The hearing is tomorrow, but the Floyd County Health Department is stonewalling about its public access obligations.

Update: Let's see if a formal complaint will do the trick.

It appears that NABC's hearing before the Floyd County Department Board is to occur on Thursday, July 25, at 5:30 p.m. at the department's headquarters bunker on Bono Road. The only reason I know this is that it was relayed to me verbally by the department's attorney via my lawyer.

And yet, as the department's own playbook states:

§ 115.41 APPEALS SECTION.

(A) An operator aggrieved by an order is entitled to a review of the final order before a Hearing Board by filing a written request therefore with the Health Officer (Secretary of the Board of Health; see I.C. 16-20-1-10). The written request must be sent by certified mail or by hand delivery to the Health Officer at 1917 Bono Road, New Albany, Indiana 47150, during regular hours of operation, and must be received within 15 days after the date such order is issued. The written request must set forth with specificity the factual and/or legal grounds for appeal, and only those matters set forth in the written request may be argued before the Hearing Board.

(B) Upon the Health Officer's receipt of such request, the Hearing Board shall hear the matter in an open hearing after at least five-days' written notice of the time, place and nature thereof. The time shall be measured pursuant to the Indiana rules of court. (A shorter period of time for hearing may be requested and granted in the sole discretion of the Chairperson of the Floyd Board of Health, provided that such shorter time must permit compliance with I.C. 5-14-1.5.)

(C) The notice of the hearing date shall be served upon the operator requesting the review by delivering such notice to the address of the bed and breakfast establishment, retail food establishment or temporary food establishment listed on the permit application or by facsimile or to such other address (if within Floyd County), as the operator shall designate in the letter of request to the Health Officer. Such delivery may be made by leaving the notice at the required address or by regular U.S. Mail.

(D) The Hearing Board shall establish the rules of procedure for the hearing and shall advise the operator of the same prior to the start of the proceedings. Such rules shall provide that an order may only be supported, in whole or in part, by a majority decision of the Hearing Board.

(E) Within seven days from the conclusion of the hearing, The Hearing Board shall make written findings of facts and conclusions concerning the final order or determination and shall deliver the same to the operator requesting the review by delivering the same to the address of the bed and breakfast establishment, retail food establishment or temporary food establishment listed on the permit application or by facsimile or by had delivery to such other address (if within Floyd County), as the operator shall designate in the letter of request to the Health Officer. Such delivery may be made by leaving the notice at the required address or by regular U.S. Mail.

(Ord. G-08-14, passed 5-5-2008)

Previously I had designated my home address. I've received no letter from the department -- not at home, and not at either NABC location. The notice is supposed to go to me. What gives?

Interesting, isn't it?

Since the Orwellianism began on June 14, NABC has been expected to comply with a previously unknown, ad hoc "law" compelling us to purchase temporary food serving permits to pour beer from kegs at events for which we've already obtained a permit from the Indiana Alcohol & Tobacco Commission, as conjured by a health department functionary likely basing his or her interpretation on a solitary nebulous word ("drink") that the entirety of Indiana state precedent regards as irrelevant owing to the existence of the ATC and its clearly defined regulatory function ... but when it comes to my request for a hearing, the health department hasn't yet notified me in writing of the date, as its own charter says it must ... and when the topic is my Indiana state public access request for records, nothing has been done for a whole month.

June 22: Roger has issued a Indiana Public Access request to the Floyd County Health Department.

June 27: My note to the Indiana Public Access Counselor, informing the office of my request of the Floyd County Health Department.

Looks like a return e-mail to the public access counselor is merited. Here's what he had to say back on June 27:

At this point, the (Health) Department is required to produce all records responsive to your request, minus any applicable exceptions, within a reasonable period of time. See IC 5-14-3-3(b). The public access counselor has stated that among the factors to be considered in determining if the requirements of section 3(b) have been met include, the nature of the requests (whether they are broad or narrow), how old the records are, and whether the records must be reviewed and redacted prior to disclosure. The APRA requires an agency to separate and/or redact confidential information in public records before making the disclosable information available for inspection and copying. See I.C. § 5-14-3-6(a). Section 7 of the APRA requires a public agency to regulate any material interference with the regular discharge of the functions or duties of the public agency or public employees. See I.C. § 5-14-3-7(a).

However, Section 7 does not operate to deny to any person the rights secured by Section 3 of the Access to Public Records Act. See I.C. § 5-14-3-7(c). The ultimate burden lies with the public agency to show the time period for producing documents is reasonable. See Opinion of the Public Access Counselor 02-FC-45. This office has often suggested a public agency make portions of a response available from time to time when a large number of documents are being reviewed for disclosure. See Opinions of the Public Access Counselor 06-FC-184; 08-FC-56; 11-FC-172. Further nothing in the APRA indicates that a public agency’s failure to provide “instant access” to the requested records constitutes a denial of access.

And here's what I wrote to him today. :

Dear Joe,

Here's a status report.

Attached is the only comment I've received to date from the Floyd County Health Department as to my request for public records. It's been just shy of a month.

In fact, it will be month tomorrow since the response letter from Dr. Tom Harris was dated, and perhaps not coincidentally, tomorrow (July 25) is NABC's appeal hearing before the department's board -- the very hearing for which I need the public access records in order to help make our case.

It's fairly obvious that the health department is evading its obligations,
as you outlined previously.

What's my next step?

Thanks you for your assistance,

Roger

What are the odds that as we enter the board room on Thursday, we'll be handed a stack of records?

Can this sham get any more ridiculous?