Editorial: Decision to gut access law is disappointing

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Indianapolis Business Journal

IBJ and other media organizations were disappointed to see Gov. Eric Holcomb sign a bill into law that weakens the Office of the Indiana Public Access Counselor, an agency that helps interpret open meeting and public access laws for the public, media and government officials.

House Bill 1338 was the last piece of legislation the governor signed this year, leading government watchdogs and media organizations to think he might veto the bill and send it back to the Legislature for reconsideration. A veto probably wouldn’t have mattered, anyway. Lawmakers can override a veto with a simple majority, the same simple majority needed to approve the bill in the first place.

Still, a veto would have sent a clear signal that government transparency is important in Indiana.

On the opposite page, you can read a Viewpoint column from Dave Arland, executive director of the Indiana Broadcasters Association, who laments that the law puts the public access counselor “on notice as a political appointee.”

We agree and share the group’s frustrations.

Under previous law, the counselor was appointed for four years and could be fired only “for cause.” The new law amends that provision to say the counselor serves “at the pleasure of the governor.” That change could make it much more difficult for the counselor to rule against the Governor’s Office or an agency in the governor’s administration that is failing to follow the law.

In addition, the new law limits what the access counselor can use in producing non-binding advisory opinions. And as we wrote in an editorial earlier this month urging a veto, the last part of that sentence is key: These are non-binding advisory opinions. The public access counselor can’t order anyone to do anything.

Still, for the non-binding opinions, the law now requires that the counselor use only the “plain text” of the state’s public access laws and court opinions. “Not even a dictionary” is an acceptable tool in making a decision, writes Niki Kelly, editor-in-chief of the Indiana Capital Chronicle.

The law removes any ability for the access counselor to interpret those laws or opinions as technology changes or situations crop up that the law doesn’t address.

One bit of hope is in the language left in the state’s public access law, which includes this preamble:

“Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information. This chapter shall be liberally construed to implement this policy and place the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record and not on the person seeking to inspect and copy the record.”

The key words there: “liberally construed.” We urge the public access counselor and the courts to keep those words in mind as they decide how transparent government should be with the people it serves.