INDIANAPOLIS – The Indiana Supreme Court will not hear a case involving a public records dispute with former Gov. Mike Pence, a move that ends the case and leaves in place judicial review of executive decisions on public records requests.
All five justices voted against taking the case and also refused to remand it back to the trial court for further action. The court's order included no explanation or analysis.
Marc Lotter, Pence's press secretary, said “the Supreme Court ruling reaffirms the decision of the two other courts that then-Governor Mike Pence acted in compliance with Indiana law.”
William Groth, the attorney who brought the case in 2014, said the good news is that the court implicitly rejected Pence's argument that the executive branch is not governed by Indiana's public records act.
But it also left intact an earlier ruling that a specific document was exempt from the law because of attorney-client privilege and because it consisted of intraoffice deliberative materials.
The final part of the order denied Groth the opportunity to take the case back to the trial court to ensure that Pence's office had included his private AOL email account in the search for public records.
“I don't care to speculate on why the court declined to become further involved in this matter,” Groth told The Journal Gazette. “But its refusal to hear the statutory issues we raised in this case does represent yet another ratcheting down of the public's right to know what its elected officials are up to and a further weakening of Indiana's transparency laws.”
The Pence case began in 2014 when he hired outside attorneys 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.
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 who were looking for states to sign on to the lawsuit.
The document essentially served as a solicitation from Texas officials for more plaintiffs in the case.
The Indiana Court of Appeals ruled in January that Pence's staff acted appropriately, and it agreed the “white paper” was a privileged attorney-client communication devoted to legal strategy.
But the court rejected the governor's larger claim that his responses 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.
Groth's appeal to the Indiana Supreme Court focused on the exemptions that were cited in withholding the “white paper,” but Gov. Eric Holcomb also sought clarity on the executive privilege.
If the court agreed to hear the appeal, “it should consider reaching this issue, including whether an absolute privilege exists because of the critical importance of the Governor's role in our State,” Holcomb wrote. “If, however, this Court does not agree that the separation of powers mandates an absolute privilege in this case, it should consider articulating a qualified deliberative process privilege.”
The court did neither.
“We are aware and respect the court's decision,” Holcomb spokeswoman Stephanie Wilson said.