Bill Text: IN HB1003 | 2012 | Regular Session | Enrolled
Bill Title: Public access issues.
Spectrum: Bipartisan Bill
Status: (Enrolled - Dead) 2012-03-19 - Signed by the Governor [HB1003 Detail]
Download: Indiana-2012-HB1003-Enrolled.html
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AN ACT to amend the Indiana Code concerning state offices and administration.
Be it enacted by the General Assembly of the State of Indiana:
SECTION 2. IC 4-12-1-10 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2012]: Sec. 10. The budget committee shall meet at least once during the two (2)
SECTION 3. IC 4-13.6-5-8, AS AMENDED BY P.L.177-2005, SECTION 10, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2012]: Sec. 8. (a) This section applies only to public works contracts bid under section 2 of this chapter.
(b) The division shall solicit sealed bids by public notice inserted once each week for two (2) successive weeks before the final date of submitting bids in:
(1) one (1) newspaper of general circulation in Marion County, Indiana; and
(2) if any part of the project is located in an area outside Marion County, Indiana, one (1) newspaper of general circulation in that area.
The commissioner shall designate the newspapers for these publications. The commissioner may designate different newspapers according to the nature of the project and may direct that additional notices be published.
(c) The division shall also solicit sealed bids for public works projects by
SECTION 4. IC 4-15-1.5-5, AS AMENDED BY P.L.178-2006, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2012]: Sec. 5. The commission shall meet in rooms provided
by the personnel department and assume the duties of office. Three (3)
members of the commission shall constitute a quorum for the
transaction of business, and a majority of votes cast shall be required
for the adoption or approval of any official action. The commission
shall elect one (1) of the members as the chairman and another member
as vice-chairman and the persons so elected shall hold office for one
(1) year and until their successors are elected and qualified. The
commission shall hold at least one (1) annual meeting and such
regular and special meetings each year as needed as it the commission
may prescribe by rule or resolution shall meet on or upon the call of
the chairman. and shall hold at least one (1) meeting each month.
SECTION 5. IC 5-1.5-2-2.5 IS REPEALED [EFFECTIVE
JANUARY 1, 2013]. Sec. 2.5. (a) This section applies to a meeting of
the board at which at least four (4) members of the board are physically
present at the place where the meeting is conducted.
(b) A member of the board may participate in a meeting of the board
by using a means of communication that permits:
(1) all other members participating in the meeting; and
(2) all members of the public physically present at the place
where the meeting is conducted;
to simultaneously communicate with each other during the meeting.
(c) A member who participates in a meeting under subsection (b) is
considered to be present at the meeting.
(d) The memoranda of the meeting prepared under IC 5-14-1.5-4
must also state the name of each member who:
(1) was physically present at the place where the meeting was
conducted;
(2) participated in the meeting by using a means of
communication described in subsection (b); and
(3) was absent.
SECTION 6. IC 5-2-6-16, AS AMENDED BY P.L.44-2006,
SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 16. (a) As used in this chapter, "local coordinating
council" means a countywide citizen body approved and appointed by
the commission for a drug free Indiana to plan, monitor, and evaluate
comprehensive local alcohol and drug abuse plans.
(b) The commission for a drug free Indiana is established (referred
to in this section as "commission"). The criminal justice institute may
adopt rules under IC 4-22-2 to administer the commission. The
commission must consist of twenty (20) members described under
subsections (d) and (e) who have distinguished themselves in their
respective fields and who have experience or an interest in attempting
to eliminate alcohol and other drug abuse in Indiana.
(c) The commission's purpose is to improve the coordination of
alcohol and other drug abuse efforts at both the state and local levels
in an effort to eliminate duplication of efforts while ensuring that
comprehensive alcohol and other drug programs are available
throughout Indiana. The commission's responsibilities include the
following:
(1) Establishing an interagency council on drugs to coordinate the
alcohol and other drug education, prevention, treatment, and
justice programming and funding responsibilities of state
agencies, commissions, and boards including the approval of
alcohol and other drug plans and funding applications by state
agencies, commissions, and boards.
(2) Coordinating the collection of data concerning alcohol and
other drug abuse and the needs, programming, and effectiveness
of state supported programs and services.
(3) Maintaining a system of support to assist local coordinating
councils with technical assistance, guidance, or direct funding
resources.
(4) Continuing to assist the development of local coordinating
councils to identify community drug programs, coordinate
community initiatives, design comprehensive, collaborative
community strategies, and monitor anti-drug activities at the local
level.
(5) Establishing roles, responsibilities, and performance standards
for the local coordinating councils.
(6) Recommending to the governor and general assembly long
and short range goals, objectives, and strategies, including
legislative proposals to be implemented on the state and local
level to reduce drug abuse.
(7) Assisting local communities in the development of citizen
based drug related crime control efforts.
(d) The commission must be comprised of the following voting
members:
(1) The governor or the governor's designee.
(2) Fifteen (15) members appointed by the governor for a two (2)
year term, who have experience or expertise in at least one (1) of
the following areas:
(A) Family relations.
(B) Religion.
(C) Education.
(D) Civic or private organizations.
(E) Business.
(F) Media.
(G) Drug treatment.
(H) Medicine.
(I) Local government.
(J) Judiciary.
(K) Law enforcement.
(L) Self-help organizations.
(M) Youth.
(N) A representative of the interagency council against drugs established under subsection (c)(1).
(O) Labor.
(e) Four (4) members of the general assembly shall serve as nonvoting members of the commission. The president pro tempore of the senate shall appoint two (2) senators, both of whom may not be members of the same political party. The speaker of the house of representatives shall appoint two (2) representatives, both of whom may not be members of the same political party.
(f) The governor or the governor's designee shall serve as the chairman of the commission.
(g) The commission shall meet
(h) Eight (8) voting members of the commission constitute a quorum. The commission is not prohibited from conducting business as a result of a vacancy in the commission. In the case of a vacancy, a new appointee shall serve for the remainder of the unexpired term. A vacancy shall be filled from the same group that was represented by the outgoing member.
(i) All appointments of the commission's members are renewable.
(j) A member of the commission who is not a state employee is not entitled to a minimum salary per diem provided by IC 4-10-11-2.1(b). The member is, however, entitled to reimbursement for traveling expenses and other expenses actually incurred in connection with the member's duties, as provided in the state travel policies and procedures established by the Indiana department of administration and approved by the budget agency.
(k) A member of the commission who is a state employee is entitled to reimbursement for traveling expenses and other expenses actually incurred in connection with the member's duties, as provided in the state travel policies and procedures established by the Indiana department of administration and approved by the budget agency.
SECTION 7. IC 5-10.5-3-9 IS REPEALED [EFFECTIVE
JANUARY 1, 2013]. Sec. 9. (a) This section applies to any meeting of
the board.
(b) A member of the board may participate in a meeting of the board
using any means of communication that permits:
(1) all other board members participating in the meeting; and
(2) all members of the public physically present at the place
where the meeting is conducted;
to simultaneously communicate with the member during the meeting.
(c) A member of the board who participates in a meeting under
subsection (b) is considered to be present at the meeting.
(d) The memorandum of the meeting prepared under IC 5-14-1.5-4
must also state the name of each member who:
(1) was physically present at the place where the meeting was
conducted;
(2) participated in the meeting using a means of communication
described in subsection (b); or
(3) was absent.
SECTION 8. IC 5-13-12-2, AS AMENDED BY P.L.115-2010,
SECTION 13, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 2. (a) The board for depositories consists of the
governor, the treasurer of state, the auditor of state, the chairperson of
the department of financial institutions, the chief examiner of the state
board of accounts, and four (4) appointed members. For appointments
after June 30, 2010, one (1) member shall be appointed by the speaker
of the house of representatives, one (1) member shall be appointed by
the president pro tempore of the senate, and two (2) members shall be
appointed by the governor. All appointed members must be residents
of Indiana. The speaker of the house of representatives shall make the
appointment to fill the first vacancy on the board, and the president pro
tempore of the senate shall make the appointment to fill the second
vacancy on the board that occurs after June 30, 2010. In making the
governor's two (2) appointments, the governor shall assure that no more
than two (2) of the four (4) appointees identify with the same political
party. For appointments after June 30, 2010, all four (4) appointed
members must be a chief executive officer or a chief financial officer
of a depository at the time of the appointment if the depository is
domiciled in Indiana. If the depository is not domiciled in Indiana, the
appointee must be the most senior corporate officer of the depository
with management or operational responsibility, or both, or the person
designated to manage public funds for the depository that is located in
Indiana. In making the governor's appointments, the governor shall
provide for geographic representation of all regions of Indiana,
including both urban and rural communities. In addition, the appointees
must, at the time of the appointment, be employed by the following
depositories:
(1) One (1) member appointed by the governor who must be the
chief executive officer or the chief financial officer of a
depository that is a state chartered credit union.
