Indiana’s Open Door Law

1. Indiana’s Open Door Law Heather Willis Neal Indiana Public Access Counselor Indiana State Library Director Workshop August 6 and 14, 2008

2. Open Door Law Basics • The governing body of a public agency has a duty to observe the policy of the Open Door Law: that official action be conducted and taken openly. • The full text of the Open Door Law can be found at Ind. Code 5-14-1.5.

3. Open Door LawBasics • What is a meeting? • A gathering of a majority of the governing body for the purpose of taking official action upon public business.

4. Open Door LawBasics • What is not a meeting? • Any social or chance gathering not intended to avoid this chapter; • any on-site inspection of any project, program or facilities of applicants for assistance; • traveling to and attending meetings of organizations devoted to the betterment of government • a caucus;

5. Open Door LawBasics • What is not a meeting? • A gathering to discuss an industrial or commercial prospect that does not include a conclusion as to recommendations, policy, decisions or final action on the terms of a request or an offer of public financial assistance; • An orientation of members on their role and responsibilities as public officials; or • A gathering for the sole purpose of administering an oath

6. Open Door LawBasics • What is “official action?” • receiving information • deliberating • making recommendations • establishing policy • making decisions • taking final action (i.e. voting)

7. Open Door LawBasics • Serial meetings In 2007 the legislature added new language to prohibit serial meetings. All of the following must be present to violate the serial meeting law: • three members but less than a quorum meet • subsequent meetings involve at least 2 members • sum of all meeting attendees constitutes a quorum • all held within 7 days • to take official action on public business ** The serial meeting law does not apply to governing bodies with fewer than six members.

8. Open Door LawBasics • Executive session • A meeting from which the public is excluded, except for persons necessary to carry out business • There are 13 executive session instances • The instances are narrowly construed • The governing body may not take final action in an executive session but may make decisions (Baker v. Town of Middlebury, 753 N.E.2d 67, Ind. Ct. App. 2001)

9. Open Door LawBasics • Common executive sessions • Discussion of strategy with respect to initiation of litigation or litigation that is pending or has been threatened specifically in writing (I.C. § 5-14-1.5-6.1(b)(2)(B)) • To receive information about and interview prospective employees (I.C. § 5-14-1.5-6.1(b)(5)) • To discuss a job performance evaluation (I.C. § 5-14-1.5-6.1(b)(9))

10. Open Door Law Basics • Time for Notice • The notice requirements apply to open meetings, reconvened meetings, rescheduled meetings, and executive sessions • Must post notice of date, time and location of meeting 48 hours in advance of meeting, not including Saturdays, Sundays, or legal holidays

11. Open Door Law Basics • Posting or delivery of notice • Notice must be posted at agency’s principal office or at meeting place • The agency must also deliver notice to all news media that deliver by January 1 an annual written request for such notices. The delivery of notice to news media does not meet the “posting” requirement, even if the media publish the notice or advertise your meeting.

12. Open Door Law Basics • Special notice requirements for executive sessions: • The notice must contain the same information as for an open meeting, but must also state the subject matter by specific reference to the enumerated instance(s) for which executive sessions may be held. (e.g., “to interview prospective employees pursuant to I.C. § 5-14-1.5-6.1(b)(5)”)

13. Open Door Law Basics • Agenda Requirements • An agency is not required by the ODL to utilize an agenda. • If the governing body utilizes an agenda, the agenda must be posted outside the meeting at some time before the meeting – the ODL does not provide a time by when the agenda must be posted

14. Open Door Law Basics • Memoranda Requirements • Memoranda must be kept as the meeting progresses and must contain the following: • Date, time and location of meeting • Members present and absent • The general substance of all matters, proposed, discussed, or decided • A record of all votes taken, by individual members if there is a roll call

15. Open Door Law Basics • Memoranda Requirements • The memoranda are to be available within a reasonable period of time after the meeting. • The minutes, if any, are to be open for inspection and copying. • Draft minutes of a public meeting are disclosable public records despite not being in final form or adopted by the governing body.

16. Open Door Law Basics • Special memoranda requirements for executive sessions: • Same requirements as for regular meetings, except the memoranda and minutes must identify the subject matter considered by specific reference to the enumerated instance(s) for which public notice was given. • The memoranda and minutes must certify no other matter was discussed.

17. Open Door LawBasics • The right of the public to record meetings, found at I.C. § 5-14-1.5-3(a) includes the right to audio or video record the meeting. (Berry v. Peoples Broadcasting Corp., 547 N.E.2d 231, Ind. 1989) • A governing body may place reasonable restrictions on use of equipment but may not ban the use of recording devices.

18. Open Door Law Basics • General provisions • Nothing in the ODL requires a governing body to allow public testimony or to allow a person who requests so to be placed on the agenda. • Some other specific state statutes may require a time for public testimony (e.g. budget hearings)

19. Open Door LawUse of Technology • Access laws do not always keep pace with technological advances. • But the purpose behind the law is constant and should be kept in mind when addressing new issues in public access.

20. Use of Technology • Teleconferencing or videoconferencing of meetings • Generally, a member of a governing body who is not physically present but communicates by electronic or telephonic means may not vote and may not be counted present • Some specific statutes allow for teleconferencing or videoconferencing

21. Use of Technology • Electronic mail • Members of governing body must be cautious in use of email when it is used between and among members to conduct official business. • Indiana courts have not addressed the issue, but the Virginia high court ruled that email communications did not constitute a meeting in Beck v. Shelton, 593 S.E.2d 195. E-mail communication lacked simultaneity.

22. Use of Technology • Electronic Mail • Any record, including electronic media, created received, retained, maintained, or filed by or with a public agency is a public record. • Therefore, electronic mail is a public record if it is created, received, retained, maintained, or filed with a public agency, including a governing body.

23. Use of Technology • Electronic mail must be available for inspection and copying by the governing body. • Electronic mail must be maintained in accordance with records retention schedules, under I.C. 5-15.

24. Use of Technology • Email messages received and maintained on a personal email account (e.g. a Yahoo! or Hotmail account) are generally not public record. • If the personal email is submitted to the agency, it becomes a public record. • Example: A library board member prints out an email from a customer and gives it to the library staff for follow-up.

25. Open Door LawEnforcement Provisions • A person may file a complaint with the public access counselor alleging a denial of a right under the ODL. • The PAC sends formal complaint to the agency for response and issues a formal advisory opinion within 30 days.

26. Open Door LawEnforcement Provisions • A person may file a lawsuit in superior court to enjoin future violations or declare void a policy, decision, or final action. • If a person files an action in court alleging an Open Door Law violation and is victorious and that person has previously sought an opinion from the public access counselor, the court shall award reasonable attorney’s fees, court costs, and other reasonable costs of litigation.

27. Office of the Public Access Counselor • Our contact information • 402 West Washington Street, W460 Indianapolis 46204 • Fax: 317.233.3091 • Toll free: 800.228.6013 • Phone: 317.234.0906 • Visit our website at www.IN.gov/pac for Public Access Handbook (updated in 2008), other resource materials, and advisory opinions.