by a library upon a condition that the records be disclosed only:
(i) to qualified researchers;
(ii) after the passing of a period of years that is specified in the documents under which the deposit or acquisition is made; or
(iii) after the death of persons specified at the time of the acquisition or deposit.
However, nothing in this subdivision shall limit or affect contracts entered into by the Indiana state library pursuant to IC 4-1-6-8.
(17) The identity of any person who contacts the bureau of motor vehicles concerning the ability of a driver to operate a motor
vehicle safely and the medical records and evaluations made by
the bureau of motor vehicles staff or members of the driver
licensing medical advisory board regarding the ability of a driver
to operate a motor vehicle safely. However, upon written request
to the commissioner of the bureau of motor vehicles, the driver
must be given copies of the driver's medical records and
(18) School safety and security measures, plans, and systems, including emergency preparedness plans developed under 511 IAC 6.1-2-2.5.
(19) A record or a part of a record, the public disclosure of which would have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack. A record described under this subdivision includes:
(A) a record assembled, prepared, or maintained to prevent, mitigate, or respond to an act of terrorism under IC 35-47-12-1 or an act of agricultural terrorism under IC 35-47-12-2;
(B) vulnerability assessments;
(C) risk planning documents;
(D) needs assessments;
(E) threat assessments;
(F) intelligence assessments;
(G) domestic preparedness strategies;
(H) the location of community drinking water wells and surface water intakes;
(I) the emergency contact information of emergency responders and volunteers;
(J) infrastructure records that disclose the configuration of critical systems such as communication, electrical, ventilation, water, and wastewater systems;
(K) detailed drawings or specifications of structural elements, floor plans, and operating, utility, or security systems, whether in paper or electronic form, of any building or facility located on an airport (as defined in IC 8-21-1-1) that is owned, occupied, leased, or maintained by a public agency. A record described in this clause may not be released for public inspection by any public agency without the prior approval of the public agency that owns, occupies, leases, or maintains the airport. The public agency that owns, occupies, leases, or maintains the airport:
(i) is responsible for determining whether the public disclosure of a record or a part of a record has a reasonable
likelihood of threatening public safety by exposing a
vulnerability to terrorist attack; and
(ii) must identify a record described under item (i) and clearly mark the record as "confidential and not subject to public disclosure under IC 5-14-3-4(b)(19)(J) without approval of (insert name of submitting public agency)"; and
(L) the home address, home telephone number, and emergency contact information for any:
(i) emergency management worker (as defined in IC 10-14-3-3);
(ii) public safety officer (as defined in IC 35-47-4.5-3);
(iii) emergency medical responder (as defined in IC 35-42-2-6); or
(iv) advanced emergency medical technician (as defined in IC 16-18-2-6.5).
This subdivision does not apply to a record or portion of a record pertaining to a location or structure owned or protected by a public agency in the event that an act of terrorism under IC 35-47-12-1 or an act of agricultural terrorism under IC 35-47-12-2 has occurred at that location or structure, unless release of the record or portion of the record would have a reasonable likelihood of threatening public safety by exposing a vulnerability of other locations or structures to terrorist attack.
(20) The following personal information concerning a customer of a municipally owned utility (as defined in IC 8-1-2-1):
(A) Telephone number.
(C) Social Security number.
(21) The following personal information about a complainant contained in records of a law enforcement agency:
(A) Telephone number.
(B) The complainant's address. However, if the complainant's address is the location of the suspected crime, infraction, accident, or complaint reported, the address shall be made available for public inspection and copying.
(22) Notwithstanding subdivision (8)(A), the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, or dates of first employment of a law enforcement officer who is operating in an undercover capacity.
(23) Records requested by an offender that:
(A) contain personal information relating to:
ordinary course of business.
a record from a person who:
(A) is physically present in the agency office;
(B) makes the request by telephone; or
(C) requests enhanced access to a document; or
(2) within seven (7) days of receiving the request for a record made by mail or facsimile;
the request for the record is deemed denied. The person requesting the information may appeal the denial under section 9 of this chapter.
(d) If a public agency refuses to confirm or deny the existence of a record under this section, the name and title or position of the person responsible for the refusal shall be given to the person making the records request.
(e) A person who has received a refusal from an agency to confirm or deny the existence of a record may file an action in the circuit or superior court of the county in which the response was received:
(1) to compel the public agency to confirm whether the record exists or does not exist; and
(2) if the public agency confirms that the record exists, to compel the agency to permit the person to inspect and copy the record.
