Indiana’s public access counselor says the Bartholomew County Board of Zoning Appeals did not violate the state’s public records law in a dispute involving written comments made on the WebEx platform during a virtual meeting.
The opinion from Public Access Counselor Luke H. Britt came in response to a complaint filed by Columbus resident Eric DeBusk, who claimed that comments submitted during the meeting and contained in the WebEx platform “should be part of the public record and available to both the board members, as well as the public.”
Last year, DeBusk requested a copy of the comments made on the platform during the board’s Oct. 25 meeting, according to a copy of the original complaint that DeBusk filed.
In response, Stephen Hughes, associate planner at the City of Columbus – Bartholomew County Planning Department, told DeBusk that written comments made on WebEx chat “are not part of the public record, are not seen by the board, are not retained, and therefore are not available,” according to an email dated Nov. 4 that was included in the complaint.
DeBusk filed a complaint six days later, contending that the board’s denial of his request was a violation of Indiana’s public records law, the opinion states. DeBusk further argued in the complaint that the comments are a public record, should be available to the public and the board and that the county is required to retain records of them.
On Nov. 17, the Board filed a response to the complaint with the public access counselor, asserting that the chat feature “is mostly used by members of the public so that they can indicate if they wish to speak during the allotted public comment portion of meetings,” according to the opinion.
During the meeting, the chat is monitored by a designated staff member, who notifies the presiding officer if a member of the public asks to speak, the board told the public access counselor.
“The (board) notes that while meetings held using the WebEx platform can be recorded, the chat contents are not included with that recording,” the opinion states. “This means that the Planning Department is not able to provide the material requested by DeBusk because it does not exist.”
The opinion comes as the COVID-19 pandemic continues to alter the way that the public interacts with local government officials.
In the past, the public could show up and watch public meetings unfold in Bartholomew County and — in most cases — speak about proposals, voice concerns, air grievances, among other things. However, many public meetings in Bartholomew County have largely been limited to livestreaming during the pandemic.
Britt, for his part, stated in the opinion that the rise of virtual public meetings during the pandemic has created “an entirely new set of challenges,” including questions about the extent to which “ancillary information such as chats and metadata” should be retained by local governments.
Normally, local governments in Indiana are not legally required to record public meetings held in-person or virtually, though “the public has the right to observe and record,” the opinion states. But if a local government entity records a meeting, it is required to retain the recording at least until the meeting’s minutes are transcribed and approved.
“Presumably, this would include all the chat detail as well,” the opinion states. “…Therefore, in short, if virtual meetings and associated information is recorded, it becomes a public record subject to disclosure under (the state’s public records law.)”
However, in this case, the chat transcripts during the board’s meeting do not appear to have been recorded, meaning that there were no records for the planning department to turn over to DeBusk, the opinion states.
“Here, it appears that the chat portion of the meeting was not recorded,” Britt states in the opinion. “If there is no documented record, there is nothing to release. Because there is no requirement to record the meeting or the supplemental elements of its proceedings, there is no violation.”
Moving forward, board members said chat contents will be preserved and will ask presiding officers to add to their opening meeting instructions an explanation that comments entered into the chat are not a part of the public hearing and that anyone wishing to make comments to the board needs to request to speak, the opinion states.
