The three-judge panel did not buy the argument made by Gov. Pence’s attorneys that the separation of powers doctrine precluded the courts from making a ruling on whether the governor’s denial of a records request was proper under APRA.
The case (Groth v. Pence) stems from a December 2014 decision by Gov. Pence to have Indiana join a lawsuit initiated by the state of Texas against President Barrack Obama to fight certain presidential orders concerning immigration. Indianapolis Attorney Bill Groth submitted a public records request for records connected to that decision.
The governor’s office responded with 50 pages of records, some redacted, and denied access to a “white paper” Texas provided to Indiana prior to the decision. Despite a negative opinion from Public Access Counselor Luke Britt, Groth filed an APRA lawsuit against the governor in Marion Superior Court.
The trial court also ruled against Groth, who decided to appeal that ruling to the Indiana Court of Appeals. At that point, the Governor’s office added the separation of powers argument, based on the recent Citizens Action Coalition of Indiana v. Koch decision by the Indiana Supreme Court. The ruling reaffirmed the court’s position that it would not interfere with the internal functions of the legislature due to the separation of powers between the two branches of state government.
Court of Appeals Judge Edward Najam Jr. wrote in the 33-page decision that the governor’s assertion that the court shouldn’t interfere “would, in effect, render APRA meaningless as applied to (Pence) and his staff. APRA does not provide for any such absolute privilege, and the separation of powers doctrine does not require it.”
Judge Najam pointed out that the Citizens Action Coalition decision was based on a specific exception to disclosure in APRA and that the governor had no corresponding special exception to rely upon.
While preserving the court’s ability to rule on APRA cases brought against the governor, Najam’s decision, joined by Judge John Baker, found the governor’s denial of access to the white paper was proper under APRA as attorney-client privilege and deliberative material.
Groth’s attorney had argued that when the strategic document prepared by Texas was shared there was no attorney-client relationship. The Court of Appeals ruling cites a “common interest privilege” for parties to share information from an attorney without waiving the attorney-client privilege so parties have sufficient information to determine whether they want to join in a lawsuit. Indiana was one of 25 states that joined the Texas lawsuit.
Judge Nancy Vaidik agreed with Najam and Baker on the separation of powers question, but disgreed on the common interest privilege conclusion. In her partial dissent, she said the white paper was a lobbying tool to convince other states to join the lawsuit, which would not be protected from disclosure. Without an agreement between the parties, the common interest privilege should not apply.
“The decision is a relief because as Judge Najam points out if the governor’s attorney had prevailed, the Access to Public Records Act would have become meaningless as to the governor’s office,” said Steve Key, executive director and general counsel for the Hoosier State Press Association. “Coupled with the Citizens Action Coalition decision, such a ruling would have crippled that statute when it comes to two of the most powerful government units in the state.”
According to Groth’s attorney Greg Bowes, a decision on whether to appeal the ruling had not been made as of Tuesday.