The entrance to the Office of the Public Access Counselor’s Government Center South suite on Wednesday, May 28, 2025. Another agency, which previously occupied the now-vacant work areas within view of the door, relocated years ago. Photo by Leslie Bonilla Muñiz, Indiana Capital Chronicle.

By Leslie Bonilla Muñiz
Indiana Capital Chronicle

INDIANAPOLIS — Indiana’s top public access official has issued her first two advisory opinions – and resolved more than 30 other complaints for the year so far.

Public Access Counselor Jennifer Ruby made her opinion-writing debut with repeated reminders of recent limits on her powers. Lawmakers in 2024 narrowed the source material for the non-binding opinions to the “plain text” of public access laws and valid Indiana court rulings.

Ruby’s first months in office were marked by complaints of nonresponsiveness. Gov. Mike Braun’s office said that had to tackle a sizable backlog before looking at the current year’s cases.

In her first opinion, issued Sept. 24, Ruby weighed in on a dispute between one Hoosier and the New Carlisle Town Council over economic development project records.

Complainant Debra Durall sought information about water use for Amazon’s data center project – such as nondisclosure agreements and communications between a flurry of parties – and any agreements or communications about the completion of an electric vehicle battery plant under construction by General Motors and Samsung SDI.

Durall sent the town a records request late last year, on Dec. 6. The town’s attorney offered up limited documents on Jan. 2. That included a blank NDA, because the town didn’t have the signed copies, and a redacted copy of a utility service agreement.

The town didn’t have other documents she requested – like those involving officials working for the county or chamber of commerce – and said it had no agreements with GM or Samsung. It withheld other communications, citing confidential attorney work, ongoing negotiations and trade secrets.

Durall filed a formal complaint with Ruby’s office Wednesday, Jan. 29.

Ruby opined that Indiana law doesn’t require governments to create records they don’t have to satisfy records requests. She also defended the redactions – noting statute protects a utility customer’s confidential personal information – and the withholding of the other confidential information.

Jennifer Ruby

The Indiana Utility Regulatory Commission, for instance, has found that utility customer water usage data can be a confidential trade secret.

“Although Indiana statute only allows the (Office of the Public Access Counselor) to consider public access statutes and case law when issuing advisory opinions, Indiana case law provides that the IURC can be given wide discretion in matters within its jurisdiction,” Ruby wrote. “Therefore, it seems reasonable for the OPAC to consider an IURC opinion when determining whether water usage information has the characteristics outlined by Indiana case law and qualifies as trade secrets.”

She issued an opinion saying the town didn’t break public records law.

Open Door Dispute

A second opinion, from Thursday, Oct. 2, involved a township official seemingly iced out by his own colleagues.

Green Township Board Chair George Coffey accused Township Trustee Jon Fletcher of violating meeting access laws – by not telling him soon enough about a Dec. 19 meeting that the board’s other two members had called.

Hoosiers are entitled to notice at least 48 hours before a public agency’s governing body meets. In his Friday, Jan. 9 complaint, Coffey said board members usually were notified by email, but that this time, a letter arrived in the mail on the day of the meeting.

Fletcher defended himself in responses to Ruby’s office. He argued Coffey had emailed asking if there was a meeting and that the township attorney had responded Dec. 18 with the date and time. Fletcher also included a photograph showing the letters to all three board members were mailed Tuesday, Dec. 16.

Ruby noted that U.S. mail often takes three-plus for delivery. She argued that that Coffey “was at a disadvantage” – the other two board members knew about the meeting since they’d called it – and that only Coffey was left “in the dark.”

The photograph itself, she added, “leads our office to believe that Respondent knew that mailing the notice and agenda would be an issue.”

She wrote that it’s “unlikely” that the mailed letter or the township attorney’s emailed response were sufficient as written notice – but added, “As the statute is silent on the timeline and method of delivery for written notice … I decline to define ‘sufficient written notice.’”

Ruby opined that Fletcher didn’t violate open door law but that the conduct “violates the spirit of” Indiana Code’s provisions for ad hoc, special meetings. She recommended that the township trustee and board consider adopting a policy to ensure that all board members get consistent notice.

PAC Settles In

The opinions represent two of 34 cases that Ruby has resolved as of last week, according to office spokeswoman Stephanie McFarland.

“Resolved is a fluid term,” McFarland noted. “… Some complaints may have been withdrawn, some may have been rejected due to jurisdiction or pending litigation, or the complainant may have received their request or no longer needs it.”

Hoosiers can find links to opinions on the agency’s website once they’re uploaded.

“Receiving and resolving complaints is an ongoing process, so please continue to visit the page above throughout the year for published opinions,” McFarland wrote.

Braun appointed Ruby to the role in late March, after former PAC Luke Britt, who ran the office for about 12 years under previous Govs. Mike Pence and Eric Holcomb, resigned.

“I’d always said that if I found that my voice was getting ineffective, it was time to leave. And that might have been my sign with that legislation,” he told WFYI at the time. House Enrolled Act 1338 also made the PAC serve “at the pleasure of the governor.” Before, one could only be fired “for cause.”

One nonprofit, in July, opened a public access hotline to “alleviate the pressure” on the new PAC.