(2) One (1) member appointed by the governor who must be
employed by a depository that:
(A) is not a state chartered credit union; and
(B) has total deposits of less than two hundred fifty million
dollars ($250,000,000).
(3) The member appointed by the president pro tempore of the
senate must be employed by a depository that:
(A) is not a state chartered credit union; and
(B) has total deposits of at least two hundred fifty million
dollars ($250,000,000) but less than one billion dollars
($1,000,000,000).
(4) The member appointed by the speaker of the house of
representatives must be employed by a depository that:
(A) is not a state chartered credit union; and
(B) has total deposits of at least one billion dollars
($1,000,000,000).
Total deposits shall be determined using the depository's reported
deposits based on the information contained in the most recent June
30th FDIC Summary of Deposits, Market Share Selection for Indiana.
The term of an appointed member is four (4) years from the effective
date of the member's appointment. Each appointed member holds
office for the term of this appointment and serves after the expiration
of that appointment until the member's successor is appointed and
qualified. An appointed member may be reappointed if the individual
satisfies the requirements of this subsection at the time of the
reappointment. Any appointed member may be removed from office
by, and at the pleasure of, the appointing authority.
(b) The officers of the board consist of a chairman, a
secretary-investment manager, a vice chairman, and other officers the
board determines to be necessary. The governor shall name a member
of the board to serve as its chairman. The treasurer of state shall serve
as the secretary-investment manager of the board. The board, by
majority vote, shall elect the other officers. Officers, except the
secretary-investment manager, shall be named or elected for one (1)
year terms in January of each year. The members and officers of the
board are not entitled to any compensation for their services but are
entitled to reimbursement for actual and necessary expenses on the
same basis as state employees.
(c) Five (5) members of the board constitute a quorum for the
transaction of business, and all actions of the board must be approved
by at least a simple majority of those members voting on each
individual business issue. The board may adopt, amend, or repeal
bylaws and rules for the conduct of its meetings and the number and
times of its meetings. The board shall hold a regular meeting at least
once each calendar quarter semiannually and may hold other regular
and special meetings as prescribed in its rules. All meetings of the
board are open to the public under IC 5-14-1.5. However, the board
shall discuss the following in executive session:
(1) The financial strength of a particular financial institution.
(2) The collateral requirements of a particular financial
institution.
(3) Any other matters concerning a particular financial institution.
All records of the board are subject to public inspection under
IC 5-14-3. However, records regarding matters that are discussed in
executive session are confidential.
(d) Two (2) days notice of the time and place of all meetings to
determine and fix the assessment rate to be paid by depositories on
account of insurance on public funds or the establishment or
redetermination of the reserve for losses of the insurance fund shall be
given by one (1) publication in a newspaper of general circulation
printed and published in the city of Indianapolis. The time, place,
notice, and waiver requirements for the members of the board for all
meetings shall be determined by its rules. The secretary-investment
manager of the board shall enter its the board's proceedings at length
in a record provided for that purpose, and the records of the
proceedings shall be approved and signed respectively by the chairman
or vice chairman and attested by the secretary-investment manager.
SECTION 9. IC 5-13-12-2.5 IS REPEALED [EFFECTIVE
JANUARY 1, 2013]. Sec. 2.5. (a) This section applies to a meeting of
the board for depositories at which at least five (5) members of the
board are physically present at the place where the meeting is
conducted.
(b) A member of the board may participate in a meeting of the board
by using a means of communication that permits:
(1) all other members participating in the meeting; and
(2) all members of the public physically present at the place
where the meeting is conducted;
to simultaneously communicate with each other during the meeting.
SECTION 10. IC 5-14-1.5-3, AS AMENDED BY P.L.179-2007, SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JANUARY 1, 2013]: Sec. 3. (a) Except as provided in section 6.1 of this chapter, all meetings of the governing bodies of public agencies must be open at all times for the purpose of permitting members of the public to observe and record them.
(b) A secret ballot vote may not be taken at a meeting.
(c) A meeting conducted in compliance with
means of communication described in this section; and
(3) each member who was absent.
SECTION 11. IC 5-14-1.5-3.5 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JANUARY 1, 2013]: Sec. 3.5. (a) This section applies
only to a governing body of a public agency of a political
subdivision.
(b) A member of the governing body of a public agency who is
not physically present at a meeting of the governing body but who
communicates with members of the governing body during the
meeting by telephone, computer, video conferencing, or any other
electronic means of communication:
(1) may not participate in final action taken at the meeting
unless the member's participation is expressly authorized by
statute; and
(2) may not be considered to be present at the meeting unless
considering the member to be present at the meeting is
expressly authorized by statute.
(c) The memoranda prepared under section 4 of this chapter for
a meeting in which a member participates by using a means of
communication described in subsection (b) must state the name of:
(1) each member who was physically present at the place
where the meeting was conducted;
(2) each member who participated in the meeting by using a
means of communication described in subsection (b); and
(3) each member who was absent.
SECTION 12. IC 5-14-1.5-3.6 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JANUARY 1, 2013]: Sec. 3.6. (a) This section applies
only to a governing body of a public agency of the state, including
a body corporate and politic established as an instrumentality of
the state.
(b) A member of the governing body of a public agency who is
not physically present at a meeting of the governing body may
participate in a meeting of the governing body by electronic
communication only if the member uses a means of communication
that permits:
(1) the member;
(2) all other members participating in the meeting;
(3) all members of the public physically present at the place
where the meeting is conducted; and
(4) if the meeting is conducted under a policy adopted under
subsection (g)(7), all members of the public physically present
at a public location at which a member participates by means
of electronic communication;
to simultaneously communicate with each other during the
meeting.
(c) The governing body must fulfill both of the following
requirements for a member of the governing body to participate in
a meeting by electronic communication:
(1) This subdivision does not apply to committees appointed
by a board of trustees of a state educational institution. The
minimum number of members who must be physically
present at the place where the meeting is conducted must be
the greater of:
(A) two (2) of the members; or
(B) one-third (1/3) of the members.
(2) All votes of the governing body during the electronic
meeting must be taken by roll call vote.
Nothing in this section affects the public's right under this chapter
to attend a meeting of the governing body at the place where the
meeting is conducted and the minimum number of members is
physically present as provided for in subdivision (1).
(d) Each member of the governing body is required to physically
attend at least one (1) meeting of the governing body annually.
(e) Unless a policy adopted by a governing body under
subsection (g) provides otherwise, a member who participates in a
meeting by electronic communication:
(1) is considered to be present at the meeting;
(2) shall be counted for purposes of establishing a quorum;
and
(3) may vote at the meeting.
(f) A governing body may not conduct meetings using a means
of electronic communication until the governing body:
(1) meets all requirements of this chapter; and
(2) by a favorable vote of a majority of the members of the
governing body, adopts a policy under subsection (g)
governing participation in meetings of the governing body by
electronic communication.
(g) A policy adopted by a governing body to govern
participation in the governing body's meetings by electronic
communication may do any of the following:
(1) Require a member to request authorization to participate
in a meeting of the governing body by electronic
communication within a certain number of days before the
meeting to allow for arrangements to be made for the
member's participation by electronic communication.
(2) Subject to subsection (e), limit the number of members
who may participate in any one (1) meeting by electronic
communication.
(3) Limit the total number of meetings that the governing
body may conduct in a calendar year by electronic
communication.
(4) Limit the number of meetings in a calendar year in which
any one (1) member of the governing body may participate by
electronic communication.
(5) Provide that a member who participates in a meeting by
electronic communication may not cast the deciding vote on
any official action.
(6) Require a member participating in a meeting by electronic
communication to confirm in writing the votes cast by the
member during the meeting within a certain number of days
after the date of the meeting.
(7) Provide that in addition to the location where a meeting is
conducted, the public may also attend some or all meetings of
the governing body, excluding executive sessions, at a public
place or public places at which a member is physically present
and participates by electronic communication. If the
governing body's policy includes this provision, a meeting
notice must provide the following information:
(A) The identity of each member who will be physically
present at a public place and participate in the meeting by
electronic communication.
