Bill Text: IN HB1093 | 2012 | Regular Session | Amended
Bill Title: Public access issues.
Spectrum: Slight Partisan Bill (Republican 3-1)
Status: (Engrossed - Dead) 2012-02-01 - Senator Holdman added as second sponsor [HB1093 Detail]
Download: Indiana-2012-HB1093-Amended.html
Citations Affected: IC 5-14; IC 34-30.
Effective: July 1, 2012.
January 9, 2012, read first time and referred to Committee on Government and Regulatory
Reform.
January 23, 2012, amended, reported _ Do Pass.
Digest Continued
acted in reliance on an opinion of the public agency's legal counsel or an opinion of the attorney general. Provides that a court may impose a civil penalty of: (1) not more than $100 for the first violation; and (2) not more than $500 for any additional violations. Provides that a court may: (1) impose only one civil penalty against an individual in an action even if the court finds that the individual committed multiple violations; and (2) impose another civil penalty against the individual in a separate action. Provides that if an officer of a state or local government agency orders a management level employee to: (1) not give proper notice of a public meeting or executive session; or (2) deny or interfere with a person's request to inspect or copy a public document; the employee is not subject to a civil penalty for violating the statute. Provides that if a local government agency has the capacity to send electronic mail, the agency shall provide notice to anyone (other than news media) that makes an annual request for notice by: (1) transmitting the notice by electronic mail; or (2) posting the notice on the agency's Internet web site (if the agency has an Internet web site). Provides that a court may not declare a governmental action void for failure to give notice by electronic mail or posting on the local government agency's web site if the agency made a good faith effort to comply with the statute. Provides that a public agency may withhold personal information from public disclosure regarding an individual less than 18 years of age who participates in an activity conducted or supervised by a state educational institution, including personal information regarding the individual's parent or guardian. Requires (rather than allows) a court to review public records in camera to determine whether redaction of the records violates the public records act. Creates an education fund for a program administered by the public access counselor 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. Provides that a public agency has discretion as to whether to disclose a public record requested by an offender containing personal information relating to a judge, law enforcement officer, or family member of a judge or law enforcement officer.
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A BILL FOR AN ACT to amend the Indiana Code concerning state
and local administration.
(b) Public notice shall be given by the governing body of a public agency
(1) The governing body of a public agency shall give public notice by posting a copy of the notice at the principal office of the
public agency holding the meeting or, if no such office exists, at
the building where the meeting is to be held. and
(2) The governing body of a public agency shall give public
notice by delivering notice to all news media which deliver by
January 1 an annual written request for such the notices not later
than December 31 for the next succeeding calendar year to the
governing body of the public agency. The governing body shall
give notice by one (1) of the following methods, which shall be
determined by the governing body:
(A) Depositing the notice in the United States mail with
postage prepaid.
(B) Transmitting the notice by electronic mail, if the public
agency has the capacity to transmit electronic mail.
(C) Transmitting the notice by facsimile (fax).
(3) This subdivision applies only to the governing body of a
public agency of a political subdivision described in section
2(a)(2), 2(a)(4), or 2(a)(5) of this chapter that has the capacity
to send electronic mail or has an Internet web site. The
governing body of a public agency shall give public notice by
delivering notice to any person (other than news media) who
delivers to the governing body of the public agency an annual
written request for the notices not later than December 31 for
the next succeeding calendar year. The governing body shall
give notice by one (1) of the following methods, which shall be
determined by the governing body:
(A) Transmitting the notice by electronic mail, if the public
agency has the capacity to send electronic mail.
(B) Publishing the notice on the public agency's Internet
web site at least forty-eight (48) hours in advance of the
meeting, if the public agency has an Internet web site.
A court may not declare void any policy, decision, or final action
under section 7 of this chapter based on a failure to give a person
notice under subdivision (3) if the public agency made a good faith
effort to comply with subdivision (3). If a governing body comes into
existence after January 1, December 31, it shall comply with this
subdivision subsection upon receipt of a written request for notice. In
addition, a state agency (as defined in IC 4-13-1-1) shall provide
electronic access to the notice through the computer gateway
administered by the office of technology established by IC 4-13.1-2-1.
