STATE OF INDIANA
MICHAEL R. PENCE, Governor
PUBLIC ACCESS COUNSELOR
LUKE H. BRITT
Indiana Government Center South
402 West Washington Street, Room W470
Indianapolis, Indiana 46204-2745
Telephone: (317)233-9435
Fax: (317)233-3091
1-800-228-6013
www.lN.gov/pac
April 1,2015
Mr. William R. Groth, Esq.
C/o Energy and Policy Institute
P.O. Box 15790
Washington, D.C. 20003
-andCitizens Action Coalition
603 East Washington Street
Indianapolis, Indiana 46204
Re: Formal Complaint I5-FC-I07; Alleged Violation of the Access to Public
Records Act by Indiana House Representative Eric Koch and the Indiana House
Republican Caucus
Dear Mr. Groth,
This advisory opinion is in response to the formal complaint alleging Indiana House
Representative Eric Koch and the Indiana House Republican Caucus ("Caucus"), violated
the Access to Public Records Act ("APRA") Ind. Code § 5-14-3-1 et. seq. The Caucus
responded to your complaint via Ms. Jill S. Carnell, Esq., Chief Counsel. Her response is
enclosed for your review. I issue the following opinion to your formal complaint received
by the Office of the Public Access Counselor on March 23, 2015.
BACKGROUND
The complaint dated March 23, 2015 alleges the Indiana House Republican Caucus
violated the Access to Public Records Act by failing to produce information you
requested.
On or about March 9, 2015, a public records request was submitted to Representative
Koch requesting the following information: Any and all emails, correspondence, or other
documents that pertain to "net metering," "solar energy," "distributed generation,"
"electric fairness," or "fixed charges," and that were created from September 1, 2014 to
the present, between Representative Eric Koch and [10 different named parties]."
On March 16,2015, Chief Counsel for the Caucus acknowledged and denied your
request arguing that the Indiana Access to Public Records Law was inapplicable to the
Indiana General Assembly. Additionally, counsel cites Ind. Code § 5-14-3-4(b), alleging
the conversations are work product of the legislature. Finally, counsel contends your
request is not reasonably particular because it involves ten different parties and a time
period of six months.
ANALYSIS
The public policy of the APRA states that "a (p)roviding person with information is an
essential function of a representative government and an integral part of the routine duties
of public officials and employees, whose duty it is to provide the information." See Ind.
Code § 5-14-3-1. As it stated in Opinion of the Public Access Counselor 15-FC-69, the
Indiana House Republican Caucus is a public agency for the purposes of the APRA. See
Ind. Code § 5-14-3-2(n)(I). Any person has the right to inspect and copy the Caucus's
public records during regular business hours unless the records are protected from
disclosure as confidential or otherwise exempt under the APRA. See Ind. Code § 5-14- 33(a).!
Although not defined in the APRA, the Indiana Court of Appeals addressed the issue of
reasonable particularity in the APRA in Jent v. Fort Wayne Police Dept., 973 N.E.2d 30
(Ind. Ct. App. 2012), and again in Anderson v. Huntington County Bd. ofCom'rs., 983
N.E.2d 613 (Ind. Ct. App. 2013). The Court in Jent held:
Whether a request identifies with reasonable particularity the record being
requested turns, in part, on whether the person making the request
provides the agency with information that enables the agency to search
for, locate, and retrieve the records.
Furthermore, in Opinion of the Public Access Counselor 14-1NF 30, I opined:
Consider the definition of particularity in The New International
Webster's Dictionary and Thesaurus, Encyclopedic Ed., 200: "exactitude
in description; circumstantiality; strict or careful attention to detail;
fastidiousness." I do believe voluminous records requests can meet that
standard and agencies are required to satisfY voluminous requests, but to
I The holdings in Masariu v. The Marion Superior Court No. 1,621 N.E.2d 1097 (Ind. 1993) and Berry et
al. v. Crawford, et aI., 990 N.E.2d 410 (Ind. 2013), relied upon by the Caucus, exclusively address judicial
enforceability ofintemallegislative procedures. The case does not address applicability of the Access to
Public Records Act to the legislature. There is no authority in case law or statute exempting the Indiana
General Assembly from the APRA. Judicial enforceability and applicability are mutually exclusive. This
Office has traditionally been consistent in this holding. See also the Opinions of the Public Access
Counselor 03-FC-62; and 03-Fe-3 J ("The House ofRepresentatives is clearly a public agency for the
purposes of the APRA").
meet the reasonable particularity standard, they cannot be blanket
requests.
