Public Business is the Public’s Business: Koch’s Implications for Indiana’s Access to Public Records Act

COURTNEY ABSHIRE- J.D., 2019, Indiana University Robert H. McKinney School of Law; MPA 2016, Indiana University Purdue University Indianapolis – Indianapolis, Indiana; B.A. 2012, Indiana University Purdue University Indianapolis – Indianapolis, Indiana.

In 2016, the Indiana Supreme Court faced the question of whether records requested pursuant to the Access to Public Records Act (“APRA”) could be withheld on the basis of the legislative work product exemption in APRA, and the Court held for the first time that APRA applied to the Indiana General Assembly. But the Court declined to review the question of whether the Indiana House Republican Caucus properly denied the requested records out of concern that doing so would violate the distribution of powers provision in the Indiana Constitution. The Court principally relied on two precedent cases involving the Indiana Constitution’s distribution of powers provision, Masariu v. Marion Superior Court and Berry v. Crawford, to formulate its holding in Citizens Action Coalition v. Koch.

Shortly after the Indiana Supreme Court decided Koch, the Indiana Court of Appeals heard a case involving nondisclosure of records by the Governor’s Office. In response to an APRA request, the Governor’s Office redacted invoices from Barnes & Thornburg LLP and refused to disclose a legal memorandum. The Indiana Public Access Counselor determined that the Governor’s Office redactions were not a violation of APRA. The requestor filed a suit for judicial review of the denial. In response to the suit, the Governor’s Office argued that the request for the redacted and withheld material interfered with core executive functions reserved to the Governor, and thus the court should find the question nonjusticiable. But the Court of Appeals disagreed. The court reasoned that reviewing the refusal of the Governor’s Office to release those documents did not challenge a core executive function of the Governor and sustained the Governor’s Office’s decision to not turn over the legal memorandum. The Court of Appeals held that judicial review would not challenge a core executive function because the attorney-client communications, attorney-client work product, and deliberative material exemptions cited by the Governor’s Office in the denial of the request all have definitions in either APRA or Indiana case law, and thus the Court would not have to define those terms on behalf of the executive branch. The Groth and Koch cases are distinguished by the existence of defined terms or lack thereof in APRA or in Indiana case law. [Read entire Article here].


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