Public Access: Where does Indiana stand?

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By RICHARD D. WALTON and BRENDAN O'SHAUGHNESSY

Evansville Courier & Press

October 24, 2004

Government officials routinely broke or skirted Indiana's open records law during a statewide test by eight newspapers. Journalists presenting themselves as citizens visited government offices in all 92 counties to see how readily officials turned over documents that are supposed to be available to anyone.
While some journalists easily obtained the records, others were intimidated, questioned repeatedly, put off for days, or wrongly told they needed a court order or subpoena. One county worker said it would take "an act of God" for him to turn over the public document.

The denial of records demonstrates the uphill fight citizens face in obtaining even the most basic government information paid for with their tax dollars.

Seven years after the newspapers conducted their first audit, the new review shows some improvement. But many public servants still don't understand the decades-old law that entitles everyone equal access to records.

Reporters, news interns and copy editors fanned out across the state in August to obtain crime logs and reports, a list of public employee salaries and court files of sex offenders — 368 public records in all. Just 11 counties granted all four documents within 24 hours. Sheriffs were the least likely to comply, providing 60 percent of requested logs and 43 percent of incident reports, despite undergoing training on how to be more accessible to the public just two weeks before the unannounced audit. The remaining documents were illegally denied or otherwise not provided for a variety of reasons.

In one county, Sheriff's Department staff watched the reporter leave town, checked his license plate in an effort to identify him, then called his employer to question his motives.

In contrast, county court clerks handed over the court files of sex offenders in all but five of the 92 counties, the best response rate of the government offices surveyed.

County auditors had a mixed response, granting requests for public employee salaries in 66 percent of the counties but rarely providing the record on a computer disk, as requested.

Some officials and staff incorrectly stated the documents weren't public records. A few advised the visitors to wait for the information to be published in the newspaper. In still other cases, officials produced incomplete information or data that is undecipherable to an average citizen.

"The public shouldn't have to jump through multiple hoops to get information," said Julia Vaughn, policy director of Common Cause Indiana, a public watchdog group that advocates for open government.

Yet in county after county, the journalists met resistance or other problems in getting public records:

In Wayne County, an employee in the auditor's office asked whether the person requesting salary records was a Democrat or a Republican.

In Monroe County, a sheriff's employee told a reporter that no crime log is kept and that computer software upgrades were needed to produce crime reports.

In Rush County, Sheriff Jim Owens threatened the reporter requesting the information, saying he would jail him if he continued to "intimidate my staff."
Advocates for open government say such abuses demonstrate the need for reform. They urge better training of government office staff, clearer and stronger access laws and making information available in more public-friendly computer systems.

Those are the kinds of improvements then-Gov. Frank O'Bannon intended when — in response to the newspapers' first audit in 1997 — he created the Office of Public Access Counselor. Viewed as a progressive step nationally, the office responds to complaints and issues advisory opinions about public records and meetings.

Less than a year after O'Bannon established the counselor's office, the Indiana General Assembly changed state law in an effort to make records more accessible to the public.

Access laws shine light

"Sunshine laws," as they're often called, permit the public to glimpse the inner workings of their government. Open-records advocates say scrutiny holds officials accountable.

From the number of recent burglaries in a neighborhood to who makes what on the county payroll, government officials bear the burden of proving why a particular document shouldn't be available to the public.

"It's presumed a disclosable public record unless there's a specific statute against it," said Karen Davis, Indiana's public access counselor. "The general rule will always be openness."

Yet in the first audit seven years ago — an exercise since repeated in 30 states — 40 of Indiana's 92 sheriffs granted access to crime logs, while just 20 handed over crime reports.

The latest survey, conducted in early August, showed improvement, with 55 counties providing crime logs and 40 counties turning over incident reports.

Still, Indiana has far to go.

Under state law, citizens aren't required to identify themselves or explain why they want to look at public records. Yet at least 30 percent of the time, journalists who sought police records two months ago were asked who they were.

This troubles Charles Davis, executive director of the University of Missouri Freedom of Information Center and a nationally known expert on public access.

He acknowledged that public employees' questioning of citizens could reflect nothing more than old-fashioned curiosity.

"It can even be human kindness," he said. "People initiating conversation. It can also be fear and intimidation."

A time of suspicion

Mike Eslinger, executive director of the Indiana Sheriffs' Association, knows that, under Indiana law, citizens aren't required to divulge who they are or why they seek a public record. On the other hand, he said, the vast majority of people will answer such questions when asked.

In the newspapers' most recent audit, journalists generally declined to provide identifying information, noting they didn't have to under the law. Eslinger, however, said refusal to answer questions raises suspicions, especially with law enforcement. "They're trained to be observant," he said.

In Crawford County, Sheriff's Department personnel became so suspicious when the reporter didn't answer their questions, they checked his license plate to determine the company car's owner. They then called the Evansville Courier & Press to ask what was going on.

Sheriff Richard Scott later explained his staff's actions by saying they feared the person was trying to find out who reported a crime in order to retaliate.

"It was a suspicious individual coming in here asking questions," Scott said. "Sometimes in a rural community, people come in from out of town. ... If the person's being evasive, it may just be a gut feeling."

Insisting he would have helped the person get information had the request been more specific, Scott said he didn't recall checking on the plates himself but did remember hearing who owned the car.

At the Carroll County Sheriff's Department near Lafayette, a worker told the reporter that the office doesn't keep a crime log. When she persisted in seeking it, a man behind a dark glass window said: "That would take an act of God."

In fact, the department does generate a log of police runs, said Cpl. Tobe Leazenby. He said it should be accessible to the public upon request.

"We have nothing to hide," he said. "We work for the people," and they're entitled to know "what we're doing or how we're spending their tax dollars."

As for the act of God remark, Leazenby said: "It's definitely not a professional comment."

In many cases, front-line personnel denied access to records their superiors knew was public information. Montgomery County Deputy Sheriff R.B. Coudret provided requested records after the reporter insisted on seeing a supervising officer.

Earlier, a front-desk officer said the log was not public record. "Never has been, never will be," said Sgt. Linda Myers. "We don't just flip records to anyone who comes in here."

Coudret said the department's officers were retrained about the law and should know better next time.

Often, clerks want to help but are uncertain how much initiative to take. So they refer members of the public to supervisors, who may be on vacation or otherwise unavailable.

To Marian Pearcy, a Corydon attorney and president of the Indiana Coalition for Open Government, the fact that the boss is out of the office is hardly a reason to deny public records.

"The sheriff's out to lunch? Well, then, who's in charge? ... Who's there running the store?"

Seizing the initiative

Most violations are unintentional, the result of confusion over the law, Vaughn, of Common Cause Indiana, said. But for the few repeat offenders, Indiana law lacks teeth.

Although the Indiana access counselor has the power to issue opinions, they are only advisory. Officials who refuse to follow the counselor's opinion face no criminal or civil penalties, aside from paying attorney fees in a losing court case.

Another concern for advocates: the disillusionment citizens experience when they're denied a public record. Many walk away rather than fight the ruling.

The last resort — filing a lawsuit — can prove too expensive for most people.

Computer-assisted Reporting Coordinator Mark Nichols of The Indianapolis Star contributed to this report.

© 2004 The E.W. Scripps Co.

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