With summer almost over, it won’t be long before your state lawmakers come together to organize for the 2008 session of the Indiana General Assembly. As usual, ICOG will be closely monitoring the legislature for any bills that would affect access to government records or meetings.
Before that happens, though, there’s one last bit of business from the 2007 Indiana General Assembly. Here at last is our annual legislative scorecard in the battle for open government, courtesy of Steve Key, lobbyist for the Hoosier State Press Association. Key’s report includes some limited victories for openness – such as the closure of the “serial meetings” loophole – as well as some new restrictions on access to government.
The 2007 session saw dozens of bills that would have increased or restricted citizens’ access to state and local governments. Many of them were dead on arrival, but ICOG identified 13 bills passed and signed by the governor that access advocates need to know about. Detailed below, nine of those bills either increased access or offered a mixed result; four of the bills decreased access. Click on the header to link to the full text of the laws.
Senate Enrolled Act 103 – Serial Meetings (Increased Access)
The Open Door law requires governing bodies to hold open meetings in most cases when a majority of members are present. Some agencies, however, have evaded that requirement by holding series of small-group sessions that do not include enough members to constitute a quorum – known as serial meetings.
One prominent example of the practice involved the Indiana University trustees, who met in this manner without public notice to discuss the firing of then-basketball coach Bob Knight. The Indiana Court of Appeals ruled that although the trustees violated the spirit of the law, their action was not illegal under the Open Door Law.
The new law closes that loophole, but it is not an unqualified victory for access advocates.
The law bars a governing body from holding two or more consecutive small-group meetings that, if combined, would constitute a quorum of the governing body. However, the meetings are barred only if they concern the same subject matter and take place within seven consecutive days. Similar to any other violation of the Open Door Law, enforcement must come from citizens. Courses of action include informing the offending agency of its error or, in the extreme, filing a lawsuit.
The legislation also adds a new exemption to the Open Door Law, specifically allowing any economic development organization to negotiate with industrial and commercial prospects behind closed doors as long as it does not reach a conclusion on a request or offer of public financial resources.
Another notable change that could raise concerns in an era of increasing government privatization: The amended law codifies an earlier appellate court ruling that a private entity under contract to provide services for a public agency for a fee does not fall under the scope of the Open Door Law or Access to Public Records Act.
Senate Enrolled Act 191 – Coroner Reports (Increased Access)
This law addresses the problem of coroners who ignore state law requiring them to create a public coroner’s report upon completion of an autopsy. The law contains several provisions dealing with coroners’ duties and training, including a new two-week deadline for creation of the coroner’s report. The report must include a conclusion as to the probable cause, manner and mechanism of death. The language includes a provision that would allow a prosecutor to seek a court order to keep the coroner’s report confidential in cases where release of the information would hamper the police investigation of the death.
The deadline for completion of the report gives the public the opportunity to ask a judge to force a coroner to comply. Previously, a trial court refused to act against a coroner because the law contained no deadline for the report.
The budget bill includes a provision that requires a public hearing before a state agency can enter into a contract with a private entity, but only if the services currently are provided by public employees, the amount of the deal is valued at more than $10 million, and the contract is to last more than four years. There is no provision to allow for public inspection of the proposed deal or alternative bids prior to the hearing, which effectively allows the public agency to keep the information confidential until after the contract is awarded.
Senate Enrolled Act 461 – Geographic Information Systems (Increased Access)
This bill concerns the state’s use of geographic information systems. It requires the appointment of a state GIS officer, whose duties include ensuring that GIS data is available to the public in locations throughout Indiana. The law contains no deadlines or specific provisions for accomplishing this.
Senate Enrolled Act 520 – Meth Labs (Increased Access)
This law establishes a methamphetamine manufacturing site registry to be made available online by the Indiana Criminal Justice Institute for citizens to check whether the home or apartment they are considering was used as an illegal meth lab. Once a property is certified clean, however, information about it is removed from the registry.
This law requires the Indiana Economic Development Corporation to report semiannually on tax credits, loans and grants the state provides and the level of compliance by recipients with requirements under the programs. The reports must be published on the IEDC’s Web site. The reports should be available starting Feb. 1, 2008, according to the IEDC.
Senate Enrolled Act 551 – Health Information (Increased Access)
This law creates the Indiana Health Informatics Corporation to encourage healthcare providers around the state to share information to improve patient care and reduce waste. It includes a provision that puts the corporation under the scope of the state’s public access laws.
House Enrolled Act 1335 – Coal Mining (Increased Access)
This law concerns coal mining and includes a provision requiring that mine inspections and other reports relating to coal mines be posted online by the state Bureau of Mines and Mine Safety. The reports must be posted no later than 60 days after the inspection. The reports can be found on the state Department of Labor Web site.
Senate Enrolled Act 207 – Medical Adverse Event Reporting (Increased Access)
This law creates a medical adverse event reporting system similar to one used by the Veterans Administration. While much of the information will be confidential, the law does allow for the release by the state Department of Health of aggregate statistical data and information stripped of material that would identify individual patients or medical providers.
House Enrolled Act 1379 – Charges for Documents (Decreased Access)
This law allows local governments to charge 10 cents per page for paper copies of documents or actual costs, whichever is greater. This matches language already in the law for state agencies. Under the old language, local government agencies were limited to charging actual copying costs.
House Enrolled Act 1505 – State Universities (Decreased Access)
This law allows state universities to invest in small start-up companies while keeping certain proprietary information of those companies confidential. The confidential information includes:
- Due diligence materials proprietary to the institutional investment fund or alternative investment vehicle;
- Quarterly and annual financial statements of alternative investment vehicles;
- Meeting materials of alternative investment vehicles that contain individual portfolio holdings;
- Records containing information regarding underlying portfolio positions in which alternative investment vehicles invest;
- Capital call and distribution notices; and
- Alternative investment agreements.
This law closes public access to military discharge records filed with county recorders.
House Enrolled Act 1427 – Undercover Police Officers (Decreased Access)
This law adds a new exemption to the Access to Public Records Law that allows police agencies to keep personnel records concerning undercover officers confidential. Records concerning disciplinary action taken that results in the officer being terminated, demoted or suspended are still be available, but the agencies can now withhold names, compensations, job titles, business addresses and telephone numbers, job descriptions and information about previous work experience.