(B) The address and telephone number of each public place
where a member will be physically present and participate
by electronic communication.
(C) Unless the meeting is an executive session, a statement
that a location described in clause (B) will be open and
accessible to the public.
(8) Require at least a quorum of members to be physically
present at the location where the meeting is conducted.
(9) Provide that a member participating by electronic
communication may vote on official action only if, subject to
subsection (e), a specified number of members:
(A) are physically present at the location where the
meeting is conducted; and
(B) concur in the official action.
(10) Establish any other procedures, limitations, or conditions that govern participation in meetings of the governing body by electronic communication and are not in conflict with this chapter.
(h) The policy adopted by the governing body must be posted on the Internet web site of the governing body or the public agency.
(i) Nothing in this section affects a public agency's right to exclude the public from an executive session in which a member participates by electronic communication.
SECTION 13. IC 5-14-1.5-4, AS AMENDED BY P.L.2-2007, SECTION 99, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JANUARY 1, 2013]: Sec. 4. (a) A governing body of a public agency utilizing an agenda shall post a copy of the agenda at the entrance to the location of the meeting prior to the meeting. A rule, regulation, ordinance, or other final action adopted by reference to agenda number or item alone is void.
(b) As the meeting progresses, the following memoranda shall be kept:
(1) The date, time, and place of the meeting.
(2) The members of the governing body recorded as either present or absent.
(3) The general substance of all matters proposed, discussed, or decided.
(4) A record of all votes taken by individual members if there is a roll call.
(5) Any additional information required under
(c) The memoranda are to be available within a reasonable period of time after the meeting for the purpose of informing the public of the governing body's proceedings. The minutes, if any, are to be open for public inspection and copying.
SECTION 14. IC 5-14-1.5-5, AS AMENDED BY P.L.177-2005, SECTION 14, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2012]: Sec. 5. (a) Public notice of the date, time, and place of any meetings, executive sessions, or of any rescheduled or reconvened meeting, shall be given at least forty-eight (48) hours (excluding Saturdays, Sundays, and legal holidays) before the meeting. This requirement does not apply to reconvened meetings (not including executive sessions) where announcement of the date, time, and place
of the reconvened meeting is made at the original meeting and recorded
in the memoranda and minutes thereof, and there is no change in the
agenda.
(b) Public notice shall be given by the governing body of a public
agency by: as follows:
(1) The governing body of a public agency shall give public
notice by posting a copy of the notice at the principal office of the
public agency holding the meeting or, if no such office exists, at
the building where the meeting is to be held. and
(2) The governing body of a public agency shall give public
notice by delivering notice to all news media which deliver by
January 1 an annual written request for such the notices not later
than December 31 for the next succeeding calendar year to the
governing body of the public agency. The governing body shall
give notice by one (1) of the following methods, which shall be
determined by the governing body:
(A) Depositing the notice in the United States mail with
postage prepaid.
(B) Transmitting the notice by electronic mail, if the public
agency has the capacity to transmit electronic mail.
(C) Transmitting the notice by facsimile (fax).
(3) This subdivision applies only to the governing body of a
public agency of a political subdivision described in section
2(a)(2), 2(a)(4), or 2(a)(5) of this chapter that adopts a policy
to provide notice under this subdivision. Notice under this
subsection is in addition to providing notice under
subdivisions (1) and (2). If the governing body adopts a policy
under this subdivision, the governing body of a public agency
shall give public notice by delivering notice to any person
(other than news media) who delivers to the governing body
of the public agency an annual written request for the notices
not later than December 31 for the next succeeding calendar
year. The governing body shall give notice by one (1) of the
following methods, which shall be determined by the
governing body:
(A) Transmitting the notice by electronic mail, if the public
agency has the capacity to send electronic mail.
(B) Publishing the notice on the public agency's Internet
web site at least forty-eight (48) hours in advance of the
meeting, if the public agency has an Internet web site.
A court may not declare void any policy, decision, or final action
under section 7 of this chapter based on a failure to give a person
notice under subdivision (3) if the public agency made a good faith
effort to comply with subdivision (3). If a governing body comes into
existence after January 1, December 31, it shall comply with this
subdivision subsection upon receipt of a written request for notice. In
addition, a state agency (as defined in IC 4-13-1-1) shall provide
electronic access to the notice through the computer gateway
administered by the office of technology established by IC 4-13.1-2-1.
(c) Notice of regular meetings need be given only once each year,
except that an additional notice shall be given where the date, time, or
place of a regular meeting or meetings is changed. This subsection does
not apply to executive sessions.
(d) If a meeting is called to deal with an emergency involving actual
or threatened injury to person or property, or actual or threatened
disruption of the governmental activity under the jurisdiction of the
public agency by any event, then the time requirements of notice under
this section shall not apply, but:
(1) news media which have requested notice of meetings under
subsection (b)(2) must be given the same notice as is given to the
members of the governing body; and
(2) the public must be notified by posting a copy of the notice
according to this section. subsection (b)(1).
(e) This section shall not apply where notice by publication is
required by statute, ordinance, rule, or regulation.
(f) This section shall not apply to:
(1) the department of local government finance, the Indiana board
of tax review, or any other governing body which meets in
continuous session, except that this section applies to meetings of
these governing bodies which are required by or held pursuant to
statute, ordinance, rule, or regulation; or
(2) the executive of a county or the legislative body of a town if
the meetings are held solely to receive information or
recommendations in order to carry out administrative functions,
to carry out administrative functions, or confer with staff
members on matters relating to the internal management of the
unit. "Administrative functions" do not include the awarding of
contracts, the entering into contracts, or any other action creating
an obligation or otherwise binding a county or town.
(g) This section does not apply to the general assembly.
(h) Notice has not been given in accordance with this section if a
governing body of a public agency convenes a meeting at a time so
unreasonably departing from the time stated in its public notice that the
public is misled or substantially deprived of the opportunity to attend,
observe, and record the meeting.
SECTION 15. IC 5-14-1.5-7, AS AMENDED BY P.L.179-2007,
SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 7. (a) An action may be filed by any person in any
court of competent jurisdiction to:
(1) obtain a declaratory judgment;
(2) enjoin continuing, threatened, or future violations of this
chapter; or
(3) declare void any policy, decision, or final action:
(A) taken at an executive session in violation of section 3(a) of
this chapter;
(B) taken at any meeting of which notice is not given in
accordance with section 5 of this chapter;
(C) that is based in whole or in part upon official action taken
at any:
(i) executive session in violation of section 3(a) of this
chapter;
(ii) meeting of which notice is not given in accordance with
section 5 of this chapter; or
(iii) series of gatherings in violation of section 3.1 of this
chapter; or
(D) taken at a meeting held in a location in violation of section
8 of this chapter.
The plaintiff need not allege or prove special damage different from
that suffered by the public at large.
(b) Regardless of whether a formal complaint or an informal inquiry
is pending before the public access counselor, any action to declare any
policy, decision, or final action of a governing body void, or to enter an
injunction which would invalidate any policy, decision, or final action
of a governing body, based on violation of this chapter occurring before
the action is commenced, shall be commenced:
(1) prior to the delivery of any warrants, notes, bonds, or
obligations if the relief sought would have the effect, if granted,
of invalidating the notes, bonds, or obligations; or
(2) with respect to any other subject matter, within thirty (30)
days of either:
(A) the date of the act or failure to act complained of; or
(B) the date that the plaintiff knew or should have known that
the act or failure to act complained of had occurred;
whichever is later. If the challenged policy, decision, or final action is
recorded in the memoranda or minutes of a governing body, a plaintiff
is considered to have known that the act or failure to act complained of
had occurred not later than the date that the memoranda or minutes are
first available for public inspection.
(c) If a court finds that a governing body of a public agency has
violated this chapter, it may not find that the violation was cured by the
governing body by only having taken final action at a meeting that
complies with this chapter.
(d) In determining whether to declare any policy, decision, or final
action void, a court shall consider the following factors among other
relevant factors:
(1) The extent to which the violation:
(A) affected the substance of the policy, decision, or final
action;
(B) denied or impaired access to any meetings that the public
had a right to observe and record; and
(C) prevented or impaired public knowledge or understanding
of the public's business.