(c) Notice of regular meetings need be given only once each year,
except that an additional notice shall be given where the date, time, or
place of a regular meeting or meetings is changed. This subsection does
not apply to executive sessions.
(d) If a meeting is called to deal with an emergency involving actual
or threatened injury to person or property, or actual or threatened
disruption of the governmental activity under the jurisdiction of the
public agency by any event, then the time requirements of notice under
this section shall not apply, but:
(1) news media which have requested notice of meetings under
subsection (b)(2) must be given the same notice as is given to the
members of the governing body; and
(2) the public must be notified by posting a copy of the notice
according to this section. subsection (b)(1).
(e) This section shall not apply where notice by publication is
required by statute, ordinance, rule, or regulation.
(f) This section shall not apply to:
(1) the department of local government finance, the Indiana board
of tax review, or any other governing body which meets in
continuous session, except that this section applies to meetings of
these governing bodies which are required by or held pursuant to
statute, ordinance, rule, or regulation; or
(2) the executive of a county or the legislative body of a town if
the meetings are held solely to receive information or
recommendations in order to carry out administrative functions,
to carry out administrative functions, or confer with staff
members on matters relating to the internal management of the
unit. "Administrative functions" do not include the awarding of
contracts, the entering into contracts, or any other action creating
an obligation or otherwise binding a county or town.
(g) This section does not apply to the general assembly.
(h) Notice has not been given in accordance with this section if a
governing body of a public agency convenes a meeting at a time so
unreasonably departing from the time stated in its public notice that the
public is misled or substantially deprived of the opportunity to attend,
observe, and record the meeting.
(1) obtain a declaratory judgment;
(2) enjoin continuing, threatened, or future violations of this chapter; or
(3) declare void any policy, decision, or final action:
(A) taken at an executive session in violation of section 3(a) of
this chapter;
(B) taken at any meeting of which notice is not given in
accordance with section 5 of this chapter;
(C) that is based in whole or in part upon official action taken
at any:
(i) executive session in violation of section 3(a) of this
chapter;
(ii) meeting of which notice is not given in accordance with
section 5 of this chapter; or
(iii) series of gatherings in violation of section 3.1 of this
chapter; or
(D) taken at a meeting held in a location in violation of section
8 of this chapter.
The plaintiff need not allege or prove special damage different from
that suffered by the public at large.
(b) Regardless of whether a formal complaint or an informal inquiry
is pending before the public access counselor, any action to declare any
policy, decision, or final action of a governing body void, or to enter an
injunction which would invalidate any policy, decision, or final action
of a governing body, based on violation of this chapter occurring before
the action is commenced, shall be commenced:
(1) prior to the delivery of any warrants, notes, bonds, or
obligations if the relief sought would have the effect, if granted,
of invalidating the notes, bonds, or obligations; or
(2) with respect to any other subject matter, within thirty (30)
days of either:
(A) the date of the act or failure to act complained of; or
(B) the date that the plaintiff knew or should have known that
the act or failure to act complained of had occurred;
whichever is later. If the challenged policy, decision, or final action is
recorded in the memoranda or minutes of a governing body, a plaintiff
is considered to have known that the act or failure to act complained of
had occurred not later than the date that the memoranda or minutes are
first available for public inspection.
(c) If a court finds that a governing body of a public agency has
violated this chapter, it may not find that the violation was cured by the
governing body by only having taken final action at a meeting that
complies with this chapter.
(d) In determining whether to declare any policy, decision, or final
action void, a court shall consider the following factors among other
relevant factors:
(1) The extent to which the violation:
(A) affected the substance of the policy, decision, or final action;
(B) denied or impaired access to any meetings that the public had a right to observe and record; and
(C) prevented or impaired public knowledge or understanding of the public's business.
(2) Whether voiding of the policy, decision, or final action is a necessary prerequisite to a substantial reconsideration of the subject matter.
(3) Whether the public interest will be served by voiding the policy, decision, or final action by determining which of the following factors outweighs the other:
(A) The remedial benefits gained by effectuating the public policy of the state declared in section 1 of this chapter.
