A unique feature of Indiana laws pertaining to government meetings and records is the position of public access counselor, created in the late 1990s to facilitate better understanding of statutory provisions in transparency laws and provide guidance and legal interpretations whenever disputes arise.
Although the access counselor’s advisory input is nonbinding, it allows for meaningful and robust discussion about how transparency laws should be interpreted. Even such limited influence can be powerful when it gives citizens an avenue for challenging actions by government officials without taking the costly step of filing a lawsuit.
Some members of the legislature apparently think that’s still too much power, especially when it shines light in areas they prefer to remain in the shadows.
As the legislature entered the waning days of its short session last week, a state senator introduced an amendment to an unrelated bill that would severely restrict how the access counselor crafts advisory opinions when access questions arise. As the Hoosier State Press Association explains, the proposal would limit the sources the access counselor may draw information from to the Indiana Code and relevant Indiana court cases.
“This hamstrings the position by disallowing the use of common sense, considerations of circumstance, and accepted practices,” according to the press association.
But the amendment goes even further. It also calls for elimination of the counselor’s four-year term, which would allow the governor, who appoints the position, to dismiss a counselor at any time for any reason. Current law states that a counselor could only be dismissed for “cause” inside the four-year term.
As the Indiana Capital Chronicle explains, the change “would strip the counselor’s insulation from political processes, leaving the appointee vulnerable to being dismissed after issuing opinions that powerful state leaders dislike.”
What makes this anti-transparency amendment more concerning is the way it was introduced. The author, Republican Sen. Aaron Freeman of Indianapolis, did not propose such a significant change in law at the beginning of the session, when it could be fully aired and debated in committee as well as the court of public opinion.
Rather, it was inserted late in the session into an otherwise noncontroversial piece of legislation. The timing makes it difficult for opponents to marshal resources against it.
It is likely Freeman, who says he has been rankled by some previous advisory opinions of the access counselor, knew such a proposal wouldn’t be well received if he had used normal legislative processes.
An effort to strip the amendment from the bill was defeated, and the Senate passed the bill Tuesday. The House gave its approval of the change on Wednesday.
The bill now goes to Gov. Eric Holcomb’s desk, where he can either sign the bill as is or veto it with a request that legislators strike the disputed amendment. For the sake of government transparency, he should do the latter.
Tampering with the law governing the counselor is unnecessary and runs contrary to the spirit of openness that access statutes seek to foster.
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