Tuesday, December 9, 2008

IDEM Refuses Newspaper's Open Records Request

There is nothing I believe in more than open records. When government operates in secrecy, bad things almost always happen. When I was head of the Title Insurance Division of the Indiana Department of Insurance, I preached to my staff that we do not operate in secrecy. Everyone is entitled to know what we were doing, the policies we developed and how we intended to enforce them. I told my staff that we needed to be ready to explain what we were doing and why...that that is part of our job. Although not everyone in the industry agreed with what we were doing, I think there was nearly across-the-board respect for the open and transparent way the division was run.

With that government philosophy in mind, I read a troubling story from the Indiana Department of Environmental Management. IDEM is refusing a newspaper request to produce calendar items showing when meetings were held to discuss the BP Whiting oil refinery's air permit. At first, IDEM responded that such calendars are an exception to the open records law because they "attorney-client" or "deliberative" communications. Later IDEM, via assistant Commissioner Robert Keene, who is an attorney, offered the additional reason that the calendars are the "functional equivalent of a diary or a journal."

That is utter nonsense. Steve Key, general counsel with the Hoosier State Press Association, correctly points out that IDEM is simply trying to stretch an exception to the open records law to cover something it was never intended to. Obviously if the legislature intended "calendars" to have been included as an exception, it would have been named in the list of exceptions.

The Gary Post-Tribune, which made the request, indicated that it intends to file a complaint with the Public Access Counselor to resolve the issue. As pointed out in these pages, I wouldn't expect a whole lot from the PAC. In this case, you have the added problem that this involves another state agency and the Governor's office. Getting an objective opinion from the Public Access Counselor Heather Willis Neal that could step on her boss' toes as well as another state agency will not be easy. Rather the newspaper may have to go to court to get an objective interpretation of the law.

IDEM's approach to open records should not be tolerated. Should the newspaper have to court, the newspaper will be entitled to attorney's fees and expenses. IDEM should have to pay and pay big for obstructing the public's right to know.

See also: Will Changes in Daniels' Second Term Include the Public Access Counselor's Office? (11/12/2008)

1 comment:

M Theory said...

I hope you will stay on this Paul.