Public or private? 

In a press conf

In a press conference last Thursday, a coalition of activist groups announced their intention to seek aid from Gov. Frank O"Bannon in releasing all information used in the latest report on the extension of I-69. The data in question is the information assembled by Bernardin, Lochmueller and Associates in the course of creating the Draft Environmental Impact Statement for the extension of I-69 into Southwest Indiana, which includes data on accessibility of the area to other parts of the state. The total cost of the report, according to the coalition, is $9.1 million. The coalition includes the Hoosier Environmental Council, Freedom of Information Indiana, Citizens for Appropriate Rural Roads and the Environmental Law and Policy Center. The coalition is publicly calling for O"Bannon to instruct the Indiana Department of Transportation to release all the data used in the report. In addition, to allow time for analysis of the data, they are asking O"Bannon to extend the public comment period for the draft from Nov. 7 to Dec. 7. Sandra Tokarski of CARR said she expected that if the data were made public and independently analyzed, it would undercut the I-69 extension proposal. "We think it will show that INDOT"s proposed route will not improve access to Southwest Indiana any more than the common sense U.S. 41, I-70 route," Tokarski said. "We wonder, what"s INDOT trying to hide here?" INDOT"s position is that only the draft report itself (distributed via CD and INDOT"s Web site) is public information. Since a private corporation assembled the data, the datasets themselves remain the property of Bernardin, Lochmueller and Associates. In a letter sent to ELPC attorney John Moore Sept. 25 by INDOT"s acting chief legal counsel, William Huff, Huff said, "Any datasets not contained on that CD or on the I-69 Web site are not public records pursuant to Indiana Code 5-14-3-2 because INDOT has not created, received, retained, maintained, used or filed the files you are seeking. Instead, those files are the property of our Contractor." Contacted after the press conference, Huff said, "We were told [by the public access counselor] that it"s the state"s position that these datasets are the property of the contractor, and that INDOT isn"t required to release those documents ... The public access statute only requires the release of documents that are the property of INDOT." The coalition disagrees with this position. "A public document includes any record that was "used" by INDOT," Moore stated. "So they"re saying that this data was not even used by INDOT. This is an amazingly narrow interpretation of the word "used," since INDOT is plainly using the DEIS to decide how to spend millions of dollars of Hoosier taxpayer money. INDOT"s position puts the largely unaccountable private corporation into the driver"s seat, because the corporation gets to decide what goes into the final product Ö The DEIS is full of conclusions, but lacks the explanation for many of those conclusions." When asked if the coalition would be consulting with the state"s public access counselor, Knott replied, "Others have asked already, and the counselor has made it clear to them that the state"s position is to back INDOT on this issue." In the coalition"s statement, Clarke Kahlo of Freedom of Information Indiana said, "It is outrageous for INDOT to claim that data paid for by Hoosier taxpayers - to the tune of $9.1 million - is not available to the very public that paid for it."

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