Why Am I Not Surprised?

The Governor steps in it again.

Gov. Mike Pence is using a recent Indiana Supreme Court decision to argue that he should not be required to release documents that have been deemed by law to be public records.

The Indiana Supreme Court ruled April 19 that it won’t compel lawmakers to release their emails to the public, even though it said the Access to Public Records Act applies to the General Assembly. The court said the separation of powers in the Indiana Constitution means the courts should not tread on lawmakers’ turf.

Now, Pence wants that same logic applied to him.

Of course he does. He also wanted to operate his very own “news bureau,” so that “news” would portray him in a favorable light.

The Indiana Supreme Court’s decision in the recent Koch case dismayed the legal community, for a number of reasons. The Court cited separation of powers–saying that it lacked the authority to overrule the legislature’s own interpretation of the law requiring disclosure.

In the Koch case, Citizens Action Coalition and two other groups the tried to get access to emails between utility companies and Rep. Eric Koch, R-Bedford, who is chairman of the House Energy Committee. The Supreme Court found that determining whether those documents counted under the APRA as legislative work is a “non-justiciable question,” meaning a matter it cannot adjudicate.

In the immigration case, Groth requested the contract the governor entered into with Barnes & Thornburg, who sued for the state instead of Indiana Attorney General Greg Zoeller, as well as copies of firm’s invoices. He also sought emails between the Texas Attorney General, who led the suit, and Pence’s office.

But the documents Groth received back were “heavily redacted,” he said, so he complained to the Public Access Counselor and ultimately filed the suit.

What is at stake here is a basic tenet of good government: are citizens entitled to information about contracts that their elected officials have entered into? Information about the expenses involved? The usual answer is: yes. That’s what is meant by transparency–an important aspect of democratic governance.

If voters cannot access information about the way their government works, they lack important information on which to base their votes. We call that sort of information “accountability.”

Public access advocates say their fears about the recent Indiana Supreme Court decision are already coming true.

Kerwin Olson, executive director of the Citizens Action Coalition, said he was worried the Supreme Court case would have negative, far-reaching implications, and this appears to be one of them.

“The Pence administration is already citing Koch as an additional authority to deny releasing government documents,” Olson said. “it’s quite astonishing and troubling. It further shuts the door to accountability and transparency in government when we should be going the opposite direction.”

The Indiana Supreme Court’s ruling is troubling, and not just because it is an open invitation to Mike Pence and the legislature to shield their actions from the voters. As Steve Key, executive director of the Hoosier State Press Association, noted

“If the judiciary takes this position, it would eviscerate the Access to Public Records Act because every agency would argue that a judge shouldn’t judge whether a document should be released under an APRA request if the agency’s position is that the record is part of its internal operations,” Key said. “The public’s ability to hold government officials accountable would be greatly hamstrung by such a policy.”

Ya think?

25 thoughts on “Why Am I Not Surprised?

  1. “The Public Access Counselor provides advice and assistance concerning Indiana’s public access laws (specifically the Access to Public Records Act and the Open Door Law) to members of the public and government officials and employees. Governor Frank O’Bannon created the office by executive order in 1998 after a statewide collaboration of seven newspapers found great obstacles in obtaining government information in Indiana. The General Assembly then created the office by statute in 1999.

    “The powers and duties of the public access counselor are the following:
    • To establish and administer a program to train public officials and educate the public on the rights of the public and the responsibilities of public agencies under the public access laws.
    • To conduct research.
    • To prepare interpretive and educational materials and programs in cooperation with the office of the attorney general.
    • To distribute to newly elected or appointed public officials the public access laws and educational materials concerning public access laws.
    • To respond to informal inquiries made by the public and public agencies concerning the public access laws.
    • To issue advisory opinions to interpret the public access laws upon the request of a person or public agency. However, the counselor may not issue an advisory opinion concerning a specific matter with respect to which a lawsuit has been filed.
    • To make recommendations to the general assembly concerning ways to improve public access.”

    The Public Access Counselor is appointed by the governor. The current PAC was appointed by Mike Pence. Want a new PAC? Make sure Mike Pence is not reelected.

