Indiana court: Public records requirements applied to Pence
Posted January 10
INDIANAPOLIS — An Indiana court has rejected an argument by former governor and Vice President-elect Mike Pence that would have exempted his office in practice from complying with the state's public records law.
The civil case decided by Indiana's Court of Appeals was brought by Democratic Indianapolis attorney William Groth. He sued in 2015 after the Pence administration denied a request for un-redacted records, including a document related to Republican efforts to stop President Barack Obama's immigration executive order.
The court ruled Monday that Pence could refuse to release the un-redacted records, as well as a paper written by GOP state officials in Texas outlining a legal strategy for the successful challenge to Obama's executive order.
But the three-member court said Pence went too far in arguing that the Indiana governor's office could police its own compliance with the law and the courts had no authority to intervene.
That would "in effect render (the public records law) meaningless as applied to him and his staff," the court said in the ruling. The law "does not provide for any such absolute privilege."
Pence has presented himself as a champion of a free press and the First Amendment. That's a contrast to President-elect Donald Trump who made attacks on reporters a hallmark of his campaign and refused to release his tax records as other modern presidential candidates have done.
But Pence, whose gubernatorial administration ended Monday, has also resisted the public release of emails and other documents that could shed light on his tenure as governor. In some cases, his office has withheld documents, delayed responses or denied public records requests filed by The Associated Press and other news organizations
That's at odds with public positions Pence has taken on similar matters. In March, he vetoed a bill that would have exempted private universities from releasing some police records, calling it "a disservice to the public and an unnecessary barrier to transparency." And on the campaign trail he aggressively criticized Democrat Hillary Clinton for refusing to release emails sent from a private server she maintained while secretary of state.
While the court ruled against Pence's assertion that the governor's office can police their own compliance with the public records law, his attorney, Joseph Chapelle, said Tuesday that he was "very happy" with the decision. And he said whether or not Pence is exempt from the law is "still a little bit of an open issue."
"We thought that was a valid argument, but our main thrust was that this material was protected," said Chapelle. "In many ways the judges agreed with us."
While all three judges in the case decided Monday agreed that Pence was not exempt from the public records law, two agreed that attorney client privilege, among other public records exemptions, protected Pence from releasing of the white paper.
Chief Judge Nancy H. Vaidik in a dissenting opinion said the immigration paper, authored by the chief-of-staff to now-Texas Gov. Greg Abbott, was not protected. She wrote that attorney-client privilege had not been established because the email including the paper was circulated to many Republican governors and amounted to a solicitation to join the case against Obama.
Pence's attorneys had argued during a November hearing that the governor's office acted within its rights by refusing to release the records, which they say are "work product" that is "deliberative" in nature and also protected by attorney client privilege. But they also said an Indiana Supreme Court ruling in April, effectively exempting the state's General Assembly from releasing emails, should also apply to them.
Groth said Tuesday that the court's ruling this week was akin to losing a battle but winning the war. He has not yet decided if he will appeal, but noted that the appellate court ruling set a precedent that strengthened the state's public records law.
"That may be an argument in favor of leaving it alone," he said.