Open government advocates find victory in Groth decision

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Not much was changed in terms of government transparency when the Indiana Court of Appeals rejected former Gov. Mike Pence’s argument that the Indiana executive branch’s responses to open record requests are exempt from judicial review. But, according to open government advocates, that lack of change is actually a good thing.

After Pence withheld and redacted certain documents in his response to a public records request, Indianapolis attorney William Groth challenged Pence in court, arguing that the public had a right to know what was in those documents, including invoices from Barnes & Thornburg LLP. Pence hired the firm as outside counsel to represent the state in the federal lawsuit State of Texas, et al. v. United States of America.

Pence, who was sworn in as vice president of the United States last week, argued that under Citizens Action Coalition of Indiana v. Koch, 51 N.E.3d 236 (Ind. 2016), his “own determinations” on how to respond to a public records request were exempt from review by the court because such decisions go to the nature of the governor’s core executive duties. But in an opinion released just after the first of the year, an otherwise divided panel of the Indiana Court of Appeals unanimously agreed that the governor’s argument was not legally sound.

The Citizens Action decision concerned protection of legislative “work products,” and Indiana statute does not carve out an equivalent protection at the executive level, the panel of Judges Edward Najam and John Baker and Chief Judge Nancy Vaidik decided in William Groth v. Mike Pence, as Governor of the State of Indiana, 49A04-1605-PL-1116. Further, the panel held that Pence’s “own determinations” regarding the public records request are not part of his core executive functions, but instead address a matter of legitimate public interest.

Gregory Bowes, Groth’s counsel who argued before the appellate panel in November, said he and his client were relieved that the court chose to adopt a narrower interpretation of the Supreme Court’s Citizens Action decision.

Bowes Bowes

“(Citizens Action) had to do with something that was an internal process of the Legislature and you don’t get to expand that to the executive branch, and by extension, all local government,” Bowes said. “That’s an important statement, and when I was briefing the court I said … ‘This is not what the Supreme Court was thinking. They were specifically narrowing this particular decision to the Legislature about a decision that was exclusive to the Legislature.’”

Steve Key, executive director of the Hoosier State Press Association, said if the judges had agreed with Pence’s argument for “executive immunity,” government transparency in the Hoosier state would have been seriously injured. Without the option of a court review of the executive office’s responses, Key said there would be no way for residents to exercise one of their most basic democratic rights — challenging the state’s highest leaders.

But the appellate panel didn’t deliver an entire victory for Bowes, Groth and other transparency advocates. Judges Najam and Baker decided that even though Pence could not claim an executive immunity from judicial review, he was still within his rights to redact and withhold documents, particularly the white paper circulated by the Texas governor’s office detailing the legal theories behind his state’s challenge of a federal executive order on immigration.

groth-timelineThe withheld white paper was a protected communication under the common interest privilege, which is an extension of the traditional attorney-client privilege that protects communications between two or more parties who jointly seek legal counsel on a common legal interest, the majority judges said. In this case, those parties were the states of Indiana and Texas who shared the common interest of a legal opposition to the executive order.

Both Key and Bowes said they understood and even supported the concept of the common interest privilege to protect the rights of litigants who jointly reach out to a third party for help. But Bowes questioned whether such a privilege should exist in his client’s case because he remains unconvinced that the two states actually shared a common interest.

While it is undisputed that both Texas and Indiana opposed the federal executive order, there was no proof that there had been a “meeting of the minds” between Pence’s staff and the staff of Texas Gov. Scott Abbott to create a shared legal interest, Bowes said. He pointed to Vaidik’s dissent on the issue of the white paper, where she argued that a pre-existing agreement between parties is the central, required element of the common interest privilege.

Daniel Hodge, chief of staff to then-Gov.-elect Abbott, circulated the white paper in an email to other gubernatorial chiefs of staff, writing that he was following up on the lawsuit his boss had first mentioned in an earlier governors-only meeting. Vaidik wrote that there was no proof that Pence had attended that meeting or had any prior knowledge of Abbott’s planned legal challenge.

Thus, Vaidik wrote that Hodge’s email could be considered a solicitation and lobbying tool urging other governors who may or may not have had prior knowledge of the suit to join Texas in its legal challenge. Such solicitations, including the white paper, are not protected under the common interest privilege, the chief judge said.

britt-luke-mug Britt

Indiana Public Access Counselor Luke Britt, who reviewed the redacted invoices after Groth filed a complaint with his office before filing the civil case, said he did not look at the unredacted documents in his review. But even without the redacted information, Britt said he did not believe the documents had been overly redacted.

“I know it when I see it,” he said.

In his May 2015 response to Groth’s formal complaint, Britt, tracking closely to Najam and Baker’s argument, held that the “the materials redacted may contain attorney work product and deliberative materials between inter-agency personnel and its designated contractor.” Thus, the public access counselor also said Pence’s response to Groth’s request was appropriate.

Although the majority’s decision on the white paper and redacted documents may have been a battle lost, Key said the decision to reject Pence’s Citizens Action argument was a victory in the fight for government transparency.

But the tide of government transparency in Indiana could shift if Bowes and Groth choose to move their case to its final step, the Indiana Supreme Court, which could either make their victory stronger if the justices order Pence to release all documents, or weaker if the justices disagree with the COA on the Citizens Action issue, Bowes said. The two attorneys are weighing the implications of that decision.

“The pendulum seems to be swinging away from government transparency, and it ought to be swinging toward government transparency,” he said.•


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  1. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith ..

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.