The Journal Gazette
Thursday, January 12, 2017 7:56 am

Balance of power

Monday, the day his term as Indiana’s 50th governor ended, Mike Pence got a going-away present from the Indiana Court of Appeals. But it came, thankfully, with some crucial qualifiers.

A long-running legal battle over the governor’s decision to deny a 2014 open-records request was resolved in Pence’s favor by a three-judge panel.

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.

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.

This is the way the law is supposed to work. The Indiana public access counselor, Luke Britt, and a superior court judge had previously come to the same conclusion.

But Pence’s legal team sought to go much further, citing an Indiana Supreme Court decision last year that has made the legislature virtually exempt from its own open-records requirements.

That case also involved a request by Groth. He had sought access to any communications that might have flowed between Rep. Eric Koch, R-Bedford, then the chairman of the House Utilities, Energy and Telecommunications Committee, and utility executives regarding a bill Koch was writing that would have discouraged homeowners and other private entities from producing solar power.

Last April, the Indiana Supreme Court effectively washed its hands of ruling on Groth’s request, contending that though the open-records law applied to the legislature, the court should not be determining whether the lawmakers’ definition of a "work product" was appropriate because of the doctrine of separation of powers. (Legislators who profess to be in favor of open government still must address the problem that ruling has created.)

Pence’s attorneys argued that the high court’s concern with separation of powers meant that the governor should be making his own decisions about when and how the open-records law applies to him.

But in a powerfully written opinion, Najam rejected that argument.

"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."

Steve Key, executive director of the Hoosier State Press Association, said the decision was a key one. "They didn’t buy the governor’s argument that this is a separation-of-powers issue," he said Tuesday.

Pence’s attempt to claim exemption from the open-records law was puzzling; he has generally been a strong champion of open government. In any case, new Gov. Eric Holcomb has an opportunity to reset the clock by indicating he accepts the court’s decision and intends to live within the letter and spirit of Indiana’s open-records law.

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