(2) Whether voiding of the policy, decision, or final action is a
necessary prerequisite to a substantial reconsideration of the
subject matter.
(3) Whether the public interest will be served by voiding the
policy, decision, or final action by determining which of the
following factors outweighs the other:
(A) The remedial benefits gained by effectuating the public
policy of the state declared in section 1 of this chapter.
(B) The prejudice likely to accrue to the public if the policy,
decision, or final action is voided, including the extent to
which persons have relied upon the validity of the challenged
action and the effect declaring the challenged action void
would have on them.
(4) Whether the defendant acted in compliance with an informal
inquiry response or advisory opinion issued by the public access
counselor concerning the violation.
(e) If a court declares a policy, decision, or final action of a
governing body of a public agency void, the court may enjoin the
governing body from subsequently acting upon the subject matter of
the voided act until it has been given substantial reconsideration at a
meeting or meetings that comply with this chapter.
(f) In any action filed under this section, a court shall award
reasonable attorney's fees, court costs, and other reasonable expenses
of litigation to the prevailing party if:
(1) the plaintiff prevails; or
(2) the defendant prevails and the court finds that the action is
frivolous and vexatious.
The plaintiff is not eligible for the awarding of attorney's fees, court
costs, and other reasonable expenses if the plaintiff filed the action
without first seeking and receiving an informal inquiry response or
advisory opinion from the public access counselor, unless the plaintiff
can show the filing of the action was necessary to prevent a violation
of this chapter.
(g) A court may assess a civil penalty under section 7.5 of this
chapter only if the plaintiff obtained an advisory opinion from the
public access counselor before filing an action under this section as
set forth in section 7.5 of this chapter.
(g) (h) A court shall expedite the hearing of an action filed under
this section.
SECTION 16. IC 5-14-1.5-7.5 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2012]: Sec. 7.5. (a) This section applies only
to an individual who is:
(1) an officer of a public agency; or
(2) employed in a management level position with a public
agency.
(b) If an individual with the specific intent to violate the law fails
to perform a duty imposed on the individual under this chapter by:
(1) failing to give proper notice of a regular meeting, special
meeting, or executive session;
(2) taking final action outside a regular meeting or special
meeting;
(3) participating in a secret ballot during a meeting;
(4) discussing in an executive session subjects not eligible for
discussion in an executive session;
(5) failing to prepare a memorandum of a meeting as required
by section 4 of this chapter; or
(6) participating in at least one (1) gathering of a series of
gatherings under section 3.1 of this chapter;
the individual and the public agency are subject to a civil penalty
under subsection (f).
(c) A civil penalty may only be imposed as part of an action filed
under section 7 of this chapter. A court may not impose a civil
penalty under this section unless the public access counselor has
issued an advisory opinion:
(1) to the complainant and the public agency;
(2) that finds that the individual or public agency violated this
chapter; and
(3) before the action under section 7 of this chapter is filed.
Nothing in this section prevents both the complainant and the
public agency from requesting an advisory opinion from the public
access counselor.
(d) It is a defense to the imposition of a civil penalty under this
section that the individual failed to perform a duty under
subsection (b) in reliance on either of the following:
(1) An opinion of the public agency's legal counsel.
(2) An opinion of the attorney general.
(e) Except as provided in subsection (i), in an action filed under
section 7 of this chapter, a court may impose a civil penalty against
one (1) or more of the following:
(1) The individual named as a defendant in the action.
(2) The public agency named as a defendant in the action.
(f) The court may impose against each defendant listed in
subsection (c) the following civil penalties:
(1) Not more than one hundred dollars ($100) for the first
violation.
(2) Not more than five hundred dollars ($500) for each
additional violation.
A civil penalty imposed under this section is in addition to any
other civil or criminal penalty imposed. However, in any one (1)
action brought under section 7 of this chapter, a court may impose
only one (1) civil penalty against an individual, even if the court
finds that the individual committed multiple violations. This
subsection does not preclude a court from imposing another civil
penalty against an individual in a separate action, but an individual
may not be assessed more than one (1) civil penalty in any one (1)
action brought under this section.
(g) A court shall distribute monthly to the auditor of state any
penalties collected under this section for deposit in the education
fund established by IC 5-14-4-14.
(h) An individual is personally liable for a civil penalty imposed
on the individual under this section. A civil penalty imposed
against a public agency under this section shall be paid from the
public agency's budget.
(i) If an officer of a public agency directs an individual who is
employed in a management level position to fail to give proper
notice as described in subsection (b)(1), the management level
employee is not subject to civil penalties under subsection (f).
SECTION 17. IC 5-14-3-3, AS AMENDED BY P.L.2-2007,
SECTION 100, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2012]: Sec. 3. (a) Any person may inspect and
copy the public records of any public agency during the regular
business hours of the agency, except as provided in section 4 of this
chapter. A request for inspection or copying must:
(1) identify with reasonable particularity the record being
requested; and
(2) be, at the discretion of the agency, in writing on or in a form
provided by the agency.
No request may be denied because the person making the request
refuses to state the purpose of the request, unless such condition is
required by other applicable statute.
(b) A public agency may not deny or interfere with the exercise of
the right stated in subsection (a). Within a reasonable time after the
request is received by the agency, the public agency shall either:
(1) provide the requested copies to the person making the request;
or
(2) allow the person to make copies:
(A) on the agency's equipment; or
(B) on the person's own equipment.
(c) Notwithstanding subsections (a) and (b), a public agency may or
may not do the following:
(1) In accordance with a contract described in section 3.5 of this
chapter, permit a person to inspect and copy through the use of
enhanced access public records containing information owned by
or entrusted to the public agency.
(2) Permit a governmental entity to use an electronic device to
inspect and copy public records containing information owned by
or entrusted to the public agency.
(d) Except as provided in subsection (e), a public agency that
maintains or contracts for the maintenance of public records in an
electronic data storage system shall make reasonable efforts to provide
to a person making a request a copy of all disclosable data contained
in the records on paper, disk, tape, drum, or any other method of
electronic retrieval if the medium requested is compatible with the
agency's data storage system. This subsection does not apply to an
electronic map.
(e) A state agency may adopt a rule under IC 4-22-2, and a political
subdivision may enact an ordinance, prescribing the conditions under
which a person who receives information on disk or tape under
subsection (d) may or may not use the information for commercial
purposes, including to sell, advertise, or solicit the purchase of
merchandise, goods, or services, or sell, loan, give away, or otherwise
deliver the information obtained by the request to any other person for
these purposes. Use of information received under subsection (d) in
connection with the preparation or publication of news, for nonprofit
activities, or for academic research is not prohibited. A person who
uses information in a manner contrary to a rule or ordinance adopted
under this subsection may be prohibited by the state agency or political
subdivision from obtaining a copy or any further data under subsection
(d).
(f) Notwithstanding the other provisions of this section, a public
agency is not required to create or provide copies of lists of names and
addresses (including electronic mail account addresses) unless the
public agency is required to publish such lists and disseminate them to
the public under a statute. However, if a public agency has created a
list of names and addresses (excluding electronic mail account
addresses) it must permit a person to inspect and make memoranda
abstracts from the list unless access to the list is prohibited by law. The
lists of names and addresses (including electronic mail account
addresses) described in subdivisions (1) through (3) may not be
disclosed by public agencies to any individual or entity for political
purposes and may not be used by any individual or entity for political
purposes. In addition, the lists of names and addresses (including
electronic mail account addresses) described in subdivisions (1)
through (3) may not be disclosed by public agencies to commercial
entities for commercial purposes and may not be used by commercial
entities for commercial purposes. The prohibition in this subsection
against the disclosure of lists for political or commercial purposes
applies to the following lists of names and addresses (including
electronic mail account addresses):
(1) A list of employees of a public agency.
(2) A list of persons attending conferences or meetings at a state
educational institution or of persons involved in programs or
activities conducted or supervised by the state educational
institution.
(3) A list of students who are enrolled in a public school
corporation if the governing body of the public school corporation
adopts a policy:
(A) with respect to disclosure related to a commercial purpose,
prohibiting the disclosure of the list to commercial entities for
commercial purposes;
(B) with respect to disclosure related to a commercial purpose,
specifying the classes or categories of commercial entities to
which the list may not be disclosed or by which the list may
not be used for commercial purposes; or
(C) with respect to disclosure related to a political purpose,
prohibiting the disclosure of the list to individuals and entities
for political purposes.
