FOREWORD

The Indiana General Assembly has given the public and the news media broad access to meetings of public agencies and to records of the public's business through the Indiana Open Door Law and the Indiana Access to Public Records Act. Recent amendments have attempted to provide quicker resolution of access questions through the creation of a state public access counselor and have beefed up the right to recover attorney fees when access requests are denied. In addition, the law now deals with the increasing computerization of public records and the shift to privatization of traditional governmental services. Indiana's access laws resulted from pressure from the news media and the public for greater access to the public's business at various levels of government. Both acts also find their conceptual genesis in the wide-ranging demand for openness in government after Watergate. In the current world of terrorism threats and identity theft, however, the scope of openness may be narrowing to make room for the expanding areas of homeland security and informational privacy. Those who draft and interpret legislation currently face the challenge of striking a balance between the dueling values of disclosure and privacy, openness and security.

The Open Door Law was enacted in 1977 and repealed a portion of the Hughes Anti-Secrecy Act as it related to open meetings. Although there is no official legislative history in Indiana, the intent of the legislators in enacting The Open Door Law is contained in the preamble. The General Assembly declared:

[T]his state and its political subdivisions exist only to aid in the conduct of the business of the people of this state. It is the intent of this chapter that the official action of public agencies be conducted and taken openly, unless otherwise expressly provided by statute, in order that the people may be fully informed. The purposes of this chapter are remedial, and its provisions are to be liberally construed with the view of carrying out its policy.

Ind. Code § 5-14-1.5-1; available at www.in.gov/legislative/ic/code.

The Open Door Law assumes that a meeting of an agency considering the public's business must be open to the public, unless there is a specific statute permitting closure. Indeed, the Indiana Court of Appeals has noted that Indiana's Open Door Law "is the broadest and most sweeping we have found." Riggin v. Board of Trustees of Ball State Univ., 489 N.E.2d 616 (Ind. App. 1986).

Six years after enacting the Open Door Law, the General Assembly followed with a sweeping overhaul of what remained of the Hughes Anti-Secrecy Act — its open records provisions. The Hughes Anti-Secrecy Act, which applied to state and local administrative agencies, defined public records as "any writing in any form necessary, under or required, or directed to be made by any statute or by any rule or regulation." The Indiana Court of Appeals noted in a 1980 case that the Anti-Secrecy Act's definition of public records was more conservative than that of the common law. The common law definition considered a record to be a public record if it was created in "the discharge of a duty imposed by law." Gallagher v. Marion County Victim Advocate Program, Inc., 401 N.E.2d 1362, 1366 (Ind. App. 1980). The Anti-Secrecy Act's definition had prompted endless debates over whether a particular record was "required to be kept." The 1983 statute was the product of a legislative study committee which examined the need for revision to the open records law and considered similar laws in other states. The committee's final report noted that the new law is intended "to cover nearly every document that is generated by every public agency."

As with the Open Door Law, the General Assembly expressed its intent with respect to public records in the language of the statute. The lawmakers found that

[a] fundamental philosophy of the American constitutional form of representative government is that government is the servant of the people and not their master. Accordingly, it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information. This chapter shall be liberally construed to implement this policy and place the burden of proof for the non-disclosure of a public record on the public agency that would deny access to the record and not on the person seeking to inspect and copy the record.

Ind. Code § 5-14-3-1.

Though the law's initial broad scope and intent for openness remain intact, recent amendments have narrowed public access in some respects. For example, in 2003, the definition of "public record" was amended to include material that "is created, received, retained, maintained, or filed by or with a public agency." Ind. Code § 5-14-3-2. The prior definition also included the word "used" in the string of actions performed by an agency that would qualify material as a "public record." See Ind. P.L. 261-2003. In practice, however, this small change to the definition of public record does not seem to have curtailed the public's broad right to access public agency materials.

