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Pence argues email privacy ruling should apply to him, too

April 29, 2016

Gov. Mike Pence is using a recent Indiana Supreme Court decision to argue that he should not be required to release documents that have been deemed by law to be public records.

The Indiana Supreme Court ruled April 19 that it won’t compel lawmakers to release their emails to the public, even though it said the Access to Public Records Act applies to the General Assembly. The court said the separation of powers in the Indiana Constitution means the courts should not tread on lawmakers’ turf.

Now, Pence wants that same logic applied to him.

Indianapolis attorney William Groth sued Pence last year over documents relating to the Republican governor's lawsuit related to illegal immigration. Pence was seeking to overturn an executive order by President Obama that deferred removal of about 4 million illegal immigrants. Seventeen other states also sued.

Groth asked a court to decide whether Pence’s heavy redaction and denial of those records was permissible under the Indiana Access to Public Records Act.

But Pence’s lawyers said last week the court should “decline to interfere in the executive’s internal operations” as it did with the Legislature in the recent case, Citizens Action Coalition of Ind. vs Koch.

“Just as the judiciary should not ‘intermeddle’ with the legislature’s determination of what constitutes its own work product, the judiciary should also not ‘intermeddle’ with the executive’s determination of what constitutes its own work product, deliberative material, or privileged material,” according to the filing submitted by Barnes & Thornburg LLP, which is representing the Governor’s Office.

Groth said his lawyer informed him that the lawsuit was dismissed Friday by the Marion Superior Court. He said the dismissal did not mention the Koch case, so he can’t be sure if Pence’s argument clinched the decision, but that he will likely appeal.

Pence’s lawyers filed their argument in the case on April 22, three days after the Supreme Court ruled in the Koch case.

In the Koch case, Citizens Action Coalition and two other groups the tried to get access to emails between utility companies and Rep. Eric Koch, R-Bedford, who is chairman of the House Energy Committee. The Supreme Court found that determining whether those documents counted under the APRA as legislative work is a “non-justiciable question,” meaning a matter it cannot adjudicate.

In the immigration case, Groth requested the contract the governor entered into with Barnes & Thornburg, who sued for the state instead of Indiana Attorney General Greg Zoeller, as well as copies of firm’s invoices. He also sought emails between the Texas Attorney General, who led the suit, and Pence’s office.

But the documents Groth received back were "heavily redacted,” he said, so he complained to the Public Access Counselor and ultimately filed the suit.

Public access advocates say their fears about the recent Indiana Supreme Court decision are already coming true.

Kerwin Olson, executive director of the Citizens Action Coalition, said he was worried the Supreme Court case would have negative, far-reaching implications, and this appears to be one of them.

“The Pence administration is already citing Koch as an additional authority to deny releasing government documents,” Olson said. "It’s quite astonishing and troubling. It further shuts the door to accountability and transparency in government when we should be going the opposite direction.”

The Pence administration declined to comment on the case because it involved “ongoing litigation."

Groth said the governor’s assertion in the case is ironic given his recent veto of a bill involving the transparency of private university police departments.

Pence said at the time that “limiting access to police records in a situation where private university police departments perform a government function is a disservice to the public and an unnecessary barrier to transparency."

“Less than a month later, he’s seeking to take advantage of the Supreme Court’s ruling to argue that he too should be exempt from complying with open government requirements,” Groth said.

Steve Key, executive director of the Hoosier State Press Association, said the implications of Pence’s request are troubling.

“If the judiciary takes this position, it would eviscerate the Access to Public Records Act because every agency would argue that a judge shouldn’t judge whether a document should be released under an APRA request if the agency’s position is that the record is part of its internal operations,” Key said. “The public’s ability to hold government officials accountable would be greatly hamstrung by such a policy.”

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