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 Public Access Counselor Says CAB Again Violated State Law

December 5, 2007 - The Charles A. Beard Memorial School Corporation's recent efforts to conceal information contained on public records have, in the opinion of the state's public access counselor, once again run afoul of the law.

In late September, CAB responded to record requests from The Banner by providing numerous documents that had portions redacted, or blacked out. Responding to a complaint filed by the newspaper, Public Access Counselor Heather Neal issued a formal opinion early last week concluding CAB had violated the state's Access to Public Records Act (APRA).

According to Neal, CAB went too far with its redactions to a tort claim notice related to a student's claim for damages against the school corporation. While federal law required CAB to redact material that would identify the student or reasonably lead to the student's identification, Neal said CAB improperly blacked out other, nonidentifying information.

"I agree … that it appears some of the redacted information should have been disclosed," Neal said in her opinion. "For instance, I do not believe the amount of damages being sought or the name of the school should be withheld, as I do not see how those could lead to the identification of the student."

Neal told The Banner yesterday that while her formal opinion had not clearly said so, she thinks CAB violated the APRA by blacking out more than it should have on the tort claim notice. Like the amount of damages and the school's name, Neal also said a statement generally describing the student's claim as being "based upon the recklessness, gross negligence and negligence of the school corporation," should not have been blacked out by CAB.

Neal also concluded CAB violated the APRA by not clearly identifying the reasons for numerous redactions on over 50 pages of e-mail correspondence. While CAB's attorney had offered a half dozen possible explanations for the redactions in a letter to CAB's public access officer, Jena Schmidt, there was nothing on the redacted records themselves indicating why the material had been blacked out.

"A denial of access must include a statement of the specific exemption or exemptions authorizing the withholding of all or part of the public record," Neal said. "It is my opinion that CAB must indicate which exemptions it relies upon for each record that contains redacted information. Otherwise, a public agency could theoretically list all the exceptions in the APRA and include a cover letter with every records request indicating that one of the exceptions applies."

During a public access seminar in Indianapolis last Saturday, Neal used CAB's failure to specifically identify why the records were redacted as an example of how things should not be done. She called the manner in which CAB handled this issue "a garbage can approach" not allowed under the APRA.

Neal did find in CAB's favor with respect to one issue. Although she said the 34 days it took CAB to provide a copy of the tort claim notice seemed "considerable," Neal said it was not an unreasonable amount of time in light of the fact that CAB was also in the process of responding to other record requests from The Banner.

Based on Neal's opinion, The Banner has asked CAB to provide copies of the redacted e-mails that include written statements indicating the specific reasons each e-mail was blacked out. Schmidt faxed a letter to The Banner Monday saying she would "compile the data" and give an update on her progress by Friday.

Last week's opinion from Neal marked the fifth time in just three years that the office of the PAC has concluded CAB violated the APRA or Indiana's Open Door Law, the statutes that deal with meetings of public agencies. Eric Cox, owner and publisher of The Banner, says he is troubled by CAB's continuing violation's of the state's access laws.

"Five violations in three years - I can't see how CAB taxpayers can tolerate this kind of willful law breaking," Cox said. "Our elected school officials seem content to let ignorant administrators and staff go on breaking the state's access laws while punishing others for their apparent misgivings.

"The school board doesn't seem to care. Certain administrators seem to delight in it. And, once again, taxpayers are left wondering just what the heck is going on. The school board election in May will be a great chance for voters to clean house and rid the school corporation of these scofflaws once and for all."


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