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
of the Case
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.
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.
On appeal, the parties raise the following four issues for
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
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
and Procedural History
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.
App. Vol. 2 at 12.
The Governor responded to Groth's request with more than
fifty pages of documents. 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
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
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. 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.
Groth complained about the Governor's response to
Indiana's Public Access Counselor. 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
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
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."
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
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 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).
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).
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).
One: Justiciability of APRA Requests to the Governor
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 ...