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For a second time in two months, the Indiana Supreme Court gave Hoosiers another open records victory by broadly interpreting our rights to obtain government documents under the state’s Access to Public Records Act.
The latest win came April 23 when the court rejected the Family and Social Services Agency’s arguments that a document sought by attorney Robert Saint was exempt from release under the “deliberative materials” exception to the state’s access law.
The document was a legal “white paper” submitted to FSSA by HealthNet Inc. in an attempt to settle how much the health care provider should be reimbursed by Medicaid.
FSSA’s argument against disclosure relied on an earlier decision by the Indiana Court of Appeals, which determined that legal white papers “used” for agency decision-making could legally be withheld.
Essentially, FSSA contended that because it “used” the white paper, that allowed it to qualify as an “intra-agency” document that the agency had the discretion to withhold under the state law.
Establishing the white paper as an “intra-agency” document was one of three conditions the agency had to meet in order to successfully qualify for the “deliberative materials” exception.
The Indiana Supreme Court ruled that FSSA failed to meet that standard, rejecting the argument that the document produced by an outside private contractor (HealthNet) could somehow magically transform into an intra-agency document just because an agency “used’ it in decision-making.
In a common-sense ruling, the court determined that intra-agency documents must be defined as “material that originates from, and is communicated between, employees of the same agency.”
To rule otherwise could have given state agencies the discretion to deny access to just about any document produced for them by an outside contractor.
Such an outcome would have completely contradicted the preamble to the Access to Public Records Act, which calls for the law to be liberally construed in favor of disclosure.
It was that preamble that Justice Mark Massa, who was a journalist before entering law school, cited repeatedly in the supreme court’s written ruling as providing foundational guidance.
The same sort of broad interpretation led the state’s high court to rule in March that state or local government must pay at least a portion of a citizen’s attorney fees even in a court fight in which the citizen only wins access to a portion of the records they were seeking.
A stricter ruling that denied attorney fees could have had a chilling effect on news organizations and everyday residents filing lawsuits to make sure the state’s public access law is enforced.
Thankfully, the broad preamble and other elements of the law saved the day.
Now, if only the Legislature would follow the spirit of the law and give the state’s public access counselor the same sort of broad interpretive powers.
Instead, it voted last year to constrict the access counselor’s advisory interpretations of the Access to Public Records Act, effectively limiting the office’s ability to perform its stated purpose: helping to resolve public records disputes before they turn into lengthy and expensive court battles.
As taxpayers, we’ll all pay the price of the Legislature’s shortsightedness each time the courts rule a government entity wrongly withheld documents from the public.•
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Greg Weaver is editor of The Indiana Lawyer. Reach him at [email protected]
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