Supporters say fines will give teeth to Indiana access law

March 16, 2012

A bill awaiting a decision by Gov. Mitch Daniels would allow judges to levy fines against government officials for blatantly violating Indiana's public access laws, the first time personal penalties would be imposed since the laws were adopted 35 years ago.

Supporters believe fines would rarely be issued but say that the option would strengthen the state's open records and open meetings laws.

The measure, approved in the final hours of the legislative session, allows civil fines of up to $100 for a first offense and up to $500 for additional violations against either the government official who committed the violation or the government agency. No criminal charges are involved.

Currently, a person can take a public agency to court to try to 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.

"It does send a message that the Legislature does intend that the access laws be complied with," said Steve Key, executive director of the Hoosier State Press Association. "For those rare bad actors who otherwise would ignore the statutes, it lets them know that there is a personal consequence if they deny the public its right to know."

The trade group for Indiana's newspapers says more than 30 states have laws that allow civil fines, criminal charges or removal from office for violators of public access laws.

Under the bill, a judge may order fines only if the state public access counselor's office had first issued an opinion that the access law had been violated. It also allows the agency to defend itself by saying it was following the advice of its attorney or the state attorney general's office.

"There has to be an intentional and deliberate act by folks not to disclose that information," said bill sponsor Sen. Travis Holdman, R-Markle. "We have put enough speed bumps into the path of the civil penalties that it should be a rare case that those actually kick in."

Final passage of the fines provision came Saturday. The proposal had passed either the House or Senate in the three previous years, but failed to advance in the other chamber.

David Bottorff, executive director of the Association of Indiana Counties, said he believed the fining provision had enough protections for government officials with an honest disagreement over whether a document meets the law's requirements for being kept from public release.

"A judge is going to end up making that determination," Bottorff said.

Daniels has until Tuesday to decide whether to sign the bill into law. If he does, the fines would take effect July 1.

The same bill also establishes rules under which state agency boards and commissions and state university boards of trustees may have members participate by teleconferences or web conferences. The bill requires at least two members or one-third of the board, whichever is greater, be present at the meeting place and that each board member attend in person at least one meeting a year.

Key said that change sets out a consistent state policy for electronic participation by board members. He also said access advocates understand statewide boards' need for flexibility because of travel time and other concerns, but they are glad it won't apply to local agencies such as city councils and school boards.

"People should be able to expect that people who live within the county should be able to make it to that board meeting and be there in person," he said.


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