Indiana House Enrolled Act 1338 Subverts Government Transparency

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Sunshine Week, a nonpartisan collaboration of groups in journalism, civic, education, government and private sectors, seeks to highlight the importance of public records and an open, transparent government from March 10-16, according to their website. However, the Indiana General Assembly celebrated the occasion with the passage of a bill that limits the power of the governor-appointed Public Access Counselor who acts as a bridge between citizens, journalists and their state government or institutions.

I recall learning about the PAC in my investigative journalism course at the University of Indianapolis. I remember feeling grateful that Indiana’s government employed someone to ensure that if public access laws are violated, those seeking that information could have a valuable advocate to keep those withholding information accountable. The current PAC of Indiana, Luke Britt, spoke about the importance of such an advocate as well as why these public access laws are important to keep in place. 

However, the same government that appointed (and reappointed, for he is the longest-serving PAC in Indiana, according to the IndyStar) him to the role has limited his interpretive power when writing opinions, according to a bill recently signed into law by Indiana Governor Eric Holcomb. House Enrolled Act 1338 specifies that the public access counselor “serves at the pleasure of the governor” and that they “may consider only the plain text of the public access laws and valid Indiana court opinions.” Republican supporters of the bill in the legislature, according to the IndyStar, said they disagreed with some of the advisory opinions Britt wrote, claiming that they were liberal interpretations of the law.

While it makes sense to rely heavily on the text of public access laws and case law from Indiana courts, the limitation of Britt’s ability to interpret these laws cuts the standard of a truly transparent government off at the knees. If public access laws are vague and difficult to apply to the many unique scenarios that could arise, and the PAC (the person who is appointed to interpret and apply these laws) is not able to use his discretion while writing advisory opinions, then why have a PAC at all? According to Indiana’s PAC Information webpage, one of the powers and duties of the PAC is “to issue advisory opinions to interpret the public access laws upon the request of a person or public agency,” except for cases that are already being fought in court. It is also worth noting that the advisory opinions a PAC writes hold no legal weight—they are just that: opinions. So, it might be more efficient to go through the courts after all—if the PAC’s ability and power to interpret and apply laws are more restricted than a judge’s.

Journalists encounter so many unique situations when trying to gather information for a story. When I needed an incident report from the UIndy Police Department and ran into trouble getting it, it was the PAC who advised me and my colleague on how to move forward. It was the PAC who contacted UIPD and aided in our efforts to get the information we needed after my colleague filed a formal complaint. Without a PAC who can effectively interpret laws, I fear myself and other Hoosiers seeking valuable, (seemingly) public information will be met with more barriers.

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