§ 5-14-3-9 — Denial of disclosure; action to compel disclosure; intervenors; burden of proof; attorney's fees and costs

Indiana § 5-14-3-9

• Jurisdiction: Indiana
• Title 5: STATE AND LOCAL ADMINISTRATION
• Art. 14: PUBLIC RECORDS AND PUBLIC MEETINGS
• Ch. 3: Access to Public Records

Text

(a) This section does not apply to a request for
information under section 4.4 of this chapter.
(b) A denial of disclosure by a public agency occurs when the
person making the request is physically present in the office of the
agency, makes the request by telephone, or requests enhanced access
to a document and:
(1) the person designated by the public agency as being
responsible for public records release decisions refuses to permit
inspection and copying of a public record when a request has
been made; or
(2) twenty-four (24) hours elapse after any employee of the public
agency refuses to permit inspection and copying of a public
record when a request has been made;
whichever occurs first.
(c) If a person requests by mail or by facsimile a copy or copies of
a public record, a denial of disclosure does not occur until seven (7)
days have elapsed from the date the public agency receives the request.
(d) If a request is made orally, either in person or by telephone, a
public agency may deny the request orally. However, if a request
initially is made in writing, by facsimile, or through enhanced access,
or if an oral request that has been denied is renewed in writing or by
facsimile, a public agency may deny the request if:
(1) the denial is in writing or by facsimile; and
(2) the denial includes:
(A) a statement of the specific exemption or exemptions
authorizing the withholding of all or part of the public record;
and
(B) the name and the title or position of the person responsible
for the denial.
(e) A person who has been denied the right to inspect or copy a
public record by a public agency may file an action in the circuit or
superior court of the county in which the denial occurred to compel the
public agency to permit the person to inspect and copy the public
record. Whenever an action is filed under this subsection, the public
agency must notify each person who supplied any part of the public
record at issue:
(1) that a request for release of the public record has been denied;
and
(2) whether the denial was in compliance with an informal inquiry
response or advisory opinion of the public access counselor.
Such persons are entitled to intervene in any litigation that results from
the denial. The person who has been denied the right to inspect or copy
need not allege or prove any special damage different from that
suffered by the public at large.
(f) The court shall determine the matter de novo, with the burden of
proof on the public agency to sustain its denial. If the issue in de novo
review under this section is whether a public agency properly denied
access to a public record because the record is exempted under section
4(a) of this chapter, the public agency meets its burden of proof under
this subsection by establishing the content of the record with adequate
specificity and not by relying on a conclusory statement or affidavit.
(g) This subsection does not apply to an action under section 5.2 of
this chapter. If the issue in a de novo review under this section is
whether a public agency properly denied access to a public record
because the record is exempted under section 4(b) of this chapter:
(1) the public agency meets its burden of proof under this
subsection by:
(A) proving that:
(i) the record falls within any one (1) of the categories of
exempted records under section 4(b) of this chapter; and
(ii) if the action is for denial of access to a recording under
section 5.1 of this chapter, the plaintiff is not a "requestor" as
that term is defined in section 5.1 of this chapter; and
(B) establishing the content of the record with adequate
specificity and not by relying on a conclusory statement or
affidavit; and
(2) a person requesting access to a public record meets the
person's burden of proof under this subsection by proving that the
denial of access is arbitrary or capricious.
(h) The court may review the public record in camera to determine
whether any part of it may be withheld under this chapter. However, if
the complaint alleges that a public agency denied disclosure of a public
record by redacting information in the public record, the court shall
conduct an in camera inspection of the public record with the redacted
information included.
(i) Except as provided in subsection (k), in any action filed under
this section, a court shall award reasonable attorney's fees, court costs,
and other reasonable expenses of litigation to the prevailing party if:
(1) the plaintiff substantially prevails; or
(2) the defendant substantially prevails and the court finds the
action was frivolous or vexatious.
Except as provided in subsection (k), the plaintiff is not eligible for the
awarding of attorney's fees, court costs, and other reasonable expenses
if the plaintiff filed the action without first seeking and receiving an
informal inquiry response or advisory opinion from the public access
counselor, unless the plaintiff can show the filing of the action was
necessary because the denial of access to a public record under this
chapter would prevent the plaintiff from presenting that public record
to a public agency preparing to act on a matter of relevance to the
public record whose disclosure was denied.
(j) Except as provided in subsection (k), a court may assess a civil
penalty under section 9.5 of this chapter only if the plaintiff obtained
an advisory opinion from the public access counselor before filing an
action under this section as set forth in section 9.5 of this chapter.
(k) This subsection applies only to an action to appeal the denial of
access to a law enforcement recording under section 5.1 of this chapter.
A requestor (as defined in section 5.1 of this chapter) may bring an
action to appeal from the denial of access to a law enforcement
recording without first seeking or receiving an informal inquiry
response or advisory opinion from the public access counselor. If the
requestor prevails in an action under this subsection:
(1) the requestor is eligible for an award of reasonable attorney's
fees, court costs, and other reasonable expenses; and
(2) a court may assess a civil penalty under section 9.5 of this
chapter.
(l) A court shall expedite the hearing of an action filed under this
section.

Legislative History

As added by P.L.19-1983, SEC.6. Amended by P.L.54-1985, SEC.7; P.L.50-1986, SEC.3; P.L.68-1987, SEC.2; P.L.58-1993, SEC.10; P.L.19-1997, SEC.4; P.L.70-1999, SEC.2 and P.L.191-1999, SEC.2; P.L.173-2003, SEC.6 and P.L.261-2003, SEC.8; P.L.22-2005, SEC.2; P.L.134-2012, SEC.19; P.L.248-2013, SEC.5; P.L.58-2016, SEC.8.