By Helen Geib, QDiscovery
The Indianapolis Bar Association’s recent CLE, An Introduction to Using and Refusing under Indiana’s Access to Public Records Act, was a valuable primer on the state’s version of Freedom of Information Act. The program was a presentation of the E-Discovery, Information Governance & Cybersecurity Section. There are some similarities, but more differences between discovery requests and public records requests.
Under the Access to Public Records Act (APRA), the document request initiates the matter. APRA allows any “person” to request a “public record” from a “public agency.” All three statutory terms are defined broadly.
A “public record” is any “material that is created, received, retained, maintained, or filed by or with a public agency.” As in litigation discovery, the definition expressly includes electronically stored data.
However, the potential scope of requests is much different. APRA does not permit the “any and all documents” requests that are the norm in discovery. Instead, requests must be made with reasonable particularity to enable the agency to identify and locate the specific records being sought.
Email is a good use case for the distinction. “All communications during the relevant time period about the relevant subject matter” is a typical discovery request. The parties may negotiate additional limits, such as custodians and keywords, but ultimately the producing party is responsible for determining the best means of finding responsive documents.
In contrast, an APRA request seeking email should effectively be written as a specific search to satisfy the particularity requirement. For example, “email from Person A to Person B within the specified date range and that is a hit on keyword X, Y or Z.”
Requests may be made in person, by phone, in writing or through the agency’s website. Co-presenters Anne Ricchiuto and Stephanie Boxell, both of Faegre Baker Daniels LLP, recommended confirming verbal requests in writing. They also recommended addressing the request to the agency employee responsible for APRA compliance to expedite the response.
Responses are another significant area of divergence from litigation discovery. The agency – any non-federal government entity in Indiana – must acknowledge the request within seven days. There is no set response deadline however, only a requirement that agencies respond within a reasonable time. How long is reasonable will vary according to the scope of the request, volume of responsive records and size and sophistication of the agency.
The presenters emphasized it’s an uphill battle to challenge an agency’s self-assessment of reasonableness. This is particularly true of requests for electronic records. Like businesses, government entities come in all shapes and sizes. Generally speaking, IT staffing at the local level is very limited – and may be nonexistent. At the state level available resources and IT expertise vary greatly from agency to agency. Outdated and overburdened technology is also commonplace. In summary, there may be an extended wait to receive a response to an APRA request for email or other electronic data.
Records may be made available for inspection and copying at the agency or copies may be produced. APRA permits the producing agency to require that the requestor pay copying costs. There are specific statutory minimums and fee computation methods for copying costs. These are based on the type of record being produced, such as paper, email and database reports.
Objections are also different than in discovery. The burden is on the agency to demonstrate that a requested record should not be disclosed based on a statutory exception. The agency must cite the legal basis for the denial and name the individual responsible for the decision.
APRA provides two general bases for non-disclosure. First, certain categories of records are classified as exempt. Exempt records are further subdivided by mandatory and discretionary non-disclosure.
Mandatory non-disclosure applies to highly sensitive records. For example, privileged communications and litigation work product; medical records, Social Security Numbers and similar PII; state university research; foreclosure information; and trade secrets contained within Indiana companies’ regulatory filings. Non-disclosure is discretionary for legislature and agency work product and some law enforcement records where disclosure would be against the public interest.
Second, the agency may deny requests made for commercial or political purposes. APRA does not require the requestor give a reason for the request in the first instance. However, in order to overcome a denial made on this basis the requestor must provide a non-commercial and non-political reason.
If the agency denies the request, then the requestor may file a complaint with the Public Access Counselor (PAC) and/or a lawsuit to compel disclosure under APRA. The Public Access Counselor is a state officeholder appointed by the governor to oversee agency responsibilities under APRA. The Public Access Counselor hears complaints and issues opinions, and also acts in an advisory role to agencies seeking assistance in evaluating and responding to requests.
Complaints must be filed using the mandatory Public Access Counselor form within 30 days of the denial. Opinions are subject to short statutory deadlines for a quick turnaround process. The presenters encouraged filing a Public Access Counselor complaint to attempt to resolve the issue through de facto mediation. In addition, requestors who seek an opinion before filing a lawsuit may be able to recover attorneys’ fees.
Legal updates and practice tips are customary in CLE programs. The IndyBar’s CLE on Indiana’s Access to Public Records Act stood out by additionally providing an education in our rights as citizens.