Open Door Law, Public Records Law, Retention LawsDecember 1, 2009, Breakout “A”Election Administrator’s

Conference

Where can I find these laws? Open Door Law (Indiana Code 5-14-

1.5), pages 481-487 of 2010 Election Code

Public Records Law (Indiana Code 5-14-3), pages 487-500 of 2010 Election Code, and certain sections in IC 3-7 concerning voter registration records.

State Record Retention Law (Indiana Code 3-10-1-31.1), page 222 of 2010 Election Code; cross-references in laws about other types of elections.

Basic Open Door Law Questions: When is there a “meeting”? How much notice must be given? What kind of notice must be given? Does there have to be an agenda? When can there be an “executive

session”? Can there be a “secret ballot”? What if the law isn’t followed?

Is this a “meeting”? A gathering of a majority of the

County Election Board to take “official action”, such as receiving information, deliberate, make recommendations or decisions.

Exemption: social or chance gatherings not intended to evade law

Exemption: traveling to or attending better government meetings.

Circuit court clerk; board of registration A “governing body” means two (2)

or more individuals who are exercising legal authority and making decisions.

Circuit court clerk is only one individual.

Board of Voter Registration is two person body. No specific exemption from law’s requirements.

Notice requirements At least 48 hours notice (not

including Saturdays, Sundays, or legal holidays).

Media annual notice requirement: US mail, email, or fax.

Exemption: Reconvened meetings when time and place of reconvened meeting announced at properly noticed meeting.

A “real emergency” “Actual or threatened injury to

person or property” “Actual of threatened

disruption” of government activity under authority of office.

48 hour notice does not apply; instead, news media given same notice as board members; notice of meeting posted for public.

Risk of “running late” If meeting convenes at time “so

unreasonably departing from the time stated in its public notice that public misled or substantially deprived of opportunity to attend” then meeting has not met notice requirements.

No set time limit. Have presence at meeting site, announcement about delay.

“I’ll just whisper”: How notice is given Posting copy of notice “at principal

office of the agency conducting the meeting”

Not necessary outside actual meeting room. But location must be specified in notice.

Legal publication of notice not required.

Ask county attorney about newspaper legal notice requirements for penalty ordinances. (Indiana Code 5-3-1-2)

Regularly scheduled meetings Consider possibility of

regularly scheduled meetings (once a month, for example), which can be cancelled if no important business.

Notice only given once a year. Additional notice necessary only if time, date, or place of regular meeting changed.

Agendas Agenda not required to be

used. If agenda is used, must be

posted “at entrance to location of meeting” before the meeting occurs.

Cannot adopt item by “agenda number” only. “Move to adopt item 5 on the agenda…”

“Minutes” and Memoranda “Minutes” generally not required.

Consider risk of litigation, using tape recordings, etc.

Memoranda must be available within reasonable time after meeting to inform public of proceedings.

Memoranda must include: date, time, and place of meeting; members present and absent; “general substance” of matters discussed or decided; record of all votes taken, by individual member if roll call.

Secret Ballots? A secret ballot vote may not

be taken at meeting. (IC 5-14-1.5-3).

Only time secret ballots permitted in election law are on election day, and during political party caucuses.

“Executive Sessions” What is an “executive session”? When can a board have one?

Where authorized by law: Missouri rule – “Show me where it says…”

Litigation discussion and strategy; lawsuit filed or threatened in writing.

Discussion of confidential records.

Executive Sessions Public notice must identify specific

law that allows executive session. Impromptu executive sessions not

allowed: “Governing body may not conduct executive session during a meeting… A meeting may not be recessed and reconvened…” with intent to evade Open Door Law.

Certification of compliance required.

Executive Session Certification and Minutes INDIANA ELECTION COMMISSION EXECUTIVE

SESSION MINUTES OF DATE MEMBERS PRESENT: Listed by name

MEMBERS ABSENT: None; OTHERS PRESENT: Listed by name

CALL TO ORDER: Chair called the date executive session of the Indiana Election Commission to order at time, location. Chair noted quorum.

REMARKS BY THE CHAIR: As required by Indiana Code 5-14-1.5-6.1(d), the chair noted that this executive session had been called under IC 5-14-1.5-6.1(b)(2)(B) for the discussion of strategy with respect to the initiation of litigation or litigation that was either pending or had been threatened specifically in writing. The chair added that the required public notice for this executive session meeting had been given under the Indiana Open Door Law.

Executive Session Certification and Minutes EXECUTIVE SESSION BUSINESS: The Commission

proceeded to conduct the business for which the executive session was called.

ADJOURNMENT: Mr. A moved, seconded by Mr. B, that the Commission do now adjourn its executive session. The chair called the question, and with four members voting aye (Names listed) and no member voting nay, declared the motion adopted unanimously. The Commission then adjourned at 1:45 p.m.

