The Indiana Public Access Counselor disagrees with the Monroe County Public Library's (MCPL) private attorney, who says the nature of his work for the public institution is not subject to citizen or media scrutiny.
In response to a complaint from The Bloomington Alternative, Public Access Counselor Heather Neal said invoices from attorney Tom Bunger do not qualify as "attorney work product" under the Indiana Access to Public Records Act (APRA) and therefore are not exempt from public disclosure.
At the board's Feb. 20 meeting, Library Director Sara Laughlin denied for the second time a request from the Alternative for detailed records of the library's expenditures for outside legal representation, including the attorneys' names, the amounts paid, the dates and accountings of the services provided.
"He has advised me that that is covered by attorney-client privilege," she said. Laughlin had previously denied the same request via e-mail, again citing Bunger's same rationale.
When asked at the meeting for his opinion, Bunger said of the information requested, "That's between the client and the attorney."
The dispute over legal expenses followed a contentious library board work session, at which Trustee Randy Paul vowed to resist efforts to silence his public disagreements with the rest of the board.
After board President John Walsh opened discussion on a proposed "Board Member Ethics" policy, Paul read a statement defending his right to publicly oppose board actions he disagrees with.
Among other provisions, the ethics policy would require board members to "respect and support the majority decisions of the board."
Paul noted that after he had publicly criticized the former library director and spoke out against other board policies last summer, a move to have his appointment rescinded by the Monroe County Community School Corp. faltered in the face of public opposition. Paul is a school board appointee.
"In the end, the recall effort fizzled out after Superintendent (James) Harvey received 50 or 60 e-mails from concerned citizens who were quite upset about the removal of a trustee because they were speaking out on board policy," Paul said. "I fully realized at the time that those e-mails were not about me but the importance of preserving one of our most precious rights, that being free speech."
Board member Fred Risinger said he was angered after hearing Paul on the radio expressing opposition to a planned Feb. 13 executive session on collective bargaining. After Paul took his case to WFIU's Adam Regusea, Risinger said he considered asking the board to "censure" him.
"I didn't want to do it, and I'm not going to do it," Risinger said. But he didn't appreciate the implication that the board was holding secret meetings.
"I felt accused," he said, "and I didn't like it."
But Paul said executive sessions are in fact "secret meetings" and that he believes to his "core" that the one Walsh had planned was illegal.
He argued the board cannot meet behind closed doors for purposes of "collective bargaining" when the library union has yet to be formed. Laughlin reported at the regular meeting that a date for the library union vote was tentatively set for April 22 and that negotiations were ongoing.
Paul further argued that the law forbids participants in executive sessions from speaking publicly about what happens in them.
"Anything we talked about on the union could not leave that room," Paul said, challenging his fellow board members to explain what they have to say about the union that can't be said publicly. "That is a secret meeting. That is a meeting the public is not invited to, and more importantly, none of us can talk about it. It is totally secret."
He noted that the proposed ethics policy has been cited repeatedly by current and former board members when he spoke out in public.
"Every single time I have broken with this board and spoken out I have been referred to that ethics page," he said. "Every, single time."
The board took no action on the ethics policy at either the work session or the regular meeting.
Public Access Counselor Neal took less than four hours to issue an "informal opinion" in response to the Alternative's complaint. She included a copy of a September 2007 opinion she issued on an APRA case with similar issues in Bartholomew County.
Echoing Paul's arguments that hiding information from the public was "antidemocratic," Neal cited APRA: "Providing persons with information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information."
Her arguments that attorney invoices are public record under APRA rested largely on a 2005 Indiana Appeals Court ruling, Knightstown Banner v. Town of Knightstown, in which attorneys representing a public agency claimed their invoices were protected from public disclosure because they are "attorney-client confidential communications."
Neal acknowledged that "communications between attorneys and their clients are confidential by statute in Indiana." But she cited her predecessor, Anne Mullin O'Connor, who had argued, "It is difficult to conceive of an invoice containing only confidential communication."
While "attorney work products" are exempted from public disclosure by APRA, Neal wrote, a work product is defined as "information compiled by an attorney in reasonable anticipation of litigation. ... I do not believe invoices fall under the definition of attorney work product for purposes of the APRA."
Laughlin responded to Neal's conclusion in a Feb. 22 e-mail.
"I just reached Tom Bunger, and he needs to check with the public access counselor, so probably won't get that done till Monday," she wrote. "... I am going through the invoices and redacting the few instances where personnel privacy needs to be protected, so I can turn them over to you quickly if I get the OK."
Steven Higgs can be reached at .