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Tuesday, April 19, 2016

Ind. Decisions - Reactions to CAC v. Koch decision re legislative emails [Updated at 5:15 PM]

With respect to the CAC v. Koch decision issued earlier today by the Supreme Court, here are some reactions.

Joint Statement of CAC, Common Cause and the Energy and Policy Institute:

We completely agree with the Indiana Supreme Court's conclusion that the General Assembly is subject to the Access to Public Records Act, and that the trial court erred in holding otherwise -- and that is a victory for the citizens of Indiana. However, Justice Rucker is exactly correct that the majority, in holding that APRA’s “work product” exception applies to all emails sent to or received by state legislators, has deprived us (and for that matter any other citizens who might be interested in reviewing legislative communications) of any opportunity to make arguments that the work product exception is inapplicable to any and all legislative communications. As Justice Rucker aptly put it: “The majority’s ruling is not only premature, but it unfortunately weighs in on a significant separation of powers issue without an adequate record.”

The Supreme Court unfortunately has effectively slammed shut the door of transparency that the passage of APRA several decades ago had opened. It is indeed a sad day for those who advocate for open and transparent State government in Indiana, and for all citizens who believe that government is the servant of the people rather than vice versa. It is now up to the General Assembly to remedy this blow against transparency by making clear it will honor the promise of open government contained in APRA’s preamble despite the license the Court has just given the General Assembly to keep the public in the dark about its communications with lobbyists. Until it does, it is open to fair criticism that its passage of APRA was little more than a fraud perpetrated on the people of Indiana.

Here is Niki Kelly's story this afternoon in the Fort Wayne Journal Gazette. Some quotes:
INDIANAPOLIS - The Indiana Supreme Court ruled Tuesday the legislature is governed by the Indiana Access to Public Records Act but declined to force lawmakers to follow it.

That's the upshot of a 4-1 decision that found it is up to the General Assembly to determine what counts as its own work product.

"Since the General Assembly and its members constitute a "public agency," the statute itself expressly reserves to the General Assembly the discretion to disclose or not to disclose its work product," the decision said. "We are not inclined to make determinations that may interfere with the General Assembly’s exercise of discretion under APRA."

Though "work product" is not defined under the law, the Indiana House and Senate have language in employee handbooks that essentially says it covers any and all communications of any kind for individual members and partisan staff. * * *

Justice Robert Rucker dissented in the case, saying his colleagues went too far in the ruling.

"The glaring problem here however is that neither before the trial court, nor indeed even before this Court, did the parties address the merits of this work product exemption," he said. "And importantly, in responding to Plaintiffs’ complaint Defendants never alleged a work product exemption or asserted 'emails, draft records, notes, minutes, scheduling records, text messages, and all other correspondence or records' fall within the exemption umbrella."

The groups that sued issued a joint statement saying the Supreme Court "has effectively slammed shut the door of transparency that the passage of APRA several decades ago had opened. It is indeed a sad day for those who advocate for open and transparent state government in Indiana, and for all citizens who believe that government is the servant of the people rather than vice versa," the groups said in a joint statement."

The plaintiffs encouraged the General Assembly to address the blow against transparency.

"Until it does, it is open to fair criticism that its passage of APRA was little more than a fraud perpetrated on the people of Indiana," the statement said.

House Speaker Brian Bosma and Senate President Pro Tem David Long fought the lawsuit to protect Hoosiers who regularly send private information to their legislators that should not be public.

"Today's decision is a win for Hoosiers who reach out in confidence to their legislators for help," Bosma said. "Constituents sharing personal information deserve to do so with the assurance that those details will not end up in the media or in their neighbors' hands. This communication has long been treated as legislative work product and we appreciate our state's highest court leaving that long-standing practice in place."

Nothing in the ruling or under the law prohibits the release of the information. It is at the discretion of the legislature.

Here is a statement issued by House Speaker Brian Bosma:
"Today's decision is a win for Hoosiers who reach out in confidence to their legislators for help. Constituents sharing personal information deserve to do so with the assurance that those details will not end up in the media or in their neighbors' hands. This communication has long been treated as legislative work product and we appreciate our state's highest court leaving that long-standing practice in place."
Here is Kristine Guerra's Indianapolis Star story. Some quotes:
The state's highest court upheld a Marion County judge's decision to dismiss a lawsuit accusing legislators of improperly hiding emails between House Energy Committee Chairman Eric Koch and utility companies. Marion Superior Court Judge James Osborn ruled last year that he could not interfere in the operation of the legislative branch.

The 4-1 ruling comes about a year after the Citizens Action Coalition, the Energy and Policy Institute and Common Cause Indiana filed a lawsuit to try to make the records public. These include emails that Koch, who has reported an economic interest in dozens of oil, gas and energy companies, may have exchanged with Duke Energy and Indianapolis Power & Light Co.

The plaintiffs accused Koch, R-Bedford, and the Indiana House Republican Caucus of violating the Indiana Access to Public Records Act (APRA). Lawmakers, however, argued that the law exempts the "work product" of members of the General Assembly from disclosure. The law does not define what information falls under "work product."

Although the Supreme Court held that the General Assembly is subject to public records laws, it also ruled that deciding what is and isn't exempted from the law is up to the legislature.

Citing a previous ruling, the court said it "should be very careful not to invade the authority of the legislature."

Posted by Marcia Oddi on April 19, 2016 02:30 PM
Posted to Ind. Sup.Ct. Decisions | Indiana Government