(B) The prejudice likely to accrue to the public if the policy, decision, or final action is voided, including the extent to which persons have relied upon the validity of the challenged action and the effect declaring the challenged action void would have on them.
(4) Whether the defendant acted in compliance with an informal inquiry response or advisory opinion issued by the public access counselor concerning the violation.
(e) If a court declares a policy, decision, or final action of a governing body of a public agency void, the court may enjoin the governing body from subsequently acting upon the subject matter of the voided act until it has been given substantial reconsideration at a meeting or meetings that comply with this chapter.
(f) 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.
(g) A court may assess a civil penalty under section 7.5 of this chapter only if the plaintiff obtained an advisory opinion from the public access counselor before filing an action under this section as
set forth in section 7.5 of this chapter.
(g) (h) A court shall expedite the hearing of an action filed under
this section.
(1) an officer of a public agency; or
(2) employed in a management level position with a public agency.
(b) If an individual with the specific intent to violate the law fails to perform a duty imposed on the individual under this chapter by:
(1) failing to give proper notice of a regular meeting, special meeting, or executive session;
(2) taking final action outside a regular meeting or special meeting;
(3) participating in a secret ballot during a meeting;
(4) discussing in an executive session subjects not eligible for discussion in an executive session;
(5) failing to prepare a memorandum of a meeting as required by section 4 of this chapter; or
(6) participating in at least one (1) gathering of a series of gatherings under section 3.1 of this chapter;
the individual and the public agency are subject to a civil penalty under subsection (f).
(c) A civil penalty may only be imposed as part of an action filed under section 7 of this chapter. A court may not impose a civil penalty under this section unless the public access counselor has issued an advisory opinion:
(1) to the complainant and the public agency;
(2) that finds that the individual or public agency violated this chapter; and
(3) before the action under section 7 of this chapter is filed.
Nothing in this section prevents both the complainant and the public agency from requesting an advisory opinion from the public access counselor.
(d) It is a defense to the imposition of a civil penalty under this section that the individual failed to perform a duty under subsection (b) in reliance on either of the following:
(1) An opinion of the public agency's legal counsel.
(2) An opinion of the attorney general.
(e) Except as provided in subsection (i), in an action filed under
section 7 of this chapter, a court may impose a civil penalty against
one (1) or more of the following:
(1) The individual named as a defendant in the action.
(2) The public agency named as a defendant in the action.
(f) The court may impose against each defendant listed in
subsection (c) the following civil penalties:
(1) Not more than one hundred dollars ($100) for the first
violation.
(2) Not more than five hundred dollars ($500) for each
additional violation.
A civil penalty imposed under this section is in addition to any
other civil or criminal penalty imposed. However, in any one (1)
action brought under section 7 of this chapter, a court may impose
only one (1) civil penalty against an individual, even if the court
finds that the individual committed multiple violations. This
subsection does not preclude a court from imposing another civil
penalty against an individual in a separate action, but an individual
may not be assessed more than one (1) civil penalty in any one (1)
action brought under this section.
(g) A court shall distribute monthly to the auditor of state any
penalties collected under this section for deposit in the education
fund established by IC 5-14-4-14.
(h) An individual is personally liable for a civil penalty imposed
on the individual under this section. A civil penalty imposed
against a public agency under this section shall be paid from the
public agency's budget.
(i) If an officer of a public agency directs an individual who is
employed in a management level position to fail to give proper
notice as described in subsection (b)(1), the management level
employee is not subject to civil penalties under subsection (f).
(1) identify with reasonable particularity the record being requested; and
(2) be, at the discretion of the agency, in writing on or in a form provided by the agency.
No request may be denied because the person making the request refuses to state the purpose of the request, unless such condition is
required by other applicable statute.
(b) A public agency may not deny or interfere with the exercise of
the right stated in subsection (a). Within a reasonable time after the
request is received by the agency, the public agency shall either:
(1) provide the requested copies to the person making the request;
or
(2) allow the person to make copies:
(A) on the agency's equipment; or
(B) on the person's own equipment.
