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Groth v. Pence

Court of Appeals of Indiana

January 9, 2017

William Groth, Appellant-Plaintiff,
v.
Mike Pence, as Governor of the State of Indiana, Appellee-Defendant.

         Appeal from the Marion Superior Court The Honorable Michael D. Keele, Judge Trial Court Cause No. 49D07-1506-PL-21548

          Attorney for Appellant Gregory Bowes Greg Bowes Legal Services, P.C. Indianapolis, Indiana

          Attorneys for Appellee Joseph C. Chapelle Mark J. Crandley Barnes & Thornburg LLP Indianapolis, Indiana

          Najam, Judge.

         Statement of the Case

         [¶1] The Indiana Access to Public Records Act ("APRA") provides that "it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees." Ind. Code § 5-14-3-1 (Supp. 2014). Thus, in APRA our legislature declared that transparency in government is the public policy of the State of Indiana. But the public's right of access to public records is also subject to well-recognized exceptions under APRA.

         [¶2] In December of 2014, Governor Mike Pence made the decision that Indiana would join a Texas lawsuit against the President of the United States to contest certain presidential executive orders on immigration. In response, William Groth, a private citizen, submitted an APRA public records request to the Governor for records related to the Governor's decision. The Governor responded to Groth's request but, in doing so, partially redacted some of the documents and withheld another. The Indiana Public Access Counselor concluded that the Governor did not violate APRA. Acting on Groth's ensuing complaint, the trial court also concluded that the Governor's response was proper under APRA.

         [¶3] On appeal, the parties raise the following four issues for our review:

1. Whether the Indiana Supreme Court's recent opinion in Citizens Action Coalition of Indiana v. Koch, 51 N.E.3d 236 (Ind. 2016), requires Indiana's courts to abstain from reviewing the Governor's decision to redact or withhold certain records from public disclosure.
2. Whether the trial court violated Groth's due process rights when it did not provide him with a written summary of the contents of the undisclosed information after the court had reviewed that information in camera.
3. Whether the Governor violated APRA when he withheld from disclosure a legal memorandum, referred to by the parties as a "white paper, " created by a Texas deputy solicitor general concerning the proposed Texas litigation and disseminated to governors' offices in Indiana and numerous other states.
4. Whether the Governor violated APRA when he partially redacted invoices from a private law firm he had hired to represent Indiana in the Texas lawsuit and on Groth's complaint.

         [¶4] We hold that, on these facts, Citizens Action Coalition does not apply to the request for public records directed to the Governor. We also hold that the trial court did not violate Groth's due process rights. And we affirm on the merits of the Governor's decisions to withhold the white paper from public disclosure and to partially redact the invoices. The white paper contains legal theories in contemplation of litigation, was used by the Governor in his decision to join the litigation, and is exactly the type of record that may be excluded from public access under APRA. Similarly, the Governor's redactions from the legal invoices were within his discretion under APRA.

         Facts and Procedural History[1]

         [¶5] On December 10, 2014, Groth submitted a written request to the Governor's office for documents relating to the Governor's decision to join the State of Texas in a federal lawsuit against the President of the United States with respect to certain recent presidential executive orders on immigration. According to Groth's request:

Pursuant to [APRA], I am hereby requesting public records that your office maintains concerning your discretionary decision to hire outside counsel at Barnes & Thornburg [LLP] to represent your office and/or the State of Indiana in litigation encaptioned State of Texas, et al[.] v. United States of America, pending in the United States District Court for the Southern District of Texas, Brownsville Division, challenging the November 20, 2014, action of the President of the United States to exercise discretion with respect to certain individuals who came to the United States as children and whose parents are United States citizens or permanent residents. More specifically, I am requesting the following records pertaining to said lawsuit: (1) all correspondence between your office and the office of the Indiana Attorney General, any other state official, any governmental official from another state, or any private entity, with respect [to] your decision to become a party in [the] litigation; (2) the contract or agreement between your office and Barnes & Thornburg LLP, retaining that firm to represent you and/or the State of Indiana in said lawsuit; (3) any and all invoices from Barnes & Thornburg for professional services rendered or to be rendered in connection with said lawsuit; and (4) evidence of any payments made to Barnes & Thornburg for professional services rendered in connection with said lawsuit.

         Appellant's App. Vol. 2 at 12.

         [¶6] The Governor responded to Groth's request with more than fifty pages of documents.[2] The Governor redacted portions of several of those documents, and he declined to release the white paper, a legal memorandum. For example, part of the Governor's response for invoices from Barnes & Thornburg LLP described the attorneys' work as follows:

Worked on litigation, including review of district court filing notices and update reports from Texas counsel, and work on documenting potential damages to State.
[Redacted] conferred with Angela Colmenero, assistant Attorney General in Texas, regarding declaration to support standing arguments; reviewed material forwarded by Ms. Colmenero; [redacted] began work on draft declaration.
Worked on litigation, including review of district court filing notices.
Reviewed amicus brief filed by various immigrant groups; communicated with Allison Karns about the amicus briefs; reviewed various draft declarations from Texas and Wisconsin representatives; [redacted] communicated with Angela Carmenero regarding declarations; communicated with Andy Oldham regarding hearing; [redacted].

Id. at 22. The invoices also described, without redactions, the dates of the services rendered, the names of the attorneys providing the services, the hours the attorneys logged for the services rendered, and the total invoice amounts.

