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.

This is 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.

The Lafayette Police Department charges excessive fees for copies of records.

The Fort Wayne Police Department should make its daily log available to the public.

The Montgomery County coroner illegally withheld a coroner’s report.

In recent years, the Indiana Public Access Counselor’s Office has received between 2,000 and 3,000 inquiries annually by telephone and e-mail – five to eight per day, on average.

Some of them were complicated legal issues. Some were simple questions.

All – including the formal complaints that resulted in the published opinions mentioned above – required a response to Hoosiers concerned about public access.

Andrew Kossack was appointed in September by Gov. Mitch Daniels to the office, where he works with a legal assistant.

The office is required to turn around formal opinions in 30 days; the current turnaround time for informal opinions is about a week or two, Kossack said.

A nearly equal number of inquiries came from members of the public and government agencies. The majority of formal complaints came from members of the general public and were directed toward local agencies.

According to the office’s most recent annual report, only 22 formal complaints from July 2008 to June 2009 came from media; the public access counselor’s office received more than three times as many complaints from prison inmates as from media.

Kossack said his office often plays dual roles of educator and mediator.

"It’s sometimes difficult for us. We want to help more than we can," he said. "A lot of it is educating people about the process."

And given the vagueness of some of Indiana’s public access laws, the public access counselor’s opinions are just that. There are no prescribed timelines for when a public agency must produce records, but according to the law, the burden lies with the agency to show the timeframe for producing documents is reasonable.

A lot of opinions determine that agencies could have complied in a timelier manner, but that they haven’t violated public records laws if they eventually produced the records.

That’s what happened last fall when The Associated Press requested records from the Indiana Family and Social Services Administration. The records were eventually produced, but Kossack wrote that the agency had not demonstrated it produced the records in a reasonable period and should have been more informative in the interim.

"If the FSSA required the time from Sept. 8 to Oct. 21 to make its response, it is likely this complaint could have been avoided by communicating the reasons for such delay to (the reporter)," Kossack’s opinion said.

Issuing an opinion

The Journal Gazette has participated in public record audits in previous years including a statewide series of articles, "The State of Secrecy." That series ran simultaneously in seven newspapers and resulted in Gov. Frank O’Bannon’s creation of the Public Access Counselor’s Office in 1998.

As Indiana’s fifth public access counselor since then, Kossack can’t enforce public access laws, but sometimes, just issuing an opinion prompts action.

"If my opinion says I agree with the complaint, often times that’s enough for an agency to go ahead and produce the documents," he said.

In other cases, that’s not enough. A complainer’s next step could be obtaining a court order, with the eventual possibility of being rewarded attorney fees and costs. The risk of court costs can also prompt reticent agencies to produce records, Kossack said.

Some in the state believe the public access counselor’s opinions should carry more weight – and teeth.

Gerry Lanosga, a Ball State University assistant professor of journalism and treasurer of the Indiana Coalition for Open Government, said that organization continues to be interested in the issue of enforcement.

The coalition, a non-profit citizens advocacy group, supported a bill in the General Assembly this year that would have given enforcement power to judges. House Bill 1075 didn’t get off the ground, and similar initiatives in the past have suffered the same fate.

"We do think it’s sort of an important missing link," Lanosga said.

The public access counselor said some government agencies have told him they worry if the office is given enforcement power it could have a chilling effect on the relationship with the public access counselor’s office. Currently, agencies feel comfortable openly discussing access issues with him, he said.

But enforcement power could encourage compliance with the act, and Kossack said he doesn’t know the right answer.

"The agency functions well as it is, facilitating people with the law," he said. "(Enforcement powers) may help, I’m honestly not sure."

Auburn City Councilman Michael Walter, who has taken advantage of the public access counselor’s services, also believes the office should be given enforcement power – and additional staff. Citizens should continue to have the power to sue on their own behalf, but the access counselor should have power to issue enforcement orders and levy fines for non-compliance, subject to administrative review, Walter said.

Walter – acting as a private citizen – filed a complaint in 2008 that a meeting of the DeKalb County Sheriff’s Merit Board violated the state’s open door law, an opinion upheld by then-public access counselor Heather Willis Neal. The meeting had been billed as an executive session but was changed at the last minute to an open meeting.

Even so, Walter said he believes the access counselor does a tremendous amount of work with scant resources.

The public access counselor’s Web site contains the more than 1,700 formal advisory opinions issued since 1998 and some informal inquiry responses, sample letters and meeting notices, frequently asked questions and other resources.

"We now have nearly a dozen years of opinions that illustrate the strengths and weaknesses of Indiana’s public access laws," Walter said. "While some might argue that opinions are just that, we now have a very useful body of information on how the public access laws work in practice."

aturner@jg.net