Indiana law could not be more clear: With limited exceptions, government meetings and records are to be open to the public.
After seeing proof that too many local officials broke that law, Gov. Frank OBannon created the office of public access counselor, wanting to make sure state and local agencies were abiding by public access laws in fact and in spirit.
OBannon intended the access counselors office to be a place where people with a complaint about access to meetings or records could go for answers and assistance in opening the doors of government.
The law specifically requires that its provisions be liberally construed. As former Public Access Counselor Karen Davis said, any doubt, you resolve in favor of openness.
But in the 14 years since OBannon created the office, the scales seem to have tilted back in favor of the government, with officials seeking to use the legal exceptions whenever possible, and the public access counselor too often supporting them.
My general impression is that it has become more government friendly in the last few years than it has been, said Andrew Downs, director of the Mike Downs Center for Indiana Politics at IPFW.
Julia Vaughn, policy director of Common Cause Indiana, agrees.
Over the years, I think that trend has happened, she said.
For his part, the current public access counselor, Joseph Hoage, said there is no favoritism toward government. I come at it completely neutrally, he said.
Still, the counselors recent formal opinion regarding Purdue Universitys super-secret search for a new president sure seemed to be pro-government and anti-public access.
Hoage determined that Purdue met the laws specific requirement that the place of government meetings be announced beforehand by simply listing a meeting of the presidential search committee as taking place at OHare International Airport in Chicago.
OHare, of course, has multiple, expansive terminals and dozens of buildings over thousands of acres. For a citizen to find the place where the meeting was occurring would be virtually impossible.
But Hoage, rather than liberally interpreting the laws provisions as specifically required, said place doesnt mean exact location.
Hoage said there is a distinction between a meeting open to the public and a closed executive session, though the law specifically requires advance notice regarding the place of both types of meetings. Requiring an exact location, such as a room number, for an executive session is contrary to the very reason why the ODL (Open Door Law) allows for executive sessions, he wrote.
However, the law allows for executive sessions to discuss specific matters without the public hearing. The law still demands that government agencies state when and where those meetings will take place.
Hoage cited an Indiana Supreme Court case that upheld the notice of a Monroe County meeting. The meeting was held on the second floor of the courthouse, where the body typically met but (the notice) did not provide what room the meeting would be held and did not indicate it was a meeting of the county council.
In an interview, Hoage said last week he would likely reach a different determination if it had been a meeting open to the public.
History of office
OBannon created the office in 1998 after seven Indiana newspapers documented widespread violation of public access laws. OBannon, whose family owns the Corydon Democrat, also appointed a task force on public access, saying, The people of Indiana have a right to know whats going on in their local and state governments.
OBannon tapped Anne OConnor, who had worked in the attorney generals office and as a lawyer for other state agencies, to become the first public access counselor.
Though journalists have made frequent use of the office, everyday Hoosiers have contacted it with questions and complaints far more often than reporters.
When the office was formed, it was thought to be a good place for the media to turn, Hoage said. Its interesting that 60 percent of all of our contacts come from the public and 30 percent from the (government) agencies.
One advantage of the office was that it gave people who were denied records an intermediate – and no-cost – step short of filing a lawsuit. Local officials are often willing to abide by the access counselors opinion, forgoing the need for citizens either to drop the matter or incur the expense and time of going to court. When a government agency ignores the counselors finding that they erred in denying access, if the person complaining sues and wins, he can demand the agency pay legal fees.
And Hoage believes the office continues to serve the public well by performing that service.
OConnor developed a reputation for fairness and neutrality as she frequently found no violation of the law occurred but also identified a number of occasions when it did. She even ruled against the Noble County prosecutor in one complaint.
Contrast OConnors opinion with that of the current access counselor in responding to a request former IPFW Chancellor Michael Wartell made for records from Purdue.
Maybe, maybe not
Wartell, who was forced to retire when he turned 65, had filed an internal complaint with Purdue alleging discrimination. Purdue assigned an independent investigator, who apparently determined there was no violation of university policy. Wartell asked for the investigators report, but Purdue refused to hand it over, claiming that because attorney John Trimble conducted the investigation, the report was secret attorney-client communication. So Wartell filed a formal complaint with the public access counselor.
As applicable here, if in investigating the complaint, Mr. Trimble was acting solely as an independent investigator, the University may not cite attorney-client privilege in denying your request. However, if Mr. Trimble was acting as the Universitys attorney during the investigation, the University may cite the attorney-client privilege to deny the request.
A toss-up? Then why did the counselor rule in Purdues favor – albeit with an asterisk?
For the foregoing reasons, Hoage wrote, it is my opinion that the University did not violate the (Access to Public Records Act) and would be allowed to cite to the attorney-client privilege in denying your request for records if Mr. Trimble was acting as the Universitys attorney in conducting the investigation into your complaint.
As part of the complaint to the access counselor, Wartell included a document from Purdue that clearly stated Trimble was being hired as an independent investigator.
An investigator cannot be independent if he represents Purdue.
Hoage notes that his role is not that of a fact-finder and said he is not in a position to question Purdues contention that Trimble was the universitys attorney.
OConnor, the first access counselor, held the post about 4 1/2 years. She was replaced by Michael Hurst, who served a short time before leaving for another state job, and Gov. Joe Kernan appointed Karen Davis to fulfill the remainder of the access counselors term. When the term expired, Daniels replaced her in 2007. In the past five years, Daniels has appointed three counselors, two of whom left to work for the Department of Education.
I think part of the problem is there hasnt been a lot of sticking around in that office, said Common Causes Vaughn. I sense that its become a place for people in the government to kind of sit around for a while and then go somewhere else in state government, she added. Its hard to go somewhere else if youve ruled against a state agency.
Hoage said that in researching a complaint he turns first to the law. Then he reviews any relevant court rulings, and, finally, previous opinions public access counselors have written. Considering access counselors have been issuing opinions for the past 14 years, its hard to find something completely novel and unique, he said.
Despite some disappointing opinions, the access counselors office still performs a good public service. The counselor works to educate both government officials and the public about the law, though some government officials seem to leave seminars focusing more on how to use the exceptions to keep information secret rather than emphasize openness, contrary to OBannons goal for the office.
The access counselors involvement often results in information being released, sometimes even before an official opinion is issued.
Theyre effective, and I think they follow the law, said Daniel Byron, an Indianapolis attorney who is on the board of the Indiana Coalition for Open Government. Their job is to answer questions, and I think they do a good job of it.
The office could improve, though, by allowing lawyers and citizens to call informally to receive guidance in some circumstances rather than formally submit complaints.
I think for the most part it works exactly the way it was supposed to, said Davis, whose work in the office was well regarded. Davis recalled frequent interactions with government officials, some of whom wanted to prevent access. Most of the time, you could persuade them as to the right thing to do, she said.
One problem facing the office is resources. The budget has essentially been flat since 1998. While OConnor was able to hire a second lawyer to assist in running the office, the budget supports only the counselor and a part-time clerical worker, a position that is now open.
Plus, the counselor is limited because Indiana law does include a number of exceptions, ones that government officials are increasingly aware they can use.
As Vaughn said, Very often, people have sought (the access counselors) assistance and are disappointed.