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Friday, May 20, 2016

Ind. Decisions - More on: Appellants file for rehearing in House email/public records case

Updating yesterday's ILB post, here are several stories on the filing.

From the AP, here via the Chicago Tribune: "Court asked to reconsider ruling that shields Indiana lawmakers from records request." The long story ends:

Indiana's Public Records Act declares "it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees."

In practice, however, lawmakers have long acted in a manner that goes against the stated intent off the law. Their actions were taken to court last year when consumer advocates sued the House Republican Caucus to obtain emails that House energy committee Chairman Eric Koch may have exchanged with Duke Energy and Indianapolis Power and Light.

The Bedford Republican, who has reported an economic interest in dozens of oil, gas and energy companies, sponsored an unsuccessful bill last year that would have cut how much utilities must pay for excess electricity generated by home solar power systems. Opponents of the bill said would eliminate the incentive to buy them.

First, a Marion County judge ruled that he could not interfere in the operation of the legislative branch. That decision was upheld when state Supreme Court justices issued their 4-1 ruling in April. The court found lawmakers were bound by the state's public records law, but they also ruled that the state constitution's separation of powers between the legislative and judicial branches of government prevented them from ordering the release of Koch's emails.

Advocates argue in a court filing that the court's decision was vague, overly broad and could allow the Legislature to "hide from the public the very existence of correspondence with lobbyists."

But their request faces long odds. Last year, 13 similar requests were made with all but two denied, said Indiana University law professor Joel Schumm. He added that usually when the court agrees to a rehearing, "it's on a pretty narrow legal issue."

"It's extremely rare that a rehearing will be granted to change the outcome of the case," Schumm said.

From the Fort Wayne Journal Gazette, some quotes from this story by Niki Kelly:
The court ruled in April that the state open records law does apply to the legislature but found it is up to the General Assembly to determine what constitutes its own work product.

Essentially the decision means the executive and legislative branch can claim certain exemptions from the public records law and no third party can review and determine if those are being applied appropriately. * * *

Gov. Mike Pence – about a week after the ruling in the House case – used the same argument in a separate lawsuit over a records request to his office.

“Unless the Court agrees to reconsider its April 19 ruling, Hoosiers’ right to be fully informed of the activities of those who serve them in state government will have been damaged beyond repair,” said William Groth, the lead attorney for the groups.

Groth is also the person who sought records in the Pence case. * * *

Another interesting facet is that attorney Geoffrey Slaughter argued the case on behalf of the General Assembly before the Indiana Supreme Court, and just last week was named by Pence as the next Indiana Supreme Court justice.

It is unclear when he will take the oath and if he is still representing the House in the case. [ILB: Slaughter's request to withdraw from the case was granted by the Supreme Court on May 18th, as noted in this ILB post yesterday.] * * *

The Pence case began back in 2014 when he hired outside counsel – Barnes & Thornburg – to join a multistate suit led by Texas against President Obama’s executive order providing work permits and protection from deportation to as many as 5 million immigrants in the country illegally.

Groth filed a public records request for the attorney’s contract and invoices, as well as emails between Texas officials and Pence’s office. The documents he received were heavily redacted or not produced, so he filed a lawsuit. As soon as the House case was decided, Pence’s attorneys submitted a new argument in the case saying the Koch case means the courts can’t get involved.

Posted by Marcia Oddi on May 20, 2016 09:08 AM
Posted to GA and APRA | Ind. Sup.Ct. Decisions | Indiana Government