But other recent changes may produce a more substantial impact. These changes have expanded the types of records exempted from public access, largely in response to the nation's growing concerns about terrorism and informational privacy. The first of these changes were homeland security provisions, adopted in 2003. Mirroring similar changes made to the federal Freedom of Information Act (FOIA) in the wake of the terrorist attacks of Sept. 11, 2001, these amendments permit agencies to deny access to any record or part of a record "which would have a reasonable likelihood of threatening public safety by exposing a vulnerability to a terrorist attack." Ind. Code § 5-14-3-4(b)(19). Procedures an agency must follow to deny an information request under the new anti-terrorism exemption were added at the same time. See Ind. Code § 5-14-3-9(d).

In addition to responding to growing terrorism concerns, the General Assembly also has been receptive to concerns about informational privacy. Recent amendments to the Access to Public Records Act have exempted from disclosure the personal information (telephone number, address and Social Security number) of customers of municipally owned utilities. Ind. Code § 5-14-3-4(b)(20). Originally enacted as a mandatory exemption, this category was amended shortly thereafter to its current status as a discretionary exemption.

Another significant change is reflected in Indiana Administrative Rule 9, which governs access to court records. In 2004, the Indiana Supreme Court substantially amended this rule, which went into effect Jan. 1, 2005. The rule's stated objective is to recognize both the societal benefits of public access and the core values of individual privacy. See Commentary to Ind. Admin. R. 9(A) (available at http://www.in.gov/judiciary. The rule calls for balancing these competing interests, providing that if courts prohibit access to certain information, they must "use the least restrictive means and duration" when doing so. Ind. Admin. R. 9(H)(3). However, the rule's many exemptions to disclosure have the potential to swallow the rule's proclaimed policy of "presumptive access” and run afoul of constitutional and common law rights of access to judicial records.  See Ind. Admin. R. 9(G) (enumerating exemptions to public access under the rule). Though many of these exemptions pertain to specific types of records, the revamped rule also contains "catch-all provisions," which exempt from disclosure any information "excluded from public access by specific court order," or any information "otherwise ordered sealed by the trial court." Ind. Admin. R. 9(G)(1)(c) and 9(D)(1). Pursuant to Ind. Code § 5-14-3-4(a)(8), the exemptions in Rule 9, promulgated by the Indiana Supreme Court, must be excluded from public access.

Effective July 1, 2005, subject to specific statutory exceptions, "a state agency may not disclose an individual's Social Security number." Ind. Code § 4-1-10. This statute authorizes the attorney general to investigate alleged violations, and imposes criminal penalties for such violations. Though not a part of the Indiana Access to Public Records Act, it is found in the part of the Indiana Code addressing fair information practices for agency collection and use of personal information , the new Social Security number law may affect substantial types of records that agencies can disclose. However, because the Access to Public Records Act provides that access must be granted if confidential information can be redacted, the impact of Social Security number confidentiality on public records as a whole may be minimized. Although the law's impact on public access remains to be seen, its passage reflects a growing awareness among legislators of the ways in which personal information can be abused, and the corresponding need to ensure that such information is protected.

This tension between privacy on the one hand and openness of government on the other is a balancing act that is played out in the federal Freedom of Information Act (FOIA), as well. One commentator has noted the similarities between Indiana's Access to Public Records Act and the federal FOIA. See Eric J. Graninger, Note, Indiana Opens Public Records: But (b)(6) May Be the Exception That Swallows the Rule, 17 Ind. L. Rev. 555 (1984). Both statutes generally authorize access to a wide variety of documents created, received or maintained by public agencies, and then provide specific exceptions to that general rule of access. The exemptions in the Access to Public Records Act and the Freedom of Information Act are not identical, but they do overlap. Recent amendments to each act, such as the anti-terrorism provisions, show a continuation of this trend. As a result, when interpreting the Indiana statute, Indiana courts may find guidance in federal case law on the Freedom of Information Act. Id. at 558 n.10; See, e.g., Pigman v. Evansville Press, 537 N.E.2d 547 (Ind. App. 1989); Indiana Civil Liberties Union v. Indiana Gen. Assembly, 512 N.E.2d 432 (Ind. App. 1987).