A policy adopted under subdivision (3)(A) or (3)(B) must be uniform
and may not discriminate among similarly situated commercial entities.
For purposes of this subsection, "political purposes" means influencing
the election of a candidate for federal, state, legislative, local, or school
board office or the outcome of a public question or attempting to solicit
a contribution to influence the election of a candidate for federal, state,
legislative, local, or school board office or the outcome of a public
question.
(g) A public agency may not enter into or renew a contract or an
obligation:
(1) for the storage or copying of public records; or
(2) that requires the public to obtain a license or pay copyright
royalties for obtaining the right to inspect and copy the records
unless otherwise provided by applicable statute;
if the contract, obligation, license, or copyright unreasonably impairs
the right of the public to inspect and copy the agency's public records.
(h) If this section conflicts with IC 3-7, the provisions of IC 3-7
apply.
SECTION 18. IC 5-14-3-4, AS AMENDED BY P.L.170-2011,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 4. (a) The following public records are excepted
from section 3 of this chapter and may not be disclosed by a public
agency, unless access to the records is specifically required by a state
or federal statute or is ordered by a court under the rules of discovery:
(1) Those declared confidential by state statute.
(2) Those declared confidential by rule adopted by a public
agency under specific authority to classify public records as
confidential granted to the public agency by statute.
(3) Those required to be kept confidential by federal law.
(4) Records containing trade secrets.
(5) Confidential financial information obtained, upon request,
from a person. However, this does not include information that is
filed with or received by a public agency pursuant to state statute.
(6) Information concerning research, including actual research
documents, conducted under the auspices of a state educational
institution, including information:
(A) concerning any negotiations made with respect to the
research; and
(B) received from another party involved in the research.
(7) Grade transcripts and license examination scores obtained as part of a licensure process.
(8) Those declared confidential by or under rules adopted by the supreme court of Indiana.
(9) Patient medical records and charts created by a provider, unless the patient gives written consent under IC 16-39 or as provided under IC 16-41-8.
(10) Application information declared confidential by the board of the Indiana economic development corporation under IC 5-28-16.
(11) A photograph, a video recording, or an audio recording of an autopsy, except as provided in IC 36-2-14-10.
(12) A Social Security number contained in the records of a public agency.
(13) The following information that is part of a foreclosure action subject to IC 32-30-10.5:
(A) Contact information for a debtor, as described in IC 32-30-10.5-8(d)(2)(B).
(B) Any document submitted to the court as part of the debtor's loss mitigation package under IC 32-30-10.5-10(a)(3).
(b) Except as otherwise provided by subsection (a), the following public records shall be excepted from section 3 of this chapter at the discretion of a public agency:
(1) Investigatory records of law enforcement agencies. However, certain law enforcement records must be made available for inspection and copying as provided in section 5 of this chapter.
(2) The work product of an attorney representing, pursuant to state employment or an appointment by a public agency:
(A) a public agency;
(B) the state; or
(C) an individual.
(3) Test questions, scoring keys, and other examination data used in administering a licensing examination, examination for employment, or academic examination before the examination is given or if it is to be given again.
(4) Scores of tests if the person is identified by name and has not consented to the release of the person's scores.
(5) The following:
(A) Records relating to negotiations between the Indiana economic development corporation, the ports of Indiana, the Indiana state department of agriculture, the Indiana finance
authority, an economic development commission, a local
economic development organization (as defined in
IC 5-28-11-2(3)), or a governing body of a political
subdivision with industrial, research, or commercial prospects,
if the records are created while negotiations are in progress.
(B) Notwithstanding clause (A), the terms of the final offer of
public financial resources communicated by the Indiana
economic development corporation, the ports of Indiana, the
Indiana finance authority, an economic development
commission, or a governing body of a political subdivision to
an industrial, a research, or a commercial prospect shall be
available for inspection and copying under section 3 of this
chapter after negotiations with that prospect have terminated.
(C) When disclosing a final offer under clause (B), the Indiana
economic development corporation shall certify that the
information being disclosed accurately and completely
represents the terms of the final offer.
(6) Records that are intra-agency or interagency advisory or
deliberative material, including material developed by a private
contractor under a contract with a public agency, that are
expressions of opinion or are of a speculative nature, and that are
communicated for the purpose of decision making.
(7) Diaries, journals, or other personal notes serving as the
functional equivalent of a diary or journal.
(8) Personnel files of public employees and files of applicants for
public employment, except for:
(A) the name, compensation, job title, business address,
business telephone number, job description, education and
training background, previous work experience, or dates of
first and last employment of present or former officers or
employees of the agency;
(B) information relating to the status of any formal charges
against the employee; and
(C) the factual basis for a disciplinary action in which final
action has been taken and that resulted in the employee being
suspended, demoted, or discharged.
However, all personnel file information shall be made available
to the affected employee or the employee's representative. This
subdivision does not apply to disclosure of personnel information
generally on all employees or for groups of employees without the
request being particularized by employee name.
(9) Minutes or records of hospital medical staff meetings.
(10) Administrative or technical information that would jeopardize a record keeping or security system.
(11) Computer programs, computer codes, computer filing systems, and other software that are owned by the public agency or entrusted to it and portions of electronic maps entrusted to a public agency by a utility.
(12) Records specifically prepared for discussion or developed during discussion in an executive session under IC 5-14-1.5-6.1. However, this subdivision does not apply to that information required to be available for inspection and copying under subdivision (8).
(13) The work product of the legislative services agency under personnel rules approved by the legislative council.
(14) The work product of individual members and the partisan staffs of the general assembly.
(15) The identity of a donor of a gift made to a public agency if:
(A) the donor requires nondisclosure of the donor's identity as a condition of making the gift; or
(B) after the gift is made, the donor or a member of the donor's family requests nondisclosure.
(16) Library or archival records:
(A) which can be used to identify any library patron; or
(B) deposited with or acquired by a library upon a condition that the records be disclosed only:
(i) to qualified researchers;
(ii) after the passing of a period of years that is specified in the documents under which the deposit or acquisition is made; or
(iii) after the death of persons specified at the time of the acquisition or deposit.
However, nothing in this subdivision shall limit or affect contracts entered into by the Indiana state library pursuant to IC 4-1-6-8.
(17) The identity of any person who contacts the bureau of motor vehicles concerning the ability of a driver to operate a motor vehicle safely and the medical records and evaluations made by the bureau of motor vehicles staff or members of the driver licensing medical advisory board regarding the ability of a driver to operate a motor vehicle safely. However, upon written request to the commissioner of the bureau of motor vehicles, the driver must be given copies of the driver's medical records and evaluations.
(18) School safety and security measures, plans, and systems,
including emergency preparedness plans developed under 511
IAC 6.1-2-2.5.
(19) A record or a part of a record, the public disclosure of which
would have a reasonable likelihood of threatening public safety
by exposing a vulnerability to terrorist attack. A record described
under this subdivision includes:
(A) a record assembled, prepared, or maintained to prevent,
mitigate, or respond to an act of terrorism under IC 35-47-12-1
or an act of agricultural terrorism under IC 35-47-12-2;
(B) vulnerability assessments;
(C) risk planning documents;
(D) needs assessments;
(E) threat assessments;
(F) intelligence assessments;
(G) domestic preparedness strategies;
(H) the location of community drinking water wells and
surface water intakes;
(I) the emergency contact information of emergency
responders and volunteers;
(J) infrastructure records that disclose the configuration of
critical systems such as communication, electrical, ventilation,
water, and wastewater systems; and
(K) detailed drawings or specifications of structural elements,
floor plans, and operating, utility, or security systems, whether
in paper or electronic form, of any building or facility located
on an airport (as defined in IC 8-21-1-1) that is owned,
occupied, leased, or maintained by a public agency. A record
described in this clause may not be released for public
inspection by any public agency without the prior approval of
the public agency that owns, occupies, leases, or maintains the
airport. The public agency that owns, occupies, leases, or
maintains the airport:
(i) is responsible for determining whether the public
disclosure of a record or a part of a record has a reasonable
likelihood of threatening public safety by exposing a
vulnerability to terrorist attack; and
(ii) must identify a record described under item (i) and
clearly mark the record as "confidential and not subject to
public disclosure under IC 5-14-3-4(b)(19)(J) without
approval of (insert name of submitting public agency)".