(c) Notwithstanding subsections (a) and (b), a public agency may or
may not do the following:
(1) In accordance with a contract described in section 3.5 of this
chapter, permit a person to inspect and copy through the use of
enhanced access public records containing information owned by
or entrusted to the public agency.
(2) Permit a governmental entity to use an electronic device to
inspect and copy public records containing information owned by
or entrusted to the public agency.
(d) Except as provided in subsection (e), a public agency that
maintains or contracts for the maintenance of public records in an
electronic data storage system shall make reasonable efforts to provide
to a person making a request a copy of all disclosable data contained
in the records on paper, disk, tape, drum, or any other method of
electronic retrieval if the medium requested is compatible with the
agency's data storage system. This subsection does not apply to an
electronic map.
(e) A state agency may adopt a rule under IC 4-22-2, and a political
subdivision may enact an ordinance, prescribing the conditions under
which a person who receives information on disk or tape under
subsection (d) may or may not use the information for commercial
purposes, including to sell, advertise, or solicit the purchase of
merchandise, goods, or services, or sell, loan, give away, or otherwise
deliver the information obtained by the request to any other person for
these purposes. Use of information received under subsection (d) in
connection with the preparation or publication of news, for nonprofit
activities, or for academic research is not prohibited. A person who
uses information in a manner contrary to a rule or ordinance adopted
under this subsection may be prohibited by the state agency or political
subdivision from obtaining a copy or any further data under subsection
(d).
(f) Notwithstanding the other provisions of this section, a public
agency is not required to create or provide copies of lists of names and
addresses (including electronic mail account addresses) unless the
public agency is required to publish such lists and disseminate them to
the public under a statute. However, if a public agency has created a
list of names and addresses (excluding electronic mail account
addresses) it must permit a person to inspect and make memoranda
abstracts from the list unless access to the list is prohibited by law. The
lists of names and addresses (including electronic mail account
addresses) described in subdivisions (1) through (3) may not be
disclosed by public agencies to any individual or entity for political
purposes and may not be used by any individual or entity for political
purposes. In addition, the lists of names and addresses (including
electronic mail account addresses) described in subdivisions (1)
through (3) may not be disclosed by public agencies to commercial
entities for commercial purposes and may not be used by commercial
entities for commercial purposes. The prohibition in this subsection
against the disclosure of lists for political or commercial purposes
applies to the following lists of names and addresses (including
electronic mail account addresses):
(1) A list of employees of a public agency.
(2) A list of persons attending conferences or meetings at a state
educational institution or of persons involved in programs or
activities conducted or supervised by the state educational
institution.
(3) A list of students who are enrolled in a public school
corporation if the governing body of the public school corporation
adopts a policy:
(A) with respect to disclosure related to a commercial purpose,
prohibiting the disclosure of the list to commercial entities for
commercial purposes;
(B) with respect to disclosure related to a commercial purpose,
specifying the classes or categories of commercial entities to
which the list may not be disclosed or by which the list may
not be used for commercial purposes; or
(C) with respect to disclosure related to a political purpose,
prohibiting the disclosure of the list to individuals and entities
for political purposes.
A policy adopted under subdivision (3)(A) or (3)(B) must be uniform
and may not discriminate among similarly situated commercial entities.
For purposes of this subsection, "political purposes" means influencing
the election of a candidate for federal, state, legislative, local, or school
board office or the outcome of a public question or attempting to solicit
a contribution to influence the election of a candidate for federal, state,
legislative, local, or school board office or the outcome of a public
question.
(g) A public agency may not enter into or renew a contract or an
obligation:
(1) for the storage or copying of public records; or
(2) that requires the public to obtain a license or pay copyright
royalties for obtaining the right to inspect and copy the records
unless otherwise provided by applicable statute;
if the contract, obligation, license, or copyright unreasonably impairs
the right of the public to inspect and copy the agency's public records.
(h) If this section conflicts with IC 3-7, the provisions of IC 3-7
apply.
(1) Those declared confidential by state statute.
(2) Those declared confidential by rule adopted by a public agency under specific authority to classify public records as confidential granted to the public agency by statute.
(3) Those required to be kept confidential by federal law.
(4) Records containing trade secrets.
