Monday, March 9, 2015

Public Access Counselor takes West Lafayette School Corp. to the woodshed

Hat tip to the Indiana Law Blog for reporting on this issue of the West Lafayette School Corporation's denial of public records. 

The letter was written in response to a complaint made by Zachary Baiel of West Lafayette and copied to school attorney, Robert Reiling.

Here are a few quotes from the letter as noted at The Indiana Law Blog:

At the outset, I encourage the WLSC to take note of the General Assembly's words in Ind. Code § 5-14-3-1: "The public policy of the APRA states that "(p)roviding persons with information is an essential function of a representative government and an integral part ofthe routine duties of public officials and employees, whose duty it is to provide the information."

I emphasize this language as the WLSC appears to lament the responsibility of being a steward of such information. As representative civil servants, public employees have the affirmative duty to respond to public records requests regardless of the volume of inquiries they receive. It should be integrated in their duties. This is not to say they need to neglect other responsibilities in the regular discharge of their business, however, it should be part of their routine duties.

The West Lafayette School Corporation is a public agency for the purposes of the APRA. See Ind. Code § 5-14-3-2(n)(I). Accordingly, any person has the right to inspect and copy WLSC's public records during regular business hours unless the records are protected from disclosure as confidential or otherwise exempt under the APRA. See Ind. Code § 5-14- 3-3(a).

By itself, a recording of an open meeting should not be subject to redactions. When a properly noticed meeting attended by the public is conducted, anyone has the opportunity to observe and record. See generally, Ind. Code § 5-14-1.5 et. al.

Therefore, if confidential subject matter is discussed, it has already been disclosed and loses its confidential or discretionary status.  That being said, a governing body does not have to record its meetings. Only minutes and/or memoranda are required to be kept. However, if a governing body does record a meeting, the recording becomes public record subject to inspection and copying.

WLSC has not identified why or how their recording technology is so limited that it cannot reasonably isolate the meeting in question and duplicate it. I am familiar with recording technology used by public agencies statewide and have not encountered a system which incurs $75-$100 to generate a copy.  For example, Indiana courts often use a proprietary system to record proceedings.

While the file format of the recording is unique to the judiciary, the courts can isolate the proceeding easily by use of time code and convert the file to a universally recognized file format with very little cost. I have difficulty accepting the WLSC's system is so advanced it could not undertake a similar measure cost-effectively.  By the tone of WLSC's response and the amount charged, one can reasonably infer the fee set to copy a recording of an open board meeting was meant to frustrate access based upon your history as a repeat requester.

The contents of the recording of the open meeting should be provided to you without redactions. Costs should be reexamined and limited to isolating the entirety ofthe open meeting and, if a duplicate is requested, the physical medium upon which it is copied.

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