  2. This is not a new tactic here. Goldsmith – yes, there’s that name again – and his appointees refused to release information on almost everything. Lengthening the Canal Walk was a major problem as were false accusations against the President of the Metropolitan Development Commission. Word got out that JoAnn Green was the source to go to; one attorney for a business in Goldsmith’s way regarding the Canal Walk actually went to court and had me appointed by the judge as his Records Secretary. This was of course overturned.

    A Star reporter and a local TV newscaster filed suit to gain documents regarding the Commission President using his position to get lucrative contracts for his construction company. He either did not attend Commission meetings or recused himself from the vote when his company was a bidder. This took weeks of research by me through three years of Metropolitan Development Commission records – which his administration tried to remove from my work site, this was against state law. Goldsmith did this without his version of the Indiana Constitution to back him up; he did it because he could forestall all opposition action to get his way.

    “The public’s ability to hold government officials accountable would be greatly hamstrung by such a policy.”

    The public’s ability under Goldsmith “hamstrung” the public and legal representation for a period of time resulting in many losing their homes and businesses and the fine reputation of the President of the Commission was tarnished. Pence can and will probably lose in the end, which looms in the distance, but…what damage will he cause and how much campaign support will he gain using this tactic to get HIS way? The copied and pasted paragraph below refers to a “recent Indiana Supreme Court decision”; just as with the U.S. Supreme Court, these GOP judges define laws to benefit their personal goals.

    “Gov. Mike Pence is using a recent Indiana Supreme Court decision to argue that he should not be required to release documents that have been deemed by law to be public records.”

    How do we residents of Indiana and citizens of the United States regain our lost civil and human rights in this GOP rigged political hell we are currently suffering? Those of you who are going to jump on that comment and begin accusing Democrats of the same manipulation; please cite specifics.

  3. People are kidding themselves if they think the Judges on the Indiana Supreme Court rule with impartiality. From personal experience, I can say business and political interests exert extraordinary pressure In the decisions of the judiciary.

  4. Having been on the provider end of requests for public records, it seems to me that there are very few reasons that any information accrued by public entities should not be revealed.

    One is for private rather than public interest, when a requestor is seeking information so that he or his company can make money.

    A second reason is when a request is so broad that gathering all the information would be prohibitive to the agency providing the information.

    A third would be interference with proprietary rights or patents that might be filed that benefit the public interest.

    Aside from these reasons, the public’s business is the public’s business. It’s not surprising the the public access laws were passed while Democrats were in office and are passed over when Republicans are in office.

  5. David McSwane, your comment holds true for judges everywhere in the system – all the way down to the trial courts.

  6. If you could somehow corral 100 citizens–even the most reactionary ones–and tell them what happened they would likely be outraged. However, as things stand, you can’t force willfully ignorant people to be educated, especially when it comes to legal decisions, so they are saddled with their preconceived ideas of what they think these guys do, choosing to believe that they are honest and straightforward in their dealings.

    Ironically, most of the reactionary folks tend to be a little conspiratorial about those “libruls” and “govmnt” in general, but trust the very ones they shouldn’t. It’s not the people who you don’t trust who will mess you over. It’s the people you do trust who you need to watch.

  7. David; not only in the Supreme Court is partiality absent. Years ago my daughter and I filed suit against her former roommate who had moved while she was on vacation, signed my daughter’s name to the new more expensive lease and moved in with all of my furniture I had loaned them. The judge pro-tem in Small Claims court announced he was going to get creative; he found in favor of the defendant stating my daughter did owe the back rent due to her, transferred my daughter’s debt from defendant to me for my furniture. The following weekend my daughter went into the neighborhood bar to see her former roommate sitting with the judge pro-tem and a well known female bail bondsman at the time with a great deal of pull in the court system. They just laughed when they saw my daughter.

    I am still waiting for the sentencing in Criminal Court for the man who attacked, injured and robbed me over two years ago. Courts at all levels are open to suspicion; look at the sentence given to Monserette Shirley for her part in the Richmond Hills explosion blowing up her house and the double murder. One more testimony against her co-conspirators and she could be free in two years.

