Wednesday, February 11, 2009

Putting Teeth into Indiana's Open Records Law

Today's Star editorial pages opines about the need to strengthen Indiana's open records law. In particular, the Star talks about Senate Bill 232, which, in its current form, would empower a judge to levy a fine of up to $1,000. The citizen would be required to first go through the Public Access Counselor first in order for the fine to be a possible sanction. The bill would also allow citizens, or at least a judge in private, to view parts of a record that have been blacked out.

These sound like positive changes. I have filed several open records requests in the past and have found government less than responsive. Unfortunately, I have found that Public Access Counselor Heather Willis Neal will often excuse agency delays. There is also a major problem in how her office handles open records requests. The complainant files his or her complaint and the agency responds. Rather than go back to the original complainant for rebuttal (which is the standard practice for the government regulatory agencies and in courtrooms all across the country,) the PAC will write her opinion based on the agency's response, assuming everything in that response is factually correct. The problem is that the agency's response is often not factually correct. When I questioned the PAC about this flawed procedure, I was told they were too busy to get a reply from complainants before writing the opinion. At the very least the agency should be required to serve the answer on the person who filed the complaint. I have often seen agencies, even attorneys for those agencies who are trained to serve the opposing side with documents in a dispute, communicating ex parte with the PAC about the complaint, a situation that is terribly unfair to the complainant.

I like the redaction provision. I recently served Corrections Corporation of America with an open records request asking for the law firm contract it has for representation with Barnes & Thornburg regarding the operation of CCA/Marion County Jail #2. I also asked for invoices as to the legal services CCA provided. Even though Diana Vice won this very issue with Wilson Education Center regarding its representation by Barnes & Thornburg back in January when the PAC said WEC needed to produce the exact documents I am asking for, Barnes & Thornburg answered for CCA denying my request. That's typical. Even if something has been ordered to be produced 99 times in a row, that 100th time, Barnes & Thornburg, on behalf of the firm's client, will still balk at producing it. Needless to say I will be filing a complaint with the PAC for the records and ultimately a lawsuit if necessary. I can see the next CCA/B&T move though - redacting the documents to make them virtually useless, employing a misinterpretation of the attorney-client privilege. Perhaps the redaction provisions in SB 232 will cut short this tactic in the future.

See also:

City Legal Refuses to Comply With Indiana's Open Records Law (1/25/09)

Public-Private Agreements - A Call for Indiana's Legislature to Take Action (1/6/09)

IDEM Refuses Newspaper's Open Records Request (12/9/08)

A Good Government Proposal for Indianapolis: Require That All City Contracts Be Posted On-Line (11/21/08)

Will Changes in Daniels' Second Term Include the Public Access Counselor? (11/12/08)


Diana Vice said...

You hit the nail on the head again! Perhaps you and I should testify in favor of this bill, so the legislators can hear what we've been through. But of course, that would mean we'd have to put Barnes & Thornburg in a negative light, and I'm not sure how that would go over with their political buddies.

Anonymous said...

"The citizen would be required to first go through the Public Access Counselor first in order for the fine to be a possible sanction."

As long as Heather Neal is around, Indiana has no Open Records Law. Her job is to run interference for government and to cloud the record before a judge.

These Indiana judges are bad, and if they have the slightest reason to deny the public, they'll use it. Heather ensures that the judges have this reason, however flimsy.

The Public Access Counselor's office must be disbanded.

Paul K. Ogden said...


Can you look up when the next hearing is and email it to me? Yes, I would like to testify. Very much.


Diana Vice said...

I've made the proper inquiries, Paul. I'll let you know.

Mary Jo said...

Is Paul ogden, in the words of Dick Vitale, "prime-time PTP-er"?

Find out at

Diana Vice said...

I think "Mary Joe" is obsessed with you, Paul. Do you have a stalker?

Diana Vice said...

Hey, "Mary Jo," you need to retract your statement that I am a client of Paul Ogden's, because it's simply not true. How do you expect anyone to believe anything you say when you spew out these untruthful statements? You have no credibility, and everyone sees through your feeble attempts to destroy the messenger simply because you don't like his messages. My respect and admiration of Paul Ogden was earned the good old fashioned way, but that's something you probably don't understand.

Mary Jo said...

Duly noted. Mr. Ogden confused me in a previous post of his.

Diana Vice said...

Thank you, "Mary Jo". I do want to say for the record that I wouldn't hesitate for a minute to hire Mr. Ogden as an attorney. I think he's one of Indiana's finest.

Downtown Indy said...

Maybe we can hook up Mary Jo and Wilson. They would make a perfect couple, so much in common. Cupid's day is fast approaching.

Diving together into the dumpster of love, how romantic.