This subdivision does not apply to a record or portion of a record
pertaining to a location or structure owned or protected by a
public agency in the event that an act of terrorism under
IC 35-47-12-1 or an act of agricultural terrorism under
IC 35-47-12-2 has occurred at that location or structure, unless
release of the record or portion of the record would have a
reasonable likelihood of threatening public safety by exposing a
vulnerability of other locations or structures to terrorist attack.
(20) The following personal information concerning a customer
of a municipally owned utility (as defined in IC 8-1-2-1):
(A) Telephone number.
(B) Address.
(C) Social Security number.
(21) The following personal information about a complainant
contained in records of a law enforcement agency:
(A) Telephone number.
(B) The complainant's address. However, if the complainant's
address is the location of the suspected crime, infraction,
accident, or complaint reported, the address shall be made
available for public inspection and copying.
(22) Notwithstanding subdivision (8)(A), the name,
compensation, job title, business address, business telephone
number, job description, education and training background,
previous work experience, or dates of first employment of a law
enforcement officer who is operating in an undercover capacity.
(23) Records requested by an offender that:
(A) contain personal information relating to:
(i) a correctional officer (as defined in IC 5-10-10-1.5);
(ii) a law enforcement officer (as defined in
IC 35-31.5-2-185);
(iii) a judge (as defined in IC 33-38-12-3);
(ii) (iv) the victim of a crime; or
(iii) (v) a family member of a correctional officer, law
enforcement officer (as defined in IC 35-31.5-2-185),
judge (as defined in IC 33-38-12-3), or the victim of a
crime; or
(B) concern or could affect the security of a jail or correctional
facility.
(24) Information concerning an individual less than eighteen
(18) years of age who participates in a conference, meeting,
program, or activity conducted or supervised by a state
educational institution, including the following information
regarding the individual or the individual's parent or
guardian:
(A) Name.
(B) Address.
(C) Telephone number.
(D) Electronic mail account address.
(c) Nothing contained in subsection (b) shall limit or affect the right
of a person to inspect and copy a public record required or directed to
be made by any statute or by any rule of a public agency.
(d) Notwithstanding any other law, a public record that is classified
as confidential, other than a record concerning an adoption or patient
medical records, shall be made available for inspection and copying
seventy-five (75) years after the creation of that record.
(e) Only the content of a public record may form the basis for the
adoption by any public agency of a rule or procedure creating an
exception from disclosure under this section.
(f) Except as provided by law, a public agency may not adopt a rule
or procedure that creates an exception from disclosure under this
section based upon whether a public record is stored or accessed using
paper, electronic media, magnetic media, optical media, or other
information storage technology.
(g) Except as provided by law, a public agency may not adopt a rule
or procedure nor impose any costs or liabilities that impede or restrict
the reproduction or dissemination of any public record.
(h) Notwithstanding subsection (d) and section 7 of this chapter:
(1) public records subject to IC 5-15 may be destroyed only in
accordance with record retention schedules under IC 5-15; or
(2) public records not subject to IC 5-15 may be destroyed in the
ordinary course of business.
SECTION 19. IC 5-14-3-9, AS AMENDED BY P.L.22-2005,
SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 9. (a) A denial of disclosure by a public agency
occurs when the person making the request is physically present in the
office of the agency, makes the request by telephone, or requests
enhanced access to a document and:
(1) the person designated by the public agency as being
responsible for public records release decisions refuses to permit
inspection and copying of a public record when a request has
been made; or
(2) twenty-four (24) hours elapse after any employee of the public
agency refuses to permit inspection and copying of a public
record when a request has been made;
whichever occurs first.
(b) If a person requests by mail or by facsimile a copy or copies of
a public record, a denial of disclosure does not occur until seven (7)
days have elapsed from the date the public agency receives the request.
(c) If a request is made orally, either in person or by telephone, a
public agency may deny the request orally. However, if a request
initially is made in writing, by facsimile, or through enhanced access,
or if an oral request that has been denied is renewed in writing or by
facsimile, a public agency may deny the request if:
(1) the denial is in writing or by facsimile; and
(2) the denial includes:
(A) a statement of the specific exemption or exemptions
authorizing the withholding of all or part of the public record;
and
(B) the name and the title or position of the person responsible
for the denial.
(d) This subsection applies to a board, a commission, a department,
a division, a bureau, a committee, an agency, an office, an
instrumentality, or an authority, by whatever name designated,
exercising any part of the executive, administrative, judicial, or
legislative power of the state. If an agency receives a request to inspect
or copy a record that the agency considers to be excepted from
disclosure under section 4(b)(19) of this chapter, the agency may
consult with the counterterrorism and security council established by
IC 10-19-8-1. If an agency denies the disclosure of a record or a part of
a record under section 4(b)(19) of this chapter, the agency or the
counterterrorism and security council shall provide a general
description of the record being withheld and of how disclosure of the
record would have a reasonable likelihood of threatening the public
safety.
(e) A person who has been denied the right to inspect or copy a
public record by a public agency may file an action in the circuit or
superior court of the county in which the denial occurred to compel the
public agency to permit the person to inspect and copy the public
record. Whenever an action is filed under this subsection, the public
agency must notify each person who supplied any part of the public
record at issue:
(1) that a request for release of the public record has been denied;
and
(2) whether the denial was in compliance with an informal inquiry
response or advisory opinion of the public access counselor.
Such persons are entitled to intervene in any litigation that results from
the denial. The person who has been denied the right to inspect or copy
need not allege or prove any special damage different from that
suffered by the public at large.
(f) The court shall determine the matter de novo, with the burden of
proof on the public agency to sustain its denial. If the issue in de novo
review under this section is whether a public agency properly denied
access to a public record because the record is exempted under section
4(a) of this chapter, the public agency meets its burden of proof under
this subsection by establishing the content of the record with adequate
specificity and not by relying on a conclusory statement or affidavit.
(g) If the issue in a de novo review under this section is whether a
public agency properly denied access to a public record because the
record is exempted under section 4(b) of this chapter:
(1) the public agency meets its burden of proof under this
subsection by:
(A) proving that the record falls within any one (1) of the
categories of exempted records under section 4(b) of this
chapter; and
(B) establishing the content of the record with adequate
specificity and not by relying on a conclusory statement or
affidavit; and
(2) a person requesting access to a public record meets the
person's burden of proof under this subsection by proving that the
denial of access is arbitrary or capricious.
(h) The court may review the public record in camera to determine
whether any part of it may be withheld under this chapter. However,
if the complaint alleges that a public agency denied disclosure of a
public record by redacting information in the public record, the
court shall conduct an in camera inspection of the public record
with the redacted information included.
(i) In any action filed under this section, a court shall award
reasonable attorney's fees, court costs, and other reasonable expenses
of litigation to the prevailing party if:
(1) the plaintiff substantially prevails; or
(2) the defendant substantially prevails and the court finds the
action was frivolous or vexatious.
The plaintiff is not eligible for the awarding of attorney's fees, court
costs, and other reasonable expenses if the plaintiff filed the action
without first seeking and receiving an informal inquiry response or
advisory opinion from the public access counselor, unless the plaintiff
can show the filing of the action was necessary because the denial of
access to a public record under this chapter would prevent the plaintiff
from presenting that public record to a public agency preparing to act
on a matter of relevance to the public record whose disclosure was
denied.
(j) A court may assess a civil penalty under section 9.5 of this
chapter only if the plaintiff obtained an advisory opinion from the
public access counselor before filing an action under this section as
set forth in section 9.5 of this chapter.
(j) (k) A court shall expedite the hearing of an action filed under this
section.
SECTION 20. IC 5-14-3-9.5 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2012]: Sec. 9.5. (a) This section does not apply to any matter
regarding:
(1) the work product of the legislative services agency under
personnel rules approved by the legislative council; or
(2) the work product of individual members and the partisan
staffs of the general assembly.
(b) As used in subsections (c) through (k), "individual" means:
(1) an officer of a public agency; or
(2) an individual employed in a management level position
with a public agency.
(c) If an individual:
(1) continues to deny a request that complies with section 3(b)
of this chapter for inspection or copying of a public record
after the public access counselor has issued an advisory
opinion:
(A) regarding the request for inspection or copying of the
public record; and
(B) that instructs the public agency to allow access to the
public record; and
(2) denies the request with the specific intent to unlawfully
withhold a public record that is subject to disclosure under
this chapter;
the individual and the public agency employing the individual are
subject to a civil penalty under subsection (h).
