State official: Indiana University board violated Open Door Law

The Indiana University Board of Trustees violated Indiana’s Open Door Law in Bloomington this summer, a state official has ruled.

Luke H. Britt, the Indiana public access counselor, said the board’s facilities and auxiliaries committee violated the Open Door Law on Aug. 24 when it began — and ended — its meeting before the scheduled start time.

“Someone who is interested in observing the meeting of the Facilities and Auxiliaries Committee is not necessarily expected to sit through the entirety of the Board of Trustees meeting,” Britt wrote. “If an audience member wants to pick and choose which committees to observe and schedule their day accordingly, the law allows them to do so.”

The Open Door Law, passed by the Indiana General Assembly in 1977, was enacted to permit the public access to meetings held by public agencies for the purpose of witnessing government in action and more fully participating in the governmental process.

The Herald-Times on Sept. 1 filed a complaint with Britt’s office because the IU board’s facilities committee on Aug. 24 had finished its meeting about 10 minutes before it was scheduled to begin. The committee discussed, among other items, its $81 million housing project on the site of the former Poplars Building, which IU tore down last year.

The H-T communicated by email with IU spokeswoman Barbara Brosher two days before the meeting seeking details about the project. Brosher replied the best way to get additional information would be to attend the committee meeting two days later. The meetings are not recorded.

IU argued in its response to the H-T complaint that the committee’s start time “was on an agenda for the overall board meeting, which was a loose itinerary for the Board of Trustees’ meeting as a whole.”

Britt didn’t accept that defense. “Tying committee meetings to a more general agenda of a principal governing body is not a concept contemplated by the law,” he wrote in his advisory opinion. “The schedule should remain firm.”

State law requires that a governing body, including committees, of a public agency give public notice of the date, time and place of any meetings, executive sessions, or of any rescheduled or reconvened meeting at least 48 hours before the meeting.

“While it is true that agendas are fungible, public notice requirements have much less flexibility,” Britt said, and quoted part of the Indiana Open Door Law: “Notice has not been given … if a governing body of a public agency convenes a meeting at a time so unreasonably departing from the time stated in its public notice that the public is misled or substantially deprived of the opportunity to attend, observe, and record the meeting.”

Brosher did not immediately reply to an email asking how the university and the board of trustees planned to respond to the access counselor’s ruling.

5 complaints against IU in last 3 years, with university losing 4

Including the H-T’s complaint, the access counselor has received five complaints against IU and its board of trustees in the last three years, with Britt finding against the board or university in four cases:

July 1, 2021: Steve Sanders, associate dean for academic affairs, professor of law and Val Nolan Faculty Fellow, complained that the IU board violated the Open Records Act by disclosing records under the Access to Public Records Act in an unreasonable time. Sanders had asked for records related to the contract extension signed by Michael McRobbie, then-president of IU. About five weeks after Sanders filed the request, IU said it would need another four to six weeks to produce the records, prompting Sanders to file the complaint. Britt ruled IU “did not provide the materials in a reasonable time as required by the Access to Public Records Act.”

Oct. 14, 2021: Sanders complained the university’s board violated the Open Door Law by approving, without a public meeting, an addendum to the previous university president’s employment contract. Britt ruled that the board violated the ODL.

Nov. 1, 2021: Cate Charron, then-reporter with the Indiana Daily Student, complained that IU improperly denied her request for copies of a student’s disciplinary record and a copy of an alleged victim’s Title IX case file. IU had denied access to the records in accordance with the Access to Public Records Act and Family Educational Rights and Privacy Act. Britt ruled the university violated the Access to Public Records Act. “IU has not carried its burden to justify nondisclosure of these disciplinary records,” he wrote.

June 13, 2022: Sanders complained that IU’s board violated the Open Door Law by deciding during an executive session not to recognize a student union. Britt ruled that the board did not violate the law because “the board did not take action at all, but simply affirmed its inaction on the subject.”