July 20, 2015

Indiana House Republicans Sued Over Public Records Access

The Indiana House Republican Caucus is facing a lawsuit over its decision to withhold emails shared between one of its members and several utility companies. - file photo

The Indiana House Republican Caucus is facing a lawsuit over its decision to withhold emails shared between one of its members and several utility companies.

file photo

INDIANAPOLIS -- The Indiana House Republican Caucus is facing a lawsuit over its decision to withhold emails shared between one of its members and several utility companies.

Bedford Republican Representative Eric Koch authored the bill that started the dispute. HB 1320 would have allowed utility companies to charge fees for customers using alternative energy sources. The measure also would have reduced reimbursement rates that, for instance, solar panel owners receive when they collect more energy than they use. 

That’s why Citizens Action Coalition executive director Kerwin Olson called the measure the "kill solar energy bill."

“This bill was a direct attempt to thwart the progress that we’ve made with expanding solar energy in Indiana,” Olson said. “No question about it.”

The Citizens Action Coalition is an utility consumer advocacy group and one of the legislation’s most vocal critics.  Speaker Brian Bosma killed the bill. But for the coalition – the fight isn’t over.

“Just because it was pulled from the calendar in 2015 does not mean it won’t come back in 2016,” Olson said. “We are expecting a very same if not similar bill.”

Citizens Action, D.C.-based Energy and Policy Institute and the citizen’s advocacy group Common Cause filed a lawsuit against Koch and the House Republican Caucus in April. Initially, they filed public records requests earlier this year to see Koch’s emails, text messages and other correspondence with utility companies. The groups believe the documents will show the utility industry improperly influenced legislation involving solar energy

House Republican Chief Counsel Jill Carnell denied those requests. She wrote that the General Assembly isn’t subject to Indiana’s Access to Public Records Act. The 30-year-old law allows the public to view records from all state public agencies, but it doesn’t specifically name the Indiana General Assembly as one of those agencies.

Indiana Public Access Counselor Luke Britt sees it differently. He advises lawmakers and the public on state access law issues.

“Plain reading of that statute indicates that they are subject to the provisions of the public records access act,” Britt said. “Additionally, they also wrote themselves in an exception for their work product. Now what work product means isn’t explicitly defined. It stands to reason that if you write yourself an exception to a law then you’re initially subject to it.”

Britt published that opinion first in March and again in April, after the groups sought his advice. However, it didn’t sway House Republicans. Carnell wrote that even if the act does apply to the legislature, the emails Koch shared with utility companies is covered under the exception to the law Britt mentioned – work product.

So, what counts as work product? The ambiguous phrase doesn’t have a definition in APRA. Olson says the answer is obvious.

“Work product is well understood to be an internal document amongst employees of that organization,” Olson said.

Under Olson’s definition, the emails between Koch and another lawmaker would be exempted while emails with utility companies would not. Britt disagrees, saying since APRA lacks a clear definition of work product, the Indiana General Assembly gets to decide.

IU Law and State Government Program Director Cynthia Baker agrees with Britt. She says the emails may count as public records, but with the way APRA is written, it’s ultimately the legislature’s choice to withhold or release that material.

“The fact that the General Assembly comes under the purview of APRA doesn’t mean that the records being sought in this case, which are clearly public records as defined by the Act, are necessarily available to the public because of the numerous exceptions outlined by our General Assembly including the work product of a member of the General Assembly or their staff,” Baker said.

Energy and Policy Institute Executive Director Gabe Elsner says the use of work product as a blanket definition isn’t in line with the spirit of the law.

“All of that would mean that the state legislature can operate in complete secrecy without any accountability to the people they are supposed to represent,” Elsner said.

APRA does say that when confronted with a question of interpretation, the law should be liberally construed in favor of openness. Britt acknowledged that in his opinion where he asked the House Republicans not to be too broad in what is defined as work product.

Still, the groups bringing suit against the legislature face one other hurdle – enforceability. Although APRA states that those who have been denied access to a public record can file a civil lawsuit, the Indiana Supreme Court ruled on an APRA case in 1993 that the judicial branch can’t interfere in the legislature’s internal affairs, calling it a violation of the separation of powers clause. 

Oral arguments on a motion to dismiss will be heard on Aug. 11.

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