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Friday, March 18, 2016

Ind. Courts - More on: Should lawmakers be required to comply with the state's public records act?

Supplementing yesterday's ILB post on coverage of the oral argument in CAC v. Ind. House Caucus, Megan Banta had this $$ story today in the Bloomington Herald-Times. Some quotes:

Groups that advocate for open government think emails between state lawmakers and lobbyists should be subject to Indiana’s public records law — and they want the state’s Supreme Court to rule that the correspondence doesn’t fall under an exemption in the law.

But oral arguments before that five-member judicial panel on Thursday raised questions as to whether the body can even rule on the matter and what the impact of a ruling either way might be.

At the center of the question is a records request for emails between state Rep. Eric Koch, a Republican from Bedford who represents part of Monroe County, and utility company officials. * * *

Judge James Osborn, a judge in Marion County Superior Court, ruled in August that he couldn’t rule in the case because it would mean interfering in legislative branch operations, something he said he couldn’t do under the separation of powers clause in the Indiana Constitution. The citizen advocacy groups appealed to the state Supreme Court to take up the case against Koch and the Indiana House Republican caucus.

Indiana’s Access to Public Records Act includes an exemption for what’s called “legislative work product.”

But that term isn’t defined, and the law also doesn’t fully exempt members of the Indiana General Assembly.

William Groth, who represents the advocacy groups, said if lawmakers want their emails to be exempt from the law — something the state’s public access counselor has said isn’t a reasonable expectation — they can change the law rather than ask the court to interpret the law as written.

“If the Legislature thinks those conversations should be private, the Legislature can pass an amendment to APRA,” Groth said. “They’re actually trying to get this court to do what they should be doing.”

As it stands, though, Groth argued that not everything state lawmakers do is a legislative act and that the public is entitled to know “who is influencing their lawmakers.”

“If we slam the door of transparency to the public, how is the public going to have confidence in what the Legislature does and know that they’re going to act in their best interest and not the interest of their donors?” Groth asked.

More from the story:

Before they address the question of balancing the public’s right to know with legislative duties and what exactly is subject to the public records law, though, the justices must first determine if they even are able to make a ruling in the case, period.

The Indiana Supreme Court long has ruled that the judicial branch can’t interfere with legislative procedures under the Constitution’s separation of powers clause.

Geoffrey Slaughter, who represents the House Republican caucus, argued that precedent applies in this case. And he argued that it stretches further, as well, to cover every other constitutional office in the state, from governor to statewide elected officials to prosecuting attorneys, when they are performing their core function.

Justice Mark Massa said that essentially would limit the law to administrative offices and the bureaucracy and seemed to favor a ruling not on constitutional grounds, something he said “would do less damage to the APRA.”

And Groth expressed concerns with taking the separation of powers clause that far, as well.

He said he feared it could be applied to other constitutional offices.“I don’t know where it stops,” Groth said.

Groth asked the court to find that the judicial branch can rule in this circumstance without it being an interference and to send the case back down to the lower court.

Posted by Marcia Oddi on March 18, 2016 06:41 PM
Posted to Indiana Courts