(f) The court shall determine the matter de novo, with the burden of proof on the public agency to sustain its refusal to confirm or deny the existence of the record. The public agency meets its burden of proof by filing a public affidavit with the court that provides with reasonable specificity of detail, and not simply conclusory statements, the basis of the agency's claim that it cannot be required to confirm or deny the existence of the requested record. If the public agency meets its burden of proof, the burden of proof shifts to the person requesting access to the record. The person requesting access to the record meets the person's burden of proof by proving any of the following:
(1) The agency's justifications for not confirming the existence of the record contradict other evidence in the trial record.
(2) The agency is withholding the record in bad faith.
(3) An official with authority to speak for the agency has acknowledged to the public in a documented disclosure that the record exists. The person requesting the record must prove that the information requested:
(A) is as specific as the information previously disclosed; and
of a public record, a denial of disclosure does not occur until seven (7)
days have elapsed from the date the public agency receives the request.
(c) (d) If a request is made orally, either in person or by telephone,
a public agency may deny the request orally. However, if a request
initially is made in writing, by facsimile, or through enhanced access,
or if an oral request that has been denied is renewed in writing or by
facsimile, a public agency may deny the request if:
(1) the denial is in writing or by facsimile; and
(2) the denial includes:
(A) a statement of the specific exemption or exemptions authorizing the withholding of all or part of the public record; and
(B) the name and the title or position of the person responsible for the denial.
(d) This subsection applies to a board, a commission, a department,
a division, a bureau, a committee, an agency, an office, an
instrumentality, or an authority, by whatever name designated,
exercising any part of the executive, administrative, judicial, or
legislative power of the state. If an agency receives a request to inspect
or copy a record that the agency considers to be excepted from
disclosure under section 4(b)(19) of this chapter, the agency may
consult with the counterterrorism and security council established by
IC 10-19-8-1. If an agency denies the disclosure of a record or a part of
a record under section 4(b)(19) of this chapter, the agency or the
counterterrorism and security council shall provide a general
description of the record being withheld and of how disclosure of the
record would have a reasonable likelihood of threatening the public
(e) A person who has been denied the right to inspect or copy a public record by a public agency may file an action in the circuit or superior court of the county in which the denial occurred to compel the public agency to permit the person to inspect and copy the public record. Whenever an action is filed under this subsection, the public agency must notify each person who supplied any part of the public record at issue:
(1) that a request for release of the public record has been denied; and
(2) whether the denial was in compliance with an informal inquiry response or advisory opinion of the public access counselor.
Such persons are entitled to intervene in any litigation that results from the denial. The person who has been denied the right to inspect or copy need not allege or prove any special damage different from that
suffered by the public at large.
(f) The court shall determine the matter de novo, with the burden of proof on the public agency to sustain its denial. If the issue in de novo review under this section is whether a public agency properly denied access to a public record because the record is exempted under section 4(a) of this chapter, the public agency meets its burden of proof under this subsection by establishing the content of the record with adequate specificity and not by relying on a conclusory statement or affidavit.
(g) If the issue in a de novo review under this section is whether a public agency properly denied access to a public record because the record is exempted under section 4(b) of this chapter:
(1) the public agency meets its burden of proof under this subsection by:
(A) proving that the record falls within any one (1) of the categories of exempted records under section 4(b) of this chapter; and
(B) establishing the content of the record with adequate specificity and not by relying on a conclusory statement or affidavit; and
(2) a person requesting access to a public record meets the person's burden of proof under this subsection by proving that the denial of access is arbitrary or capricious.
(h) The court may review the public record in camera to determine whether any part of it may be withheld under this chapter. However, if the complaint alleges that a public agency denied disclosure of a public record by redacting information in the public record, the court shall conduct an in camera inspection of the public record with the redacted information included.
(i) In any action filed under this section, a court shall award reasonable attorney's fees, court costs, and other reasonable expenses of litigation to the prevailing party if:
(1) the plaintiff substantially prevails; or
(2) the defendant substantially prevails and the court finds the action was frivolous or vexatious.
The plaintiff is not eligible for the awarding of attorney's fees, court costs, and other reasonable expenses if the plaintiff filed the action without first seeking and receiving an informal inquiry response or advisory opinion from the public access counselor, unless the plaintiff can show the filing of the action was necessary because the denial of access to a public record under this chapter would prevent the plaintiff from presenting that public record to a public agency preparing to act on a matter of relevance to the public record whose disclosure was
(j) A court may assess a civil penalty under section 9.5 of this chapter only if the plaintiff obtained an advisory opinion from the public access counselor before filing an action under this section as set forth in section 9.5 of this chapter.
(k) A court shall expedite the hearing of an action filed under this section.