Difference between revisions of "FOIA"
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This definition does not restrict the application of any exception under section 4 of this chapter. | This definition does not restrict the application of any exception under section 4 of this chapter. | ||
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| − | '''IC 5-14-3-4 Records and recordings exempted from disclosure; time limitations; destruction of records''' | + | '''IC 5-14-3-4 Records and recordings exempted from disclosure; time limitations; destruction of records''' |
| − | + | b2The work product of an attorney representing, pursuant to state employment or an appointment by a public agency: | |
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(A) a public agency; | (A) a public agency; | ||
(B) the state; or | (B) the state; or | ||
(C) an individual. | (C) an individual. | ||
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(8) Personnel files of public employees and files of applicants for public employment, except for: | (8) Personnel files of public employees and files of applicants for public employment, except for: | ||
(A) the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, or dates of first and last employment of present or former officers or employees of the agency; | (A) the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, or dates of first and last employment of present or former officers or employees of the agency; | ||
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(C) the factual basis for a disciplinary action in which final action has been taken and that resulted in the employee being suspended, demoted, or discharged. | (C) the factual basis for a disciplinary action in which final action has been taken and that resulted in the employee being suspended, demoted, or discharged. | ||
However, all personnel file information shall be made available to the affected employee or the employee's representative. This subdivision does not apply to disclosure of personnel information generally on all employees or for groups of employees without the request being particularized by employee name. | However, all personnel file information shall be made available to the affected employee or the employee's representative. This subdivision does not apply to disclosure of personnel information generally on all employees or for groups of employees without the request being particularized by employee name. | ||
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| + | IC 5-14-3-9 Denial of disclosure; action to compel disclosure; intervenors; burden of proof; attorney's fees and costs | ||
| + | Sec. 9. (a) This section does not apply to a request for information under section 4.4 of this chapter. | ||
| + | (b) A denial of disclosure by a public agency occurs when the person making the request is physically present in the office of the agency, makes the request by telephone, or requests enhanced access to a document and: | ||
| + | (1) the person designated by the public agency as being responsible for public records release decisions refuses to permit inspection and copying of a public record when a request has been made; or | ||
| + | (2) twenty-four (24) hours elapse after any employee of the public agency refuses to permit inspection and copying of a public record when a request has been made; | ||
| + | whichever occurs first. | ||
| + | (c) If a person requests by mail or by facsimile a copy or copies of a public record, a denial of disclosure does not occur until seven (7) days have elapsed from the date the public agency receives the request. | ||
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| + | (e) A person who has been denied the right to inspect or copy a public record by a public agency may file an action in the circuit or superior court of the county in which the denial occurred to compel the public agency to permit the person to inspect and copy the public record. Whenever an action is filed under this subsection, the public agency must notify each person who supplied any part of the public record at issue: | ||
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| + | (1) that a request for release of the public record has been denied; and | ||
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| + | (2) whether the denial was in compliance with an informal inquiry response or advisory opinion of the public access counselor. | ||
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| + | Such persons are entitled to intervene in any litigation that results from the denial. The person who has been denied the right to inspect or copy need not allege or prove any special damage different from that suffered by the public at large. | ||
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| + | (f) The court shall determine the matter de novo, with the burden of proof on the public agency to sustain its denial. If the issue in de novo review under this section is whether a public agency properly denied access to a public record because the record is exempted under section 4(a) of this chapter, the public agency meets its burden of proof under this subsection by establishing the content of the record with adequate specificity and not by relying on a conclusory statement or affidavit. | ||
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| + | ---- | ||
| + | (i) Except as provided in subsection (k), in any action filed under this section, a court shall award reasonable attorney's fees, court costs, and other reasonable expenses of litigation to the prevailing party if: | ||
| + | (1) the plaintiff substantially prevails; or | ||
| + | (2) the defendant substantially prevails and the court finds the action was frivolous or vexatious. | ||
| + | Except as provided in subsection (k), the plaintiff is not eligible for the awarding of attorney's fees, court costs, and other reasonable expenses if the plaintiff filed the action without first seeking and receiving an informal inquiry response or advisory opinion from the public access counselor, unless the plaintiff can show the filing of the action was necessary because the denial of access to a public record under this chapter would prevent the plaintiff from presenting that public record to a public agency preparing to act on a matter of relevance to the public record whose disclosure was denied. | ||
| + | (j) Except as provided in subsection (k), a court may assess a civil penalty under section 9.5 of this chapter only if the plaintiff obtained an advisory opinion from the public access counselor before filing an action under this section as set forth in section 9.5 of this chapter. | ||
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| + | IC 5-14-3-9.5 Civil penalties imposed on public agency, officer, or management level employee | ||
| + | (h) In an action under this section, a court may impose the following civil penalties: | ||
| + | (1) Not more than one hundred dollars ($100) for the first violation. | ||
| + | (2) Not more than five hundred dollars ($500) for each additional violation. | ||
==The Public Access Counsellor== | ==The Public Access Counsellor== | ||
*[https://www.in.gov/pac/about-us/what-we-do/ The Public Access Counsellor's Website]. | *[https://www.in.gov/pac/about-us/what-we-do/ The Public Access Counsellor's Website]. | ||
| − | + | *[https://www.in.gov/pac/files/PAC-Handbook-2017.pdf PAC Handbook] | |
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Latest revision as of 15:49, 29 November 2021
Introduction
Indiana's Law
IC 5-14-3 Chapter 3. Access to Public Records
IC 5-14-3-1 Public policy; construction; burden of proof for nondisclosure
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 nondisclosure 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.
