SB 101 – Public Records: Ripped from the Headlines Edition

Sen. Delph has introduced SB 101 amending the Access to Public Records Act (APRA) with respect to public employee personnel records.  First a note on APRA. This is Indiana’s public records statute. It’s a pet peeve of mine that this is not “FOIA” which is the federal “Freedom of Information Act.” FOIA applies only to federal agencies and institutions.  If you make a FOIA request for local government information, the technical response would be that it’s not a federal agency, so no responsive documents will be forthcoming. Now, most public servants aren’t pedantic jerks, so they quietly assume your request is being made under APRA and either provide or deny the documents accordingly. But, I twitch a little bit every time I see something about a FOIA request for state or local documents. And, this is my blog, so I’ll be pedantic if I want to

Second, this seems to be another example of “ripped-from-the-headlines” legislation. In this case, I’d guess it has to do with what looks like a cat-and-mouse game between the media and Hamilton Southeastern suspension of a Fishers high school football coach. I’m not one to get too worked up about media bias, but I always take media reporting about records they aren’t getting with a grain of salt. You know how when one political party makes one assertion about a law and the other political party makes a contrary assertion? Often, the story will then be reported in a “he said, she said” manner in the name of objectivity. This tends not to happen when it comes to records they aren’t getting. You can always tell who they think the good guys and the bad guys are with respect to these stories.

In any case, the underlying issue is IC 5-14-3-4(b)(8)(C). The way APRA is set up, the starting presumption is that the public is entitled to inspect or copy any documents the government has. The government isn’t required to create documents it doesn’t have, but unless there is a mandatory or discretionary exemption, it has to provide what it does have. IC 5-14-3-4(a) lists categories of documents that government is forbidden to provide to the public (e.g. patient medical records). Subsection (b) lists categories of documents the government has the discretion to withhold (e.g. police investigatory files). Subsection (b)(8) pertains to employee personnel files which a governmental entity has the discretion to withhold from public access 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.

The distinction between types of information versus types of documents creates a problem here. The current statute’s exception describes types of information rather than types of documents. But, APRA says the government has to provide documents. It does not, particularly, have to provide information. In other words, if you don’t have a document stating “the factual basis for a disciplinary action,” there’s nothing to provide under APRA. APRA generally doesn’t require you to create new documents.

Under SB 101, a governmental entity would be required to either provide documentation containing the information described in (A)-(C) above or, in the alternative, create a document containing that information. In addition, it would be required to state the specific “statute, ordinance, rule, or policy” that was the basis for a suspension, demotion, or discharge. This is problematic inasmuch as it seems to create a requirement that a governmental employee violate a specific policy before he or she is demoted or discharged. What if they aren’t violating any policies but just don’t happen to be very good at their jobs? If you want government to be more efficient, it’s probably not a good idea to force a government to wait until the employee violates a policy before you’re allowed to part ways or demote the employee to a position that might be more suitable to their talents. And, even if this was good policy, the public records law is not a good place to impose that requirement.

The proposed requirement that a statement of factual basis for disciplinary action reference a specific policy presumably is in response to the complain that Hamilton Southeastern’s factual basis, that the coach was suspended “due to not implementing instructions for classroom management strategies” was too vague. The problem with legislating based on one specific problem is that unintended consequences are easier to miss. You’re so focused on the tree that you forget the forest. Still, it’s probably not a bad idea to clean up that subdivision so that it refers to particular documents rather than particular information. If the legislature wants government to create particular documents, it should say so. Maybe even create a form and specify civil immunity for providing the information required by the form.