(5) Confidential financial information obtained, upon request, from a person. However, this does not include information that is filed with or received by a public agency pursuant to state statute.
(6) Information concerning research, including actual research documents, conducted under the auspices of a state educational institution, including information:
(A) concerning any negotiations made with respect to the research; and
(B) received from another party involved in the research.
(7) Grade transcripts and license examination scores obtained as part of a licensure process.
(8) Those declared confidential by or under rules adopted by the supreme court of Indiana.
(9) Patient medical records and charts created by a provider, unless the patient gives written consent under IC 16-39 or as provided under IC 16-41-8.
(10) Application information declared confidential by the board of the Indiana economic development corporation under
IC 5-28-16.
(11) A photograph, a video recording, or an audio recording of an
autopsy, except as provided in IC 36-2-14-10.
(12) A Social Security number contained in the records of a
public agency.
(13) The following information that is part of a foreclosure action
subject to IC 32-30-10.5:
(A) Contact information for a debtor, as described in
IC 32-30-10.5-8(d)(2)(B).
(B) Any document submitted to the court as part of the debtor's
loss mitigation package under IC 32-30-10.5-10(a)(3).
(b) Except as otherwise provided by subsection (a), the following
public records shall be excepted from section 3 of this chapter at the
discretion of a public agency:
(1) Investigatory records of law enforcement agencies. However,
certain law enforcement records must be made available for
inspection and copying as provided in section 5 of this chapter.
(2) The work product of an attorney representing, pursuant to
state employment or an appointment by a public agency:
(A) a public agency;
(B) the state; or
(C) an individual.
(3) Test questions, scoring keys, and other examination data used
in administering a licensing examination, examination for
employment, or academic examination before the examination is
given or if it is to be given again.
(4) Scores of tests if the person is identified by name and has not
consented to the release of the person's scores.
(5) The following:
(A) Records relating to negotiations between the Indiana
economic development corporation, the ports of Indiana, the
Indiana state department of agriculture, the Indiana finance
authority, an economic development commission, a local
economic development organization (as defined in
IC 5-28-11-2(3)), or a governing body of a political
subdivision with industrial, research, or commercial prospects,
if the records are created while negotiations are in progress.
(B) Notwithstanding clause (A), the terms of the final offer of
public financial resources communicated by the Indiana
economic development corporation, the ports of Indiana, the
Indiana finance authority, an economic development
commission, or a governing body of a political subdivision to
an industrial, a research, or a commercial prospect shall be
available for inspection and copying under section 3 of this
chapter after negotiations with that prospect have terminated.
(C) When disclosing a final offer under clause (B), the Indiana
economic development corporation shall certify that the
information being disclosed accurately and completely
represents the terms of the final offer.
(6) Records that are intra-agency or interagency advisory or
deliberative material, including material developed by a private
contractor under a contract with a public agency, that are
expressions of opinion or are of a speculative nature, and that are
communicated for the purpose of decision making.
(7) Diaries, journals, or other personal notes serving as the
functional equivalent of a diary or journal.
(8) Personnel files of public employees and files of applicants for
public employment, except for:
(A) the name, compensation, job title, business address,
business telephone number, job description, education and
training background, previous work experience, or dates of
first and last employment of present or former officers or
employees of the agency;
(B) information relating to the status of any formal charges
against the employee; and
(C) the factual basis for a disciplinary action in which final
action has been taken and that resulted in the employee being
suspended, demoted, or discharged.
However, all personnel file information shall be made available
to the affected employee or the employee's representative. This
subdivision does not apply to disclosure of personnel information
generally on all employees or for groups of employees without the
request being particularized by employee name.
(9) Minutes or records of hospital medical staff meetings.
(10) Administrative or technical information that would
jeopardize a record keeping or security system.
(11) Computer programs, computer codes, computer filing
systems, and other software that are owned by the public agency
or entrusted to it and portions of electronic maps entrusted to a
public agency by a utility.
(12) Records specifically prepared for discussion or developed
during discussion in an executive session under IC 5-14-1.5-6.1.
However, this subdivision does not apply to that information
required to be available for inspection and copying under
subdivision (8).
