Editorial: Stripping access counselor’s authority harms public as well as press

It’s easy to think of the Office of the Indiana Public Access Counselor as an agency that serves the media. And yes, reporters and media organizations routinely turn to the state’s public access counselor for help in determining whether a public board, elected official or government office is following the state’s public access and open records laws.

But the public access counselor spends as much or probably more time answering questions from people who aren’t journalists—people in the public trying to get information from local governments or school boards, folks who have been denied access to meetings and elected officials trying to determine whether they are following the law.

The public access counselor’s goal is to make sure government is open to its constituents—the people who pay for it to exist and the people it’s set up to serve.

And so it’s a huge concern that the Indiana General Assembly is considering legislation that would reduce what little clout the public access counselor has now.

House Bill 1138—as amended by the Senate—would limit what the access counselor can use in producing non-binding advisory opinions. The last part of that sentence is key: These are non-binding advisory opinions. The public access counselor can’t order anyone to do anything.

Still, for the non-binding opinions, the legislation would require that the counselor consider only the “plain text” of the state’s public access laws and court opinions. It removes any ability for the access counselor to interpret those laws or opinions when they don’t speak directly to situations that crop up all the time, maybe because technology has changed or because lawmakers weren’t able to anticipate the type of records that might someday exist.

Currently, state law directs the access counselor to “interpret” the state’s open meeting and public records laws, which say they should be “liberally construed.” That’s because the goal is for government to be open.

The new language restricting the access counselor’s authority comes from state Sen. Aaron Freeman, the Indianapolis Republican who has also pushed to strip Indianapolis of its ability to make some decisions related to traffic rules and ban IndyGo from using dedicated bus lanes.

He said Public Access Counselor Luke Britt has “issued some opinions I vehemently disagree with.” And so, in addition to the language described above, Freeman also added a provision that makes it easier for a governor to fire the access counselor.

Under current law, the counselor is appointed for four years and can be fired only “for cause.” The amended legislation would change the law to say the counselor serves “at the pleasure of the governor.”

“That would strip the counselor’s insulation from political processes, leaving the appointee vulnerable to being dismissed after issuing opinions that powerful state leaders dislike,” the Indiana Capital Chronicle reports.

We agree. We urge lawmakers to reject these provisions, although by the time you read this, the bill could already have passed. If it has, we call on Gov. Eric Holcomb to veto it—not for journalists but for the public who deserves access to government.•

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