Indiana pioneered
the statewide freedom of information audit used subsequently in many states.
In 1998, seven newpapers published the results of their audit of government
compliance with the state’s open records laws. The project led to reforms
in the state, including the creation of the position of Public Access Counselor.
The new position was implemented to "ensure that we continue to follow
through on our commitment to an open government," according to Gov. Frank
O’Bannon. The counselor primarily acts in an advisory capacity, informing
the public and helping to instruct government officials in the applications
of the state’s open government laws and issuing advisory legal opinions
about the laws. The move has helped reporters who struggled with getting information
because agencies did not want to "create" a new records or when agencies
made no efforts to output electronic information. The counselor has found that
agencies must make a "reasonable" effort to provide databases.
The law. The
Access to Public Records Act defines a public record to include information
"generated on . . . magnetic or machine readable media, or any other material,
regardless of form or characteristics." Copying a record means "reproducing
by any . . . means." Ind. Code § 5-14-3-2.
A public agency shall make reasonable efforts to provide a copy of all disclosable
data if the medium requested is compatible with the agency’s data storage
system. §5- 14-3-3. An agency may refuse to release "computer programs,
computer codes, computer filing systems, and other software that are owned by
the public agency or entrusted to it, and portions of electronic maps entrusted
to a public agency by a utility." § 5-14-3-4(b)(11).
The law seems to
limit disclosure of lists of names and addresses "unless the public agency
is required to publish such lists and disseminate them to the public pursuant
to a statute." § 5-14-3-4(c).
Lists of public
employees, students and some others may not be used at all for "commercial
purposes." § 5-14-3-4(c)(3). If a record "on computer tape, computer
discs, microfilm, or a similar or analogous record system" is made available,
the agency must not release a copy without striking material that is confidential.
§ 5-14-3-6(b). An agency may provide enhanced access to its records through
a computer gateway administered by the state "intelenet commission."
Subject to certain restrictions, the agency may enter into contracts with third
parties to provide enhanced access. § 5-14-3-3.5.
A public agency
may provide enhanced access to public records, which involves using an electronic
device to inspect information that requires the compilation or creation of information
that does not result in its permanent electronic storage. An agency may exempt
"computer programs, computer codes, computer filing systems, and other
software that are owned by the public agency . . . and portions of electronic
maps," also known as geographic information systems. § 5-14-3-4(b)(11).
Cases &
opinions. The Indiana Public Access Counselor position was created to provide
advice and assistance concerning Indiana’s public access laws to members
of the public and government officials and their employees. The Counselor provides
written advisory opinions in response to formal complaints so long as there
is no pending judicial proceeding under the Indiana Open Door Law (governing
meetings of public agencies) or the Indiana Access to Public Records Act (governing
records of public agencies) on the same matter.
It was permissible
to bar a candidate for political office from obtaining a computer tape of county
voter registration records because the board of voters registration adopted
a uniform policy against release of computer tape to the public. Laudig v. Marion
County Board of Voters Registration, 585 N.E.2d 700 (Ind. Ct. App. 1992).
The Indiana Department
of Correction did not violate the Access to Public Records Act when it denied
a request for a database of prisoner names and addresses from its computer records
because the department is not required to create such lists under Indiana Code
section 5-14-3-4(c). PAC Op. 02-FC-40 (Sept. 9, 2002)
A public agency
must make reasonable efforts to provide any disclosable information maintained
in a computer database regardless of whether the public agency currently prepares
a similar report. In addition, the sales information received and maintained
in the Hoosier Lottery’s database is not a "trade secret" of
its retailers under Indiana Code § 5-14-3-4(a)(4), and therefore, must
be disclosed upon request under the APRA. (PAC Opinion 99-8, Oct. 29, 1999 )
Fees.
The act specifically prohibits charging the public for inspecting records.
An agency may not charge for its own examination or review of records to decide
if they may be released. Ind. Code § 5-14-3-8(b) (1993). Copying charges
for standard-size documents are limited to "actual cost" or 10 cents
per page, "whichever is greater." § 5-14-3-8(c). The legislative
services agency may charge additional fees to recoup "a reasonable percentage
of the agency’s direct cost of maintaining its information storage system."
§5-14-3- 8(g)(3)(1997).
A public agency may charge the direct cost of any reprogramming necessary to
separate disclosable from the nondisclosable information. Ind. Code § 5-14-3-6(c).
A public agency may also charge the direct cost for providing a duplicate of
a computer tape, computer disc, microfilm, or similar analogous record system
containing information owned by the public agency.§ 5-14-3-8(g). Direct
cost is defined as: 105 percent of the sum of the cost of: the reprogramming,
if any; the labor required to retrieve electronically stored data; and any medium
used for electronic output; for providing a duplicate of electronically stored
data onto a disk, tape, drum, or other medium of electronic data retrieval under
section 8(g) of this chapter, or for reprogramming a computer system under section
6(c) of this chapter. Ind. Code §5-14-3-2.
Resources. Public Access Counselor