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 State Official Says CAB Wrongly Redacted E-mails

February 20, 2008 - Indiana's public access counselor recently determined that the Charles A. Beard Memorial School Corporation has violated state public access laws.

The Banner filed a formal complaint against CAB last month alleging the school corporation had improperly redacted, or blacked out, information on copies of e-mails provided in response to a record request. In a formal advisory opinion issued last Wednesday, Public Access Counselor Heather Neal agreed with The Banner and said CAB's redactions had violated the state's Access to Public Records Act.

"It is my opinion that (CAB) cannot sustain its denial of access to much of the information redacted from the records," Neal said in the opening paragraph of her five-page opinion. The Banner raised six challenges to CAB's redactions in its complaint, and Neal ruled in the newspaper's favor with respect to each one.

On 26 of 49 e-mails, CAB had blacked out the e-mail addresses of school board members. Neal said CAB's rationale for these redactions - that the addresses were personnel information within CAB's discretion to withhold - was insufficient.

Because state law prohibits school board members from being employed by the school corporations they serve, school board members' e-mail addresses could not constitute personnel information. However, Neal went on to say that even if board members were employees, CAB would not have been justified in blacking out the information.

"The personnel file exception applies to records contained in the personnel files of public employees or applicants for public (employment)," Neal said. "It does not except from disclosure all records related to personnel matters. … It is my opinion that even if the board members were employees, which by definition they cannot be, the e-mail address of each would not be personnel information."

Similarly, Neal also ruled that CAB improperly blacked out e-mail addresses of several school employees, and, in one instance, the e-mail address of a New Castle insurance agent who wanted to take over CAB's account. With respect to the latter, CAB had conceded its error and provided an unredacted copy of that record to The Banner before Neal issued her opinion.

Neal also rejected CAB's attempt to rely on the personnel file exception and an intra-agency advisory record exception to justify the redaction of information contained on e-mails discussing payments to athletic coaches. She said CAB had provided "no description of the content of the e-mails and no justification for the use of the two exceptions," failing to meet burden imposed by the APRA.

According to Neal, public agencies like CAB, in order to sustain their burden for redacting public records, must establish "the content of the record with adequate specificity." She said it is not sufficient for the public agency to simply rely on "a conclusory statement" that the record is one that can be redacted.

Neal also rejected CAB's claim that redactions to e-mails addressing unemployment proceedings of a former employee were mandatory because the records had been declared confidential by or under rules of the Indiana Supreme Court. Neal noted that CAB had failed to cite any Indiana Supreme Court rule that made the records confidential.

CAB's redaction of an e-mail that former Superintendent David McGuire sent board members regarding a hearing requested by an employee whose position was being eliminated was also deemed improper by Neal. While the school corporation claimed that the blacked out material - McGuire's recounting of what CAB's attorney had told him about the hearing - was "attorney work product" that was within CAB's discretion to redact, Neal disagreed.

According to Neal, McGuire's e-mail "was not compiled by an attorney in reasonable anticipation of litigation, as it was an e-mail from the superintendent to board members and school employees regarding advice provided by the attorney." While she said the redaction may have been proper under some other rationale not offered by CAB, she said it could not be justified for the reason given.

Finally, Neal said CAB's redaction of an e-mail in which McGuire revealed that CAB had "approximately $57,000 more" than shown on their financial books was not justified for the reasons cited. While CAB had claimed the blacked out information was being withheld pursuant to the personnel file information exception, Neal said CAB had failed to show the e-mail was a "personnel file record."

"That the issues addressed are personnel matters does not automatically qualify a record for the personnel file exception," Neal noted.

Last week's ruling was actually the second time Neal had determined CAB had violated the APRA with respect to these particular e-mails. In late November, she issued an opinion finding the school corporation broke the law by redacting the e-mails without properly identifying its reasons for doing so. Since November 2004, the PAC has found CAB to be in violation of the state's public access laws six times.


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