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PAC > Statutes > Summary of 1999 Legislative Changes Summary of 1999 Legislative Changes

OFFICE OF THE INDIANA PUBLIC ACCESS COUNSELOR
Effective July 1, 1999
Summary of Statutes affecting the Indiana Open Door Law and
the Access to Public Records Act




Creation of the Office of the Public Access Counselor 1
  • The office of the public access counselor is established. The office shall be administered by the public access counselor .
  • The governor shall appoint a public access counselor for a term of four (4) years at a salary to be fixed by the governor. The governor may remove the counselor for cause. If a vacancy occurs in the office, the governor shall appoint an individual to serve for the remainder of the counselor's unexpired term. The counselor may employ additional personnel necessary to carry out the functions of the office subject to the approval of the budget agency.

  • The counselor must be a practicing attorney. The counselor shall apply the counselor's full efforts to the duties of the office and may not be actively engaged in any other occupation, practice, profession, or business.
Powers and Duties:

The counselor has the following powers and duties:

(1) To establish and administer a program to train public officials and educate the public on the rights of the public and the responsibilities of public agencies under the public access laws. The counselor may contract with a person or a public or private entity to fulfill the counselor's responsibility under this subdivision.
(2) To conduct research.
(3) To prepare interpretive and educational materials and programs in cooperation with the office of the attorney general.
(4) To distribute to newly elected or appointed public officials the public access laws and educational materials concerning the public access laws.
(5) To respond to informal inquiries made by the public and public agencies by telephone, in writing, in person, by facsimile, or by electronic mail concerning the public access laws.
(6) To issue advisory opinions to interpret the public access laws upon the request of a person or a public agency. However, the counselor may not issue an advisory opinion concerning a specific matter with respect to which a lawsuit has been filed under IC 5-14-1.5 or IC 5-14-3.
(7) To make recommendations to the general assembly concerning ways to improve public access.


Annual Report to General Assembly

The counselor shall submit a report not later than June 30 of each year to the legislative services agency concerning the activities of the counselor for the previous year. The report must include the following information:

(1) The total number of inquiries and complaints received.
(2) The number of inquiries and complaints received each from the public, the media, and government agencies.
(3) The number of inquiries and complaints that were resolved.
(4) The number of complaints received about each of the following:
     (A) State agencies.
     (B) County agencies.
     (C) City agencies.
     (D) Town agencies.
     (E) Township agencies.
     (F) School corporations.
     (G) Other local agencies.
(5) The number of complaints received concerning each of the following:
     (A) Public records.
     (B) Public meetings.
(6) The total number of written advisory opinions issued and pending.

**An informal inquiry or other request for assistance under this chapter does not delay the running of a statute of limitation that applies to a lawsuit under IC 5-14-1.5 or IC 5-14-3 concerning the subject matter of the inquiry or other request.

Formal Complaint Procedure

Click here for the Formal Complaint Form.

  • A person or a public agency is not required to file a complaint under this chapter before filing an action under IC 5-14-1.5 (the Indiana Open Door Law-public meetings) or IC 5-14-3 (the Indiana Access to Public Records Act-public records.)
  • A public agency shall cooperate with the counselor in any investigation or proceeding under this chapter.
  • A person or a public agency denied: (1) the right to inspect or copy records under IC 5-14-3 ;
    (2) the right to attend any public meeting of a public agency in violation of IC 5-14-1.5; or
    (3) any other right conferred by IC 5-14-3 or IC 5-14-1.5 or any other state statute or rule governing access to public meetings or public records;
    may file a formal complaint with the counselor under the procedure prescribed by this chapter or may make an informal inquiry.
  • A person or a public agency that chooses to file a formal complaint with the counselor must file the complaint not later than thirty (30) days after: (1) the denial; or
    (2) the person filing the complaint receives notice in fact that a meeting was held by a public agency, if the meeting was conducted secretly or without notice. A complaint is considered filed on the date it is:
    (1) received by the counselor; or
    (2) postmarked, if received more than thirty (30) days after the date of the denial that is the subject of the complaint.
  • When the counselor receives a complaint, the counselor shall immediately forward a copy of the complaint to the public agency that is the subject of the complaint.

  • The counselor shall issue an advisory opinion on the complaint not later than thirty (30) days after the complaint is filed except that, if the counselor determines that a complaint has priority, the counselor shall issue an advisory opinion on the complaint not later than seven (7) days after the complaint is filed. The counselor shall adopt rules establishing criteria for complaints that have priority.

  • The public access counselor shall determine the form of a formal complaint filed under this chapter. The filing of a formal complaint under this chapter does not delay the running of a statute of limitation that applies to a lawsuit under the Open Door Law or the Access to Public Records Act concerning the subject matter of the complaint.

CHANGES TO CURRENT LAWS CONCERNING THE AWARD OF ATTORNEYS FEES, COURT COSTS AND EXPENSES OF LITIGATION2

For violations of the Indiana Open Door Law:
  • 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 prevails; or
    (2) the defendant prevails and the court finds that the action is frivolous and 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 to prevent a violation of this chapter.

  • A court shall expedite the hearing of an action filed.
For violations of the Indiana Access to Public Records Act:

  • In any action filed under this section, a court shall award reasonable attorney 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 denied.

  • A court shall expedite the hearing of an action filed.

Immunity for public officials and public employees:

A public employee, a public official, or an employee or officer of a contractor or subcontractor of a public agency who unintentionally and unknowingly discloses confidential or erroneous information in response to a request under IC 5-14-3-3 (d) or who discloses confidential information in reliance on an advisory opinion by the public access counselor is immune from liability for such a disclosure.

FEES FOR COPIES OF PUBLIC RECORDS

On the local level, the fiscal body for the public agency must set a schedule of fees for copies, certification, and facsimile transmission of documents that may not exceed the actual cost of the copy, certification or facsimile transmission. New language has been added to define actual cost to mean:

The cost of paper and the per-page cost for use of copying or facsimile equipment, and does not include labor costs or overhead costs.3

This change will require each fiscal body to examine its per-page copying fee schedules to ensure that the fees reflect the actual cost, as defined and effective July 1, 1999.

1House Enrolled Act 1002 and Senate Enrolled Act 1 (1999).

2House Enrolled Act 1002 and Senate Enrolled Act 1 (1999). The changes highlighted concern the penalties and immunities for violations of the public access laws. There were other minor changes in these two acts that reflect the existence of the Public Access Counselor's office and the impact of obtaining an advisory opinion on the court's review of possible violations.

3Indiana Code 5-14-3-8(d) as amended by Senate Enrolled Act 321 (1999).