Weaver: On transparency, Gov.-elect Braun should lead by example

Gov.-elect Mike Braun spent a lot of time during the campaign talking about the need for increased transparency from the Indiana Economic Development Corp. and the health care industry.

Now, he can set an example about the importance of transparency in government by protecting the role of the state’s public access counselor despite the Legislature’s moves to weaken the post.

The office of the public access counselor was created by executive order in 1998 by Gov. Frank O’Bannon after a joint investigation by seven newspapers across the state found major obstacles in getting local government to follow Indiana’s public records laws. In 1999, the position was enshrined in state law.

The intent was to give the public, the media and government agencies a place to go to try to resolve open meeting and public records disputes without having to take the expensive route of suing in court.

The access counselor’s findings are not binding. But a government agency’s embarrassment from an unfavorable ruling is usually enough to get officials to cough up the sought-after documents. If not, the document seeker would have to file a lawsuit to try to win a binding ruling.

The process had run relatively well for about 25 years. But about a year ago, some conservative Republican lawmakers became upset with some opinions issued by public access counselor Luke Britt and decided to weaken the position.

Sen. Aaron Freeman, R-Indianapolis, introduced the amendment that ultimately led to changes. He told IndyStar in March that a Britt opinion that contributed to lawmakers’ concerns concluded that two members of the Hamilton East Public Library board violated the state’s open meetings law simply by meeting with their attorneys at a coffee shop.

Just as likely a motivator for some lawmakers, though, was Britt’s determination that the Indiana Department of Health should stop releasing individual terminated pregnancy reports. He reasoned that the records should be withheld because the reduced number of abortions being performed after Indiana’s near-total abortion ban took effect made it possible to deduce the identity of patients from the information provided on those forms, especially in small counties.

The decision caused such an uproar among social conservatives that Attorney General Todd Rokita accused Britt of colluding with the health department to reach the agency’s desired conclusion. Britt’s opinion was the result of the agency seeking his guidance on the thorny issue.

The original public access counselor law provided Britt, a Republican appointee, with insulation from such a political firestorm. But it was exactly that protection that the GOP-dominated Legislature removed.

The original law stipulated that the access counselor would serve for a fixed four-year term, granting him independence from the fear of political reprisals. Now, however, he serves at the pleasure of the governor and could be removed at the first sign of a major uproar.

The Legislature also severely limited Britt’s ability to interpret the state’s public access laws by requiring him to only consider the exact text of the laws or applicable court cases. There appears to be no room for him to consider the spirit of the law.

Braun can strike a victory for reasonable transparency by reappointing Britt as public access counselor and vowing to keep him in that position for the next four years regardless of the political headwinds.

That won’t solve all the issues created by the new law, but it would send a message to the Legislature and the public that he is serious about open government and supportive of a public servant committed to balancing personal privacy with the public’s right to know.•

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Greg Weaver is editor of Indiana Lawyer. Write him at [email protected].