Supreme Court rehearing sought in lawmaker email fight

May 19, 2016

The battle over legislators’ emails continues as the groups fighting to make public the correspondence between a Republican Representative and lobbyists filed for a rehearing with the Indiana Supreme Court.

In an April 19, 2016, ruling, the Supreme Court ruled in favor of the Indiana General Assembly in Citizen Action Coalition of Indiana, et al. v Eric Koch, et al., 49S00-1510-PL-00607. The majority found the Access to Public Records Act applies to the Legislature but the constitutional separation of powers prevented the court from determining whether the documents requested fell under the work product exception.

Resolving the dispute, the justices held, would be invading into a core function of the legislative branch.

The Energy and Policy Institute, Citizens Action Coalition and Common Cause Indiana on Thursday filed a petition for rehearing. In their original lawsuit, the groups asked the court order Koch, chair of the Indiana House Utilities, Energy and Telecommunications Committee, and the lobbyists representing electric utility monopolies to publicly disclose their emails. The correspondence related to House Bill 1320, a measure addressing solar energy and net-metering that Koch introduced in the 2015 legislative session.

In their petition for a rehearing, the nonprofits argued that not even reviewing the correspondence before ruling, the Supreme Court does not provide any reason for its conclusion that these documents are part of a core legislative function. The petition asserted, “Deciding what constitutes work product under a public transparency statute the legislature passed and applied to itself does not intrude on any legislative prerogative or policy choice and is nothing more than the traditional judicial function of construing and applying a statute.

“Contrary to the Court’s assumption, not everything the legislature does is or relates to a ‘core legislative function.’ Some of its actions are purely ‘political’ or have nothing whatsoever to do with legislating.”

In addition, the petition maintained that Supreme Court’s decision would make all of the Legislature’s activities off limits to judicial oversight and would give the Statehouse permission to conduct all its affairs outside of public view.

“While APRA gives public agencies the discretion not to disclose ‘work product,’ this Court’s opinion gives the legislature the unfettered, unreviewable right to classify both incoming and outgoing communications as ‘work product’ and thus to keep it secret from the public,” the petition argued.

The Energy and Policy Institute had made three requests to Koch for his correspondence with various business and lobbying groups regarding HB 1320. Each time the Republican House Caucus denied the requests and asserted the APRA did not apply to the Indiana General Assembly.

After the Indiana Public Access Counselor found the emails were public record, the Institute along with the Citizens Action and Common Cause filed a complaint against Koch and the caucus in Marion Superior Court.

The trial court dismissed the lawsuit and the majority of the Supreme Court affirmed. Justice Robert Rucker concurred in part and dissented in part.

In announcing the filing for a rehearing, Kerwin Olson, executive director of Citizens Action Coalition, said, “Leaving the decision of whether or not emails and other correspondence between paid lobbyists and politicians should be public or not up to the very politicians who have been denying access to documents all along is ludicrous when considering the enormous amounts of cash those lobbyists feed our legislators every single year.”

Accompanying the petition, the Indiana Professional Chapter of the Society of Professional Journalists and the Indiana Associated Press Media Editors filed an amicus brief supporting the request for a rehearing. 

“The Ruling – to the extent it is based on the notion that the General Assembly is better suited to determine the applicability of APRA exemptions – is an erroneous legal determination and bad policy,” the amicus brief stated. “The purpose of the APRA is to ensure government transparency at all levels of state government. To permit a branch of government the unfettered and unreviewable power to decide what records it will provide not only denies transparency, but the very hope of transparency.”


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