03/27/2009 - IDEM calendar complaint rejected (Gary Post-Tribune)

IDEM calendar complaint rejected

By Gitte Laasby
Post-Tribune staff writer

MERRILLVILLE -- Indiana law does not allow the public to access officials' calendars and meeting schedules.

On that basis, Indiana Public Access Counselor Heather Neal rejected a complaint by the Post-Tribune that the Indiana Department of Environmental Management refused to release copies of electronic calendars. The calendars show when IDEM officials met with BP officials regarding the company's air permit.

An Indiana Court of Appeals ruling from 1998 and two previous public access counselor opinions stated that calendars are not subject to disclosure because they are the equivalent of a diary or journal.

The Post-Tribune had argued that the calendars in question are more like a message board than a diary or journal because they are electronic and because dozens of people access them and make changes to them. The public access counselor disagreed.

"I am not persuaded that the features of (the program) Microsoft Outlook make the employee calendars different" than the calendars in the other cases, Neal wrote in an unofficial opinion letter to the Post-Tribune on Thursday.

"It is my understanding that each of those employees would need to be authorized to view the calendar (i.e. issued a user identification and password by the state). It is also possible for a user to mark information maintained in the Outlook calendar as private. In other words, the user is able to share certain information and maintain other information as private."

As a result, IDEM has the discretion to withhold the calendar from disclosure, Neal wrote.

She did not address whether the calendars in question were marked as private.

Hoosier State Press Association General Counsel Steve Key said the opinion makes it more difficult for the public to hold a taxpayer-funded agency accountable for what it does.

"Obviously it makes it more difficult for the public to be able to determine answers to questions such as, who's meeting with whom, how much time has been spent on this particular subject matter or another," Key said. "It has expanded the journal or diary exception beyond what I believe was the original intent. (But) the access counselor is stuck with the case law that's there. The public access counselor isn't charged or directed to give their opinion as far as what the law should be, but what the law is."