Overview

Indiana’s FOIA law is an interesting mix of public records laws. On one hand there are some good things. No citizenship requirement to file a request is always good to see, as are the expansive amount of agencies that are subject to the law. Exemptions are standard as far as federal and state FOIA. The list isn’t too long and it lacks any especially frustrating curveballs, for the most part. Indiana’s strong commitment to avoiding charging fees except for the transfer of records to an electronic format is also nice to see, saving requesters a headache from an agency attempting to leverage a fee as a roadblock or just from a long search time. Attorney’s fees are also easier to obtain in Indiana than in most states.

Surprisingly it is with the Public Access Counselor that the law becomes frustrating. Rather than give the position some teeth, the Counselor is limited to issuing advisory opinions and cannot make their own appeals decisions. Instead that is left up to the courts if a denied requester wishes to file a lawsuit, making appeals a difficulty in Indiana. Enforcement of the law also tends to be weak, with the extent of the punishment simply making an agency cough up the wrongfully denied documents. If an agency wrongfully releases confidential information though, then they can be charged with a Class A misdemeanor which in Indiana carries a potential one year jail term and a $5,000 fine.

The Law

• 7 day response time generally
• All branches of government held accountable
• No citizenship requirement to request
• No administrative appeal process
• A Public Access Counselor position was created in 1999 to act as the designated records custodian

Supplemental

Public Access Counselor advisory opinions

Indiana record retention schedule

Indiana court records

The Details

Can you submit a request if you’re not a resident?

Yes.

To whom does this apply?

Executive?

Yes.

Legislative?

Yes.

Judicial?

Yes.

Is there a designated records custodian?

Yes, in 1999 Indiana created the office of the Public Access Counselor. The Public Access Counselor has a four year term, is appointed by the Governor, and does not deal with giving appeals decisions. Instead, the Counselor issues advisory opinions that should litigation become necessary, can be very useful in a court of law.

Who is exempted?

All agencies, offices and government branches are held accountable to the law unless specifically cited in a statutory exemption. Currently in the list of the statutory exemptions only specific documents from agencies are exempted, not entire agencies, offices, or members of government themselves.

How can requests be submitted?

In-person?

Yes.

Verbally?

Yes.

By mail?

Yes.

By email?

Yes.

How long do they have to respond?

Agencies have seven days to respond. If the agency does not inform the requester that the search will take longer than seven days and the agency does not respond to the request in any other way, then the request is considered denied. If requesting by phone or in person the request is considered denied if any person from the agency deems the records non-disclosable either immediately or within 24 hours.

Does the agency have to give you a tracking number or estimated date of completion?

No.

Can they ask why you ask?

No.

What enforcement?

One can file a lawsuit in district court to compel an agency to disclose wrongfully withheld documents, however the Public Access Counselor does not have authority to compel an agency or penalize an agency.

Indiana has harsh penalties for those in agencies that disclose confidential documents through FOIA, including being charged with a Class A misdemeanor. This is not the case when the Public Access Counselor has issued an opinion that the information deemed classified be released to the public.

Fees?

No fees are authorized to be charged in Indiana except a “reasonable” fee is authorized “for permitting a governmental agency to inspect public records by means of an electronic device.” Ind. Code § 5-14-3-8(i). This may not exceed the direct cost of supplying the record in electronic form.

Are there fee waivers for media requests or those made in the public interest?

Fee waivers are discretionary not mandatory. Requesting for a noncommercial purpose, including journalism, academic research, nonprofit activities and public agency program support is recognized as legitimate reason to waive a fee, and agencies are not required to do so in the first place.

Attorney’s fees - Can you win them?

If the plaintiff first sought and received an opinion from the Public Access Counselor than attorney’s fees can be awarded, provided they prevail in court. Fees are awarded from the date of the Public Access Counselor’s opinion until the date when the court determines the prevailing party in the suit.

Exemptions and Appeals

What exemptions exist?

There are 12 categories of records that are considered confidential until ordered released by a court, and 23 categories that are up to the discretion of the agency. The 12 mandatory exemptions cover records types that are found in the federal FOIA and are common throughout other state FOIA. Records declared confidential by federal law or statute, trade secrets, medical or financial information of an individual, information about students, or social security numbers are all included. The 23 discretionary exemptions and the statutory exemptions include similar language to the aforementioned 12 and other FOIA. Mainly designed to prevent personal information from being leaked, to protect police investigate practices and departmental decision making, or to keep the public safe by keeping security measures and plans confidential. A full list and breakdown of Indiana exemptions can be found here. Additionally, MuckRock is adding an exemption database to help with your appeals process so be on the lookout for that!

Do they have to tell you why a portion or pages were redacted or withheld?

Yes.

How much time do you have to appeal?

To file for an opinion from the Public Access Counselor, a complaint must be filed within 30 days after the denial of access. To appeal a denial through the court system interestingly there is no time limit specified by the law.

Can you appeal the courts?

Yes, in fact in Indiana it is the only option one has.

Resources

Organizations

Indiana Coalition for Open Government

Attorneys and Law Firms

The following attorneys and law firms have practiced public records law. Names marked with an asterisk have indicated a willingness to offer pro bono services on a case by case basis.

There are currently no experienced public records law attorneys that we know of in Indiana. Write to us at info@MuckRock.com if you know of any and want to help us out!

Successful appeals

News Stories on Public Records Laws in the State

Indiana loves Gabriel Iglesias

Blogs and feeds primarily focused on public records in Idaho

Public Records Guide and Advice

Indiana handbook on Public Access

Newsletters

Let us know

Big FOIA wins

Have a public records success story? Let us know!