>>SOUTHERN INDIANA — Sunshine Week is a nationwide initiative by media outlets around the country to open a dialogue about the importance of open government and freedom of information.

To do its part, The Evening News requested access to e-mails sent by 10 public officials during the month of January. The exercise was less about reading e-mails and more about seeing what would be released.

Both the results and the reactions were mixed.

“Clearly, the laws were written in an era where e-mail didn’t exist,” explained Charles N. Davis, executive director of the National Freedom of Information Coalition, based at University of Missouri School of Journalism. “Governments are slowly but surely awakening on this issue,” he said. “We haven’t thought too hard about how and how long to store all this stuff.”

Some local officials offered e-mails up quickly. Most called back with questions.  And still others — as we learned by asking — weren’t even required to provide e-mails.

“E-mail kind of snuck up on a people as a means of communications,” Davis said. “And these days a lot of legislative work is taking place over e-mail. If they were doing it in a committee room, it would have been open record.”



GETTING PERSONAL

In Charlestown, a request was made for e-mails sent out by Mayor Bob Hall.

He acknowledged receiving the request within 24-hours; however, instead of e-mails, he provided the newspaper with a letter saying there were no outgoing e-mails from his city address, mayorbob@cityofcharlestown.com.

As it turns out, the e-mails he receives at the account are redirected to a personal e-mail address. When he responds, the e-mails come from his personal, not his city, address.

“The question becomes, ‘Did the public agency receive that e-mail?’” said Stephen Key, attorney for the Hoosier State Press Association. “I don’t think that’s been addressed.”

It’s unclear what the practice of redirecting e-mails of a public official to a personal account really means.

“Lots of public officials have discovered the beauty of Yahoo accounts,” Davis said when asked about the issue.

A few miles down Ind. 403, Sellersburg Town Council President Brian Meyer does the same thing. However, he did provide the newspaper copies of his e-mails.

Davis said one of the problems that government officials face by using personal accounts for government business is that they put sensitive information in a place where it can be hacked. Famously, he noted, former Alaska Gov. Sarah Palin used a yahoo.com account for government business and had her address hacked and posted online.

Davis said several states are discussing a law that would require government officials to use .gov addresses. However, doing so seems a difficult standard to achieve and Davis does not know if any state legislatures have passed legislation to that effect.

“It’s hard to mandate the use of a public e-mail account,” Key said. “Some [public officials] may have only a private e-mail account.”

The Clark County Commissioners, for instance, do not have any government e-mail addresses published on the board’s Web site.

“There hasn’t been any real move afoot to go after public officials’ personal e-mail,” Key said. “The legislature is very reluctant to open up personal e-mail. There hasn’t been any attempt to go in that direction.

“The thing that might come up legally is if [a public official] encourages the public to use a private e-mail account [to send to them],” Key said.

The example he provided was a case in Texas where a public official was encouraging individuals to use her private e-mail account if they wanted to contact her.

Because the official was using a private account as an access point for the public, it was ruled in a Texas court that the official had to make the e-mails available off of that account, Key said.

The Clarksville Police Department has a very similar issue, only it does more than just use personal e-mail addresses.

A reporter visited the department to drop off a written request for e-mails sent in January by then-Assistant Chief David Ross. However, as it turned out, Ross, who’s now retired, personally owns the Web site, clarksvillepolice.com. And, because it was not supported by tax money, department officials reasoned, the e-mails were not public record.

Ross buys domains the way some investors buy and sell pieces of property.

“Currently, I have about 14 domains,” Ross said in response to the request. “It is a hobby for me, much like some people collect fishing lures or baseball cards.”



TOUGH ASKING

Sometimes, even asking for the public records was met with a challenge. There seemed to be confusion over what the newspaper was even submitting when the request was dropped off at Clarksville Police headquarters.

The reporter who visited the station was told by Capt. Dale Abell to get a court order, something not necessary when asking for a public document. After Abell explained that Ross owned the Web site domain, the reporter said the newspaper had a statutory right to written response to the request.

Abell asked, “which statute?” The reporter pointed to Indiana code referenced on the written request.

“Anyone could’ve written that there,” he responded.

Able eventually agreed to take the request. He forwarded it onto Ross, who very quickly responded.



CONGRESS EXEMPT

Initially, the newspaper also planned to request e-mails sent by U.S. Rep. Baron Hill, D-Ind. However, because of the way the House of Representatives maintains and filters its e-mail system, Hill didn’t have a specific, government-provided e-mail address from which the request could be made.

So instead, the newspaper requested the e-mails of one of his staff members, Communications Director Katie Moreau.

Because Moreau is a federal, not a state or local, employee, the request was made under the Federal Freedom of Information Act, rather than the Indiana statute used on other requests.