         [¶7] Another document submitted by the Governor in response to Groth's request was an unredacted email from Daniel Hodge, the chief of staff to then Texas Governor-Elect Greg Abbott, dated November 25, 2014. The subject of Hodge's email was "Legal Challenge to President's Executive Orders, " and Hodge addressed his email to the "Chiefs of Staff" of governors in several different states.[3] Id. at 30. According to Hodge:

I am Texas Governor-Elect Greg Abbott's Chief of Staff and am contacting you to follow-up on comments my boss made during the Governors-Only meeting last week. As some of you may have heard, the State of Texas is preparing a legal challenge to the President's recent executive orders on immigration. During last week's meeting, Governor-Elect Abbott promised that we would circulate a white paper outlining the legal theories supporting the State's legal challenge to the other Governors. A copy of that white paper is attached to this email.
Our hope is that other states will join the State of Texas' legal action so that we will have a broad coalition to challenge the President's action-just as we did when 26 states banded together to challenge ObamaCare. Because Gov-Elect Abbott currently serves as Attorney General of Texas, we have also contacted many of your Attorneys General to inquire about their interest in joining Texas' legal challenge. Those offices have also been provided a copy of the attached white paper.
However, because some Governors indicated last week that their Attorneys General may not elect to join our legal challenge, Gov-Elect Abbott asked that I share this white paper with your office[s] so that Governors whose AGs decline to join the case may do so on behalf of their states. Deputy Solicitor General Andy Oldham is lead counsel for this matter and the drafter of the attached white paper. . . .

Id. (emphases added). Although Hodge attached the white paper to his email, Governor Pence withheld release of that document in his response to Groth's APRA request.

         [¶8] Groth complained about the Governor's response to Indiana's Public Access Counselor.[4] According to Groth, the Governor's response failed to comply with APRA. The Public Access Counselor disagreed, stating:

The Governor's Office has provided a proper response . . . as to why parts of the document were redacted. Pursuant to Ind. Code §§ 5-14-3-4(b)(2) and (6), the materials redacted may contain attorney work product and deliberative materials between inter-agency personnel and its designated contractor. Additionally, under Ind. Code § 34-46-3-1, the records may have been excluded because they include attorney-client communication. The redaction of legal invoices for this purpose is not unusual and has been addressed as appropriate in several prior Public Access Counselor Opinions.
Pursuant to Ind. Code § 5-14-3-6, redactions should be made with precision so non-disclosable records are separated from disclosable material. The redactions made to the records you have presented do not appear on their face to be overly redacted, relative to other attorney invoices this Office has seen.

Public Access Counselor, Re: Formal Complaint 15-FC-133; Alleged Violation of the Access to Public Records Act by the Office of Governor Mike Pence (May 27, 2015), http://in.gov/pac/advisory/files/15-FC-133.pdf. The Public Access Counselor then concluded that the Governor "did not violate the Access to Public Records Act." Id.

         [¶9] Groth then filed his complaint in the Marion Superior Court. The trial court reviewed the unredacted invoices and previously undisclosed white paper in camera and concluded, after a hearing, that the Governor had complied with APRA. This appeal ensued.[5]

         Discussion and Decision

         Standard of Review

         [¶10] Groth appeals the trial court's judgment for the Governor. Under the Indiana Code, the trial court's review of Groth's complaint for an alleged APRA violation was de novo, or without deference to the public agency[6] that denied the access, and the initial burden of proof in the trial court was on the agency. I.C. § 5-14-3-9(f), (g)(1). The public agency meets its burden of proof by showing that the undisclosed records fall within an exception listed under Indiana Code Section 5-14-3-4 and by establishing the content of those records with adequate specificity beyond merely relying on a conclusory statement or affidavit. I.C. § 5-14-3-9(f), (g). If the undisclosed records fall within a mandatory exception listed under Indiana Code Section 5-14-3-4(a), as a matter of law the records shall not be disclosed. If the undisclosed records fall within a discretionary exception listed under Indiana Code Section 5-14-3-4(b), it is in the agency's discretion not to disclose the records. Once the agency has met its initial burden of proof to show that undisclosed records fall within a discretionary exception under Section 4(b), the burden shifts to the complaining party to demonstrate that the agency's denial of his access to those records was "arbitrary and capricious." I.C. § 5-14-3-9(g).

         [¶11] Because the trial court's review of the agency action was, as a matter of law, de novo, and because the only evidence presented to the trial court here were paper records, we are in just as good a position on appeal as the trial court was to consider the merits of Groth's complaint. Accordingly, our review of the trial court's judgment is de novo. E.g., Anderson v. Wayne Post 64, Am. Legion Corp., 4 N.E.3d 1200, 1206 (Ind.Ct.App. 2014), trans. denied. We disagree with the Governor's argument on appeal that we must defer to the trial court's assessment of the meaning of paper records when that assessment follows from an in camera review. Cf. id. (holding that we review a paper record de novo).

         [¶12] The Governor also asserts that we have no authority to conduct our own in camera review of sealed documents. Again, we disagree. Among other reasons, Article 7, Section 6 of the Indiana Constitution guarantees the right to one appeal. The Governor's argument would render that right illusory where, as here, the merits of an appeal turn wholly on documents reviewed in camera by a trial court. On appeal, we review the entire trial court record. Groth has requested in camera review on appeal of the documents at issue, and to give effect to his right to an appeal, we have, by separate order, granted his request. However, we agree with the Governor that those documents shall remain excluded from public access pursuant to Indiana Appellate Rule 23(F)(2) and Indiana Administrative Rule 9(G).

         Issue One: Justiciability of APRA Requests to the Governor

         [¶13] We first consider the Governor's argument on appeal that Groth's APRA complaint is not justiciable. As the Indiana Supreme Court has explained:

justiciability is not a question of jurisdiction, but whether it is prudent for the Court to exercise its ...

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