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Wednesday, August 12, 2015

Ind. Gov't. - More on: Marion County judge hears preliminary arguments in House public records case

Updating yesterday's ILB post Katie Heinz of WRTV6 tweeted late last evening:

Katie Heinz (@katieheinz6)
8/11/15, 11:35 PM
Per court records, judge has dismissed lawsuit filed against @INHouseGOP re: alleged violations of IN Access to Public Records Act. @rtv6
Earlier yesterday Chelsea Schneider, now of the Indianapolis Star, had a long story on yesterday's court hearing:
Should the public be entitled to see correspondence between a state lawmaker and companies that lobby him?

Lawyers for House Speaker Brian Bosma, the chamber’s most powerful Republican, are arguing they shouldn’t.

The debate — now in front of a Marion County Superior Court judge — began in January when the Washington, D.C.-based Energy and Policy Institute requested correspondence among state Rep. Eric Koch, a leading lawmaker on energy issues, Duke Energy and Indianapolis Power & Light over a piece of energy legislation. * * *

In April, the energy institute, joined by the Citizens Action Coalition of Indiana and Common Cause of Indiana, filed suit for access to emails, correspondence and documents pertaining to the legislation. Citizens Action Coalition opposed the complex proposal over concerns that it would hinder the expansion of solar energy.

House Republicans are arguing for the dismissal of the lawsuit.

At stake is transparency in government, said Kerwin Olson, executive director of the coalition that represents the interests of Hoosier consumers on energy issues at the Statehouse.

“First and foremost, it’s transparency and accountability and the public knowing what’s going on behind the doors,” Olson said. “Specifically with this request, we believe there’s undue influence from the utility lobby…the utility lobby is so entrenched in the process down there that the House Republican Caucus is trying to identify communications with the utility lobby as a work product and that’s absurd on its face.”

State law specifically exempts the “work product” of individual lawmakers and their staffs from the public records law. The House added a definition of “work product” into their staff handbook, essentially deciding that it encompassed all incoming and outgoing communications, Public Access Counselor Luke Britt said. Britt argues while the “work product” exemption exists, the public records law applies to other General Assembly documents.

Late in this year’s legislative session, lawmakers mounted a last-minute push to rewrite the law to specifically exempt their emails and other documents from being publicly released, but the proposal failed to move forward.

"Ultimately I thought it was inadvisable for us to put legislation together at the last second, despite the appropriateness of it and the need for it," Bosma told The Star in April.

House Republicans retained outside counsel at Taft Stettinius and Hollister to represent Rep. Koch and the caucus. According to an engagement letter, the principal lawyer in the case is charging a $440 hourly rate and a secondary lawyer is charging a $345 rate. Costs are being covered by the House’s budget, according to the letter.

Those lawyers argued at a Tuesday court hearing that a ruling in favor of releasing the records could have implications beyond the energy lobby and force the release of other communications sent by Hoosier constituents to their lawmakers. They want the case dismissed, arguing, in part, policies governing the disclosure of records is an internal function of the General Assembly and the court shouldn’t interfere.

Yet, lawyers for the environmental and citizen advocacy groups said the General Assembly has never successfully changed the public records law to exclude itself, nor do House rules offer a specific exemption.

One of the attorneys, William Groth, argued public disclosure laws don’t put a chill on participation in democracy.

“We can’t imagine lobbyists are going to be chilled from communication with individual members because some of those communications might be subject to disclosure under (the public records law,)” Groth said.

The story concludes:
Public records laws and how they apply to state legislatures vary across the country. In Illinois, records detailing the preparation of legislative documents are exempt if they are preliminary drafts or notes, according to the Reporters Committee for Freedom of the Press. In Kentucky, the legislature isn’t excluded from that state’s public records act.

In Indiana, the House Republican caucus noted a Supreme Court ruling from 1993 to show it wasn’t covered under the public records act. In that case, Britt said the state’s high court declined to insert itself into legislative operations but he argues the case did not address “substantive” public records issues.

“The court did not affirmatively state whether the (public records act) was applicable or not, only that the Supreme Court would not interfere with internal legislative operations,” according to an opinion authored by Britt in March.

The judge in the case, Marion Superior Court Judge James Osborn, said Tuesday he expects to rule quickly on the House Republicans’ request to dismiss the lawsuit.

ILB: Apparently the judge ruled the same evening.

BTW, from Wisconsin stories the ILB reported on earlier in this series, it appears that all communications on legislative drafts in Wisconsin are to be maintained in a drafting file by their legislative agency open to the public after the session.

Posted by Marcia Oddi on August 12, 2015 08:34 AM
Posted to GA and APRA