Bill amendment would 'gut' public access counselor's ability to issue advisory opinions

Mar. 1—An amendment made to a bill in the waning days of the Indiana General Assembly session would severely restrict the public access counselor's role in issuing opinions, and it would eliminate the counselor's four-year term.

The amendment was approved 5-3 by a Senate committee this week as part of House Bill 1338, which gives guidelines to local governments on how to deal with disruptive conduct at public meetings.

State Sen. Aaron Freeman, R-Indianapolis, offered the amendment that says the state's public access counselor, when issuing an advisory opinion, "may consider only the plain text of the public access laws and valid Indiana court opinions."

The amendment also says the public access counselor would serve "at the pleasure of the governor." Currently, the governor appoints a public access counselor for a term of four years.

The change would "reduce the office's independence by eliminating the four-year term the access counselor has after being appointed by the governor," according to the publication State Affairs.

Among those concerned about the amendment is Amelia McClure, Hoosier State Press Association executive director and general counsel.

"We're worried about it because it effectively guts the public access counselor's ability to issue pertinent advisory opinions without his ability to look at anything but Indiana court cases and Indiana state law," McClure said.

HSPA opposes the amendment and is working on the issue, "trying to see if we can find something that is a happy medium between everyone," she said.

"We need to ensure that we maintain the public access counselor's ability to set standards for local government, expectations and provide education to individual citizens who don't necessarily have the access to a lawyer," McClure said.

The public access counselor's advisory opinions are nonbinding. "It provides parameters for local government to be able to function and expectations so they know what is expected of them," she said. The public access counselor, Luke Britt, has expertise on Indiana's public access laws, and the office is a resource for both citizens and local government.

As far as the elimination of the four-year term of appointment, McClure pointed out the public access counselor already serves at the will of the governor.

With the elimination of that four-year term, "I have concerns that it makes it a more political position," she said.

The bill is scheduled for a second reading Monday in the Senate. Because it originated as a House bill and has been amended in the Senate, it would be eligible for conference committee if bill author Rep. J.D. Prescott disagrees with the amendment, McClure said.

In Terre Haute, state Rep. Tonya Pfaff, a Democrat, said she is "deeply concerned" about the amendment.

"Transparency is the cornerstone of democracy, and any efforts to dilute the powers of the public access counselor are a direct assault on the public's right to know," Pfaff said. "All elected officials should strive to uphold the principles of open and accountable government."

State Sen. Greg Goode, R-Terre Haute, said of the amendment, "The abrupt timing of what appears to be a pretty significant change concerns me."

As a former university administrator who oversaw communications, he said he valued and respected the public access counselor.

"I was not on the Senate committee where the amendment was made and will be looking into this with the question in mind, 'why does the legislature need to make this change?'" Goode said.

State Rep. Alan Morrison, R-Brazil, said he would want to learn more about the amendment before commenting.

He emphasized the bill is not in its final form and can still change, including if it goes to conference committee. "How it looks now is not necessarily how it will end up," Morrison said.

The Legislature in 1999 established the access counselor position to review questions from the public, government officials and others about the state's open meetings and public records laws.

Also weighing in on the amendment was Gerry Lanosga, executive secretary of the Indiana Coalition for Open Government. He teaches media law at Indiana University and is a former journalist.

The amendment is to the part of statute that dictates what the public access counselor can do, Lanosga said. It does not amend the actual public access laws relating to open meetings and records.

Both of those laws have language that states they "are to be liberally construed," providing guidance on how the laws are to be interpreted.

"This is legislative intent that goes back decades," Lanosga said. "I'm not sure this [amendment] does what they want it to do."

But if it does, "That's a real problem. It's bad public policy," he said. "Public business should be conducted in public, period. Anything that dials that back and limits the ability of the public to get insight into the affairs of government is bad public policy."

The amendment was discussed and approved during Tuesday's meeting of the Senate Corrections and Criminal Law Committee, chaired by Freeman.

Some of the committee members asked about the intent of the amendment, including Sen. Rodney Pol, D-Chesterton, and Sen. Susan Glick., R-LaGrange.

Pol asked, "Is there something we are trying to keep out of the purview of the public access counselor?" and also taking away his ability to make a determination based on an ambiguous phrase or word.

Glick questioned the limitations it would put on the public access counselor's ability to render an opinion.

Freeman responded that currently the law says the public access counselor "shall liberally construe the code."

Freeman went on to say, "I don't think I'm breaking news here, he (public access counselor Luke Britt) has issued some opinions that I vehemently disagree with and I think others ... in this building vehemently disagree with."

The public access counselor's office issues dozens of advisory opinions each year but has no authority to enforce the access laws or punish violators.

According to State Affairs, some conservatives criticized an opinion Britt released last fall in which he concluded the Hamilton East Public Library Board in Fishers violated the open meetings law when two board members met with their attorneys at a coffee shop.

"That opinion came amid public debate over a push by conservative members of that board to review all youth-section books and move those with 'inappropriate' content to adult sections," according to the State Affairs report.

The legislative session is quickly winding down. Tuesday is the last day for third reading of House bills in the Senate, and March 14 is the last day for adjournment of both houses.

McClure says the process used to introduce the amendment late in the 2024 session was "concerning. No one really knew it was happening; it happened at the last minute in the second half of the session."

She added, "The process was not the cleanest, the most democratic, by any means. A lot of stakeholders were kind of blindsided by it so we're finding ourselves playing catch up a little bit."

HSPA supports the original bill even though it opposes the amendment. "We're hoping we can find a way to address the concerns of the Legislature" while maintaining the ability of the public access counselor to continue his important work issuing advisory opinions, she said.

Sue Loughlin can be reached at 812-231-4235 or at sue.loughlin@tribstar.com. Follow Sue on X at @TribStarSue.