Bill Text: IN SB0369 | 2013 | Regular Session | Introduced
Bill Title: Public records.
Spectrum: Bipartisan Bill
Status: (Passed) 2013-05-13 - Public Law 248 [SB0369 Detail]
Download: Indiana-2013-SB0369-Introduced.html
Citations Affected: IC 5-14-3.
Synopsis: Public records. Allows a public agency to withhold from
public disclosure records received by the agency from the federal
government that are confidential under the federal Freedom of
Information Act (FOIA) or designated by an agency of the federal
government as Sensitive But Unclassified Information. Allows a public
agency to refuse to confirm or deny the existence of investigatory
records of law enforcement agencies or Sensitive But Unclassified
Information received from the federal government, if the fact of the
existence of the information would: (1) impede or compromise an
ongoing law enforcement investigation or endanger an individual; or
(2) reveal information that would have a reasonable likelihood of
threatening public safety. Allows a public agency to refuse to confirm
or deny the existence of a record the disclosure of which would expose
vulnerability to terrorist attack, if the fact of the record's existence or
nonexistence would reveal information that would have a reasonable
likelihood of threatening public safety. Allows a person to file an action
in court to appeal an agency's refusal to confirm or deny the existence
of a record. Provides that if a record is requested from a public agency
other than the agency that created the record, the public agency that
receives the request may: (1) refer the record to the creating agency for
that agency's review and recommendation as to the confidentiality of
the information; (2) transfer the records request to the local or state
public agency that created the record for a direct response; or (3) if the
originating agency is an agency of the federal government, direct the
person to request the information directly from the federal government
under the FOIA.
Effective: Upon passage.
January 8, 2013, read first time and referred to Committee on Homeland Security,
Transportation and Veterans Affairs.
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or
A BILL FOR AN ACT to amend the Indiana Code concerning state
and local administration.
(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 35-31.5-2-185);
(iii) a judge (as defined in IC 33-38-12-3);
(iv) the victim of a crime; or
(v) a family member of a correctional officer, law
enforcement officer (as defined in IC 35-31.5-2-185), judge
(as defined in IC 33-38-12-3), or victim of a crime; or
(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.
(25) Information from an agency of the federal government
that is:
(A) exempt from disclosure to the public under the
Freedom of Information Act under 5 U.S.C. 552; or
(B) designated by an agency of the federal government as
Sensitive But Unclassified Information, including
information designated as:
(i) For Official Use Only;
(ii) Law Enforcement Sensitive;
(iii) Sensitive Homeland Security Information;
(iv) Sensitive Security Information;
(v) Protected Critical Infrastructure Information; or
(vi) Chemical-terrorism Vulnerability Information.
(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) Refer the requested record to the public agency that created the record for that agency's review and recommendation regarding the record's confidentiality.
(2) Transfer the request for the record to the appropriate local or state public agency that created the record and notify the person making the request of the transfer. The agency that created the record shall treat the transferred request as a new request addressed to the agency, and the response times in section 9 of this chapter begin to run when the transferred request is received by the agency.
(3) If the agency that created the record is an agency of the federal government, the agency may direct the person to request the information directly from the federal government under the Freedom of Information Act, 5 U.S.C. 552.
An action taken by a public agency under this section may not be considered a denial of disclosure under section 9 of this chapter.
(1) Deny disclosure of the record or a part of the record. The person requesting the information may appeal the denial under section 9 of this chapter.
(2) Refuse to confirm or deny the existence of the record, regardless of whether the record exists or does not exist, if the fact of the record's existence or nonexistence would reveal information that would:
(A) impede or compromise an ongoing law enforcement investigation or result in danger to an individual's safety, including the safety of a law enforcement officer or a confidential source; or
(B) reveal information that would have a reasonable likelihood of threatening public safety.
(3) If the record or information did not originate with the
agency, take an action under section 4.2 of this chapter.
(b) 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. This subsection applies to a request
for 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 in formulating a response. The agency may do any
of the following:
(1) Deny disclosure of the record or a part of the record. 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 public safety by exposing a
vulnerability to terrorist attack. The person requesting the
information may appeal the denial under section 9 of this
chapter.
(2) Refuse to confirm or deny the existence of the record
regardless of whether the record exists or does not exist, if the
fact of the record's existence or nonexistence would reveal
information that would have a reasonable likelihood of
threatening public safety.
(3) If the record or information did not originate with the
agency, take an action under section 4.2 of this chapter.
(c) A person who has received a refusal from an agency to
confirm or deny the existence of a record may file an action in the
circuit or superior court of the county in which the response was
received:
(1) to compel the public agency to confirm whether the record
exists or does not exist; and
(2) if the public agency confirms that the record exists, to
compel the agency to permit the person to inspect and copy
the record.
(d) The court shall determine the matter de novo, with the
burden of proof on the public agency to sustain its refusal to
confirm or deny the existence of the record. The public agency
meets its burden of proof by filing a public affidavit with the court
that provides with reasonable specificity of detail, and not simply
conclusory statements, the basis of the agency's claim that it cannot
be required to confirm or deny the existence of the requested
record. If the public agency meets its burden of proof, the burden
of proof shifts to the person requesting access to the record. The
person requesting access to the record meets the person's burden
of proof by proving any of the following:
(1) The agency's justifications for not confirming the existence
of the record contradict other evidence in the trial record.
(2) The agency is withholding the record in bad faith.
(3) An official with authority to speak for the agency has
acknowledged to the public in a documented disclosure that
the record exists. The person requesting the record must
prove that the information requested:
(A) is as specific as the information previously disclosed;
and
(B) matches the previously disclosed information.
(e) Either party may make an interlocutory appeal of the trial
court's determination on whether the agency's refusal to confirm
or deny the existence of the record was proper.
(f) If the court, after the disposition of any interlocutory
appeals, finds that the agency's refusal to confirm or deny was
improper, the court shall order the agency to disclose whether the
record exists or does not exist. If the record exists and the agency
claims that the record is exempt from disclosure under this
chapter, the court may review the public record in camera to
determine whether any part of the record may be withheld.
(g) In an action filed under this section, the 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.
A plaintiff is eligible for the awarding of attorney's fees, court
costs, and other reasonable expenses regardless of whether the
plaintiff filed the action without first seeking and receiving an
informal inquiry response or advisory opinion from the public
access counselor.
(h) A court that hears an action under this section may not
assess a civil penalty under section 9.5 of this chapter in connection
with the action.
(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.
(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.
(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.
(k) A court shall expedite the hearing of an action filed under this
section.
