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 PAC Rejects CAB’s Reason for Withholding E-mails

February 18, 2009 - In a formal opinion issued last week, the state’s public access counselor rejected the Charles A. Beard Memorial School Corporation’s reason for withholding copies of e-mails The Banner first requested in November.

Although the requested records were eventually provided, CAB Superintendent Gary Storie had initially denied The Banner’s requests, made Nov. 19 and Jan. 5, for copies of e-mail correspondence sent between him and school board members since Sept. 1. Storie claimed The Banner had not identified the requested records with reasonable particularity, as the Access to Public Records Act requires, and claimed Public Access Counselor Heather Neal had told him this was an acceptable basis for denying the newspaper’s requests.

The Banner filed a formal complaint with Neal on Jan. 14. Banner owner and publisher Eric Cox took the position that the newspaper had identified the records it wanted copies of with reasonable particularity.

Cox’s complaint noted that The Banner’s requests had been limited to specific time periods and restricted to include only certain senders and recipients. “Certainly, if there was any way The Banner could be more specific, or more reasonably particular, with our requests, we would do it,” he had told Neal. “As it is, however, that’s simply not possible.”

In her formal opinion issued last week, Neal agreed with The Banner.

“Certainly a request cannot always be considered to be made without reasonable particularity solely because it covers a large number of records,” Neal said. “As (a) general guideline, I advise agencies that when a public agency cannot ascertain what records a requester is seeking, the request likely has not been made with reasonable particularity. I do not believe that to be the case here. ... The newspaper has identified which specific records it seeks.”

While Neal concluded the newspaper had identified the requested records with reasonable particularity, she did give CAB a bit of a break: She did not state anywhere in her opinion that CAB, which has violated the state’s public access laws several times over the past few years, had violated the APRA here by not initially withholding the records.

The Banner contacted Neal by e-mail last week to ask her to clarify her opinion. If CAB’s reason for not providing the e-mails had been insufficient, The Banner wanted to know why she had not concluded that CAB had once again violated the APRA.

“I do not always include an opinion whether I believe the statute was violated,” Neal wrote back to The Banner. “Sometimes it is not as clear cut as that. According to the statute, my duty is to issue an advisory opinion and not necessarily find fault. Here, I thought the best course was to provide advice to instruct the parties how to proceed. I am not sure I would characterize the actions as a violation, especially since the agency believed the request was not reasonably particular and since the agency ultimately decided to provide the records.”

Even before Neal issued her formal opinion last week, Storie had second thoughts about his initial refusals to provide the requested records, and concluded that CAB was unlikely to win on The Banner’s complaint. He told school board members at their Jan. 20 meeting that he believed “we probably need to turn these e-mails over,” and on Jan. 30 he did just that, providing the newspaper with 106 pages of records.

 

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