  8. Hoosiers. Democracy doesn’t guarantee good government only that those governed choose who governs.

    There are two possibilities:

    1) a majority of Hoosiers prefer power to freedom in which case the future of your state is grim.

    2) a majority of Hoosiers prefer freedom to power. In this case they just all need to vote and over a few years the state can move back to competent government.

    If I were a Hoosier I would be evaluating the odds of 1) vs 2) and if there’s any likelyhood of 1) being the answer I’d move out while it’s possible.

  9. Question here.

    If I work for a governmental body and send correspondence using my government-assigned email account (aka ending with .gov), don’t these emails belong to the governmental body, taxpayers? Are they ‘my’ emails or the governmental body’s emails? I always figured if I used a taxpayer-funded email address, then anything I wrote ultimately belonged to the public. Help me out here.

  10. Peggy Hannon – A fourth reason is when the request for information is for the purpose of personal retaliation or persecution of people telling the truth.

  11. BSH – Interesting concept. Where I work, and I guess this is the general rule, the company owns every e-mail on its server, even if I am just making lunch plans with a co-worker. It WOULD seem reasonable that the citizens own every email on that .gov server. But then again, this is Indiana.

  12. If the facts are about misconduct or whatever, then reporters and editors can get the same information directly — same as any other CAC project. I do not see their press credentials being cited even here. So it seems like phone company satellite and wire servers, broadcasters right there at Indianapolis should be private from lobby groups. Where are the FBI or other courtesy investigators for the gubernatorial police shopping for his call records? Is he charged yet with any Indiana property crimes? CAC would be more credible if there were not an election going on, same as Nixon’s wanting to use public money to pay thieves for the DNC office espionage. If the Star or one of the station owners wants to get the public records, then why can’t they. Same as Mitch Daniels’ emails about Herbert Zinn’s death and”forked tongue” speeches since then. That’s not a Republican or Democrat city, Indianpolis, nor Mansion or Dome. https://www.washingtonpost.com/news/morning-mix/wp/2015/11/13/purdue-pres-mitch-daniels-calls-school-proud-contrast-to-missouri-and-yale-despite-own-history-of-unrest/

  13. @Len Farber, evidently you and I have the same understanding about ownership of work-generated emails, whether from a privately owned worksite or from a publicly owned worksite.

    At this point, my memory is prompted to recall words first heard during my undergrad college years. The words of Supreme Court Justice Louis Brandeis who spoke about government accountability and transparency in such simple words, “Sunlight is said to be the best of disinfectants…”

    Seems that Indiana is one of those places “where the sun don’t shine.”

  14. Let me encapsulate all of the previous statements by saying, This is just more of Mike Pence’s disregard for what is right & his dogged determination to do as he sees fit unencumbered by law or decency or compassion. With Mr. Pence it’s his way or the highway & with the current state of Indiana’s roads, that’s really no choice at all. If Hoosiers don’t wake up & replace this demagogue, then we deserve what happens.

  15. According to a study by the National Association of Counties (2010) (and if I’m reading its charts correctly), only six states include the right of access to public records in their constitutions. Another five have the right of access to court records enshrined. Indiana is not in either group. I like the language from Washington: “The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created” (Washington Public Records Act,
    RCW §42.17.25).

  16. E-mails? A public servant not wanting their e-mails to be made public? Hmmm. This sounds all too familiar. Perhaps Pence would’ve been better served by acquiring his own server and keeping it at his residence?

  17. Another situation where Gov. Pence will not provide the public any information on a public contract.
    In October 2015 Governor Pence announced a $3.5 million dollar contract with Real Alternatives, an anti-abortion group that provides pregnancy support services in Indiana. However, the public has no information on how this contract was awarded and how this money is being used. What we do know is that the money for this contract was taken from federal Temporary Assistance for Needy Families funds, according to the Indy Star. See http://www.indystar.com/story/news/2015/10/13/state-awards-35-million-contract-anti-abortion-organization-pregnancy-services/73819882/

    According to its website, Real Alternatives only contracts with service providers that “maintain a pro-life mission and agree not to promote, refer, or counsel abortion orabortifacients as an option to a crisis or unplanned pregnancy.” Additionally, the website contains misleading information regarding the effectiveness of contraception in preventing STD’s or pregnancy, and links birth control to illnesses such as breast cancer and cervical cancer.Thus far Real Alternatives has not reported the agencies that have been awarded contracts. Citizens have a right to know.

