Katie Heinz and Matt McKinney, writing for the Indy Channel, report that the trial court judge has dismissed the public records lawsuit brought against the Indiana House Republican Caucus. I had a post back in March about the underlying request and the trip to the Public Access Counselor.
The request was for, essentially, correspondence from Sept. 1, 2014 to the present between Rep. Eric Koch and various players in the energy policy world (e.g. Duke Energy, NIPSCO, Vectren, etc.)
In resisting the request, the House is claiming that it is exempt under the Access to Public Records Act (APRA) and that, as a matter of policy, they need to be exempt:
House Speaker Brian Bosma told RTV6 in March that complying with public records requests could dissuade constituents from contacting their legislators.
“You’d truly be surprised at the things people share with their legislators,” Bosma said. “Many times we’re the point of last resort when family tragedy occurs.”
As an initial matter, I am not sure that the language of APRA really contains such a broad exemption for communications to the Indiana General Assembly. But, assuming for the sake of argument that they are, the exemption would be horribly underinclusive if the rationale was truly to protect communications between constituents and elected officials. Why just the General Assembly? It’s not like they’re the priesthood of the republic to whom citizens confess their sins and impure thoughts. Constituents communicate all sorts of concerns to all sorts of lawmakers and elected officials. There is not one principled reason for carving out an exception specifically applicable to the General Assembly on this basis. Either ditch the exemption for the General Assembly or make it applicable to all of the State’s elected officials.
I’ll be interested to get a look at the trial court’s rationale. But, to a certain degree, the rationale is going to be incidental. This is the sort of thing the Court of Appeals or, if they’re interested – the Supreme Court, will have to sort out.
Update The trial court order (copy obtained by the Indiana Law Blog) is not a wealth of information. It simply says that the court finds the Masariu case to be applicable and therefore grants the motion to dismiss for lack of justiciability. That case is State ex rel Masariu v. Marion Superior Court No. 1, 621 N.E.2d 1097 (Ind. 1993) which, itself, is not a tour de force of reasoning and research.
Betty Masariu was the Clerk of the Indiana House of Representatives and, in that capacity, a lawsuit was brought seeking to compel her to produce certain voting records of the House. (The decision itself does not reveal anything else about the voting records requested.) The Indiana Supreme Court cited Article 3, Sec. 1 of the Indiana Constitution which provides:
“The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.”
Under that section, according to the Masariu decision, the Supreme Court was prohibited from determining that disclosure of the voting records was required under the Access to Public Records Act. To do so, the Court declared, would “amount to constitutionally impermissible judicial interference with the internal operations of the legislative branch.” Assuming that the APRA requires production of such records (which is the required assumption at this stage of the litigation), it’s unclear how requiring such production constitutes interference with the House’s internal operations — in as much as, if APRA requires it, the General Assembly imposed the requirement on itself (along with other governmental entities).
The Masariu decision is opaque, but the case it cites, Roeschlein v. Thomas, 258 Ind. 16, 280 N.E.2d 581 (1972) and the manner in which it is cited hints at a distinction: (“Courts cannot be authorized to undermine the exclusive constitutional authority of the presiding officers of each house to authenticate all legislation.”) It might be (and I’m only speculating) that this request for voting records was part of an effort to say that some piece of legislation was not passed correctly and was, therefore, invalid. Roeschlein was an effort to invalidate Article 7 of the Indiana Constitution concerning the judiciary, revised in 1970. Part of the complaint was that the Joint Resolution containing the constitutional amendment was not properly passed by the Indiana General Assembly. The Indiana Supreme Court said that it was enough that the joint resolution was authenticated as having been properly passed by the Speaker of the House and the President pro tem of the Senate. The Court was not going to get into the internal business of either chamber to investigate the underlying mechanics of how the legislation was passed.
Roeschlein seems like an entirely appropriate invocation of separation of powers. Masariu looks like a sketchy but plausible invocation if the underlying voting records were sought as part of an effort to invalidate legislation certified as passed by the Speaker. The present case does not seem to raise such concerns at all. The General Assembly passed a law that applies to all government records, including its own. (Or, again — if these records are exempt under APRA, that’s a separate argument.) While a court should hesitate to impose such a requirement on the General Assembly on the court’s own, where the General Assembly has imposed the requirement upon itself as a matter of state law, the courts should feel free to compel individual Representatives to comply with the law in the same manner it compels members of the executive branch to comply with APRA. Does this mean that the Governor is exempt from complying with APRA under Article 3, section 1? If not, why not? And, because Article 3, section 1 doesn’t just mention the governor along with the legislative branch, it specifies “the Executive including the Administrative,” under this rationale, all of the executive branch agencies would seem to be justified in invoking interference with their “internal operations” as a reason not to produce records.
That’s my initial take, anyway. If and when the Court of Appeals and/or the Indiana Supreme Court takes this up, I am hoping for a more extensive discussion than the one paragraph ruling of the trial court or even the six paragraph decision of the Masariu case. If separation of powers is the rationale, I would also welcome some explanation about why the same rationale would or would not apply to APRA requests directed to the executive branch.