Counselor helps people when government won't

By RON SHAWGO

TheStarPress.com, East Central Indiana

October 25, 2004

School officials had switched to a new grading system, and parent Karen Weaver wanted some answers.

She asked for all the records about the system, including the names of people involved in the decisions. But officials with South Harrison Community Schools declined Weaver's request, saying the documents were private personnel records and contained observations not meant for the public.

Weaver complained to Indiana's public access counselor, who advised district officials that anything factual must be released. Two weeks later, the records showed up.

"I was more than pleased," said the Elizabeth resident, whose three children attend school in the district.

Supt. Neyland Clark said a subordinate erroneously denied the records and officials were in the process of compiling them when the public access counselor contacted them.

"We certainly don't want to work in secrecy," Clark said. "Sometimes, you walk a fine line in protecting privacy and persons."

Weaver's clash with the school district west of Louisville, Ky., is one of more than 11,000 complaints and inquiries the Office of Public Access Counselor has handled in the six years since it was created. Then-Gov. Frank O'Bannon established the office after seven newspapers conducted a statewide audit that found officials routinely break the state's public records law.

Since the office opened its doors in June 1998, the number of complaints and inquiries has tripled, from about 900 the first year to about 2,700 for the fiscal year that ended June 30.

Weaver and other everyday citizens most frequently use the office. Half of last year's complaints came from the public, 37 percent from government officials and 13 percent from the media.

Two out of three complaints stem from requests denied by state or county agencies, with the rest involving local government. For every access counselor opinion that cites an illegal denial, there is one that says an agency acted appropriately.

Although the office does not track whether people ultimately get the records they seek, Public Access Counselor Karen Davis believes most do. She and the two people who had the job before her agree that agencies generally are good at maintaining openness.

Law lacks penalties

But not all agencies are cooperative, and Leslie Young believes fines would help.

Earlier this year, the town of Wanatah in LaPorte County in northwest Indiana denied Young time sheets for two town employees, saying they were for "internal use only."

After getting an opinion from then-Public Access Counselor Michael Hurst that advised town officials to disclose the records or give a legal reason why they shouldn't be released, the town labeled them exempt personnel records, said Wanatah Clerk-Treasurer Amy Magana.

Young could hire a lawyer, but he's not going to. "The only way you can get this is to take them to court, and I'm not going to spend my pension pursuing that," he said.

Julia Vaughn, policy director of Common Cause Indiana, says the lack of fines is a major flaw of the office, made permanent by the Indiana General Assembly in 1999. Common Cause is a public watchdog group that advocates for open government.

"You can go to the public access counselor and get them to side with you, but if the local agency wants to ignore them, they can do that," Vaughn said. "It's a game of chicken, and these people are willing to meet you head on."

Davis said fines would hamper the informal exchange she often has with agencies and could restrict the flow of records.

"There really is a spirit of cooperation out there," said Davis, who's been public access counselor since July. "That might suffer if more of a hammer was given to me."

People who successfully sue an agency after getting an access counselor's advisory opinion may get their attorney fees and court expenses paid for by the losing side.

Although few lawsuits are filed - one expert estimates between 10 and 20 a year - more lawyers are willing to take an access case because of that fee guarantee, said Anne Mullin O'Connor, the first public access counselor who served from June 1998 to July 2003.

Education is the office's chief tool to keep complaints out of court, and at the very least, a letter or call from the public access counselor demands attention.

The Indiana Health Professions Bureau didn't respond to Michael Redell's February 1999 request for documents used by a committee to approve hypnotist schools, so he complained to the access counselor. O'Connor faxed the complaint to the bureau, and within days, the records were released.

"There were some problems with the way the committee was doing things at that time," said Redell, a hypnotist in Highland. "I felt I had no other choice but to go through the public access counselor and gripe about it. She told them they had to comply with the law, which was the right thing to do."

Contact Ron Shawgo of The Fort Wayne Journal Gazette at (260) 461-8312.
Meet the counselor

Indiana's public access counselor is an attorney appointed by the governor to a term of four years. Karen Davis, the third person to hold the job, started in July.

Facts about Davis

Age: 49

Experience: Attorney, Sommer Barnard Ackerson (2002 to 2004); staff attorney, deputy general counsel and general counsel, Indiana Family and Social Services Administration (1990 to 2002)

Education: Law degree, Valparaiso University; bachelor's degree, University of Denver

Salary: $75,465

Budget: $156,000 for two-person office

Web site: http://www.in.gov/pac/

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