Divided COA backs Pence in public records case

January 9, 2017

A divided Indiana Court of Appeals sided with former Indiana Gov. and Vice President-elect Mike Pence in a Monday opinion, writing that Pence was within his discretion to redact and withhold certain documents sought through a public records request.

After Pence decided to add Indiana to the case of State of Texas et al v. United States of America, which challenged a presidential executive order regarding immigration, Indianapolis attorney William Groth filed a request under the Access to Public Records Act seeking documents related to the state’s decision to hire Barnes & Thornburg LLP as outside counsel in the suit.

The governor’s office responded with more than 50 pages of documents, but some of those documents were redacted and a white paper, which was a legal memorandum, was not released. Among the documents was an unredacted email from Daniel Hodge, chief of staff to then-Texas Governor-elect Greg Abbott, which read, in part, “During last week’s meeting, Governor-Elect Abbott promised that we would circulate a white paper outlining the legal theories supporting the State’s legal challenge to the other Governors.” The white paper was attached to the email, but was not released to Groth.

Unsatisfied with Pence’s response, Groth filed a complaint with the Indiana Public Access Counselor, who found that, “The Governor’s Office has provided a proper response … as to why parts of the document were redacted.” Groth then took his case to the Marion Superior Court, which agreed with the public access counselor. He then appealed before the Indiana Court of Appeals in William Groth v. Mike Pence as Governor of the State of Indiana, 49A04-1605-PL-1116.

On appeal, Pence argued that Citizens Action Coalition of Indiana v. Koch, 51 N.E.3d 236 (Ind. 2016), should apply and render the case not justiciable. In that case, the Indiana Supreme Court found that under Indiana Code 5-14-3-4(b), the “work product” of individual members and partisan staff of the General Assembly can be protected from public view. Further, the court held that “determining whether the documents requested by Plaintiffs are excepted under APRA as legislative work product presents a non-justiciable question.”

Using Citizens Action Coalition, Pence argued on appeal that his “own determinations” under APRA are conclusive, so it would violate the doctrine of separation of powers for the judiciary to “second guess” his determinations.

But Judge Edward Najam, writing for the majority Monday, rejected that argument and instead found that, “This case is not a challenge to the Governor’s core executive functions or his constitutional authority” but is “merely (a request) for access to public records that concern a matter of legitimate public interest.” Thus, his argument would render APRA meaningless, and “APRA does not provide for any such absolute privilege,” Najam wrote. Further, the appellate court found that there is no executive branch equivalent to the “work product” exceptions for the legislature.

But Najam also rejected Groth’s argument that the trial court’s decision not to provide a summary of the undisclosed information after it was reviewed in camera violated his due process rights.

“Groth could have requested the trial court to permit him to view the sealed records under a confidential protective order, which the trial court in its discretion may or may not have allowed…but he did not make such a request,” Najam wrote. “He cannot avoid his forfeiture of that opportunity by claiming a due process violation.”

In regard to the white paper, Najam wrote that the document was considered privileged attorney-client communication under the common interest privilege because it “was a communication made to further an ongoing joint enterprise with respect to a common legal interest.”

Further, the appellate court found that Pence was within his discretion to redact the legal invoices because “the redacted information refers to the attorneys’ research and legal opinions, theories, communications, or conclusions with respect to various aspects of litigation involving the State and the Governor.”

Chief Judge Nancy Vaidik concurred in part and dissented in part, writing in a separate opinion that she “dissent(s) from the majority’s conclusion that Governor Pence has met his burden of showing that the white paper is not subject to disclosure.”

Vaidik wrote that in order for common-interest to apply, “parties must first come to an agreement, and documents exchanged before an agreement is reached are not protected from disclosure.” The chief judge further wrote that the email from Hodge was a recruiting or lobbying tool, which would not be protected by the common-interest doctrine.

“Because the record reflects that Hodge emailed the white paper to Governor Pence’s chief of staff in order to lobby or solicit Indiana to join Texas’ legal challenge, and before any sort of agreement between Governor Pence and Texas was reached, I believe that Governor Pence has not met his burden of showing that the white paper is protected from disclosure under APRA,” she wrote. “I would therefore reverse the trial court on this issue and order Governor Pence to produce the white paper.”



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