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Republican push would strictly limit public access counselor’s review authority
Sen. Aaron Freeman, R-Indianapolis, speaks during an Appropriations Committee meeting in February 2024. (Credit: Mark Curry)
The scope of what Indiana’s public access counselor could consider in reviewing open government matters would be strictly limited under provisions added to legislation in the closing days of the legislative session.
Amendments that a Senate committee made this week to House Bill 1338 would also reduce the office’s independence by eliminating the four-year term the access counselor has after being appointed by the governor.
The Legislature in 1999 established the access counselor position to review questions from the public, government officials and others about the state’s open meetings and public records laws.
The public access counselor’s office, with two attorneys and one other staff member, issues dozens of advisory opinions each year but has no authority to enforce the access laws or punish violators.
Advocate says amendment ‘guts’ counselor’s authority
Sen. Aaron Freeman, R-Indianapolis, offered the amendment allowing the access counselor’s advisory opinions to consider only “the public access laws, as plainly written,” and “valid opinions of Indiana courts.”
Freeman, chair of the Senate Corrections and Criminal Law Committee, expressed frustration with Public Access Counselor Luke Britt’s opinions without giving specifics during the Tuesday meeting when the provision was added.
“The public access counselor, it says that he, in this case, shall liberally construe the code,” Freeman said. “He’s issued some opinions that I vehemently disagree with and I think others in our body and in this building vehemently disagree with.”
The amendment “functionally guts” the access counselor’s ability to consider the context of a situation unless it has been directly addressed by the Legislature or court, said Amelia McClure, executive director of the Hoosier State Press Association.
“The code can never contemplate all of the different circumstances that public access concerns are going to arise,” McClure said. “So the public access counselor has to consider new technologies, what location, the circumstances of the conversation in a way that a civil code will never be able to contemplate.”
Britt was appointed access counselor in 2013 by then-Gov. Mike Pence and reappointed by Gov. Eric Holcomb in 2017 and 2021.
Britt, whose current term runs until Oct. 31, 2025, declined to comment to State Affairs on Freeman’s amendments. The governor’s office didn’t immediately reply Thursday to a request for comment.
The restrictions on the access counselor’s office were not raised during the first seven weeks of this year’s legislative session and became public only two days before the Senate committee’s deadline to take action.
Public access counselor’s role at issue
Some conservatives criticized an opinion Britt released last fall in which he concluded the Hamilton East Public Library Board in Fishers violated the open meetings law when two board members met with their attorneys at a coffee shop.
That opinion came amid public debate over a push by conservative members of that board to review all youth-section books and move those with “inappropriate” content to adult sections.
The opening section of Indiana’s public records law states it should be “liberally construed to implement this policy and place the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record.”
Freeman said during the committee meeting that he favored striking the “liberally construed” phrase from the law, but other senators thought that went too far.
The amendment limiting the access counselor’s authority was added to the bill on a 5-3 vote as Democratic Sen. Greg Taylor joined Freeman and other Republicans Mike Bohacek, Cyndi Carrasco and Eric Koch. Republicans Liz Brown and Sue Glick and Democrat Rodney Pol voted against the amendment.
Glick said the restriction on what the access counselor could consider didn’t make sense.
“You’re paying an attorney for their opinion, and now you’re limiting that,” Glick said.
Change would eliminate term of office
Freeman also advocated for an amendment eliminating the access counselor’s four-year term and making the position one that serves “at the pleasure of the governor.”
“When we have a new governor … I believe the governor should be able to pick the person that they’re choosing to serve,” Freeman said. “As any other appointed office, we serve at the privilege of the governor. So I believe this should be no different.”
Those people appointed to lead state departments can typically be removed at the governor’s discretion. However, hundreds of appointments to state boards and other positions, such as the state Election Division’s co-directors, are made for set terms.
McClure, the Hoosier State Press Association’s director, said eliminating the four-year term would take away some of the office’s independence from political concerns.
“That’s important when it’s an advisory opinion that’s interpreting actions of all kinds of different bodies that have all kinds of different political affiliations,” McClure said.
The full bill, which initially focused only on allowing local government boards to establish meeting decorum rules, could be taken up by the full Senate next week. The additions would still also need approval from the House before this year’s legislative session ends by March 14.
Tom Davies is a Statehouse reporter for State Affairs Pro Indiana. Reach him at [email protected] or on X at @TomDaviesIND.
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How McCormick, Braun view abortion, taxes and other key issues
A Democrat-turned-Republican and Republican-turned-Democrat will soon face off in the race to become Indiana’s next governor.
