ON awaits records request

One hundred and seventy-six days – that is how long The Owen News has been waiting for a response to a public records request that still has not been denied or fulfilled.

As a result, The Owen News filed an informal complaint seeking the opinion of Indiana's Public Access Counselor, Luke Britt. Britt issued that informal opinion earlier this week.

On July 11, following the county's Redevelopment Commission (RDC) meeting concerning the jail project and the potential land swap that is being routed through the RDC, The Owen News filled out a public records request form.

The request asked for "Within the last year, all emails to and from any current Owen County Commissioner concerning appraisals of potential jail sites, appraisals concerning the jail project and concerning public comment in relation to the jail or jail project. This does not include actual appraisals themselves."

The paper request was handed first to County Auditor Sheila Reeves, who passed it to County Attorney Dana Kerr.

After seeing the request, Reeves submitted two email chains that she had been copied on in an effort to fulfill the request from her office. The auditor's office does not maintain emails outside of the ones sent to their office.

On Aug. 27, The Owen News followed up with Kerr in regard to the request, asking for the records or an update on the status of the request.

"While an update was requested in August, the county attorney cited an unfortunate family circumstance for a delay, of which you graciously accepted as a rational justification for the wait. Nonetheless, further status update requests went unanswered, and you turned to this office for guidance and sought this informal inquiry," 24-INF-7 written by Britt reads.

On Sept. 24, The Owen News once again asked for a status update via email. Kerr did not respond.

On Oct. 11, The Owen News filed an informal complaint with Britt's office after the request for a status update remained unanswered.

In November, in passing Kerr stated he had received the request emails from the county's IT department, but no further update and no written update has been received.

Britt's opinion addresses the timeliness requirement of the Access to Public Records Act (APRA).

"Given recent legislation limiting the ability of the public access counselor (PAC) to define the myriad of ambiguous statutory terms in the access laws by utilizing traditional legal writing methods, the PAC still provides guidance outside of the formal complaint process, including through informal inquiry responses like these," the informal opinion reads.

The Owen News contacted Britt's office at least twice throughout August and September in an effort to explore other options to encourage a response to the records request from Kerr on behalf of the Owen County Commissioners.

"The subjective and ambiguous term 'reasonable time' is not defined by APRA; and thus, it falls to this office to decide on a case-by-case basis whether an agency responded within a reasonable time," the informal opinion reads.

When considering whether or not the response is timely Britt's office considers the size of the public agency, the size of the request, the number of pending requests, the complexity of the request and any other operational considerations or factors that may reasonably affect the public records process.

Herein lies the current issue. Your records request was delayed due to a family circumstance of the county attorney. Notably, attorneys often handle public records requests – and rightfully so – as they frequently trigger legal analysis regarding disclosability. Therefore, the incapacity of a lawyer for personal reasons is not problematic if it causes a slight delay – something you seemingly value considering your Aug. 28 email to the county attorney," the informal opinion reads. "Your point is well taken, however, that after a time of three months without an update, even upon seeking one, you still have not received the records. Simply put, the ARPA does not answer the 'how long is too long' question, or what circumstances justify delays such as these."

Britt also shared in the informal opinion that when coaching public officials, he uses 30 days as a benchmark for reasonable timeliness.

"Taking the human element into account, an excess of 30 days would have been justified in this case. But a 90-day delay for a request such as yours is indeed likely longer than the legislature meant by 'reasonable time,'" Britt wrote.

As of The Owen News' press deadline, there has not been a response to the records request. Britt's full informal opinion can be read online at theowennews.org.