When it comes to email, I generally rely on the guidance provided by the
Court in Anderson. The Court agreed with former Public Access
Counselor Hoage that a reasonably particular request names a specific
sender, recipient, and date frame. I would also contend a specific request
would include one or more key words for a search parameter.
In your amended request, you have seemingly satisfied the elements of specificity
considered to be reasonably particular. Your request appears to meet the standard set
forth by the APRA.
Furthermore, buttressing the applicability argument, the General Assembly has carved
itself out an exception for work product pursuant to Ind. Code § 5-l4-3-4(b)(14). The
Caucus references this exception to disclosure in its denial. The disclosure or denial of
the work product is at the discretion of the legislature.
As discussed in the footnote above, this Office - charged with the responsibility of
making recommendations to the General Assembly in regard to access issues - considers
the legislature to be subject to the APRA. The intent of the APRA is to foster trust and
good faith between the public and the government. It is a safeguard for accountability and
stewardship for civil servants. I am confident the General Assembly strives to espouse
those virtues. As Indiana Public Access Counselor, I humbly and respectfully request the
Caucus reconsider its position on the blanket inapplicability of the Access to Public
Records Act and treat public records requests in a manner consistent with the spirit of
transparency and openness.
That being said, this Office also recognizes the importance of maintaining the integrity of
the legislative process. This includes legislator-constituent communication channels.
Work product oflegislators is not defined in Indiana Code or case law. Although there is
no explicit legislator-constituent privilege, the Masariu and Berry cases suggest the
General Assembly has the discretion to define their own work product. To the extent the
legislature may define work product to include the type of information you seek, I
implore the General Assembly to be judicious in deciding what to withhold and what to
release. It indeed requires a delicate balance, but the scales should favor transparency.
Regards,
Luke H. Britt
Public Access Counselor
Cc: Ms. Jill S. Carnell, Esq.
(t..
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\:Ml;;t',r'$;i\'/ STATE OF INDIANA
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HOUSE OF REPRESENTATIVES
Statehouse, Room :}o8
200 West Washington Street
Indianapolis, Indiana 46204
Jill S. Carnell
Chief Counsel
(317) 232-9631
jill. [email protected]
March 26, 20 IS
Mr. Luke H. Britt
Public Access Counselor
Indiana Government Center South
402 West Washington Street, Room W460
Indianapolis, Indiana 46204-2745
,::.
Dear Mr. Britt:
This letter is in response to Complaint number IS-FC-107 (Priority), which alleges
violations of the Access to Public Records Act on or about March 16,2015, by Representative
Eric Koch and the Indiana House Republican Caucus because certain requests for constituent
correspondence made by the Energy and Policy Institute were denied. The requests were made
via email to Representative Eric Koch on March 9, 2015. The requests were as follows:
:-.:.
Any and all emails, correspondence, or other documents that
pertain to "net metering," "solar energy," "distributed generation,"
"electric fairness'," or "fixed charge," and that were created from
September 1,2014, to the present, between Representative Eric Koch and:
i-·
1. Indiana Energy Association, including but not limited to Kimberly Reed,
Mark Maassel, Edwin Simcox, 01' Timothy Rushenberg;
2. Duke Energy Corporation (including its parent company and subsidiaries),
including but not limited to Stanley Pinegar, Douglas Esamann, Lynn
Good, Lisa Kobe, 01' Laura Schenkel Johnson;
3. Indiana Michigan Power (including its parent company and subsidiaries),
inclnding but not limited to Brian Bergsma, Paul Chodak, or Marc Lewis;
4. Indianapolis Power & Light Company (including its parent company and
subsidiaries), including but not limited to Kelly Huntington, Frederic
Mills, or Mark Flint;
5. Northern Indiana Public Service Company (inc1nding its parent company
and subsidiaries), including but not limited to Mike Charbonneau, James
Newland Jr., or Brandon Seitz;
6. Vectren Corporation (including its parent company and subsidiaries),
including but not limited to Romad Christian, Carl Chapman, Robert
Carmichael, Laurie Thornton, or Michael Roeder;
;,~-
Mr. Luke Britt
March 26, 2015
Page 2
7. Mahern & Associates, including but not limited to Ed Mahern;
8. Arland Communications, including but not limited to Dave Arland;
9. Taft Stettinius & Hollister LLP, including but not limited to Elizabeth
Murphy, John Coldren, or Mark Palmer; or
10. Ice Miller LLP, including but not limited to Kay Pashos, Kelly Earls, and
Melissa Proffitt Reese, Teni Czajka, Thomas Dimond.