A few days later, the paper received a letter from the House’s general counsel, saying that the act specifically excludes Congress as a federal agency and therefore does not apply.

That exemption was included in the original 1966 act, according to Davis.

The body most likely included it back then because they were worried about political opponents attacking them for ideas that were still in the predeliberative, or trial-balloon stage, he said.

“It’s a nifty little exemption that most state legislators don’t enjoy,” he said.

Moreau and Hill Chief of Staff John Zody told The Evening News while working with the newspaper on the request that they strive to be open, but that some information sent to and from constituents is sensitive — such as questions over issues like veterans’ medical benefits or home foreclosures — and they want to keep that private.



MORE FILTERING ISSUES

While The Evening News also received a large list of e-mails from Kristi James, the administrative assistant for the Clark County Commissioners, there was a delay in the process.

Over a month after the initial request was made, the information was received. Problems in recovering the e-mails, because they are automatically deleted, was cited as one of the causes for the delay.

“As I advised earlier, due to inadequate server memory within the county’s computer system, the users e-mail are instructed to delete on a regular basis,” said Greg Fifer, attorney for the commissioners, in an e-mail.

According to Key, an automatic filtering system could create issues for the county if it automatically deletes e-mails considered to be historic records.

“It depends on the subject matter of the e-mail,” he said. “They may need to adjust their filter to make sure that they are not deleting historical documents.”

Key used the example of a public official sending a draft ordinance in an e-mail. The expectation is that the ordinance would be protected for a certain amount of time.

But for the county, a question becomes how long do you have to keep records on file?

“[The content] falls under the same retention schedule of a hard copy,” Key said. “When it comes to actually giving you the document, the standard is what’s reasonable.

“It’s a case-by-case issue.”



WE GOT A LOT

In several cases, e-mails were handed over and done so quickly.

Jeffersonville Mayor Tom Galligan released 10 of the 11 e-mails sent from his city address, most of which were actually written by his secretary.

City Communications Director Larry Thomas explained that the one e-mail not being released was something forwarded from Galligan to Growth Coordinator Rick Lovan.

In a memorandum responding to the request, Thomas said that he and Galligan decided it would be inappropriate to disclose the e-mail because the original information was confidential and advisory in nature.

The state’s open-records law excludes financial information received from a person upon request. It also says interagency advisory or deliberative material that contains expressions of opinions or are of a speculative nature are exempt from being released.

• Clarksville Clerk-Treasurer Gary Hall called the day after the request was received to say he hadn’t sent any e-mails from his town address during the month of January.

• Jeffersonville Parks Superintendent Bob Manor called within two hours of the request to say his were ready to be picked up. When the reporter went to pick them up a few days later, there were only two.

• Clark County Sheriff Danny Rodden and Meyer were among the fastest to respond. Rodden provided about 10 e-mails, and Meyer had sent so few e-mails from his government account he provided 16 messages dating back to the end of September.

• Within a week of making the request, Jack Vissing, attorney for the Clark-Floyd Counties Convention and Tourism Bureau, provided  more than 100 e-mails sent from its executive director, Jim Keith.

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Why we asked

March 14 through today is Sunshine Week, a national initiative aimed at highlighting the importance of open government and freedom of information.

Under Indiana code, the media and the general public have the right to access information that is deemed to be public record. Specifics on what information is available to the public is outlined in Indiana Code 5-14-3 — access to public records — and 5-14-1.5 defines the state’s open-door laws for public meetings.

As part of Sunshine Week, The Evening News requested e-mails sent by public officials during the month of January. Following the request for the public records, each governmental entity has 24 hours to acknowledge it received the request and a reasonable amount of time to provide the information requested.

Some specific information is protected by the law when the documents include private personnel matters or Social Security numbers, but the agency from which the information has been requested must cite specifically why, if it did not provide the requested information, how it is exempted from the law.

“The burden is always on the public agency ... for them to show why you can’t have a record or can’t attend a meeting,” said Steve Key, General Counsel for the Hoosier State Press Association.

The public records requests for this story were delivered to the offices of the public officials in mid February.

— Staff Writer Braden Lammers



WE REQUESTED SENT E-MAILS FOR

• Jeffersonville Mayor Tom Galligan

• Charlestown Mayor Bob Hall

• Clarksville Clerk-Treasurer Gary Hall

• Administrative Assistant for the Clark County Commissioners Kristi James

• Executive Director of Clark-Floyd Counties Convention and Tourism Bureau Jim Keith

• Jeffersonville Parks Superintendent Bob Manor

• Sellersburg Town Council President Brian Meyer

• Rep. Baron Hill’s Communications Director Katie Moreau

• Clark County Sheriff Danny Rodden

• Clarksville Assistant Police Chief David Ross