    Women need accurate information to make the best decisions for their lives. The State should not use federal tax money to coerce or mislead them. It is imperative that Real Alternatives reveals the providers with whom it contracts, that it assures the public that they do not give out false information, and assures us that women are given access and information about all their options. Pennsylvania has a contract with Real Alternatives and it is reported by the Indy Star that the Pennsylvania Auditor General will have an audit done of the program as some local organizations with whom Real Alternatives contracted are reported to be providing misinformation about abortion and failing to disclose to women their anti-abortion tack.

  18. Nonsense: nothing is non-justiciable. If the legislature wants to shield its own activities from the Public Records law all they have to do is amend the law. Assuming they’re not complete idiots, what’s the court’s agenda, and what do the dissents say? It’s the job of the courts to interpret the law, not the job of the legislature. Has everyone in goverment decided not to do their jobs anymore?

  19. BSH at 11:13:
    The decision on what records (including emails) are available was decided by our legislature. Check out the Access to Public Records Act at https://iga.in.gov/legislative/laws/2015/ic/titles/005/articles/014/chapters/003/. You will see that the legislature has carved out a long list of exceptions to full disclosure. The list started fairly small when the law was first passed. The legislature keeps adding exceptions and legislating ways to make it more difficult for a citizen to enforce transparency in government. As a former elected county official, I recognized that some secrecy is necessary, but saw that the amount we now have is much too much.

  20. So now there are no judicial watchdogs to preside over the excesses of the legislative and executive departments via transparency statutes the court says it has no jurisdiction to enforce? Madison with his fundamental idea of checks and balances must be spinning in his grave. The Gestapo, who like Pence & Co. did not like anyone in authority poking around their “doings,” must be cheering from their graves as well. Is such a Depression-era dictatorship next for Hoosier taxpayers, or is dictatorship a fait accompli in the Hoosier State and what is left of democracy a joke when one of the departments of government abdicates its responsibility to function?
    Are the two branches with the checkbook now immune to the prying eyes of those they represent? I was under the impression that the peoples’ business was what was involved; that the politicians merely represented the taxpayers in carrying out the peoples’ business. Are you telling me that the people have no right to know how their own business is being carried out by those who represent them? Doesn’t equity impose a fiduciary relationship between politician and taxpayer irrespective of statute?
    Methinks there is something rotten in the State of Denmark, Province of Indiana.

  21. Surely there are Federal laws broken in this fiasco. Perhaps we need to request they take a close look at our situation?

  22. Carolyn; state’s rights Trump the U.S. Constitution in Indiana and other Republican states. If Pence and/or Trump are elected – you ain’t seen nuthin’ yet! Including Sheila’s post today, Mother’s Day, regarding the increasing lack of rights to control of medical decisions about our own bodies with a darker picture looming in our future. Political transparency is not a problem regarding that issue; the religious, far right-wing is quite blatant in their stand and continue passing laws and rubbing our noses in their decisions.

    The fight on local and national levels over who E-mails belong to rages on – public officials and private citizens alike – while women’s bodies openly belong to the the GOP and SCOTUS.

  23. They amended the state constitution to cap property tax; maybe they can amend it to shield their work and communications from the public and finish off democracy once and for all. The republicans have the numbers.

  24. Greg Bowes, thanks for posting the link to the IN Access to Public Records Act.

    I’ve noticed that some governmental entities resort to in-house ways to make it more difficult for a citizen to enforce transparency in government. For example, rather than sending the requested public information that is not covered by an exception, the citizen is told that all the requested information (the line-item budget) is available for perusal in the Superintendent’s Office. For sure, the letter of the law is met but not the spirit.

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