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Hoosier lawmakers decline to remove public records chief restrictions

Sen. Scott Baldwin, R-Noblesville, speaks on the Senate floor on Monday, March 4, 2024. (Leslie Bonilla Muñiz/Indiana Capital Chronicle)

(INDIANA CAPITAL CHRONICLE) — Indiana senators on Monday declined to excise language allowing a governor to remove the state’s public access chief at any time and limiting what the appointee can use in producing non-binding advisory opinions.

The new provisions could neuter the public access counselor position and were inserted into an unrelated bill with little warning or public testimony.

“He’s issued some opinions I vehemently disagree with,” Sen. Aaron Freeman, R-Indianapolis, said last week of Public Access Counselor Luke Britt. 

Zach Stock, of the Indiana Public Defender Council, testified that the changes would make the counselor’s job “very difficult, if not impossible.”

Stock was at the meeting to testify about concerns in the underlying bill when the public access changes were made.

Freeman brought the amendments in a criminal law committee – which he leads – last Tuesday. They were added to House Bill 1338, dealing with “disruptive” public meeting attendees.

Sen. Aaron Freeman, R-Indianapolis, speaks on the Senate floor during the 2024 session. (Courtesy Indiana Senate Republicans)

Current law gives the counselor four-year terms, and says the governor can only fire the appointee “for cause.” The amended legislation would strike those provisions, and have the counselor serve “at the pleasure of the governor.”

That would strip the counselor’s insulation from political processes, leaving the appointee vulnerable to being dismissed after issuing opinions that powerful state leaders dislike.

Freeman also edited in a requirement that the counselor consider only the “plain text” of the state’s public access laws and valid court opinions when putting together advisory opinions.

Among the opinions that have rankled lawmakers like Freeman, according to the Indianapolis Star: when Britt asserted two members of a suburban library board violated open door laws by meeting with their attorneys at a coffee shop.

The law creating the counselor’s office simply directs the appointee to “interpret” the laws, but statutes setting up open meeting and public records access processes say they should be “liberally construed.” Senate Republicans want to limit those interpretations.

Sen. Rodney Pol, D-Chesteron, argued Monday that the “plain text” edit is too narrow.

“Black’s Law Dictionary is probably one of the most cited sources outside of court opinions or statute,” said Pol, who is an attorney. He unsuccessfully brought an amendment during second reading that would’ve undone the changes.

Sen. Rodney Pol, D-Chesterton, speaks on a bill in the Senate on March 4, 2024. (Whitney Downard/Indiana Capital Chronicle)

“Case law is where we find out that the laws that we make don’t necessarily fit every every issue into a nice little box. And that’s what ultimately we’re going to try to do here,” he added. “It’s going to leave us and our public access counselor’s hands tied.”

Sen. Scott Baldwin, R-Noblesville, rejected Pol’s effort.

“A liberal interpretation of our code is what led us to this point,” said Baldwin, the Senate sponsor of the House legislation. “And so, we were very deliberate in saying that we wanted to have a strict interpretation of the code.”

Britt himself declined to comment, citing pending legislation.

“I defer to lawmakers on that and only provide input when invited to do so by them,” he wrote in an email to the Indiana Capital Chronicle.

Britt, an attorney with a degree in journalism, was appointed to the position in 2013 by then-Gov. Mike Pence and reappointed by Gov. Eric Holcomb.

Indiana law instructs the counselor to create educational materials regarding public access laws, to distribute them to newly elected or appointed officials, to train public officials and educate other Hoosiers on the laws, respond to informal inquiries on the laws, to issue advisory opinions on the laws, and more.