New Penalties for Violations of the Indiana Access to Public Records Act ("APRA")
The purpose of this article is to alert government entities of the new obligations imposed by the Indiana Access to Public Records Act ("APRA"), Ind. Code § 5-14-3-1, et seq. During the recent General Assembly "short session," the legislature instituted a system of fines for public entities and their employees who improperly deny access to public records. Fortunately, the changes also create a "safe harbor" for entities that properly review APRA requests.
Left unchanged is the requirement that a public entity provide an initial response to an APRA request within twenty-four hours, if the request is made in person or by telephone, or within seven days, if the request is made in some other manner. If there is no initial response from the governmental agency within that time period, the request is deemed denied. I.C. § 5-14-3-9. If the agency decides to deny the request, it must state, in writing, the reasons for the denial and the name and title of the person denying the request. I.C. § 5-14-3-9(c). If the request is denied, either purposefully or inadvertently, the requestor can seek an opinion from the Public Access Counselor ("PAC"). If the PAC agrees that the documents were improperly withheld, the requestor can ultimately recoup the costs (including attorney fees) in court.
Now, beyond the costs and attorneys fees, under the newly-created I.C. § 5-14-3-9.5, any officer or employee in a management level position with a public agency may be fined for the improper denial of access to a public record. If a requestor obtains an advisory opinion from the PAC instructing the public agency to allow access to the record, and the public official acted with "the specific intent to unlawfully withhold a public record that is subject to disclosure," the public official and the public agency are subject to a civil penalty. I.C. §§ 5-14-3-9.5(c), 5-14-3-9.5(j). While the potential fines are basically symbolic, one hundred dollars for a first offense, and five hundred dollars for second and subsequent offenses, the General Assembly's point is clear: government agencies must exercise greater care in the handling of APRA requests.
If the fines are a sword for APRA requestors, the new legislation also creates a shield for public entities. Public officials and entities are not subject to the fines if, in denying the request, they relied on either an opinion of the agency's legal counsel, or an opinion of the Indiana Attorney General. I.C. § 5-14-3-9.5(f). Likewise, if an officer of the public agency directs a management level employee to deny a request, the management-level employee is not subject to a fine for that denial. I.C. § 5-14-3-9.5(k). Thus, before a public agency decides to deny a request under APRA, the best practice will be to have an attorney review the request and issue an opinion. If some other government official makes the decision, or fails to act in a timely way, the agency and the individual employee may be liable for the fines.