By Steve Key
Hoosier State Press Association
The leadership of the Indiana House of Representatives took an unfortunate step shortly after the end of the 2015 legislative session.
They expanded the definition of “work product” in their employee handbook to basically cover all records created or received.
This action puts all House of Representatives records into the category of confidential at the discretion of the House leadership.
The approach is contrary to the structure of the Access to Public Records Act, where the legislature has carved out exceptions to public records disclosure based on subject matter rather than the form of the record (email, photo, audio recording, hard copy, etc.).
This handbook change takes a broad description of what defines a public record and says that a record can be confidential because it belongs to the legislative branch of state government.
This appears to be a reaction to a lawsuit filed by the Citizens Action Coalition, Common Cause and Energy Policy Institute seeking records exchanged between State Rep. Eric Koch, R-Bedford, and utility companies over solar power legislation.
The House’s response to an Access to Public Records Act request for correspondence involving Koch was that the law doesn’t apply to the state legislature.
I believe that’s an incorrect position, and Indiana Public Access Counselor Luke Britt also said it was wrong in a formal opinion.
While a 1993 Indiana Supreme Court ruling cited the separation of powers as a basis for not enforcing an Access to Public Records Act request for House of Representative records, it didn’t say the legislature was not subject to the law.
Angered by a broad records request from The Indianapolis Star in 2001, the House and Senate leadership engineered passage of H.E.A. 1083, which removed the legislature from the scope of the Access to Public Records Act.
Then-Gov. Frank O’Bannon vetoed the bill.
The terrorist attacks of Sept. 11 led then-Speaker of the House John Gregg, D-Shelburn, not to call down a veto override vote because he felt it sent the wrong message to Hoosiers who were looking to government for leadership at that time.
So the legislature, with its work-product language in the Access to Public Records Act allowing for confidentiality, remains subject to the law – but without a citizen’s remedy for a violation of the law.
The Supreme Court said citizens with a concern over the internal conduct of the legislature should take it up with the legislative leadership.
The only leverage for Hoosiers was the court of public opinion.
Changing its handbook appears to be an effort to blunt even this threat to their ability to cloak all decisions behind an impenetrable veil of secrecy. If accepted by the public as “just the way it is,” then secrecy becomes the norm.
There was consideration in addressing the “work product” language in a conference committee report for S.B. 528, but that effort reportedly was scrapped when minority leaders Rep. Scott Pelath, D-Michigan City, and Sen. Tim Lanane, D-Anderson, refused to back the plan.
What’s odd about the handbook change is that current Speaker of the House Brian Bosma, R-Indianapolis, has made the legislative process more transparent during his tenure.
Committee meetings and sessions of the House are routinely broadcast on the Internet. The availability of different versions of bills, amendments, and vote outcomes has increased under his leadership via the Internet.
So, why the move toward secrecy under his watch now?
I’ve heard for years and understand the argument that state legislators often receive correspondence from constituents that reveal intimate details of their lives as they seek assistance or legislative change.
But as a lobbyist representing the newspaper industry, I would not have an expectation that my emails to legislators should be treated as top-secret missives.
This House leadership action seems to indicate a belief that lawmakers can’t conduct the people’s business without a complete veil of secrecy.
It also sets the stage for an erosion of government transparency for all branches from the state to the local level.
County or city councils, school boards or state commissions could make the same arguments for secrecy.
Will lawmakers justify how work product is different for the state legislature and hold other government units to a higher standard than they hold themselves?
Or will it acquiesce to the demands for greater secrecy by a governor’s office or local government unit to avoid an appearance of hypocrisy?
The House should revisit this ill-advised handbook change and openly address legitimate concerns with the Access to Public Records Act.
Steve Key is executive director and general counsel for the Hoosier State Press Association.