Elected Officials and Health Department Records Indiana Public Health Foundation February 27, 2008.

Elected Officials and Elected Officials and Health Department Health Department

RecordsRecords

Indiana Public Health FoundationIndiana Public Health Foundation

February 27, 2008February 27, 2008

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Access to Public Records ActAccess to Public Records ActBasicsBasics

““Providing persons with the Providing persons with the information is an essential function of information is an essential function of a representative government and an a representative government and an integral part of the routine duties of integral part of the routine duties of public officials and employees, whose public officials and employees, whose duty it is to provide the information.”duty it is to provide the information.”

The full text of APRA can be found at The full text of APRA can be found at Ind. Code 5-14-3.Ind. Code 5-14-3.

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Access to Public Records ActAccess to Public Records Act

Key definitionsKey definitions– ““Public Record” means any writing, Public Record” means any writing,

paper, report, study, map, photograph, paper, report, study, map, photograph, book, card, tape recording, or other book, card, tape recording, or other material that is created, received, material that is created, received, retained, maintained, or filed by or with retained, maintained, or filed by or with a public agency and which is generated a public agency and which is generated on paper, paper substitutes, on paper, paper substitutes, photographic media,...photographic media,...

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APRA OverviewAPRA Overview

““Public record” continued:Public record” continued:– chemically based media, magnetic or chemically based media, magnetic or

machine readable media, electronically machine readable media, electronically stored data, or any other material, stored data, or any other material, regardless of form or characteristics.regardless of form or characteristics.

– The Indiana Court of Appeals has added The Indiana Court of Appeals has added to this definition materials created to this definition materials created for or for or on behalf ofon behalf of a public agency. a public agency. Knightstown Banner, LLC v. Town of Knightstown Banner, LLC v. Town of KnightstownKnightstown, 838 N.E.2d 1127 (Ind. Ct. , 838 N.E.2d 1127 (Ind. Ct. App. 2005)App. 2005)

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““Copy” includes photocopying as well Copy” includes photocopying as well as making a digital copy using a as making a digital copy using a digital camera or a hand-held digital camera or a hand-held scanner.scanner.

““Inspect” includes the right to make Inspect” includes the right to make notes, abstracts and memoranda, or notes, abstracts and memoranda, or to listen to an audiotape.to listen to an audiotape.

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The agency may require a person to The agency may require a person to submit a request for a public record submit a request for a public record in writing, on or in a form supplied by in writing, on or in a form supplied by the agency.the agency.

The agency shall either make the The agency shall either make the requested copy or allow the person requested copy or allow the person to make a copy on the agency’s to make a copy on the agency’s equipment or on the person’s own equipment or on the person’s own equipment.equipment.

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An agency must make reasonable An agency must make reasonable efforts to provide a copy of electronic efforts to provide a copy of electronic data to a person if the medium data to a person if the medium requested is compatible with the requested is compatible with the agency’s system.agency’s system.

If a record contains disclosable and If a record contains disclosable and nondisclosable information, the nondisclosable information, the agency shall separate the disclosable agency shall separate the disclosable material and make it available.material and make it available.

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Public Agency’s ResponsibilityPublic Agency’s Responsibility– Respond to requests made in person or Respond to requests made in person or

over telephone within 24 hours of receipt.over telephone within 24 hours of receipt.– Respond to mailed, faxed, or e-mailed Respond to mailed, faxed, or e-mailed

requests within 7 calendar days of receipt.requests within 7 calendar days of receipt.– Respond in writing to written requests for Respond in writing to written requests for

records; best practice is to respond to all records; best practice is to respond to all requests in writing.requests in writing.

– Responding is not necessarily producing Responding is not necessarily producing the record.the record.

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Agency’s Responsibility, continuedAgency’s Responsibility, continued– If denying records, state reason for If denying records, state reason for

denial with citation to authority, and denial with citation to authority, and give name and title or position of person give name and title or position of person responsible for denial.responsible for denial.

– Produce records in reasonable time; Produce records in reasonable time; communication with person requesting communication with person requesting is key.is key.

