Pence attorney argues public-records law shouldn’t apply to emails

An attorney for Gov. Mike Pence argued Monday that Indiana’s Access to Public Records Act should not apply to a governor’s emails, prompting the plaintiff seeking those records to call the position chilling and reminiscent of the administration of President Richard Nixon.

“This is about transparency,” attorney William Groth said after the Indiana Court of Appeals heard arguments in a suit he filed after records he sought in an APRA request from Pence’s office were redacted. As a private citizen, Groth sought records of now-Vice President-elect Pence’s emails with Texas officials concerning a Texas lawsuit that Indiana joined opposing President Barack Obama’s immigration actions. The challenge to Obama’s actions ended in a 4-4 deadlock at the U.S. Supreme Court.

When the Pence emails were provided, the fees the state paid to Barnes & Thornburg LLP for legal fees in the matter were redacted, as was a white paper on the matter drafted by Texas officials. A Marion Superior Court ruling found Pence had complied with the Access to Public Records Act, as did the Indiana public access counselor.

Representing Pence, Barnes & Thornburg partner Joseph Chapelle argued that APRA doesn’t allow inquiry into a governor’s “personal papers.” But in answer to questioning from a panel judge, he said he could identify nothing in APRA that exempts a governor from disclosure of records that the law describes as public.

Representing Groth, attorney Gregory Bowes noted that when Pence vetoed a bill that would have exempted private university police from APRA, the governor said, “Hoosiers may be assured that my administration will always be vigilant to preserve government accountability and the public’s right to know.”
But Pence also has argued that a Supreme Court case that shielded lawmakers’ emails from public disclosure, Citizens Action Coalition of Ind. v. Koch, 51 N.E.3d 236 (Ind. 2016), should apply to his communications as governor.

Chapelle said that even if APRA did apply to Pence, he could claim that the materials were exempt from disclosure due to attorney-client privilege, as work product, or under the deliberative process exemption in the law.

Bowes countered that there was no attorney-client relationship between Pence and the Texas officials and that the other exemptions under APRA only exempt records dealing with interaction with other state agencies. He also said the information requested are facts, not legal opinions or strategy.

Court of Appeals panelists for the case, William Groth v. Mike Pence, 49A04-1605-PL-1116, are judges John Baker, Edward Najam and Chief Judge Nancy Vaidik.

Read more about this case in the Nov. 30 issue of Indiana Lawyer.

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