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November 5, 2013

City’s memo delays access to documents

Caution, confusion stall even most mundane requests

TERRE HAUTE — A full-color, draft “master plan” prepared for a city department, 150 pages in length, is available online for public review. In fact, the public is encouraged to review the plan before its possible approval by a city board later this month.

But should that same document, in paper form, be made available for review by folks without Internet access or who just prefer to read a paper copy?

That question was recently put to department officials. The answer was: Check with the city’s legal department. We don’t know for sure.

The staff members weren’t being difficult. Rather, they were attempting to follow a Terre Haute legal department memo from July regarding “public records requests.”

Nor were they alone. In the past few months, other officials in different city departments have made reference to the same memo while dealing with fairly routine requests for public information.

The July 24 memo from Chou-il Lee, the city attorney, reminded city department heads of the policy for handling “requests for public records.” According to the memo, all such requests should be immediately forwarded to the city legal department.

The memo makes clear the requests should be sent immediately to the legal department because, under state law, the city must respond with a “yes” or “no” to such requests within 24 hours in many cases or else the request is considered denied. In the past, Lee said, many departments handled their own requests and failed to meet the 24-hour deadline.

“It really was implemented to make it quicker and better because we had situations in which requests weren’t being responded to at all,” Lee said. “So we wanted to get them, so we could make sure that we complied with the statute.”

Still, it seems many city officials have taken the memo to mean all document requests, even the most mundane, should be submitted to the legal department. That wasn’t the intent, Lee said.

“This isn’t for the everyday stuff” such as public meeting minutes or basic traffic accident reports, he said. “This is for the things where people are coming to look at … a public records request type situation, where [they ask] ‘We want any information the city might have surrounding’” something such as the city’s trash contract, he said.

The memo doesn’t define the sort of “public records” it applies to, and knowing where to draw the line may not be easy. The policy may need a little more explaining, Lee said.

“I don’t know that I could sit and make an exhaustive list” of the sorts of documents to which the memo refers, Lee said in a telephone interview Monday. Rather, the policy will emerge over time “on a scenario by scenario basis,” he said. “I think this is very much a living and growing procedure.”

Still, the intent of the July memo was not to impede access to public documents, he said. Instead, it was to ensure compliance with state law

“The whole purpose is for it to speed things up,” Lee said. “It really was to help with getting information out there in compliance with statute as opposed to everybody just kind of doing their own thing here and there.”

There is currently no formal training process in place regarding public records laws for city employees, Lee said.

Another point in Lee’s memo that may have caused city officials to err on the side of caution is its reference to new language in state law making a public official subject to a “civil fine” of up to $100 for a first offense if he or she willfully violates public access laws. However, to be subject to a fine, a public official would have to willfully and knowingly break the law, said Steve Key, executive director of the Hoosier State Press Association, a newspaper trade group that has long lobbied the state legislature on public access issues and has been the driving force behind the state’s open records and open meetings laws.

“You’re going to have to work hard at putting yourself eligible for a fine,” Key said.

Reporter Arthur Foulkes can be reached at 812-231-4232 or arthur.foulkes@tribstar.com.

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