In the 1990s, reporters from seven newspapers traveled to every Indiana county to ask for basic public records like school board meeting minutes or daily log reports from sheriff’s departments.
Time and again, officials refused to release documents that state law clearly says should be made available, according to Steve Key, the former longtime director of the Hoosier State Press Association.
“The results were alarming,” he said. “It became clear that compliance with the Indiana Access to Public Records Act was less than stellar.”
Stories published following the investigation led then-Gov. Frank O’Bannon in 1998 to create by executive order the position of the public access counselor.
The following year, Key worked with legislators to craft language codifying the position. Officials decided the counselor could mediate disputes or issue advisory opinions, but stopped short of giving the position any authority to enforce publicaccess laws.
That duty fell to Hoosiers. The only way to truly compel officials to comply is to sue them, forcing residents to potentially spend thousands of dollars in court costs.
Advocates of Indiana’s public- access approach say the counselor’s position has in large part led to government agencies obeying public records laws, dramatically reducing the need for litigation.
But critics argue without any enforcement mechanism, the policy fundamentally allows officials to ignore open-records laws with few consequences — unless residents pay for a lawsuit.
Now, a last-minute amendment approved last week by lawmakers limiting how the public access counselor interprets Indiana’s laws has renewed debate on who should enforce them: the state or the taxpayers?
‘WORKS WELL’
For decades, state law dictated that the governor appoint a public access counselor to serve four-year terms. Last week’s amendment would allow governors, at their discretion, to remove the counselor for any reason.
Key said the fact the position is appointed is a major reason not to give the office enforcement powers. Otherwise, Hoosiers would face the prospect of an unelected person issuing binding, punishable rulings. Governors who might oppose government transparency could appoint a counselor who would rule in favor of the government as opposed to the public interest, he argued.
“By making the opinions nonbinding, the incentive is to put in a good public access counselor who can resolve the issues according to the law,” Key said.
Rep. Matt Pierce, D-Bloomington, said implementing an enforcement mechanism would essentially require the creation of a new judicial system with law judges deciding cases and hearing appeals.
“I think you end up with a situation that might look a lot like just going to court and suing a public official over the act,” he said. “The whole point of the public access counselor was trying to get a quick resolution to the dispute by having this kind of neutral person render their opinion.”
The central reason to keep public access opinions nonbinding, Key argued, is the fact that they almost always lead to government officials complying with state laws.
He estimated that about 95% of complaints filed with the counselor are resolved without a lawsuit. Nearly all of them are settled through informal mediation, and only a handful required a formal advisory opinion, the public access counselor’s 2024 annual report indicates.
Pierce said most public officials do want to comply with open-records laws but simply need guidance from the counselor on how to do so. Many openly welcome the counselor’s opinion and advice.
“It seems to me like the system has worked pretty well,” he said.
Key argued advisory opinions, even though they aren’t binding, still put pressure on officials, who often don’t want to be perceived as secretive. The kind of public shaming that comes with an opinion often motivates agencies to comply.
“Obviously, no one wants to be embarrassed or put in a position where it appears that they are violating government transparency,” he said.
‘WHAT’S THE POINT?’
But none of that changes the fact that for public officials who refuse to obey the law, the burden of enforcement is still left to Hoosiers, said Gerry Lanosga, a journalism professor at Indiana University and a board member of the Indiana Coalition for Open Government.
As it stands, government agencies can easily ignore open-records laws if they so choose, he explained.
“If you’re facing a requester who has no deep pockets and no ability to afford an attorney, you can ignore the public access counselor largely with impunity,” he said.
Indiana law does say that those who take government agencies to court over public-access violations and “substantially prevail” will have their legal fees paid by the agency. Residents must first file a complaint with the counselor.
However, if they lose the case, complainants could be out thousands of dollars, making a lawsuit an expensive gamble.
That’s becoming more of an issue with media outlets, which are often “super users” of public-access laws, Lanosga explained. Dwindling revenue in the industry has made it harder than ever to afford to litigate complaints to obtain records, he said.
“It ’s just expensive,” Lanosga said. “That really, on its own, seems to defeat the purpose of the law. If there’s no enforcement mechanism, what’s the point?”
A new program coming to Indiana could help relieve that financial burden. The Reporters Committee for Freedom of the Press announced in December it was hiring an attorney to provide free legal support for newsrooms and journalists in the state.
The initiative is already in place in Colorado, Oklahoma, Pennsylvania and Tennessee, where it has empowered local journalists to fight for greater government transparency, according to Katie Townsend, deputy executive director of the committee.
“We are excited to grow our ability to help Indiana journalists defend their newsgathering rights, access public records and court proceedings and hold public officials accountable,” she said in a release.
Lanosga said a pro-bono attorney will be a huge asset in Indiana, but it also highlights the fact that the state’s approach to public access puts reporters and everyday residents on the hook to truly enforce Indiana’s laws.
“It shouldn’t be that there has to be these private associations that help media or citizens pursue the right of access to things that they already should have by right of statute,” he said.
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