Respectfully submitted, Secretary APPROVED: Chair

CERTIFICATION As required by Indiana Code 5-14-1.5-6.1(d), we, the undersigned members of the Indiana Election Commission, certify that no subject matter was discussed in this executive session other than the subject matter specified in the public notice.

Signature lines for each member present.

What if the Open Door Law Isn’t Followed? Potential lawsuit (IC 5-14-1.5-7) Can ask for court to “declare void

any policy, decision, or final action” taken at improper executive session or regular meeting held without required notice.

Generally, must be filed within 30 days after date of “action complained of” or date person “should have known” of action.

What if the Open Door Law Isn’t Followed? Court determines whether to “void”

agency action after deciding extent to which violation affected public’s “knowledge or understanding” of agency’s decision.

Court also looks at reliance on decision by the public and what effect declaring the action void would have. (Campaign finance fine versus election canvass, for example).

Cooperation with Public Access Counselor.

Who is the Public Access Counselor? Independent state office

created to advise public and governing bodies about Open Door Law and Public Records Law:

Contact: Andrew Kossack, 402 West Washington St, Room W460, Indianapolis, IN 46204;

(317) 233-9435

Basic Public Record Law Questions: Which records are “public”? What discretion does an

agency have? What about records with some

confidential information? How does an agency respond

to a public records request? What if the law isn’t followed?

“Public” Records; The Missouri Rule: Begin with assumption that

any agency record is available for public inspection and copying.

The magic word: “Show Me where it says that a record is, or can be, ‘confidential’.”

If not, then the document is public record.

Election-Related Public Records Issues: Absentee application and

ballot information. IC 3-11-4-17 requires Clerk keep record of absentee ballot applications sent, ballots sent, and ballots returned. Not “confidential”

Original voter registration application: IC 3-7-27-12 provides that forms be available for inspection and copying.

Election-Related Public Records Issues: Voter registration transfers,

cancellations, etc. Public records under IC 3-7-27-12.

Poll Lists, other Precinct Forms: Must be “sealed and preserved”, but are available for inspection and copying.

Original marked ballots: IC 3-10-1-31.1 These ballots are confidential.

Election-Related Public Records Issues:Electronic Voter Registration

Records: Depends on policy REQUIRED to

be adopted by county election board under IC 3-7-27-6(c).

If you don’t know what your county’s policy is, or have a written copy of it, GET ONE!

Must be “uniform and nondiscriminatory”. Choice is whether to make available to all, or none. If available, for standard fee.

Agency Discretion Concerning Public Records: Basic choice: Do you create a

public record or not? Many records not REQUIRED to be created, but once created, are public records.

Written request or use of form can be required by agency policy. (IC 5-14-3-3).

No charge for inspection; limited charges for copying (IC 5-14-3-8)

“Partially Confidential” Records: Classic example: “Legacy”

voter registration applications with full Social Security number.

Public record with confidential information can have confidential material “separated” before inspection. (IC 5-14-3-7)

Suggested practice: Photocopy original and “redact” confidential information on copy.

Public Records Request: In person: Respond within

24 hours of request. In writing: Respond within 7

days after request received. “Respond” does not mean

make photocopies of documents requested. Instead, means indicate if agency will comply with request, how, and when.

What if the Public Records Law Isn’t Followed? Lawsuit can be filed in circuit or

superior court. (IC 5-14-3-9) Burden is on public agency to

prove that inspection and copying should not be allowed.

Court can award attorney’s fees to requestor, or to government agency, if court finds that requestor “substantially prevailed”, or if requestor’s lawsuit was frivolous.

Record Retention Laws: Everything Isn’t “Dust in the Wind”. What records must be kept

forever? When can certain records

be disposed of? How does the agency

dispose of records?

Record Retention: What is kept forever? CEB and Board of Registration

minutes, orders, policies. Sample(s) of official ballot. Canvassed precinct election

results.

Record Retention: When can it be tossed? Unvoted ballots: after recount

and contest deadline. Voter Registration declinations,

and cancelled records: 24 months after applicable election.

Voted ballots, Absentee Ballot Applications, Poll Lists: 24 months after applicable election.

Record Retention: When can it be tossed? Original Voter Registration

Records: Keep as long as person is registered to vote (active or inactive), then dispose of 24 months after cancellation.

Record Retention: Local Commission on Public Records Local Commission on Public

Records meeting required to dispose of some documents.

Members are county and municipal officials. IC 5-15-6.

Local retention schedule for records may have been adopted.

If meeting needed, can be a 5 minute lunch break.

State Commission on Public Records: 402 West Washington St, Room

W472, Indianapolis, IN 46204; (317) 232-3380

Questions?

Thanks,

Brad KingCo-Director, Indiana Election

Division(317) 233-0929 (direct) bking@iec.in.gov