Access to government by its citizens is fundamental to American democracy. Whether it’s a mundane town council meeting or the Indiana state budget, both are open to us all.

The right of people to know what its government is doing is forever tested by officials who would work outside of public scrutiny. An occasional reminder is helpful.

Today begins Sunshine Week, a yearly effort by the American Society of News Editors to shed light on the workings of government. Throughout the week, The Journal Gazette will publish stories that look at the issue of openness.

Imagine discovering that you have been robbed, and though the thieves left their business card with their name, address and phone number on it, the police refuse to lift a finger.

There is no one at the city or county level who will even try to find justice for you. No police agency, no prosecutor’s office, no victim’s advocate. There is also no one at the state level fighting for you, though there is one office that will write you a letter saying that, yes, it was illegal for the thieves to take your possessions. For good measure, that office will also send a copy of the letter to the thieves.

If you take up the fight yourself and sue the thieves in civil court, the highest measure of justice you can receive under the law is – if you win – to get your things back and the attorney fees you spent to sue the thieves. Meanwhile, years may have passed, and the thieves continue stealing unabated.

Welcome to the world of public access to government in Indiana.

“You are on your own,” said Lucy Dalglish, of states, like Indiana, that have no mechanism to enforce their laws that require the public be able to watch their government make decisions and be able to see the paperwork surrounding it.

Dalglish is executive director of the Reporters Committee for Freedom of the Press, an Arlington, Va., advocacy group.

“We’ve never been able to get (enforcement provisions) on the federal level, either. And so a lot of people on the state and local level are saying, ‘We’re just doing what we’re told.’ ”

Indiana has laws that require public bodies such as city councils, school boards, state panels, zoning boards and others to allow residents to watch them work. It also has laws that require, with narrow exceptions, the paperwork generated by government to be given to those who ask to see it.

But violating those laws – known in Indiana as the Open Door Law and the Access to Public Records Act – brings no punishment for those who tell Hoosiers “No.”

Citizens who feel they have been illegally denied a document or access to a meeting can file a complaint with the Indiana Public Access Counselor, who can write a non-binding opinion on the matter. Their only other recourse is to sue the agency in question, but the judge can only require the record to be released, not impose a fine on the agency no matter how flagrant the violation.

But Hoosiers are hardly alone when it comes to transparency laws with little teeth: A 2008 survey by the Better Government Association and the National Freedom of Information Coalition studying states’ laws on public records gave 38 states a letter grade of F. Only two states – Nebraska and New Jersey, each given a B – scored higher than a C or D.

Indiana got an F.

“This national study shows that in the vast majority of states, citizens have little to no recourse when faced with unlawful denial of access under their state’s (Freedom of Information) laws,” said Charles N. Davis, executive director of the National Freedom of Information Coalition, at the study’s release. “It’s a cry for reform of FOI laws nationwide.”

Out of ‘Stone Age’?

In Illinois, in the wake of its governor being indicted on federal corruption charges and removed from office – the state’s previous governor is already serving a term in federal prison for corruption – the legislature passed measures to strengthen public access laws.

The revisions shorten the time officials have to turn over documents; grant Illinois’ version of the Public Access Counselor the ability to write legally binding opinions; and, for the first time, assess fines on agencies that deliberately shut out the public.

“Today, Illinois comes out of the Stone Age and into the modern era of transparency and openness,” Illinois Attorney General Lisa Madigan said when the changes were signed into law in August.

The changes took effect Jan. 1. By Jan. 15, a measure to weaken the law was signed by the governor; the Springfield State Journal-Register reports that at least six other bills to weaken it are under consideration.

“I’m not a psychologist, but something happens to people when they work in these public agencies for a while,” said Tony Fargo, an Indiana University professor specializing in media law. “They start to see the records as ‘their’ records instead of ‘our’ records. They’re keeping and preserving those records for us so we can keep up with our government.”

If, as its attorney general contends, Illinois was in “the Stone Age” and only came out when it added enforcement provisions to its laws, where does that leave Indiana?

Wherever it is, it’s not moving anytime soon. An attempt to add a $1,000 penalty to willful, knowing violations of Indiana’s access laws died in the General Assembly last year: The proposed $1,000 fine was lowered to $100, and though it passed the Senate 49-0, it couldn’t even get a hearing in the House.

Another attempt this year – with a penalty of $100 for willful, knowing violations – passed the House 97-0 but died in the Senate.

Illinois’ new law calls for a $5,000 fine. Other states, such as Florida, can remove officials from office or bring criminal charges.

“That is a big hole in Indiana law,” said Keith Robinson, president of the Indiana Coalition for Open Government. “I think you’ll find Indiana’s laws, by comparison (to other states’), are fairly weak.”

Failing the FOI grade

The survey of state laws by the Better Government Association and the National Freedom of Information Coalition graded states on factors such as how long officials have to turn over documents, the appeals process, fees and enforcement.

For the appeals process, Indiana scored 0.5 points out of 2 because citizens have no true administrative remedy when they’re denied records and their only choice is to go to court.

It received 1 point out of 2 for its provision allowing expedited review of court cases but failed to score higher because an expedited review is not required, meaning a court case could take months before it even gets a first hearing.

It scored 4 out of 4 points for its fees, because the law requires that the reasonable attorney fees be paid for citizens who sue and win, if they go through the Public Access Counselor process first.

Indiana got zero of 4 points in the sanctions category, because it does not have any.

It did, however, get 4 points out of 4 under “response time,” because agencies are required to give citizens a response within seven days of their request. But even that is a loophole and one that Robinson said “really got my blood going.”

The problem, he said, is that the law requires a response – not the documents – in seven days. The agency can simply respond within seven days that it is working on the request, then never comply, because there is nothing in the statute that says when records must be provided.

“There’s nothing in the law that says you have to turn them over in a certain amount of time,” Robinson said. “Months might go on.”

Robinson said among the provisions that advocates hoped to strengthen was a requirement that records be turned over in a “reasonable” amount of time. Even that couldn’t pass, he said.

“We tried to get that one word inserted into the law,” Robinson said. “It didn’t happen.”

‘It was amazing’

IU’s Fargo said citizens often don’t realize how important the laws are until they need them. When they discover the barriers officials often put in place, they get pushed out of their own government, which is supposed to be working for them.

“I know the public can be a nuisance. I know these things can get kind of irritating,” Fargo said. “But if you want an object lesson in why so many people say they don’t trust government, there’s your answer. So much stuff goes on behind closed doors, they feel like they don’t have a legitimate chance to take part in the process.”

In fact, Fargo said, Indiana’s laws seem aimed at discouraging officials from giving citizens access, because while there is no punishment for failing to release information, there is a $1,000 fine for releasing information the law says should be kept confidential.

“What message does that send if you say we can fine you $1,000 for giving out the wrong information – even accidentally – but there’s no penalty for not releasing a record, even if you’re knowingly and willfully breaking the law?” Fargo asked.

He is especially disappointed by lawmakers who not only refused to add enforcement to Indiana’s laws but also seemed unconcerned that citizens were being shut out of democracy.

“You’d think you were talking about the death penalty,” he said. “It was amazing.”

When Fargo testified on the bill last year, he told lawmakers of a study that surveyed people who had used the Indiana Public Access Counselor’s office and found that many people were still denied access to documents or meetings even after the access counselor said the law required access.

“They seemed kind of fine with that,” Fargo said. “They seemed kind of OK with the fact that a lot of people who got a favorable ruling (from the Public Access Counselor) still didn’t get what they were seeking.”

dstockman@jg.net