(13) The work product of the legislative services agency under
personnel rules approved by the legislative council.
(14) The work product of individual members and the partisan
staffs of the general assembly.
(15) The identity of a donor of a gift made to a public agency if:
(A) the donor requires nondisclosure of the donor's identity as
a condition of making the gift; or
(B) after the gift is made, the donor or a member of the donor's
family requests nondisclosure.
(16) Library or archival records:
(A) which can be used to identify any library patron; or
(B) deposited with or acquired by a library upon a condition
that the records be disclosed only:
(i) to qualified researchers;
(ii) after the passing of a period of years that is specified in
the documents under which the deposit or acquisition is
made; or
(iii) after the death of persons specified at the time of the
acquisition or deposit.
However, nothing in this subdivision shall limit or affect contracts
entered into by the Indiana state library pursuant to IC 4-1-6-8.
(17) The identity of any person who contacts the bureau of motor
vehicles concerning the ability of a driver to operate a motor
vehicle safely and the medical records and evaluations made by
the bureau of motor vehicles staff or members of the driver
licensing medical advisory board regarding the ability of a driver
to operate a motor vehicle safely. However, upon written request
to the commissioner of the bureau of motor vehicles, the driver
must be given copies of the driver's medical records and
evaluations.
(18) School safety and security measures, plans, and systems,
including emergency preparedness plans developed under 511
IAC 6.1-2-2.5.
(19) A record or a part of a record, the public disclosure of which
would have a reasonable likelihood of threatening public safety
by exposing a vulnerability to terrorist attack. A record described
under this subdivision includes:
(A) a record assembled, prepared, or maintained to prevent,
mitigate, or respond to an act of terrorism under IC 35-47-12-1
or an act of agricultural terrorism under IC 35-47-12-2;
(B) vulnerability assessments;
(C) risk planning documents;
(D) needs assessments;
(E) threat assessments;
(F) intelligence assessments;
(G) domestic preparedness strategies;
(H) the location of community drinking water wells and surface water intakes;
(I) the emergency contact information of emergency responders and volunteers;
(J) infrastructure records that disclose the configuration of critical systems such as communication, electrical, ventilation, water, and wastewater systems; and
(K) detailed drawings or specifications of structural elements, floor plans, and operating, utility, or security systems, whether in paper or electronic form, of any building or facility located on an airport (as defined in IC 8-21-1-1) that is owned, occupied, leased, or maintained by a public agency. A record described in this clause may not be released for public inspection by any public agency without the prior approval of the public agency that owns, occupies, leases, or maintains the airport. The public agency that owns, occupies, leases, or maintains the airport:
(i) is responsible for determining whether the public disclosure of a record or a part of a record has a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack; and
(ii) must identify a record described under item (i) and clearly mark the record as "confidential and not subject to public disclosure under IC 5-14-3-4(b)(19)(J) without approval of (insert name of submitting public agency)".
This subdivision does not apply to a record or portion of a record pertaining to a location or structure owned or protected by a public agency in the event that an act of terrorism under IC 35-47-12-1 or an act of agricultural terrorism under IC 35-47-12-2 has occurred at that location or structure, unless release of the record or portion of the record would have a reasonable likelihood of threatening public safety by exposing a vulnerability of other locations or structures to terrorist attack.
(20) The following personal information concerning a customer of a municipally owned utility (as defined in IC 8-1-2-1):
(A) Telephone number.
(B) Address.
(C) Social Security number.
(21) The following personal information about a complainant contained in records of a law enforcement agency:
(A) Telephone number.
(B) The complainant's address. However, if the complainant's address is the location of the suspected crime, infraction, accident, or complaint reported, the address shall be made available for public inspection and copying.
(22) Notwithstanding subdivision (8)(A), the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, or dates of first employment of a law enforcement officer who is operating in an undercover capacity.
(23) Records requested by an offender that:
(A) contain personal information relating to:
(i) a correctional officer (as defined in IC 5-10-10-1.5);
(ii) a law enforcement officer (as defined in IC 35-41-1-17);
(iii) a judge (as defined in IC 33-38-12-3);
(B) concern or could affect the security of a jail or correctional facility.
