Indiana

Open Door Violation in Muncie

"MUNCIE -- The city of Muncie gave The Star Press 'a number of problematic reasons' for denial of access to a proposed street-paving list for 2008, Indiana Public Access Counselor Heather Willis Neal has concluded.
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Responding to the newspaper's formal complaint alleging the city violated the Access to Public Records Act (APRA), Neal wrote in an advisory opinion that Mayor Sharon McShurley and City Attorney Frank Gilkison clearly violated APRA and that City Controller Mary Ann Kratochvil likely violated both APRA and a law protecting public records from destruction.

'That's her opinion, not mine,' said Gilkison, to whom the mayor referred questions on Tuesday. 'I don't agree with that at all.'

Kratochvil also disagreed with the opinion, saying she felt 'extremely comfortable' regarding her actions."

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First, the city contended that the paving list was tentative, premature and not ready for publication.

"To the contrary, my predecessors and I have repeatedly advised and opined that draft documents are public records just as completed or finalized documents are public records," Neal wrote. "The city is free to mark the list with a 'draft' designation..."

Second, the city has alleged it does not yet know the budget for street paving.

"Again, this is not a listed exception to disclosure of records..." Neal wrote. "Third, this is also true for the mayor's contention that she has not yet had time to determine the criteria for street paving. Again, this is not a statutory exception to disclosure."

Finally, both the mayor and city attorney indicated the list was not ready for publication because it would generate controversy and create headaches for the city in the form of citizens calling the office.

"(That) not only is an invalid reason for denying access to public records, but it is contrary to the public policy of APRA, which states, 'Providing persons with information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information,'" Neal wrote.

Full post as published by Indiana Civil & Business Lawyer on June 29, 2008 (boomark / email).