Sen. Mike Braun, who voted as a Democrat prior to 2012, captured the Republican nomination in Tuesday’s primary. Jennifer McCormick, formerly a Republican Superintendent of Public Instruction, will represent the Democrats.
Voters will decide the state’s next chief executive in November.
A State Affairs analysis of the candidates’ campaign platforms and public statements found key differences — and a few similarities — in their planned approaches to a variety of issues impacting Hoosier voters.
Here is how they match up.
Abortion
Braun: As a senator, Braun has long supported abortion restrictions.
In 2020, he called for the Supreme Court to re-examine Roe v. Wade.
In 2023, he proposed federal legislation that would have required parental notification before any unemancipated minor could seek an abortion. He said at the time: “Hoosiers put their trust in me to stand up for the unborn, and that’s what I’ve been proud to do every day in the Senate.”
He has since signaled support for the state’s abortion ban. His platform reads: “State lawmakers must work to ensure the gains we have made to protect life are secured and strengthened.”
McCormick: In a Tuesday interview with State Affairs, McCormick said her candidacy represented a referendum on reproductive rights.
“I’m going to fight to restore those rights under any authority I can, working in a bipartisan fashion, using our committees, board and our agencies. I also know, too, what everybody’s fear is: that they’re [Republicans] not going to restore those rights and will take [restrictions] further.”
From her platform: “Indiana’s Republican-led extreme abortion ban has taken away the right of women to make deeply personal decisions regarding their own health care.”
Marijuana
Braun: At a March 26 Republican primary debate, Braun suggested an openness to legalizing medicinal marijuana.
“It’s gonna hit all of us. I’m gonna listen to law enforcement — they have to put up with the brunt of it,” he said. “Medical marijuana is where I think the case is best made that maybe something needs to change. But I’ll take my cue from law enforcement there as well. … I hear a lot of input where [medical marijuana is] helpful, and I think that you need to listen and see what makes sense.”
McCormick: The Democrat’s platform also addresses medical marijuana legalization, while speculating on possible recreational use.
“We will fight for the legalization of medical marijuana as a source of state revenue established on a well-regulated marketplace and monitored by a Cannabis Task Force in order to study the issues, opportunities and potential obstructions associated with recreational marijuana legalization.”
McCormick said she would also support expunging low-level marijuana-related convictions.
Taxes
Braun: At a March 19 National Federation of Independent Business forum, Braun said the state’s property tax system “went out of whack because it couldn’t respond to inflation like we’ve never seen before.”
“The way you finance any lower taxes would be to bank on the government being run more efficiently,” he said.
His platform also calls for government spending cuts to finance lower taxes: “Reducing the size of government is the key to cutting taxes, and Mike Braun will work through every state agency to find ways to save money while delivering high-quality services to taxpayers.”
McCormick: McCormick also spoke about taxes at the March 19 forum.
“I agree with a revamp of our taxing system,” she said. “But also it’s about not just how we’re getting our revenue, it’s about our expenditures. Yes, we need to fix our gas tax. Yes, we need to look at the income tax. But here’s the thing: There are hidden taxes we’re not having a conversation about.”
Her platform also references the possibility of combining state agencies as a way to save money.
Education
Braun: In his platform, Braun supports broadening school choice and parental rights.
“As a former school board member, Mike Braun knows parents are the primary stakeholders in their children’s education and every family, regardless of income or zip code, should be able to enroll in a school of their choice and pursue a curriculum that prepares them for a career, college or the military,” the platform reads.
Braun also pledged to ensure critical race theory and discussions about gender are banned in public schools.
McCormick: Education is one of McCormick’s primary issues, according to her platform.
She calls for the elimination of statewide testing, increased early childhood reading and child care options and a minimum base salary of $60,000 for all K-12 teachers.
McCormick also addresses the state’s school choice movement.
“We will call for a pause in the expansion of school privatization efforts while requiring fiscal and academic accountability and transparency for all of Indiana schools that receive public tax dollars,” her platform reads.
U.S.-Mexico border
Braun: Braun’s television ads have touched on border security, and his platform calls for increased focus on the area.
“Joe Biden and the left have created a humanitarian and national security crisis on our southern border,” the platform reads. “As governor, Mike will continue to support and enact the America First policies that were working. Otherwise, every town will become a border town.”
McCormick: McCormick’s border-related plans are more focused on facilitating legal immigration.
“We will work with local, state and federal officials in supporting an immigrant system that creates a safe, timely, orderly and humane pathway for those seeking legal immigration while keeping our communities and those responsible for border security safe,” her platform reads.
Contact Rory Appleton on X at @roryehappleton or email him at [email protected].
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