Plaintiff presses for release of advisory opinion regarding AG Rokita’s private employment

Declaring Indiana Attorney General Todd Rokita is attempting to use the state’s open records law as both a shield and a sword, an Indianapolis woman is asking a federal court to make public an agency opinion about the top Hoosier lawyer’s private-sector job he kept when he entered elected office.

Barbara Tully has filed a motion for summary judgment in her lawsuit seeking access to the January 2021 opinion from the Indiana Inspector General. Although Rokita’s office said the inspector general found no conflict between his continued employment at a health care company and his official duties as attorney general, the office has refused Tully’s request to see a copy of the opinion.

The attorney general has asserted the opinion fell under the “deliberative material” exception in the Indiana Access to Public Records Act, Indiana Code section 5-14-3-4(b)(6). In her memorandum in support of the summary judgment motion, Tully accused the attorney general of trying to use the state’s open records law according to his own needs.

“(Rokita) previously used it as a sword when his spokesperson publicly claims the OIG opinion completely exonerated him of any violation of the code of ethics governing state employees,” Tully stated in her memorandum. “Just as a criminal defendant may not publicly claim innocence and then seek to avoid giving under-oath testimony by invoking the privilege against self-incrimination, a public official who claims that he has obtained an opinion from the State’s chief ethics officer that completely exonerated him of any unethical conduct should not therefore be permitted to misuse the APRA to shield that opinion from public scrutiny.”

The lawsuit, Barbara Tully v. Theodore (“Todd”) Rokita in his official capacity as Indiana Attorney General, 49D06-2107-PL-025333, was filed in Marion Superior Court in July 2021.

In October, the attorney general’s office asserted the deliberative materials exclusion in its motion to dismiss. Marion Superior Court Judge Kurt Eisgruber denied the motion in a one-page order issued in January 2022 that provided no explanation for the court’s decision.

Rokita had joined Apex Benefits in Indianapolis in February 2019 as a strategic policy advisor and remained with the company even after he was sworn in as attorney general in January 2021. He also held part ownership in the business.

The attorney general’s office told the Indianapolis Business Journal  that Rokita would maintain his private sector business interests even as he executed his job as the state’s top lawyer. Then the office referenced the inspector general’s opinion which concluded Rokita’s interests and private sector employment “are all squarely within the boundaries of the law and do not conflict with his official duties.”

Tully argues that Rokita was wrong to turn to the inspector general. She asserts his decision to seek an “informal advisory opinion” from the inspector general under 42 Indiana Administrative Code 1-8-1 “conflicts with his statutory duty under I.C. section 4-2-6-9(b)(1) to seek an advisory opinion from the (Indiana State Ethics Commission.”

Indiana Public Access Counselor Luke Britt issued an opinion without reviewing the inspector general’s opinion. The counsel found the document Tully wanted was exempt from disclosure because “it could very well contain other recommendations, suggestions, and conclusions that were not disclosed.”

However, Tully argues state statute does not give the inspector general any “specific authority” to classify public records as confidential. Moreover, the inspector general routinely posts on its website its ethics advisory opinions and has never claimed those advisory opinions are exempt under the state’s open records law.

“While the General Assembly in section 4(a)(2) of APRA, I. C. § 5-14-3- 4(a)(2) granted state agencies a tightly circumscribed power to exempt a public record otherwise subject to public inspection under APRA, that power may be exercised only if the agency’s enabling statute specifically authorizes it to classify a particular type of record as confidential,” Tully stated in her memorandum. “… The OIG’s enabling statute … nowhere specifically confers upon the OIG any authority to issue secret advisory ethics opinions at the request of a public officeholder or state employee.”

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