(24) Information concerning an individual less than eighteen (18) years of age who participates in a conference, meeting, program, or activity conducted or supervised by a state educational institution, including the following information regarding the individual or the individual's parent or guardian:
(A) Name.
(B) Address.
(C) Telephone number.
(D) Electronic mail account address.
(c) Nothing contained in subsection (b) shall limit or affect the right of a person to inspect and copy a public record required or directed to be made by any statute or by any rule of a public agency.
(d) Notwithstanding any other law, a public record that is classified as confidential, other than a record concerning an adoption or patient medical records, shall be made available for inspection and copying seventy-five (75) years after the creation of that record.
(e) Only the content of a public record may form the basis for the adoption by any public agency of a rule or procedure creating an exception from disclosure under this section.
(f) Except as provided by law, a public agency may not adopt a rule or procedure that creates an exception from disclosure under this section based upon whether a public record is stored or accessed using paper, electronic media, magnetic media, optical media, or other information storage technology.
(g) Except as provided by law, a public agency may not adopt a rule or procedure nor impose any costs or liabilities that impede or restrict the reproduction or dissemination of any public record.
(h) Notwithstanding subsection (d) and section 7 of this chapter:
(1) public records subject to IC 5-15 may be destroyed only in accordance with record retention schedules under IC 5-15; or
(2) public records not subject to IC 5-15 may be destroyed in the ordinary course of business.
(1) the person designated by the public agency as being responsible for public records release decisions refuses to permit inspection and copying of a public record when a request has been made; or
(2) twenty-four (24) hours elapse after any employee of the public agency refuses to permit inspection and copying of a public record when a request has been made;
whichever occurs first.
(b) If a person requests by mail or by facsimile a copy or copies of a public record, a denial of disclosure does not occur until seven (7) days have elapsed from the date the public agency receives the request.
(c) If a request is made orally, either in person or by telephone, a public agency may deny the request orally. However, if a request initially is made in writing, by facsimile, or through enhanced access, or if an oral request that has been denied is renewed in writing or by facsimile, a public agency may deny the request if:
(1) the denial is in writing or by facsimile; and
(2) the denial includes:
(A) a statement of the specific exemption or exemptions authorizing the withholding of all or part of the public record;
and
(B) the name and the title or position of the person responsible
for the denial.
(d) This subsection applies to a board, a commission, a department,
a division, a bureau, a committee, an agency, an office, an
instrumentality, or an authority, by whatever name designated,
exercising any part of the executive, administrative, judicial, or
legislative power of the state. If an agency receives a request to inspect
or copy a record that the agency considers to be excepted from
disclosure under section 4(b)(19) of this chapter, the agency may
consult with the counterterrorism and security council established by
IC 10-19-8-1. If an agency denies the disclosure of a record or a part of
a record under section 4(b)(19) of this chapter, the agency or the
counterterrorism and security council shall provide a general
description of the record being withheld and of how disclosure of the
record would have a reasonable likelihood of threatening the public
safety.
(e) A person who has been denied the right to inspect or copy a
public record by a public agency may file an action in the circuit or
superior court of the county in which the denial occurred to compel the
public agency to permit the person to inspect and copy the public
record. Whenever an action is filed under this subsection, the public
agency must notify each person who supplied any part of the public
record at issue:
(1) that a request for release of the public record has been denied;
and
(2) whether the denial was in compliance with an informal inquiry
response or advisory opinion of the public access counselor.
Such persons are entitled to intervene in any litigation that results from
the denial. The person who has been denied the right to inspect or copy
need not allege or prove any special damage different from that
suffered by the public at large.
(f) The court shall determine the matter de novo, with the burden of
proof on the public agency to sustain its denial. If the issue in de novo
review under this section is whether a public agency properly denied
access to a public record because the record is exempted under section
4(a) of this chapter, the public agency meets its burden of proof under
this subsection by establishing the content of the record with adequate
specificity and not by relying on a conclusory statement or affidavit.
