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Thursday, January 19, 2017

Ind. Decisions - "SBT Opinion: Appeals court ruling holds Pence to open records law"

That is the heading to an editorial this week in the South Bend Tribune:

Last week’s ruling from the Indiana Court of Appeals was, at first glance, a win for former Gov. Mike Pence.

The court ruled that Pence’s staff appropriately withheld and redacted several documents in a public records dispute in a case brought by an Indianapolis attorney who sued the Pence administration after it denied his request for a document related to efforts of Republican governors to stop President Barack Obama’s immigration executive order.

But the court didn’t buy the governor’s larger argument that his responses to requests under the state’s Access to Public Records Act are exempt from judicial review.

In short, that’s good news for advocates of transparency, who had reason to fear that a victory for Pence on this critical question could set a dangerous precedent — one basically allowing other governors to refuse to disclose public documents with no government oversight.

The argument used by Pence lawyers mirrors one successfully used in a case involving the release of lawmaker email communications with lobbying groups and businesses. In that case, the state Supreme Court ruled that although Indiana legislators are subject to the state’s public access law, ordering the release of lawmaker email communications with lobbying groups and businesses violates the state constitution’s separation of powers between the legislative and judicial branches of government.

Fortunately, the court didn’t buy Pence lawyers’ claim that “Just as the judiciary should not ‘intermeddle’ with the legislature’s determination of what constitutes its own work product, the judiciary should not ‘intermeddle’ with the executive’s determination of what constitutes its own work product, deliberative material, or privileged material.”

According to the court, this argument “would, in effect, render APRA meaningless” as applied to the governor and his staff. “APRA does not provide for any such absolute privilege, and the separation of powers doctrine does not require it. We reject the Governor’s assertion that his ‘own determinations’ regarding whether to disclose public records are not subject to judicial review.”

The decision is a critical one for transparency in a case that the former governor, a self-described advocate of open government, never should have made in the first place.

ILB: For background, start with this Jan. 12th post headed "More on COA opinion in Groth v. State."

Posted by Marcia Oddi on January 19, 2017 09:07 AM
Posted to Ind. App.Ct. Decisions | Indiana Government