INDIANAPOLIS — The city of Warsaw has violated the Open Door Law according to an opinion issued today, Tuesday, Aug. 22, by Luke H. Britt, Indiana Public Access Counselor. However he ruled the city did not violate the Access to Public Records Act. The opinion notes the city has remedied by changing its practices.

Two formal complaints were filed July 18 by Chad Zartman, Warsaw, with the Indiana Public Access Counselor’s office. Britt addressed each complaint.

The alleged Access to Public Records Act focused on the city of Warsaw refusing to identify anonymous donors to The Warsaw Alley Project, relying on IC 5-14-3-4(b)(15), which allows the identity of donors to remain anonymous upon request. The total fundraising efforts realized an amount of approximately $56,000. Five percent of those funds were donated anonymously.

The Open Door Law also involved the Warsaw Alley Project. Approval was sought via email on an agreement for a grant rather than a vote taken in a public meeting. The complaint contends this was a final action akin to a vote. Email evidence submitted showed other final actions have been taken over email as well by utilizing a reply-all approach.

Access To Public Records

Britt notes under the APRA, a public agency does have the discretion to shield the identity of an anonymous donor, if the donor requests anonymity. He states he initially advised Zartman the names were disclosable if the city had a record of the donors’ identity. Additionally, he notes this was the first instance of a crowd-sourcing arrangement his office has encountered.

“…The danger with accepting donations of this sort, especially for public works projects, is the perception arises that a potential vendor or contractor may be given favorable status during the procurement process if a donation – even a small one – is fronted during the fundraising process … I do not begrudge the complainant for being skeptical.

“Therefore, while the city does not appear to have erred in applying IC 5-14-3-4(b)(15) in this instance, I encourage public agencies to withhold names of anonymous donors sparingly and only where absolutely necessary, to avoid the perception of impropriety.”

Open Door Violation

Britt notes the intent of the Open Door Law – official action of public agencies conducted and taken openly unless otherwise provided for by statute, in order that people may be fully informed. “Technical advances have made it all-too-easy for public employees and officials to take advantages of gaps and loopholes in the access laws, find shortcuts to doing business. Emails is one of those mechanisms.

“Public officials must be mindful not to take final action over emails,” states Britt.

Britt refers to a letter from Mike Valentine, city attorney, which the city recognized approving matters over email erodes the purpose of the Open Door Law. “I can appreciate that the approvals were done to increase convenience and efficiency. It is true the access laws are not convenient and efficient. But those inconveniences and inefficiencies are critical to good governance and democracy. Expediency is sacrificed for transparency and accountability.

“After speaking at length with the mayor and city attorney, I am confident the city will be mindful of these considerations going forward.”

City’s Official Response

Valentine responded to the official complaint on July 31, in a letter to Britt. In that letter, Valentine notes “that the city does not intend to argue the merits of the Open Door allegations. The material provided by Mr. Zartman clearly demonstrate that ‘voting’ occurred by the use of emails although that was not the intent since the matter was formally presented in open session for approval.”

Additionally Valentine noted Mayor Joe Thallemer had recently stopped all such requests for “verbal” approval and is requiring all matters be on the board of works agenda and voted on without any prior verbal aproal, discussion or exchange of emails. “All such earlier actions were thought not to be official acts in any manner but were regarded to facilitate actions, which had peculiar time limits. “That thinking is now history.”