IC 5-14-3-2 Definitions (u) "Work product of an attorney" means information compiled by an attorney in reasonable anticipation of litigation. The term includes the attorney's: (1) notes and statements taken during interviews of prospective witnesses; and (2) legal research or records, correspondence, reports, or memoranda to the extent that each contains the attorney's opinions, theories, or conclusions. This definition does not restrict the application of any exception under section 4 of this chapter.
IC 5-14-3-4 Records and recordings exempted from disclosure; time limitations; destruction of records
b2The work product of an attorney representing, pursuant to state employment or an appointment by a public agency:
(A) a public agency;
(B) the state; or
(C) an individual.
(8) Personnel files of public employees and files of applicants for public employment, except for:
(A) the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, or dates of first and last employment of present or former officers or employees of the agency;
(B) information relating to the status of any formal charges against the employee; and
(C) the factual basis for a disciplinary action in which final action has been taken and that resulted in the employee being suspended, demoted, or discharged.
However, all personnel file information shall be made available to the affected employee or the employee's representative. This subdivision does not apply to disclosure of personnel information generally on all employees or for groups of employees without the request being particularized by employee name.
IC 5-14-3-9 Denial of disclosure; action to compel disclosure; intervenors; burden of proof; attorney's fees and costs
Sec. 9. (a) This section does not apply to a request for information under section 4.4 of this chapter.
(b) A denial of disclosure by a public agency occurs when the person making the request is physically present in the office of the agency, makes the request by telephone, or requests enhanced access to a document and:
(1) the person designated by the public agency as being responsible for public records release decisions refuses to permit inspection and copying of a public record when a request has been made; or (2) twenty-four (24) hours elapse after any employee of the public agency refuses to permit inspection and copying of a public record when a request has been made; whichever occurs first.
(c) If a person requests by mail or by facsimile a copy or copies of a public record, a denial of disclosure does not occur until seven (7) days have elapsed from the date the public agency receives the request.
(e) A person who has been denied the right to inspect or copy a public record by a public agency may file an action in the circuit or superior court of the county in which the denial occurred to compel the public agency to permit the person to inspect and copy the public record. Whenever an action is filed under this subsection, the public agency must notify each person who supplied any part of the public record at issue:
(1) that a request for release of the public record has been denied; and
(2) whether the denial was in compliance with an informal inquiry response or advisory opinion of the public access counselor.
Such persons are entitled to intervene in any litigation that results from the denial. The person who has been denied the right to inspect or copy need not allege or prove any special damage different from that suffered by the public at large.
(f) The court shall determine the matter de novo, with the burden of proof on the public agency to sustain its denial. If the issue in de novo review under this section is whether a public agency properly denied access to a public record because the record is exempted under section 4(a) of this chapter, the public agency meets its burden of proof under this subsection by establishing the content of the record with adequate specificity and not by relying on a conclusory statement or affidavit.
(i) Except as provided in subsection (k), in any action filed under this section, a court shall award reasonable attorney's fees, court costs, and other reasonable expenses of litigation to the prevailing party if:
(1) the plaintiff substantially prevails; or (2) the defendant substantially prevails and the court finds the action was frivolous or vexatious. Except as provided in subsection (k), the plaintiff is not eligible for the awarding of attorney's fees, court costs, and other reasonable expenses if the plaintiff filed the action without first seeking and receiving an informal inquiry response or advisory opinion from the public access counselor, unless the plaintiff can show the filing of the action was necessary because the denial of access to a public record under this chapter would prevent the plaintiff from presenting that public record to a public agency preparing to act on a matter of relevance to the public record whose disclosure was denied.
(j) Except as provided in subsection (k), a court may assess a civil penalty under section 9.5 of this chapter only if the plaintiff obtained an advisory opinion from the public access counselor before filing an action under this section as set forth in section 9.5 of this chapter.
IC 5-14-3-9.5 Civil penalties imposed on public agency, officer, or management level employee
(h) In an action under this section, a court may impose the following civil penalties:
(1) Not more than one hundred dollars ($100) for the first violation. (2) Not more than five hundred dollars ($500) for each additional violation.
The Public Access Counsellor
