NOV.-DEC. 2016 |
When sending emails, filing papers, creating a document, or recording a conversation, all Purdue employees should assume that they are handling a record that may be released to the public. Indiana’s Access to Public Records Act (APRA) is our state law that promotes transparency in all facets of state government, including public institutions of higher education. Anyone anywhere has the right to inspect and copy our records unless the records are protected from disclosure as confidential or otherwise exempt under the law.
The exceptions from disclosure are numerous and may surprise public employees, sometimes due to the breadth of the exceptions and sometimes due to the absence of an exception. Some exceptions are mandatory, meaning that the public agency – Purdue University, in this case – “may not” disclose certain records. Such records include “those required to be kept confidential by federal law;” so, for Purdue employees, FERPA should come to mind. See Indiana Code 5-14-3-4(a)(3). Another example of records that may not be disclosed are records “concerning research, including actual research documents, conducted under the auspices of a state educational institution.” See Indiana Code 5-14-3-4(a)(6). This is a sweeping exception that is important for research institutions like Purdue.
Some exceptions fall under a list of discretionary categories, meaning that the public agency can choose whether or not to disclose the record. Some examples of records for which we have the discretion to release include police investigative records; personal notes; and internal conversations that are expressions of opinion or are of a speculative nature, and that are communicated for the purpose of decision making. See Indiana Code 5-14-3-4(b). Consistency is critical when deciding how to handle these discretionary exceptions. A public agency will find itself in trouble if it decides to release a record to one requester, yet withhold the same record from another.
In order to ensure consistency, Purdue employees should route all public records requests through Abby Daniels in the Office of Legal Counsel. No record should be withheld or redacted when gathering the records in cooperation with Daniels. She will work with the department to make sure the university is legally compliant when disclosing or withholding records.
Distinctly, the Freedom of Information Act (FOIA) is a federal law about records. Purdue usually only becomes involved in a FOIA request if there are federal funds involved. The typical Purdue/FOIA scenario starts with Sponsored Programs (SPS) receiving information about a FOIA request from the National Science Foundation (NSF), the Federal Aviation Administration (FAA) or another federal entity. NSF, for example, will write to SPS and say, “Professor John Doe at Fictitious State University has requested that NSF send him the grant proposal, written by Purdue Professor Jim Smith, which led to a Purdue research grant funded by NSF.” SPS will work with Daniels in the Office of Legal Counsel to inform NSF whether Purdue wants it released or not and to provide any applicable legal reasoning. Professors are not always happy to release their research proposals. The reality is that, in the case of a FOIA request, Purdue neither releases nor withholds. The federal entity gets to make the final decision on whether or not the record will be released, as they were the ones to receive the FOIA request.
If you receive or become aware of either type of public records request, please contact Daniels at 317-632-0711 or firstname.lastname@example.org.
– Abby Daniels, email@example.com