An Indiana appeals court will consider next week whether email communications of Indiana Governor and Vice President-elect Mike Pence that were sought in a public records request are subject to court order. A county court previously ruled they are not.
The case amounts to an effort by the Pence administration to affirm its ability to shield its communications, or public records, from even the reach of the judiciary in the state, legal analysts told the IndyStar.
In December 2014, William Groth, an Indianapolis attorney, first sought the contents of Pence communications with the office of Texas Governor Greg Abbott, who sued the Obama administration shortly after President Barack Obama announced reforms to the US immigration system. The Pence administration joined the suit — State of Texas, et al v. United States — with the consent of Indiana Attorney General Greg Zoeller.
Yet Pence decided to hire Indianapolis law firm Barnes & Thornburg to represent the Pence administration in the federal immigration lawsuit. Groth issued a public records request seeking information regarding Pence's hiring of an outside counsel while not using the state's attorney general's office to join the litigation.
"I think joining the lawsuit without the attorney general and hiring that firm was a waste of taxpayer dollars and the people have the right to know how much of their money was spent," Groth told IndyStar.
The Pence administration offered the requested documents, but redacted portions of communications sent by Gov. Abbott's chief of staff. A white paper, or informational text, was part of the communications but not included in the offering from the Pence administration, according to court documents cited by IndyStar.
In April, the Marion County Superior Court issued a decision that said the administration was allowed to withhold a public record, even out of the purview of a court order. That decision was issued days after the Indiana Supreme Court said in a separate case — Citizens Action Coalition, et al. v. Indiana House Rep. — that the state's legislative branch could withhold information from public records requests beyond the court's reach.
The Pence administration used the Supreme Court decision to defend its public-records privileges.
"Just as the judiciary should not ‘intermeddle’ with the legislature’s determination of what constitutes its own work product, the judiciary should also not ‘intermeddle’ with the executive’s determination of what constitutes its own work product, deliberative material, or privileged material,"according to a court filing by Barnes & Thornburg, which is also representing the governor's office in the records case.
Groth has appealed the Marion Superior Court decision. The Indiana Court of Appeals will hear arguments in the case on November 21.
"It comes down to this — the court is giving up its ability to check another branch of government, and that should worry people," Gerry Lanosga, an Indiana University media professor, told IndyStar.
The precedent at stake will have a major impact on transparency within the Indiana government, said Paul Jefferson, a former professor of state constitutional law at Indiana University.
The final decision in the case "will be interesting in part because it is hard to draw clean lines between what would be and what wouldn’t be excluded from a public records request if the court is going to exempt the executive branch from public records review."
Pence and running mate Donald Trump staked much of their campaign on Democratic Party candidate for president Hillary Clinton's email scandal, stemming from her use of a private email server to conduct official business as US secretary of state. During the campaign, Trump said the scandal should land Clinton "in jail," that she should be "ashamed," and that she used the private server to "cover up her crimes."
Pence, meanwhile, said during he campaign that the email scandal was "deeply troubling" and that if it was his son, a member of the Marine Corps, who had handled classified information the way Clinton did, he would be "court-martialed."