Tuesday, April 21, 2015

Porter County Public Records Request Raises Serious Questions About How Transparent Government Really Is

The FBI has been doing a lot of snooping around in Porter County in the past couple of years. A recent Public Access Counselor opinion leaves us wondering just what officials up there are trying to hide from the public. A Porter Co. council member, Jim Biggs, made a simple request to obtain a copy of the county's contract with CVS Caremark as part of his assignment by the council to review the costs of the county's self-funded health insurance plan. To Biggs' surprise, he was told he could only have access to the contract if he agreed in writing not to share its contents with anyone, including his fellow council members or the public. In particular, Biggs wanted to know how much the contract cost taxpayers and what payments were being made to any agent representing the county. Porter Co. Commissioner John Evans says it has an agreement with CVS Caremark which would expose the county to a lawsuit if it disclosed the company's trade secrets. Biggs disagreed, arguing there were no trade secrets contained in the contract. Incredibly, the state's Public Access Counselor sided with the county commissioners.

According to a Public Access Counselor's opinion dated April 16, 2015, the CVS Caremark contract with Porter County that contained financial information and trade secrets deemed non-disclosable under state law and the county had a right to agree to share a copy of the contract only if Biggs signed a written agreement not to disclose any information deemed non-disclosable under state law. Seriously? Here's what the opinion says:
Caremark is correct Ind. Code §§ 5-14-3-4(a)(4) and (5) does provide financial information and trade secrets are nondisclosable. The question does not appear to be one of substantive trade secret or confidential financial information. The operative issues seems to be whether the Board can force a member of the Council to sign a confidentiality agreement before disclosing sensitive material in an inter-agency records release.
This Office does not oversee internal operations of local government apart from access issues. The exchange of information between a Board and Council of the same political subdivision is largely an internal matter. Concerns about the release of sensitive information may be moot, however, in light of Ind. Code § 5-14-3-6.5 which states A public agency which receives a confidential public record from another public agency shall maintain the confidentiality of the public record. Therefore it may be facially unnecessary, however, given the information does appear to be trade secrets, the Board may wish to ensure the efficacy of section 6.5 by having the other agency sign a confidentiality agreement. If anything, this may serve to maintain the integrity of the relationship between the Board and its vendor. While the attestation may be redundant, it is not prohibited.
It looks like our state and local governments in Indiana are now using exemptions for trade secrets and confidential financial information the way the federal government marks anything it doesn't want the public to know about as matters pertaining to national security as shorthand for keeping the public in the dark. It's absolutely absurd that contracts between government agencies and outside third parties are now being shielded from public disclosure to the point the public cannot found out how much money the contract costs taxpayers or how much is being paid to a third party agent in connection with a health insurance contract.

The Northwest Indiana Times has more on this story here.


Call this guy said...

The Indiana State Personnel Department in-house lawyer wrote the law that protects this info and shepherded it through the legislature as a favor to a vendor.

Anonymous said...

"Incredibly, the state's Public Access Counselor sided with the county commissioners."

You really find this incredible?

Anonymous said...

How is a contract with a public entity this this state not inherently public?

Anonymous said...

Because Public Access Counselor, 8:02.