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Tuesday, January 10, 2017

Ind. Decisions - "Pence wins ruling on withholding records"

Yesterday's 2-1 Court of Appeals opinion in Groth v. Pence is the subject of several news stories today.

Niki Kelly reports in the Fort Wayne Journal Gazette:

The Indiana Court of Appeals ruled Monday that former Gov. Mike Pence’s staff appropriately withheld and redacted several documents in a public records dispute.

But the court rejected the governor’s claim that his response to requests under the Access to Public Records Act are immune from judicial review. Without such a finding, Hoosiers would have had no legal recourse when denied a public record by the executive branch.

The ruling said Pence made a categorical claim of executive privilege from disclosure of his records.

“The Governor’s argument would, in effect, render APRA meaningless as applied to him and his staff. APRA does not provide for any such absolute privilege, and the separation of powers doctrine does not require it,” the court found.

“We reject the Governor’s assertion that his ‘own determinations’ regarding whether to disclose public records are not subject to judicial review.”

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

Indianapolis attorney William Groth sought the attorney’s contract and invoices, as well as emails between Texas officials and Pence’s office. The documents he received were 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.

Monday’s ruling said Pence’s office turned over more than 50 pages of documents. But some of it was redacted. And Groth specifically wanted a “white paper” that was attached to an email from Texas officials looking for additional states to sign onto the lawsuit.

The appellate court reviewed that paper privately and agreed that it was a privileged attorney-client communication devoted to legal theory and strategy. The ruling also upheld redactions on the invoices.

Groth told The Journal Gazette he was pleased with the decision. The only reason he appealed it was Pence’s last-ditch effort to extend the legislative decision in the Koch case to the executive branch.

“And the court unanimously rejected his argument,” he said.

Groth said he will have to consider whether he might appeal.

He noted the decision on the white paper is a close legal question but might not be worth opening up the case for reversal on the larger separation of powers issue.

“I will have to decide whether it’s worth taking that risk,” he said.

Groth doesn’t believe that the Pence administration –now run by new Gov. Eric Holcomb – has standing to appeal because it won the underlying case.

Fatima Hussein reports in a long story in the Indianapolis Star:
An Indiana Appeals Court sided with Vice President-elect Mike Pence in ruling that an Indiana attorney does not have the right to view a political white paper that was included in a 2014 public records request.

The court, however, did not relinquish its power to second-guess the executive branch on matters of the Indiana Access to Public Records Acts.

That was an important finding because advocates of government transparency feared a Pence victory in the suit could set a broader precedent that would embolden future governors to refuse to disclose or heavily redact public documents with no court oversight.

Judge Edward W. Najam, in a 41-page opinion issued Monday, affirmed the merits of the Governor’s decision to withhold the white paper from public disclosure.

Najam added, however, "the Governor contends that his 'own determinations' under APRA are conclusive and that it would violate the separation of powers doctrine for the judiciary to 'second guess' those determinations."

"We cannot agree."

In other words, the opinion concluded that a governor's decision to deny a public records request can be reviewed by the court.

Posted by Marcia Oddi on January 10, 2017 11:10 AM
Posted to Ind. App.Ct. Decisions