Tom Davies. February 29th, 2024

The scope of what Indiana’s public access counselor could consider in reviewing open government matters would be strictly limited under provisions added to legislation in the closing days of the legislative session.

Amendments that a Senate committee made this week to House Bill 1338 would also reduce the office’s independence by eliminating the four-year term the access counselor has after being appointed by the governor.

The Legislature in 1999 established the access counselor position to review questions from the public, government officials and others about the state’s open meetings and public records laws.

The public access counselor’s office, with two attorneys and one other staff member, issues dozens of advisory opinions each year but has no authority to enforce the access laws or punish violators.


Freeman, chair of the Senate Corrections and Criminal Law Committee, expressed frustration with Public Access Counselor Luke Britt’s opinions without giving specifics during the Tuesday meeting when the provision was added.

“The public access counselor, it says that he, in this case, shall liberally construe the code,” Freeman said. “He’s issued some opinions that I vehemently disagree with and I think others in our body and in this building vehemently disagree with.”

The amendment “functionally guts” the access counselor’s ability to consider the context of a situation unless it has been directly addressed by the Legislature or court, said Amelia McClure, executive director of the Hoosier State Press Association.

“The code can never contemplate all of the different circumstances that public access concerns are going to arise,” McClure said. “So the public access counselor has to consider new technologies, what location, the circumstances of the conversation in a way that a civil code will never be able to contemplate.”

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