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Sunday, March 11, 2018 1:00 am

Gatekeeper in chief

Access counselor promotes free flow of state's public information

TIM HARMON | The Journal Gazette

Access the Counselor

Telephone: (317) 234-0906

Fax: (317) 233-3091

Toll Free:1-800-228-6013



When Luke Britt was appointed Indiana public access counselor by Gov. Mike Pence in 2013, the post had changed hands five times over the previous decade.

Last fall, Britt, 38, accepted appointment to a second four-year term by Gov. Eric Holcomb; he has now served in the post longer than anyone else. 

The position of public access counselor was created in 1999 after the legislature and Gov. Frank O'Bannon strengthened state laws to ensure Hoosiers would have access to public records and meetings.

Though the courts have the final say on those laws, the access counselor issues advisory opinions and dispenses informal advice.

In honor of Sunshine Week, the annual celebration of First Amendment values, Britt talked recently about his role in making Indiana's open-government laws work. (The conversation has been edited for length and clarity.)

Britt, an attorney who previously served with the Indiana State Department of Health and the Indiana Department of Child Services, said he will be spending part of this week doing what he often does – conducting training seminars for public officials and journalists.

A big bulk of my job is to train ... officials who either may not be familiar with the Access to Public Records Act and the Open Door Law or they just need a refresher.

My primary focus during my tenure has been on education. So whenever I get a chance to do training or an opportunity to present my message about government transparency, I schedule my week around those opportunities. ... I travel all over the state, reaching as many people as possible. The best way to spread that word is through face-to-face interactions.

If I'm in the office, it's largely answering questions through phone or email, and then writing the opinions themselves.

Q. On the face of it, it would seem that it's pretty simple – records are open and meetings are open unless they meet a list (of exceptions), which is easily available to any official. What is it ... that generates all these questions?

A. A good part of it is just turnover. Especially in post-election years, I have a whole new batch of faces to teach, (as well as) young journalists who want to be able to access that information but don't have the skill set yet to go about doing that, or ... an attorney who hasn't had as much exposure to these statutes.

Even within those two small statutes, there's a lot of nuance. There's a lot of room for interpretation. 

Q. What's the most frequent misunderstanding or question that you get?

A. I think it's the deadline for agencies to respond to public-records requests. It's inferred in the statute that they have 24 hours for an in-person request or seven days for a mailed request to acknowledge the request, to provide receipt of it. A lot of people think that the deadline to actually produce the document is within those time frames. That's just not the case. The agencies have a reasonable time to respond. 

Q. What has changed in recent years?

A. The most dramatic revision was probably in 2016, when the body-cam legislation became law – law-enforcement body-worn cameras. That's been an interesting field of study for me. ... By and large I think they did a pretty good job with that law, and it's been pretty successful, statewide.

If you were involved in (an incident that was recorded), you have the unequivocal right to view that footage at least twice. ... That can be either you or a family member if you're not available to do so, or a representative – an attorney – they have that right. The rub comes in with copying of the actual footage. No one has the right, absolutely, to copy that footage.

Q. If you're an interested citizen or a journalist, you don't have any right to access that material?

A. Well, you have the right to ask. 

Q. Have test cases come up?

A. They have not. And that's usually an indication of a pretty good law, that it hasn't been challenged ... my office hasn't received any complaints about it. 

Q. You have said you felt strong, steady support from Gov. Pence. Are you feeling that from Gov. Eric Holcomb, as well?

A. Yeah, probably even more so. The relationship I've enjoyed with this administration has been very positive. They've been very receptive to my advice to them. ... We don't always agree on every single thing. But it's always a healthy dialogue, and I've been very pleased with the support I've gotten from them.

During his tenure, Britt said, two cases have helped define the role of the public access counselor in Hoosiers' minds.

A. I think the first one that kind of started everything was using private email for public business. I came out early on as saying on the record that I think those emails were to be treated as if they were public record. Because it would be all too easy to use a Yahoo account or a Gmail account to conduct public business – and then anything you do would be hidden from public scrutiny. It was just too big of a loophole for me to accept.

Honestly, it was fairly well-received at first. ... It just kind of snowballed from that. I think the culmination of that was when Gov. Pence moved on to the White House, he turned over some 13 bankers' boxes of his private emails ... that was very satisfying to me, to see that through.

The biggest one that kind of put me front and center for awhile there was the ESPN case against Notre Dame about private police forces. ... I was kind of caught up in that, and that raised my profile.

Even though it didn't go exactly the way I hoped, it started a conversation about these finer points of transparency and what it means to take government action, and once we do, how do we make sure that we're accountable to the public for that action.

During that case, as it was being adjudicated, they drafted legislation to make private university police forces public agencies, and that stands today. The part where it falls a little short is that they don't have to disclose as much about their law-enforcement activities as Purdue or IU or Indiana State. It stops a little short of that.

At the end of the interview, Britt asked to add “a plug to your readers”:

If they are ever having issues with a local government unit to reach out to my office.

And certainly public officials themselves, if they're seeking guidance or advice, I'm always available.