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Monday, January 09, 2017

Ind. Decisions - COA decides Pence email case, Groth v. Pence

In Groth v. Pence, a 41-page, 2-1 opinion, Judge Najam writes:

The Indiana Access to Public Records Act (“APRA”) provides that “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.” Ind. Code § 5-14-3-1 (Supp. 2014). Thus, in APRA our legislature declared that transparency in government is the public policy of the State of Indiana. But the public’s right of access to public records is also subject to well-recognized exceptions under APRA. * * *

We hold that, on these facts, Citizens Action Coalition does not apply to the request for public records directed to the Governor. We also hold that the trial court did not violate Groth’s due process rights. And we affirm on the merits of the Governor’s decisions to withhold the white paper from public disclosure and to partially redact the invoices. The white paper contains legal theories in contemplation of litigation, was used by the Governor in his decision to join the litigation, and is exactly the type of record that may be excluded from public access under APRA. Similarly, the Governor’s redactions from the legal invoices were within his discretion under APRA. * * *

Baker, J., concurs.
Vaidik, C.J., concurs in part and dissents in part with separate opinion. [that begins, on p. 34] I concur with the majority as to all issues except one. That is, I dissent from the majority’s conclusion that Governor Pence has met his burden of showing that the white paper is not subject to disclosure under APRA because it is a privileged attorney-client communication pursuant to the common-interest doctrine. In order for the common-interest doctrine to apply, the parties must first come to an agreement, and documents exchanged before an agreement is reached are not protected from disclosure. Here, there is no evidence in the record that Governor Pence and Texas officials reached an agreement before the white paper was emailed. As a result, I believe that the email served as a recruiting or lobbying tool by the State of Texas to encourage other states to join its legal challenge to President Obama’s executive orders on immigration. Because lobbying and soliciting are not protected by the common-interest doctrine, I believe that Governor Pence has not met his burden of showing that the white paper is protected from disclosure under APRA. * * *

The policy of APRA is to provide the public with full and complete information about the affairs of the government. Indeed, providing the public with information “is an essential function of a representative government.” I.C. § 5-14-3-1. Because the record reflects that Hodge emailed the white paper to Governor Pence’s chief of staff in order to lobby or solicit Indiana to join Texas’ legal challenge, and before any sort of agreement between Governor Pence and Texas was reached, I believe that Governor Pence has not met his burden of showing that the white paper is protected from disclosure under APRA. I would therefore reverse the trial court on this issue and order Governor Pence to produce the white paper.

Posted by Marcia Oddi on January 9, 2017 01:09 PM
Posted to Ind. App.Ct. Decisions