Hoosier activist often denied access to state public records

By SUSAN BROWN, ©1998 The Times of Northwest Indiana

Evansville Courier

February 24, 1998

Clarke Kahlo, a citizen activist from Indianapolis, worked hard to become what he calls "statutorily literate" on Indiana access laws.

He had to.

As co-chair of the Marion County Alliance of Neighborhoods Associations, he's often denied public records.

The first records he requested were simply sign-in sheets to public meetings on developing recreation greenways. He wanted them so that he could "network with people sharing similar views."

Eventually he prevailed on that records foray. But it hasn't been easy.

"There are other states that have far more meaty statutes requiring officials to comply," Kahlo said. "Right now they just smile at you. ... Your only recourse is to hire a lawyer and sue. That has a chilling effect on participating in local democratic institutions."

Indiana is one of only a dozen states that don't levy fines or penalties against officials who violate access laws. But Indiana is far from alone in forcing citizens to sue when it comes to accessing public meetings or records. At least 33 states do the same.

Kahlo has since learned his rights, but he can still point to a dozen similar tiffs. "The attitude has been one of secrecy rather than disclosure," he said.

Unlike Indiana, many states give their attorneys general or local prosecuting attorney some muscle to flex before a citizen must call on a judge.

"The attorney general has no special power or authority to challenge (violations)," said Rich Schneider, press secretary for Indiana Attorney General Jeffrey Modisett.

But civil litigation undertaken by private citizens in Indiana is expensive and often takes years to resolve. And the judge decides whether the citizen who sues is repaid any attorney's fees.

Since criminal penalties for violations were removed from the books, it's unclear how many Indiana citizens have been driven into litigation.

No private or public agency in the state tracks the number of lawsuits filed in trial courts.

Their outcomes come to public attention only if they attract the news media or land in appellate court.

Even if infuriated private citizens prevail in court once they're forced there, misbehaving public officials or employees have little cause for concern.

In contrast to other Midwestern states such as Illinois, Michigan, Ohio and Wisconsin, Indiana doesn't punish public officials or employees who violate the law.

In Michigan, for example, those who intentionally violate the state's open meetings law may be fined $1,000 the first time and $2,000 the second time. That's in addition to risking one year in jail on a second offense.

To make sure the sting of a penalty isn't lessened, Wisconsin also forbids an agency to reimburse anyone ordered to pay a fine for violating its law.

Indiana law contains no fines or penalties unless a public official or employee discloses confidential information.

That indiscretion could result in a misdemeanor punishable by one year in jail, a $5,000 fine or both.

But this lone penalty is more likely to persuade officials not to disclose records.

"The penalties are more the other way around," Modisett said. "You're more likely to be penalized for disclosing something that shouldn't be than you are for not disclosing something that should be.

"If you're a public official and you look at the penalties, it's pretty clear on which side you'll err if you're not certain."

Nor must a public official heed Modisett if he issues an official ruling. Even if Modisett interprets access laws, his opinion is not legally binding.

© 1998 The E.W. Scripps Co.

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