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 CAB Secrecy Continues as School Board Member is Denied Access to Documents

October 3, 2007 - In a move that has drawn criticism from a top state official, the veil of secrecy that has shrouded four public records of the Charles A. Beard Memorial School Corporation from the public's eyes for two years is now being used to prevent five of CAB's seven school board members from viewing the records in their original, uncensored form.

Board member Kevin Knott told The Banner that last week he asked Jena Schmidt, CAB's public access officer and administrative assistant to the superintendent, to let him see records The Banner requested on August 10. Rather than granting his request, Schmidt would only permit him to see copies of the heavily censored versions CAB had given The Banner in 2005 in response to an earlier request.

"When I requested to see the records, I was presented with the records that were made available to (The Banner)," Knott said. "I'd asked if they were in undedacted (sic) form, but those were the only ones available." He said he told Schmidt he wanted to see the unredacted records "if they become available."

Schmidt confirmed that she did not allow Knott to see the records in question. She said she told him she was going to check with the attorney to see if whether she should let him see the unredacted records, something Knott did not recall.

"That's the first I've heard of this," Knott said of Schmidt's claim she told him she was going to contact their attorney. He said she simply told him the redacted copies previously given to The Banner were the only ones available.

Schmidt told The Banner that CAB's attorney, Mike Wallman, advised her not to allow Knott, or any of the other five board member who have come on the board since the documents were originally issued by Jester, to see them. She said the decision to follow Wallman's advice, both with respect to denying Knott access to the uncensored records and denying The Banner's August 10 record request, was hers, not the school board's.

"According to our attorney, it is a protected document, and it's been classified as confidential," Schmidt told The Banner. Although she opted to follow Wallman's advice with respect to these records, Schmidt said the attorney never reviewed the uncensored records himself to determine if the redactions made to the copies given to The Banner in 2005 had been proper.

One person who doesn't agree with the advice CAB has been given by its attorney is Indiana Public Access Counselor Heather Neal, the state's top official with respect to matters involving the records of public agencies like CAB. According to Neal, Knott and other school board members should not be denied the right to inspect the school corporation's records.

"I do not believe a governing body may deny access to its own board members," said Neal. "Since the definition of public agency includes any school corporation or any board of a school corporation, an individual board member is part of the public agency who makes the decision whether to disclose records.

"Since the public policy of the (Access to Public Records Act) is to construe access laws liberally to place the burden of proof for nondisclosure on the agency, all decision makers of the agency must have access to records so they may be able to make an educated decision about disclosure," Neal continued.

"The Access to Public Records Act says providing persons with information is an integral part of the routine duties of public officials and employees, and it is my opinion (that) a board member who does not have access to records maintained by the corporation cannot effectively carry out that duty."

Like Neal, Steve Key, general legal counsel for the Hoosier State Press Association, agreed that Schmidt went too far in refusing to let Knott see the uncensored records.

"I think that they're incorrect," Key said of Schmidt and attorney Wallman. "You're talking about denying access to the top decision makers in the public agency. … To say that the governing body of the agency can't see its own records, I don't see where the basis is for that." He also said he was unsure of how Wallman could properly advise CAB with respect to these records when he had not even reviewed them.

The Banner asked Schmidt whether she would permit all school board members to view these records if the board voted in favor of her doing that. She said would first check with Wallman "because he's the one that said they're protected."

"I would check with the attorney to see if they could be classified as nonconfidential," Schmidt said. "But if the board wanted that to happen, then that would happen."

Knott declined to say much about what his next move is with respect to these records. "The issue has not come up in an open meeting for a board vote on that," he said. "I've not been asked to take any particular action on those … action in regard to a vote."

The Banner contacted CAB School Board President Mike Fruth by e-mail on Monday to ask him the following questions about this matter:

1. Did you know Knott asked to see these records and was denied? If so, when and how did you find out?

2. In light of the PAC's and HSPA's position on this -- that a school board member cannot be denied access to corporation records -- do you support Schmidt’s actions in not allowing Kevin to see the records?

3. If you don't believe the five board members who came on since the records were initially issued should not be able to view them in unredacted form, please explain why.

4. Do you view a board member's request to see corporation records as being the same thing as a request from the media or general public?

5. Schmidt said she is the one who made the decision to follow Wallman's advice about not honoring our request for unredacted copies of the Jester memos. Do you believe that's her call to make, or do you believe that the school board, as CAB's governing body, is who should be determining whether prior administrations properly followed the law by only redacting what was legally allowed?

Fruth e-mailed the following response to The Banner late Tuesday afternoon:

"I think the best way to respond to your questions is to say that Jena is designated and assigned to the task of responding to requests for public records," Fruth wrote. "She and Mr. Wallman did meet on September 18th to discuss the corporation's legal responsibilities relative to requests for public records, and in particular, the matter of which you have inquired about. I am confident that Jena will respond for the School Corporation appropriately, after consultation with Mr. Wallman. I was not involved in their discussions, therefore I am not able to provide you with an informed personal opinion of the matter."


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