Indiana House panel backs fines on access violators

January 17, 2012

A bill that would allow fines of up to $500 against government officials found to have blatantly violated the state's open meetings or open record laws has been endorsed by an Indiana House committee.

The House government reform committee voted 11-0 Tuesday to send the proposal to the full House for consideration.

That bill and a similar Senate proposal would allow a judge to impose civil fines up to $100 for a first offense and up to $500 for additional violations.

Bill sponsor Rep. Kevin Mahan of Hartford City said he expects such fines would be rare and they could only be imposed after disputes first go through the state's public access counselor office for review.

The proposal would impose personal penalties for such actions for the first time since the laws were adopted 35 years ago.

Supporters say the fines would give more teeth to the state's open records and open meetings laws.

"The people we're truly getting at here are just the bad apples," Mahan said earlier this week. "The people where the public access counselor has said this should be released, this is public information and should be released, and then they basically cross their arms and say 'I don't care, I'm not giving it to them.'"

Currently, a person seeking records can take a public agency to court to try and get withheld records released. But a judge can only award legal costs to a resident who wins a court case over a public access dispute.

Andrew Berger, a lobbyist for the Association of Indiana Counties, said it is important for any fining provision to have protections for government officials who have an honest disagreement over whether a document meets the law's requirements for being kept from public release.

"The public access law is not black and white, and you have differences of opinion," Berger said. "You have a little bit of a fear of somebody filing a frivolous lawsuit ... The standard should be there to protect someone who is acting in good faith."

The Hoosier State Press Association said more than 30 states have laws that allow civil fines, criminal charges or removal from office for violators of public access laws.

The Indiana House and Senate have both approved — on unanimous votes — proposals in the past three years that included fines for public access violations, but both times the bills failed to advance in the other chamber for reasons unrelated to the bills' content, said Steve Key, HSPA's executive director.

He said he was hopeful that the Legislature will send a signal about the importantance of the public access law by approving the fining provisions this year.

"If someone jaywalks, or we don't cut our grass or go speeding down the highway, we are all personally liable and can expect to be fined for not complying with those laws or ordinances," Key said. "But when a public official deliberately ignores the public's right to know, there is no such consequence."

Even with the addition of possible fines, the "good faith" defense might not make the law much tougher, said Kurt Webber, a Carmel attorney who handles court cases on access issues. He said he expected few judges would impose fines on city or county officials whom the judges probably know personally.

"There's a mentality out there that open government's a great thing until you want to look in my records," Webber said.

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