(g) If the issue in a de novo review under this section is whether a
public agency properly denied access to a public record because the
record is exempted under section 4(b) of this chapter:
(1) the public agency meets its burden of proof under this subsection by:
(A) proving that the record falls within any one (1) of the categories of exempted records under section 4(b) of this chapter; and
(B) establishing the content of the record with adequate specificity and not by relying on a conclusory statement or affidavit; and
(2) a person requesting access to a public record meets the person's burden of proof under this subsection by proving that the denial of access is arbitrary or capricious.
(h) The court may review the public record in camera to determine whether any part of it may be withheld under this chapter. However, if the complaint alleges that a public agency denied disclosure of a public record by redacting information in the public record, the court shall conduct an in camera inspection of the public record with the redacted information included.
(i) 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 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.
(j) A court may assess a civil penalty under section 9.5 of this chapter only if the plaintiff obtained an advisory opinion from the public access counselor before filing an action under this section as set forth in section 9.5 of this chapter.
(1) an officer of a public agency; or
(2) an individual employed in a management level position with a public agency.
(b) If an individual:
(1) continues to deny a request that complies with section 3(a) of this chapter for inspection or copying of a public record after the public access counselor has issued an advisory opinion:
(A) regarding the request for inspection or copying of the public record; and
(B) that instructs the public agency to allow access to the public record; and
(2) denies the request with the specific intent to unlawfully withhold a public record that is subject to disclosure under this chapter;
the individual and the public agency employing the individual are subject to a civil penalty under subsection (g).
(c) If an individual intentionally charges a copying fee that the individual knows exceeds the amount set by statute, fee schedule, ordinance, or court order, the individual is subject to a civil penalty under subsection (g).
(d) A civil penalty may only be imposed as part of an action filed under section 9 of this chapter. A court may not impose a civil penalty under this section unless the public access counselor has issued an advisory opinion:
(1) to the complainant and the public agency;
(2) that instructs the public agency to allow access to the public record; and
(3) before the action under section 9 of this chapter is filed.
Nothing in this section prevents both the person requesting the public record and the public agency from requesting an advisory opinion from the public access counselor.
(e) It is a defense to the imposition of a civil penalty under this section that the individual denied access to a public record in reliance on either of the following:
(1) An opinion of the public agency's legal counsel.
(2) An opinion of the attorney general.
(f) A court may impose a civil penalty for a violation under subsection (b) against one (1) or more of the following:
(1) The individual named as a defendant in the action.
(2) The public agency named as a defendant in the action.
(g) In an action under this section, a court may impose the following civil penalties:
(1) Not more than one hundred dollars ($100) for the first violation.
(2) Not more than five hundred dollars ($500) for each additional violation.
A civil penalty imposed under this section is in addition to any other civil or criminal penalty imposed. However, in any one (1) action brought under this section, a court may impose only one (1) civil penalty against an individual, even if the court finds that the individual committed multiple violations. This subsection does not preclude a court from imposing another civil penalty against an individual in a separate action, but an individual may not be assessed more than one (1) civil penalty in any one (1) action brought under this section.
(h) A court shall distribute monthly to the auditor of state any penalties collected under this section for deposit in the education fund established by IC 5-14-4-14.
(i) An individual is personally liable for a civil penalty imposed on the individual under this section. A civil penalty imposed against a public agency under this section shall be paid from the public agency's budget.
(j) If an officer of a public agency directs an individual who is employed in a management level position to deny a request as described in subsection (b)(1), the management level employee is not subject to civil penalties under subsection (g).
(b) The fund consists of the following:
(1) Civil penalties collected under IC 5-14-1.5-7.5 and IC 5-14-3-9.5.
(2) Money appropriated by the general assembly.
(3) Grants, gifts, contributions, and money received from any other source.
(c) The treasurer of state shall administer the fund. The following may be paid from money in the fund:
(1) Expenses of administering the fund.
(2) Nonrecurring administrative expenses incurred to carry out the purposes of this section.
(d) Money in the fund at the end of a state fiscal year does not revert to the state general fund.
(e) The treasurer of state shall invest the money in the fund not currently needed to meet the obligations of the fund in the same manner as other public funds may be invested. Interest that accrues from these investments shall be deposited in the fund.
