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.
“(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.
The 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.
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.•