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The Journal Gazette

Monday, February 06, 2017 10:02 pm

Pence case appeal to state high court

Niki Kelly | The Journal Gazette

INDIANAPOLIS – A lawyer who sued former Gov. Mike Pence – now vice president – filed an appeal Monday asking the Indiana Supreme Court to review the public records case.

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

But the court rejected the governor’s larger 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 appeal specifically focuses on a separate part of the ruling.

The Pence case began in 2014 when the governor hired outside counsel – Barnes & Thornburg – to join a multistate suit led by Texas against former 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. Pence’s office turned over more than 50 pages of documents.

But it withheld a "white paper" that was attached to an email from Texas officials looking for additional states to sign onto the lawsuit. The document essentially served as a solicitation from Texas officials for more plaintiffs in the case. 

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

The appeal to the Supreme Court questions whether the attorney-client privilege can be applied to a document shared outside the attorney-client relationship. And Groth argues whether the state deliberative materials exception should be expanded to information received from outside an Indiana government agency.

It is unclear if the part of the ruling on immunity from judicial review will be reconsidered, or if the state attorney general will attempt to appeal on his own.

nkelly@jg.net