(d) If an individual intentionally charges a copying fee that the
individual knows exceeds the amount set by statute, fee schedule,
ordinance, or court order, the individual is subject to a civil
penalty under subsection (h).
(e) A civil penalty may only be imposed as part of an action filed
under section 9 of this chapter. A court may not impose a civil
penalty under this section unless the public access counselor has
issued an advisory opinion:
(1) to the complainant and the public agency;
(2) that instructs the public agency to allow access to the
public record; and
(3) before the action under section 9 of this chapter is filed.
Nothing in this section prevents both the person requesting the
public record and the public agency from requesting an advisory
opinion from the public access counselor.
(f) It is a defense to the imposition of a civil penalty under this
section that the individual denied access to a public record in
reliance on either of the following:
(1) An opinion of the public agency's legal counsel.
(2) An opinion of the attorney general.
(g) A court may impose a civil penalty for a violation under
subsection (c) against one (1) or more of the following:
(1) The individual named as a defendant in the action.
(2) The public agency named as a defendant in the action.
(h) In an action under this section, a court may impose the
following civil penalties:
(1) Not more than one hundred dollars ($100) for the first
violation.
(2) Not more than five hundred dollars ($500) for each
additional violation.
A civil penalty imposed under this section is in addition to any
other civil or criminal penalty imposed. However, in any one (1)
action brought under this section, a court may impose only one (1)
civil penalty against an individual, even if the court finds that the
individual committed multiple violations. This subsection does not
preclude a court from imposing another civil penalty against an
individual in a separate action, but an individual may not be
assessed more than one (1) civil penalty in any one (1) action
brought under this section.
(i) A court shall distribute monthly to the auditor of state any
penalties collected under this section for deposit in the education
fund established by IC 5-14-4-14.
(j) An individual is personally liable for a civil penalty imposed
on the individual under this section. A civil penalty imposed
against a public agency under this section shall be paid from the
public agency's budget.
(k) If an officer of a public agency directs an individual who is
employed in a management level position to deny a request as
described in subsection (c)(1), the management level employee is
not subject to civil penalties under subsection (h).
SECTION 21. IC 5-14-4-14 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2012]: Sec. 14. (a) An education fund is established to provide
funds for the program established under section 10(1) of this
chapter.
(b) The fund consists of the following:
(1) Civil penalties collected under IC 5-14-1.5-7.5 and
IC 5-14-3-9.5.
(2) Money appropriated by the general assembly.
(3) Grants, gifts, contributions, and money received from any
other source.
(c) The treasurer of state shall administer the fund. The
following may be paid from money in the fund:
(1) Expenses of administering the fund.
(2) Nonrecurring administrative expenses incurred to carry
out the purposes of this section.
(d) Money in the fund at the end of a state fiscal year does not
revert to the state general fund.
(e) The treasurer of state shall invest the money in the fund not
currently needed to meet the obligations of the fund in the same
manner as other public funds may be invested. Interest that
accrues from these investments shall be deposited in the fund.
SECTION 22. IC 5-15-5.1-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2012]: Sec. 1. As used in The
following definitions apply throughout this chapter:
"Commission" means the commission on public records created by
this chapter.
"Record" means all documentation of the informational,
communicative, or decisionmaking decision making processes of state
government, its agencies and subdivisions made or received by any
agency of state government or its employees in connection with the
transaction of public business or government functions, which
documentation is created, received, retained, maintained, or filed by
that agency or its successors as evidence of its activities or because of
the informational value of the data in the documentation, and which is
generated on:
(1) paper or paper substitutes;
(2) photographic or chemically based media;
(3) magnetic, electronic, or machine readable media; or
(4) any other materials, regardless of form or characteristics.
"Nonrecord materials" means all identical copies of forms, records,
reference books, and exhibit materials which are made, or acquired,
and preserved solely for reference use, exhibition purposes, or
publication and which are not included within the definition of record.
"Personal records" means:
(1) all documentary materials of a private or nonpublic character
which do not relate to or have an effect upon the carrying out of
the constitutional, statutory, or other official or ceremonial duties
of a public official, including: diaries, journals, or other personal
notes serving as the functional equivalent of a diary or journal
which are not prepared or utilized for, or circulated or
communicated in the course of, transacting government business;
or
(2) materials relating to private political associations, and having
no relation to or effect upon the carrying out of constitutional,
statutory, or other official or ceremonial duties of a public official
and are not deemed public records.
"Form" means every piece of paper, transparent plate, or film
containing information, printed, generated, or reproduced by whatever
means, with blank spaces left for the entry of additional information to
be used in any transaction involving the state.
"Agency" means any state office, department, division, board,
bureau, commission, authority, or other separate unit of state
government established by the constitution, law, or by executive or
legislative order.
"Public official" means:
(1) an individual holding a state office created by the Constitution
of Indiana, by act or resolution of the general assembly, or by the
governor;
(2) all officers of the executive and administrative branch of state
government; and
(3) all other officers, heads, presidents, or chairmen of agencies
of state government.
"Indiana state archives" means the program maintained by the
commission for the preservation of those records and other government
papers that have been determined by the commission to have sufficient
permanent values to warrant their continued preservation by the state.
"Forms management" means the program maintained by the
commission to provide continuity of forms design procedures from the
form's origin up to its completion as a record by determining the:
(1) form's size, style, and size of type;
(2) format;
(3) type of construction;
(4) number of plies;
(5) quality, weight and type of paper and carbon; and by
determining the
(6) use of the form for data entry as well as the distribution.
"Information management" means the program maintained by the
commission for the application of management techniques to the
purchase, creation, utilization, maintenance, retention, preservation,
and disposal of forms and records undertaken to improve efficiency and
reduce costs of recordkeeping, including management of filing and
microfilming equipment and supplies, filing and information retrieval
systems, files, correspondence, reports and forms management,
historical documentation, micrographic retention programming, and
critical records protection.
"Records center" means a program maintained by the commission
primarily for the storage, processing, retrieving, servicing, and security
of government records that must be retained for varying periods of time
but should not be maintained in an agency's office equipment or space.
"Critical records" means records necessary to:
(1) resume or continue governmental operations;
(2) the reestablishing of the legal and financial responsibilities of
government in the state; or to
(3) protect and fulfill governmental obligations to the citizens of
the state.
"Retention schedule" means a set of instructions prescribing how
long, where, and in what form a record series shall be kept.
"Records series" means documents or records that are filed in a
unified arrangement and having similar physical characteristics or
relating to a similar function or activity.
"Records coordinator" means a person designated by an agency to
serve as an information liaison person between the agency and the
commission.
SECTION 23. IC 21-9-4-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JANUARY 1, 2013]: Sec. 5. (a) Five (5)
members of the board are a quorum for:
(1) the transaction of business at a meeting of the board; or
(2) the exercise of a power or function of the authority.
(b) This subsection applies to a meeting of the board at which at
least five (5) members of the board are physically present at the place
where the meeting is conducted. A member of the board may
participate in a meeting of the board by using a means of
communication that permits:
(1) the member;
(2) all other members participating in the meeting; and
(3) all members of the public physically present at the place
where the meeting is conducted;
to simultaneously communicate with each other during the meeting. A
member who participates in a meeting described in this subsection is
considered to be present at the meeting. If a meeting is held under this
subsection, the memoranda of the meeting prepared under
IC 5-14-1.5-4 must state the name of each member who was physically
present at the place where the meeting was conducted, who participated
in the meeting by using a means of communication described in this
subsection, and who was absent from the meeting.
(c) (b) The affirmative vote of a majority of all the members of the
board who are present is necessary for the authority to take action. A
vacancy in the membership of the board does not impair the right of a
quorum to exercise all the rights and perform all the duties of the
authority. An action taken by the board under this article may be
authorized by:
(1) resolution at any regular or special meeting; or
(2) unanimous consent of all the members who have not
abstained.
A resolution takes effect immediately upon adoption and need not be
published or posted.
(d) (c) The board shall meet at the call of the chairman and as
provided in the bylaws of the authority.
(e) (d) Meetings of the board may be held anywhere in Indiana.
SECTION 24. IC 21-22-3-5 IS REPEALED [EFFECTIVE
JANUARY 1, 2013]. Sec. 5. (a) This section applies to a meeting of the
state board or a committee of the state board at which at least a quorum
of the board or the committee is physically present at the place where
the meeting is conducted.
