News From Terre Haute, Indiana

Indiana Legislature

January 16, 2012

Indiana lawmakers consider fines on access violators

INDIANAPOLIS — Government officials could face fines of up to $500 for blatantly violating Indiana’s public access laws under a proposal that would impose personal penalties for such actions for the first time since the laws were adopted 35 years ago.

Indiana House and Senate committees are considering similar bills that include allowing judges to order such fines, a move that supporters say would give more teeth to the state’s open records and open meetings laws.

Rep. Kevin Mahan, who is sponsoring one of the bills, said he wanted to see disputes over whether a state or local government official acted properly first go through the state’s public access counselor office for review before going to court. Mahan, R-Hartford City, said he expected that fines under the law would be rare.

“The people we’re truly getting at here are just the bad apples,” Mahan said. “The people where the public access counselor has said this should be released this is public information and should be released, and then they basically cross their arms and say ‘I don’t care, I’m not giving it to them.”’

The legislative proposals would allow 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.

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

Andrew Berger, a lobbyist for the Association of Indiana Counties, said it is important for any fining provision to have protections for government officials who have an honest disagreement over whether a document meets the law’s requirements for being kept from public release.

“The public access law is not black and white and you have differences of opinion,” Berger said. “You have a little bit of a fear of somebody filing a frivolous lawsuit ... The standard should be there to protect someone who is acting in good faith.”

The Hoosier State Press Association says more than 30 states have laws that allow civil fines, criminal charges or removal from office for violators of public access laws.

The Indiana House and Senate have both approved — on unanimous votes — proposals in the past three years that included fines for public access violations, but both times the bills failed to advance in the other chamber for reasons unrelated to the bills’ content, said Steve Key, HSPA’s executive director.

He said he was hopeful that the Legislature will send a signal about the important of the public access law by approving the fining provisions this year.

“If someone jaywalks, or we don’t cut our grass or go speeding down the highway, we are all personally liable and can expect to be fined for not complying with those laws or ordinances,” Key said. “But when a public official deliberately ignores the public’s right to know, there is no such consequence.”

Even with the addition of possible fines, the “good faith” defense might not make the law much tougher, said Kurt Webber, a Carmel attorney who handles court cases on access issues. He said he expected few judges would impose fines on city or county officials whom the judges probably know personally.

“There’s a mentality out there that open government’s a great thing until you want to look in my records,” Webber said.

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