The Energy and Policy Institute previously made similar requests to Representative Koch
on January 16 and February 2, 2015, which were denied. On February 24,2015, the Energy and
Policy Institute and the Citizens Action Coalition filed a complaint with your office regarding
those denials, and on March 6, 2015, you issued an advisory opinion. In that opinion, you
concluded that the Indiana General Assembly is subject to the Access to Public Records Act but
that the earlier requests made by the Energy and Policy Institute were not reasonably particular.
In the March 16, 2015, response to the Energy and Policy Institute, I explained that 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 Indiana Supreme Comt has twice held that the legislative branch has the
constitutional authority to determine its procedural rules. In Masariu v. The Marion Superior
Court No.1, 621 N.E.2d 1097 (Ind. 1993), the Indiana Supreme Court determined that it would
not intervene in the internal affairs of the legislative branch of government and that it is up to
the legislative branch of government to decide its own internal procedural rules relating to the
release of records. In Berry et al. v. CraWford, et al., 990 N.E.2d 410 (Ind. 2013), the Indiana
Supreme Court held that "for courts to get involved in such a legislative function would
amount to 'constitutionally impermissible judicial interference with the internal operations of
the legislative branch. ", For all of these reasons, the Indiana Access to Public Records Law,
located at I.C. 5-14-3, does not apply to the Indiana General Assembly.
Even if the Access to Public Records Law applied to and could be judicially enforced
against the General Assembly, lC. 5-14-3-4(b) also excludes from disclosure the work product
of the Legislative Services Agency, as well as the work product of the individual members and
partisan staffs of the General Assembly. The documents you have requested fall squarely
within these exclusions and would not be available to you under the Access to Public Records
Act. In addition, your request is not reasonably particular pursuant to the specificity
requirements of I.C. 5-14-3-3 because your request covers over six months of time and
numerous entities, names, and phrases.
Finally, I disagree with your conclusion in Advisory Opinion 15-FC-69 (priority) that the
Access to Public Records Law does apply to the Indiana General Assembly. It is clear from
Mr. Luke Britt
March 26, 2015
Page 3
both Masariu and Berry that the courts will not intervene with the internal policies of the
Indiana General Assembly. In fact, in Masariu, the Indiana Supreme Court actually declined
to order the Clerk of the House to release a copy of a roll call vote, a record of an action that
was taken in public. In addition, the Public Access Counselor's opinion is just that-the nonbinding opinion of one lawyer. In Anderson v. Huntington County Board of Commissioners,
983 N.E.2d 613 (Ind. App. 2013), the court held that the Public Access Counselor's opinion is
not binding on a court. In Purdue University v. Warteli, 5 N.E.3d 797 (Ind. App. 2014), the
court held that the Public Access Counselor is not a finder of fact. If your opinion as Public
Access Counselor is not binding on a court, nor is the Public Access Counselor a finder offact,
a Public Access Counselor Advisory Opinion is certainly not binding on the duly-elected
members of the Indiana General Assembly.
Therefore, pursuant to the Indiana Constitution and two cases applying the Indiana
Constitution decided by the Indiana Supreme Court, the Indiana House of Representatives is
well within its authority to deny access to constituent correspondence.
1.
Sincerely,
~S.0vWiQ
Jill S. Carnell
Chief COlUlsel
House Republican Caucus
cc:
Speaker Brian Bosma
Representative Eric Koch
Lesley Crane, Esq.