(b) A member of the state board or a committee of the state board
may participate in a meeting of the state board or a committee of the
state board by using a means of communication that permits:
(1) all other members participating in the meeting; and
(2) all members of the public physically present at the place
where the meeting is conducted;
to simultaneously communicate with each other during the meeting.
(c) A member who participates in a meeting by using a means of
communication described in subsection (b) is considered to be present
at the meeting.
(d) The memoranda of the meeting prepared under IC 5-14-1.5-4
must state the name of:
(1) each member who was physically present at the place where
the meeting was conducted;
SECTION 25. IC 21-25-3-8 IS REPEALED [EFFECTIVE JANUARY 1, 2013].
SECTION 26. IC 21-27-2-2 IS REPEALED [EFFECTIVE JANUARY 1, 2013].
participate in a committee meeting by using a means of communication
that permits:
(1) all other members participating in the meeting; and
(2) all members of the public physically present at the place
where the meeting is conducted;
to simultaneously communicate with each other during the meeting.
(d) A member who participates in a meeting under subsection (b) or
(c) is considered to be present at the meeting.
(e) The memoranda of the meeting prepared under IC 5-14-1.5-4
must state the name of:
(1) each member who was physically present at the place where
the meeting was conducted;
(2) each member who participated in the meeting by using a
means of communication described in subsection (b) or (c); and
(3) each member who was absent.
SECTION 27. IC 22-4-18.1-6.5 IS REPEALED [EFFECTIVE
JANUARY 1, 2013]. Sec. 6.5. (a) This section applies to a meeting of
the council at which at least half of the members appointed to the
council are physically present at the place where the meeting is
conducted.
(b) A member of the council may participate in a meeting of the
council using a means of communication that permits:
(1) all other members of the council participating in the meeting;
and
(2) all members of the public physically present at the place
where the meeting is conducted;
to simultaneously communicate with each other during the meeting.
(c) A member who participates in a meeting under subsection (b) is
considered to be present at the meeting and may vote on any matter
properly presented during the meeting.
(d) A member who participates in a meeting under subsection (b)
shall confirm in writing not more than five (5) days after the date of the
meeting the votes cast by the member during the meeting. The member
may send the confirmation by United States mail or facsimile.
(e) A member shall attend at least three (3) meetings of the council
during a calendar year in person.
(f) The memorandum of the meeting prepared under IC 5-14-1.5-4
must also state the name of each member who:
(1) was physically present at the place where the meeting was
conducted;
(2) participated in the meeting using a means of communication
described in subsection (b); and
SECTION 28. IC 25-1-14 IS REPEALED [EFFECTIVE JANUARY 1, 2013]. (Meetings).
SECTION 29. IC 25-37.5-1-2, AS AMENDED BY P.L.158-2009, SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2012]: Sec. 2. (a) Except as provided in section 5 of this chapter, every valuable metal dealer in this state shall enter on forms provided under section 6 of this chapter by the state police department for each purchase of valuable metal the following information:
(1) The name and address of the dealer.
(2) The date and place of each purchase.
(3) The name, address, age, and driver's license number or Social Security number of the person or persons from whom the valuable metal was purchased.
(4) The valuable metal dealer shall verify the identity of the person from whom the valuable metal was purchased by use of a government issued photographic identification. The dealer shall enter on the form the type of government issued photographic identification used to verify the identity of the person from whom the valuable metal was purchased, together with the:
(A) name of the government agency that issued the photographic identification; and
(B) identification number present on the government issued photographic identification.
(5) The motor vehicle license number of the vehicle or conveyance on which the valuable metal was delivered to the dealer.
(6) The price paid for the metal.
(7) A description and weight of the valuable metal purchased.
(8) The source of the valuable metal.
(9) The photograph described in subsection (b).
After entering the information required in this subsection, the valuable metal dealer shall require the person or persons from whom the valuable metal is purchased to sign the form and verify its accuracy.
(b) In addition to collecting the information described in subsection (a), a valuable metal dealer shall take a photograph of:
(1) the person from whom the valuable metal is being purchased; and
(2) the valuable metal.
(c) A valuable metal dealer shall make and retain a copy of the government issued photographic identification described under
subsection (a)(4) used to verify the identity of the person from whom
valuable metal was purchased and the photograph described in
subsection (b). However, a valuable metal dealer is not required to
make a copy of a government issued photographic identification used
under subsection (a)(4) to verify the identity of the person from whom
valuable metal is purchased if the valuable metal dealer has retained a
copy of a person's government issued photographic identification from
a prior purchase from the person by the valuable metal dealer.
(d) The completed form, the photograph described in subsection (b),
and the copy of the government issued photographic identification
described in subsection (c) shall be kept in a separate book or register
by the dealer and shall be retained for a period of two (2) years. This
book or register shall be made available for inspection by any law
enforcement official at any time.
(e) A valuable metal dealer may not accept a damaged or an
undamaged metal beer keg if either of the following applies:
(1) The keg is clearly marked as the property of a brewery
manufacturer.
(2) The keg's identification markings have been made illegible.
SECTION 30. IC 25-37.5-1-3, AS AMENDED BY P.L.158-2009,
SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 3. The superintendent of the state police
department may adopt rules under IC 4-22-2 as may be necessary to
administer and enforce the provisions and intent of this chapter. The
superintendent shall also prepare and distribute a list to each valuable
metal dealer describing valuable metal products that are particularly
susceptible to theft.
SECTION 31. IC 25-37.5-1-6 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2012]: Sec. 6. The state police
department shall prepare the forms provided for in section 2 of this
chapter, shall make a reasonable supply of the forms available at the
office of the county sheriff of each county and shall provide the forms
to any individual upon request. publish the following on the state
police Internet web site:
(1) The forms described in section 2(a) of this chapter to be
used by valuable metal dealers when purchasing valuable
metal.
(2) A list that describes valuable metal products that are
particularly susceptible to theft.
(3) The:
(A) statutes; and
(B) rules adopted by the superintendent of the state police
department under section 3 of this chapter;
concerning the regulation of valuable metal dealers.
SECTION 32. IC 28-11-1-9.1, AS AMENDED BY HEA 1239-2012
SECTION 107, IS REPEALED [EFFECTIVE JANUARY 1, 2013]:
Sec. 9.1. (a) Subject to the policies adopted by the members governing
the conduct of meetings, this section applies to all meetings of the
members.
(b) A member may participate in a meeting of the members by using
a means of communication that permits:
(1) all other members participating in the meeting; and
(2) all members of the public physically present at the place
where the meeting is conducted;
to simultaneously communicate with each other during the meeting.
(c) A member who participates in a meeting under subsection (b) is
considered to be present at the meeting for all purposes, including
establishing a quorum and voting on all matters to come before the
members.
(d) The memoranda of the meeting prepared under IC 5-14-1.5-4
must state the name of each member who:
(1) was physically present at the place where the meeting was
conducted;
(2) participated in the meeting by using a means of
communication described in subsection (b); and
(3) was absent.
SECTION 33. IC 31-26-6-13 IS REPEALED [EFFECTIVE
JANUARY 1, 2013]. Sec. 13. (a) This section applies to a meeting of
a regional services council at which at least four (4) voting members of
the council are physically present at the place where the meeting is
conducted.
(b) A member of the regional services council may participate in a
meeting of the council by using a means of communication that allows:
(1) all other members participating in the meeting; and
(2) all members of the public physically present at the place
where the meeting is conducted;
to communicate simultaneously with each other during the meeting.
(c) A member who participates in a meeting under subsection (b) is
considered to be present at the meeting.
(d) The memoranda of the meeting prepared under IC 5-14-1.5-4
must state the name of each member who:
(1) was physically present at the place where the meeting was
conducted;
(2) participated in the meeting by using a means of
communication described in subsection (b); or
(3) was absent.
SECTION 34. IC 34-30-2-14.1 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2012]: Sec. 14.1. IC 5-14-1.5-7.5 (Concerning
a public employee who, acting on the orders of a superior or on the
advice of the agency attorney or the attorney general, fails to
provide proper notice of a public meeting or executive session).
SECTION 35. IC 34-30-2-14.2 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2012]: Sec. 14.2. IC 5-14-3-9.5 (Concerning
a public employee who, acting on the orders of a superior or on the
advice of the agency attorney or the attorney general, denies or
interferes with a person's request for inspection or copying of a
public record).
HEA 1003
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