Greg Weaver: A chat with Indiana’s new public access counselor

For the first time in more than a decade, Indiana has a new public access counselor.

Attorney Jennifer Ruby, who has had a private solo practice for the past 20 years, has taken on the role after Luke Britt left the position in February after 12 years on the job.

The job’s role is to provide guidance and advice to citizens and government agencies on the state’s public records and open meeting laws. The office also issues non-binding advisory opinions that sometimes resolve disputes between the public and the government on public access issues so they don’t turn into expensive court battles.

Last year, the Legislature put some new limits on the access counselor’s role, passing legislation that says the office can only consider the law’s “plain text” and official court orders when writing advisory opinions. The preamble to the Access to Public Records Act, however, says the law should be interpreted broadly.

I asked Ruby about how the Legislature’s recent move might restrict her work and generally about her experience with the state’s public access laws. Here’s a condensed version of our conversation, edited for brevity and clarity.

Tell me about your experience with public access laws and public records.

When I was first employed by the (Indiana Department of Environmental Management) I worked in hazardous waste management, and I did facility permits. Part of my job was to be a permit manager, and I had a quadrant of the state where I handled all the facilities permits … We would take public comments, hold a public hearing, do all the public noticing, and take all the public comments. You would listen to the public comments and you would take them down, you would record them, you’d make sure they were part of the public record and then if people would call in or want information, then we would be responsible for giving them that information.

I’ve also been on (the Marion County-Indianapolis Information Technology Board) where you have to make sure you’re following all the rules for open door and that all the meeting minutes or the memorandum are taken and that they’re made available to the public. And that if you have an executive session…that you’re following all the rules.

So I’ve kind of been on both sides of it. Now I’m in a place where I’m not necessarily fulfilling the request, but I may be trying to help people get their documents or I may be writing an opinion that explains that either the agency was in compliance or they weren’t in compliance.

What sparked your interest in the public access counselor job?

I’ve had my own (law) firm for 20 years. And, as most lawyers know, there’s a lot that goes along with that. There’s the administrative, there’s the actual work, there’s the getting of the clients, there’s the collecting the money. There’s a whole lot involved in it. And although I really appreciated all that and I appreciate all of my clients, I really missed public service. I miss doing the work for the work’s sake and not worrying about “did I track billing correctly, am I gonna get reimbursed?” and all that kind of stuff.

I like doing a good job and so this is a place where you can do a good job, you can feel good about what you did, and you provide a public service. And so there’s a lot to feel good about there and, I really wanted to get back to public service. … It’s an important position because we want to make sure that our laws and rules and our work is transparent to the extent that it can be, you know, to the extent that confidentiality isn’t an issue or there’s investigative information or personal financial information. There are things that we cannot (disclose), that we have to be careful about still. … But to the extent that we’re allowed to, this is the public’s work, the public’s business, and we need to make sure that the public is aware or has access to the documents.

Tell me about the kind of work you did in your solo practice.

I tried to stay away from litigation, so I mostly did estate planning, probate, and small business advising, contract, contract review, advising clients on different information, helping people get through their estate planning and helping them get through the probate process. And, as much as possible, I tried to avoid litigation. I got my civil mediation certification, and so I tried to do mediation if at all possible.

In your new job, I’m wondering how you plan to balance the call in the preamble to the Access to Public Records Act for it to be broadly interpreted with Legislature’s call for your office to restrict its opinions to the law’s “plain text” and official court orders. How do you balance those two things and at the same time provide proper guidance?

Legal work really is interpretation of the law, and this position as far as I’m concerned shouldn’t really be an advocate other than generally making sure that we’re transparent, as transparent as possible. But this position shouldn’t advocate. So it should be fulfilling the rules and calling balls and strikes where people are doing the things that they’re supposed to be doing or they’re not doing it just right. There’s considerable statutory and case law out there related to public access. And so I’m not yet sure how it will be confining to me, if that makes sense, because this position should be neutral. It should be OK for a Republican or a Democrat to be in the position and to work with Democrats and Republicans. So it shouldn’t be partisan. It should be looking at the law and making sure the public has the access that they’re supposed to have. Because, like I said, there’s lots out there in case law and statutory law listing out what’s confidential, what’s deliberative, what is investigatory, what are the discretionary areas.

I’m getting the sense that you feel that there is enough case law out there that you might not be confined by the Legislature’s changes?

Have you read very many of the advisory opinions? …When they talk about costs and what people are allowed to pay in order to get their records, it’s like 11 cents a page, and it’s been 11 cents a page for a very long time, and there are numerous advisory opinions that restate this over and over again. So a lot of what I’m gonna be doing is looking within the statutes, looking within the advisory opinions. Occasionally, there will be new case law and occasionally there will be new statutory provisions. The last legislative session expanded what is allowable for executive sessions, so we’re gonna have to continue to work with that. But I think there’s still a lot of room there. I mean, there have been changes with this office, but the work continues.

What kind of guidance have you received from the governor’s office as you were appointed to this role?

I wasn’t given any specific guidance. I mean I was (selected) by Lisa Hirshman (secretary of management and budget under Gov. Mike Braun), and it was a very fun interview and I enjoyed chatting with her. And because of my background, there were a lot of different places that she could consider putting me, but the main position that I was there to talk to her about was this public access counselor position. At the time we knew that Luke would be leaving…and that they needed to fulfill and get somebody in this position that they thought could do a good job. And because of my background, they decided that I was that person.

Do you have anything else you would like to share about your new role?

It’s been a lot of work, but I am happy to be back in government service. I think I can bring a lot of skills to this. I’m trying to get the office organized so that we can get through the backlog as quickly as possible, and we can do it in an efficient and effective manner so that people get the information that they need.

I am looking forward to getting more staff so that we can get through this a lot faster. Because I’m doing a lot of administrative work when, as a lawyer, I would like to be working on some of the deeper issues. One of the things I did get to do today is I did get to do my first Zoom presentation as the public access counselor. I’ve got requests from inside the different departments and agencies who want me to come and give them a refresher on what the public access counselor does, what the open door law is, what APRA is, because they’re gonna be fulfilling those requests and we’ve got a lot of new staff.•

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Greg Weaver is editor of The Indiana Lawyer. Reach him at [email protected]