Appeals Court Rules for Pence in Email Case

INDIANAPOLIS (CN) – A divided Indiana Court of Appeals ruled that Vice President-elect Mike Pence does not have to turn over an email attachment sought in a 2014 public records request.

The three-judge panel made a split 2-1 decision in favor of Pence on the issue of a “white paper” email attachment, finding that the document in question was protected by attorney-client privilege. The document is a legal memorandum and has been referred to as a “white paper” by parties involved in the case.

Perhaps more importantly, though, the panel unanimously agreed that decisions by the executive branch of government to deny public records requests can be reviewed by the courts.

This distinction is significant because if Pence had prevailed on that point, it could have been a signal from the court that future Indiana governors could heavily redact or outright deny public records requests with no review process.

The appeals court heard arguments in the case in November.

The 41-page ruling authored by Judge Edward Najam was released Monday, and found that Pence’s email attachment was exempt from the Indiana Access to Public Records Act, also known as ARPA, because of the legal nature of the document.

Specifically, the white-paper document referred to legal information related to a Texas lawsuit that Pence joined against the United States in 2014, targeting immigration executive orders passed by President Barack Obama.

“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,” Najam wrote.

The lone dissent, Judge Nancy Vaidik, did not agree regarding the white paper, finding that the email attachment was sent before an attorney-client relationship was established, and should be considered a “solicitation” that is not protected.

“I believe that the white paper, which was emailed before any sort of agreement was reached, is not protected from disclosure as a privileged attorney-client communication pursuant to the common-interest doctrine,” Vaidik wrote.

Despite the dissent regarding the white paper, the panel‘s agreement that the court can review the governor’s decisions to deny public records requests came as a victory to the plaintiff, Indianapolis attorney William Groth.

“I’m most especially pleased that all three judges on the appellate court forcefully rejected Pence’s Nixonian argument that he should not be required to comply with Indiana’s governmental transparency laws,” Groth told Courthouse News.

Groth also said that he was “disappointed” in the court’s decision regarding the white paper, but that the dissent shows that the matter is a “close legal question.”

The original public records request dates back to 2014, when Groth requested the release of documents about Pence’s decision to hire outside legal counsel, at the taxpayers’ expense, to join the Texas lawsuit.

Pence’s office eventually released 57 pages of documents including legal invoices, but some were heavily redacted and the white-paper email attachment was not released at all.

Groth took to the courts, but the Marion County Superior Court ruled in favor of Pence, finding that it was not an issue for the courts to decide.

In its decision, the Superior Court cited Citizens Action Collation v. Indiana House of Republican Caucus, which found that the judicial branch of government could not interfere with the legislative branch in the handling or disclosing of “work product,” due to the separation of powers clause in the state constitution.

This decision was the basis for Pence’s defense, but the Court of Appeals disagreed with the assertion.

“Thus, the Governor contends that his ‘own determinations’ under APRA are conclusive and that it would violate the separation of powers doctrine for the judiciary to ‘second guess’ those determinations,” Najam wrote.  “We cannot agree.”

Najam went on to say that such an interpretation of ARPA would render the law “meaningless” as it applies to the governor and his staff, and that the interpretation is contrary to the law.

The panel also agreed that Pence’s decision to heavily redact some of the released invoices was fair, because after the court reviewed the full documents in private, they found the documents contained legal theories and opinions that count as work product.

“As such, the Governor acted within his discretion when he redacted that information from the invoices as the work product of attorneys representing the State of Indiana or the Governor,” Najam wrote.

Groth said that he has not decided if he would appeal the panel’s decision, and would make the decision after consulting with his attorney. He has 30 days to file an appeal.