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Exemptions to disclosure I.C. § 5-14-3-4Exemptions to disclosure I.C. § 5-14-3-4– Section 4(a) categories are confidentialSection 4(a) categories are confidential– Declared confidential by state statute or Declared confidential by state statute or

federal lawfederal law– Declared confidential by rule adopted by a Declared confidential by rule adopted by a

public agency under specific authority granted public agency under specific authority granted to the agency by statuteto the agency by statute

– Patient medical records and charts created by Patient medical records and charts created by a provider, unless the patient gives written a provider, unless the patient gives written consent under I.C. 16-39consent under I.C. 16-39

– A Social Security number contained in the A Social Security number contained in the records of a public agency records of a public agency

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Section 4(b) are discretionary Section 4(b) are discretionary categoriescategories– Investigatory records of law enforcementInvestigatory records of law enforcement– Attorney work productAttorney work product– Personnel file information, except for Personnel file information, except for

information that must be disclosedinformation that must be disclosed– Deliberative material – expressions of Deliberative material – expressions of

opinion or speculative in nature opinion or speculative in nature andand communicated for the purposes of communicated for the purposes of decision makingdecision making

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Access to Public Records Act Access to Public Records Act BasicsBasics

Definition of “provider”:Definition of “provider”:– Provider has the meaning set forth in Provider has the meaning set forth in

I.C. § 16-18-2-295(b) and includes I.C. § 16-18-2-295(b) and includes employees of the state department of employees of the state department of health or local boards of health who health or local boards of health who create patient records at the request of create patient records at the request of another provider or who are social another provider or who are social workers and create records concerning workers and create records concerning the family background of children who the family background of children who may need assistance. I.C. § 5-14-3-2(k).may need assistance. I.C. § 5-14-3-2(k).

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FeesFees– Public agencies may charge the fee established Public agencies may charge the fee established

by fiscal body or governing body if there is no by fiscal body or governing body if there is no fiscal body; may not exceed $.10 per page for fiscal body; may not exceed $.10 per page for black and white copies or actual cost to make black and white copies or actual cost to make the copy, whichever is greater the copy, whichever is greater

– The APRA’s general provisions regarding fees The APRA’s general provisions regarding fees

are superseded by a specific statute allowing are superseded by a specific statute allowing higher fee.higher fee.

– Agencies may require advance payment.Agencies may require advance payment.

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Access to Public Records Act Access to Public Records Act BasicsBasics

Retention of recordsRetention of records– The APRA requires an agency to protect The APRA requires an agency to protect

records from loss, alteration, mutilation, records from loss, alteration, mutilation, or destruction.or destruction.

– Each agency must follow the agency’s Each agency must follow the agency’s retention schedule adopted by the retention schedule adopted by the Oversight Commission on Public Oversight Commission on Public Records; the state general retention Records; the state general retention schedule covers records which are not schedule covers records which are not agency-specific.agency-specific.

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Use of TechnologyUse of Technology Access Laws do not always keep Access Laws do not always keep

pace with technological advances.pace with technological advances.

But the purpose behind the law is But the purpose behind the law is constant and should be kept in mind constant and should be kept in mind when addressing new issues in public when addressing new issues in public access.access.

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Use of TechnologyUse of Technology

Electronic MailElectronic Mail– Any record, including electronic media, Any record, including electronic media,

created received, retained, maintained, created received, retained, maintained, or filed by or with a public agency is a or filed by or with a public agency is a public record.public record.

– Therefore, electronic mail is a public Therefore, electronic mail is a public record if it is created, received, retained, record if it is created, received, retained, maintained, or filed with a public maintained, or filed with a public agency, including a governing body.agency, including a governing body.

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Use of TechnologyUse of Technology

Electronic mail must be available for Electronic mail must be available for inspection and copying by the governing inspection and copying by the governing body.body.

Electronic mail must be maintained in Electronic mail must be maintained in accordance with records retention accordance with records retention schedules, under IC 5-15.schedules, under IC 5-15.

The state email retention policy is to view The state email retention policy is to view the email based on the content rather the email based on the content rather than the medium; “email” is not its own than the medium; “email” is not its own type of record.type of record.

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Contact InformationContact Information

Public Access CounselorPublic Access Counselor– 402 West Washington Street, W460402 West Washington Street, W460

Indianapolis 46204Indianapolis 46204– Fax: 317.233.3091Fax: 317.233.3091– Phone: 317.234.0906Phone: 317.234.0906

Commission on Public RecordsCommission on Public Records– 402 West Washington Street, W472402 West Washington Street, W472

Indianapolis 46204Indianapolis 46204– Phone: 317.232.3380 Phone: 317.232.3380

Elected Officials and Health Department Records Indiana Public Health Foundation February 27, 2008.

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