FARGO: Long-overdue teeth for public access laws

If at first you don’t succeed, testify again.

A few years ago, I spoke before an Indiana Senate committee for a bill that would have allowed judges to issue civil fines to public officials who knowingly and intentionally violated the Access to Public Records Act or the Open Door Law.

Since then, the bill has passed the House but not the Senate in one session and the Senate but not the House in another. So, earlier this month, I found myself making a hasty trip to Indianapolis to testify before the House Government and Regulatory Reform Committee on the latest House version of the bill. A similar bill is pending in the Senate.

House Bill 1093 would allow judges to impose a fine of $100 for a first offense and $500 for additional violations of the access laws. The bill would also require local government agencies to notify members of the public of upcoming meetings through e-mail or website posting. The bill would also provide for the creation of an education fund to aid the public access counselor’s office in training agency officials and the public about the access laws.

Right now, if a public official denies you access to a record that you should, by law, be allowed to examine, you can ask the public access counselor for an opinion on whether the agency improperly denied you access. If the public access counselor agrees with you but the agency still denies you access, you can sue the agency.

If you win, the agency may be obligated to pay your attorney’s fees. But the recalcitrant official doesn’t face any direct punishment.

With meetings, there is the possibility that actions taken at an illegally called gathering of a council or board may be voided if someone successfully sues the agency alleging a violation of the Open Door Law.

In each case, holding the agency accountable depends upon a citizen willing to gamble that he or she will be reimbursed for legal fees at the end of the journey. As I told the committee, telling the average person that she’s welcome to sue is like telling her to go to Mars and back.

Supporters of the bill—including its House sponsor, Rep. Kevin Mahan, R-Hartford City; Steve Key, executive director and general counsel for the Hoosier State Press Association; and Attorney General Greg Zoeller—emphasized that the fines were aimed only at deterring a few “bad actors” among public officials. The vast majority of public officials try to comply with the access laws, they said.

I tend to agree, but I worry that the emphasis on how limited the problem is begs the question: Why bother passing legislation? My minor role at the hearing was to point out that the “bad actors” do exist, based on occasional e-mails and calls I get seeking advice from frustrated people and on some statistical data I helped gather a few years ago for a study of the public access counselor’s effectiveness. (The study is available on the Indiana Coalition for Open Government’s website under the resources tab if you’re interested. Go to www.indianacog.org.)

Focusing on the relatively small number of offenses obscures the real issue, however, which Mahan, Key and Zoeller did a good job of emphasizing. Zoeller said it best: The bill “says a lot about our commitment on how we’re going to serve the public. … There is a principle behind this that should be recognized. It increases the trust of the public in their public officials.”

In the end, Mahan, who is also the committee chairman, delayed a vote on the bill so he could clarify language that concerned some committee members and representatives of local government who spoke at the hearing.

I hope the bill passes this year, but if it doesn’t, I have a message for the legislators: Don’t make me come up there again. I have pie charts and I’m not afraid to use them.•

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Fargo is an Indiana University journalism professor and member of the Indiana Coalition for Open Government. Send comments on this column to ibjedit@ibj.com.