The Indiana Law Blog has been covering an ongoing effort to obtain records from the General Assembly through the Access to Public Records Act (APRA). The initial request was denied via the House Republican Caucus attorney on the general grounds that APRA does not apply to the Indiana General Assembly. They created APRA and can exclude themselves from APRA, the theory goes.
The public access counselor found that the General Assembly did not, in fact, exclude itself from APRA but found that the initial public records request was not improperly denied because the request was not made with the reasonable particularity required of any public records request by APRA. So, the requester – individuals from something called the Energy and Policy Institute – increased the level of specificity. (As an aside, I think they still went too broad. Their request reads like a discovery request under the Trial Rules, filled with “including but not limited to” type language. My strategy would be to isolate the issue of whether APRA applied to the General Assembly by being extremely particular – “correspondence, including email, between [specific sender] and [specific recipient] between date x and date y. Sure you’ll miss something, but you can circle back with a broader request if and when a court determines APRA does apply to the General Assembly).
But I digress. 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.). The response acknowledged the Public Access Counselor’s opinion that APRA applied to the General Assembly but disagreed.
As I explained to the Public Access Counselor, the Access to Public Records Act does not apply to the Indiana House of Representatives (“House”) under applicable constitutional provisions. Pursuant to Article 4, Section 10 of the Indiana Constitution, “each House shall choose its own officers… determine the rules of its proceeding, and sit upon its own adjournment.” In determining the rules of its proceeding, the House has a long history of treating all correspondence as confidential. This encourages constituents-and anyone else-to communicate all necessary information to their-or any– legislator without fearing that the information (which is often personal and private in nature) could be released to an outside party.
The bit about encouraging open and frank information to public officials is not an illegitimate policy concern, but it is in no way exclusive to the General Assembly. In other words, it strikes me as a bit of a pretext. If the General Assembly decided that the value of public records outweighed the value of confidential communications to every other part of state government, why would it not make the same policy decision for itself. (Other than “it’s good to be the king”?)
The letter goes on to cite work product exemptions found in IC 5-14-3. My familiarity with the work product doctrine has to do with the context of litigation. I’m not sure exactly how it would play out in the context of the legislative process. It shields documents or materials collected or prepared in anticipation of litigation. That “in anticipation of litigation” is a significant factor. An insurance company that gathers inconvenient facts in the ordinary course of business can’t generally shield that material because it’s subsequently in litigation. The same material may be shielded if it’s gathered specifically in anticipation of litigation. It’s purpose is to shield the mental processes and strategies of attorneys and litigants as to the process of litigation. So, I’m not convinced that emails from, say, a power company to a state representative urging the passage or non-passage of public laws constitutes “work product.” And, if it does, that suggests a more intimate relationship between the lawmaker and the power company than your average, arm’s length citizen-lawmaker relationship.
You are exactly right about work product involving matters in anticipation of litigation. I see that term misused all the time by lawyers wanting to avoid disclosure.