Tuesday, February 07, 2017
Ind. Decisions - Plaintiffs file petition for transfer in Pence redacted emails case [Updated]
There were two issues in the case. Quoting a Fort Wayne Journal Gazette editorial from Jan. 12th:
By a 2-1 vote, the court upheld a lower court’s ruling that Pence acted properly when he withheld some documents that had been sought by Indianapolis attorney William Groth under the Indiana Access to Public Records Act. The court agreed with Pence’s argument that the documents, which related to Indiana’s decision to join the state of Texas in a legal challenge to an immigration order by President Barack Obama, were legal working papers that were exempt from public disclosure.In a 19-page Petition to Transfer filed yesterday, Appellant William Groth presents the follow questions for transfer, and concluding:
Judge Edward Najam wrote that one of the documents the governor decided to withhold, a “white paper” on legal strategy that was prepared by a Texas official, “is exactly the type of record that may be excluded from public access under APRA.” The court ruled that the governor’s decision to redact some information from legal invoices related to the decision was similarly within the law. * * *
[But the governor also argued that under the separation of powers, the open records law did not apply to him.] “The governor’s argument would, in effect, render APRA meaningless as applied to him and his staff,” Najam wrote. “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.”
1. Did the Court of Appeals improperly expand the common interest doctrine to impose confidentiality on a communication that was not generated in an attorney-client relationship and that was shared outside the relationship with non-clients?The deadline for filing is tomorrow. It is unknown whether the State will also file a petition for transfer, on the APRA applicability issue. There may be a question of whether or not they have standing on that issue.
2. Did the Court of Appeals improperly expand the deliberative materials exception in the public records law to include information received from outside an Indiana government agency?
3. Should factual information be disclosed? * * *
William Groth respectfully asks this Court to review the redacted or refused documents, to order the disclosure of the improperly withheld documents, to remand to the trial court for a determination of attorney fees, and for all other appropriate relief.
Fatima Hussein of the Indianapolis Star reports this morning in a lengthy story - some quotes:
An area labor attorney has petitioned the Indiana Supreme Court to take up his case against Vice President Mike Pence, in hopes that the court will reveal the contents of a political white paper the former governor has fought to keep secret for nearly three years.The story continues:
If successful, the communications could reveal a slew of Republican political strategies that Pence and dozens of other U.S. governors devised against former President Barack Obama and an executive order issued on immigration during his time as president.
William Groth's petition for transfer to the Indiana Supreme Court is part of a more than two-year legal battle between the Democratic attorney and the current vice president, who was acting in his role as Republican governor of Indiana during the events in question.
"The petition we filed today raises important issues regarding the scope and application of certain exceptions to Indiana's public transparency law," Groth told the IndyStar.
Indianapolis attorney Greg Bowes filed the 19-page petition Monday afternoon on behalf of Groth. They claim the appeals court erred last January in determining that the white paper was a "deliberative material" for the purpose of preparing for litigation and thus siding with Pence.
The appeals court ruled that Groth does not have the right to view a political white paper that was included in a 2014 public records request.
The white paper in question contains legal theories in contemplation of litigation that was used by the governor in his decision to join State of Texas et al v. United States of America, which challenged a presidential executive order President Barack Obama issued regarding immigration.
Groth filed a request under the Indiana Access to Public Records Act seeking the documents related to the state’s decision to hire Barnes & Thornburg LLP as outside counsel in the suit.
In the 2-1 appellate court decision, 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, 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.
Chief Judge Nancy Vaidik concurred in part but ultimately dissented because she disagreed with the majority’s conclusion that Pence "has met his burden of showing that the white paper is not subject to disclosure.”
Vaidik wrote that she would "reverse the trial court on this issue and order Governor Pence to produce the white paper.”
In filing the petition to the Supreme Court, Groth is requesting the court consider whether the Court of Appeals improperly found that a document shared outside of the attorney-client relationship, here the white paper, is legally protected by the attorney-client relationship doctrine.
He is also asking the court whether the court of appeals improperly created a "deliberative materials exception" to state public records laws to include information received from outside an Indiana government agency.
"Pence continues to invoke those exceptions in his desire to keep secret from his constituents a document prepared not by his own attorneys but one from the office of the Texas Attorney General," Groth said.