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.IN.gov/pac
March 6, 2015
Mr. William R. Groth
C/o Energy and Policy Institute
P.O. Box 15790
Washington, D.C. 20003
Re: Formal Complaint J5-FC-69; Alleged Violation a/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 your formal complaint alleging Indiana House
Representative Eric Koch and the Indiana House Republican Caucus ("Caucus"), violated
the Access to Public Records Act CAPRA") Ind. Code § 5-14-3-1 et. seq. The Caucus
has 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 February 24, 2015.
BACKGROUND
Your complaint dated February 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 January 16,2015, you submitted a public records request to Representative
Koch requesting the following information:
[c]opies of correspondence between Representative Eric Koch, Koch's
staff, and Duke Energy, and Indianapolis Power & Light. The information
is specifically regarding the distributed generation bill, H.B. 1320, filed by
Representative Eric Koch. This public records request should include but
is not limited to emails, all draft records, notes, minutes, scheduling
records, text messages, other correspondence and all other records. The
search for records may be limited to September 1,2014 to January 15,
2015.
On January 20, 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 based upon House tradition and the holding in Masariu v. The
Marion Superior Court No.1, 621 N.E.2d 1097 (Ind. 1993). The Caucus reiterated this
argument in its response to your complaint.
DISCUSSION
First, it should be noted the Indiana Access to Public Records Act applies to the Indiana
General Assembly. The Legislature itself wrote in Ind. Code § 5-14-3-1:
A fundamental philosophy of the American constitutional form of
representative government is that government is the servant of the people
and not their master. Accordingly, it is the public policy of the state that
all persons are entitled to full and complete information regarding the
affairs of government and the official acts of those who represent them as
public officials and employees. Providing persons with the 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.
Nowhere in the APRA does the statute exempt the General Assembly from its provisions.
In fact, it carves out several exemptions for itself in relation to specific records.
Therefore, if it does not apply, there would be no need to create exceptions. See Ind.
Code §§ 5-l4-3-4(b)(13) and (14) and; 5-14-3-9.5(a) et. seq.
Furthermore, Ind. Code § 5-14-3-2(n)(1) defines public agency for the purpose of the
APRA as Any board, commission, department, division, bureau, committee, agency,
office, instrumentality, or authority, by whatever name designated, exercising any part of
the executive, administrative, judicial, or legislative power of the state.
The Caucus cites Masariu v. The Marion Superior Court No.1, 621 N.E.2d 1097 (Ind.
1993) as basis for its assertion that the APRA does not apply to the General Assembly. In
Masariu, the Indiana Supreme Court declined to insert itself into the operations of the
legislative branch based upon separation of powers principles. That particular case,
however, concerned the matter of whether House personnel should undertake a task and
did not address any substantive APRA or Open Door Law issues. The Court did not
affirmatively state whether the APRA was applicable or not, only that the Supreme Court
would not interfere with internal legislative operations.
The Caucus also cites Berry et. al. v. Crawford, et. al., 990 N.E.2d 410 (Ind. 2013). Berry
held that where a particular function has been expressly delegated to the legislature by the
Indiana Constitution without any express constitutional limitation or qualification,
disputes arising in the exercise of such functions are inappropriate for judicial resolution.
Distinguishable is the fact that access to public records and governmental transparency is
not exclusive to the legislative branch of government. As noted above in Ind. Code § 514-3-2(n)(l), those responsibilities apply across all levels of state and local government.
Both Masairu and Berry were concerned with what is non-justiciable. This very Office
was created by the Indiana Legislature in part to make recommendations regarding public
access to the General Assembly. See Ind. Code § 5-14-5-10(7). I opine on matters related
to the executive and legislative branches of government as well. Therefore, it is my
opinion the Indiana General Assembly is subject to the Indiana Access Laws. It should
also be noted the General Assembly has contemplated writing itself out of the APRA
after Masariu (See H.B. 1083 (2001)). It declined to do so. Furthermore, the General
Assembly has created specific exemptions for itself regarding work product indicating it
considers itself subject to the APRA in other regards.
As for the request itself, much of what you request would fall into the legislative work
product exception pursuant to Ind. Code § 5-14-3-4(b)(l4). The APRA requires an
agency to separate and/or redact confidential information in public records before making
the disclosable information available for inspection and copying. See Ind. Code § 5-14-36( a). Some ofthe records you seek may be work product of a legislator exempt from
disclosure underind. Code § 5-14-3-4(b)(l4). But it remains to be seen whether the
totality of the documentation is work product.
Finally, it appears as if your request is not reasonably particular, in that it does not meet
the specificity requirements ofind. Code § 5-14-3-3. In regard to email communication,
please refer to the Opinion of the Public Access Counselor 14-1NF-30 for an overview of
reasonable particularity in regard to emails. If resubmitted with reasonable specificity, the
Caucus would need to identifY the non-disclosable records containing work product and
produce the information which does not contain work product.
CONCLUSION
Based on the foregoing, it is the Opinion of the Public Access Counselor the Indiana
General Assembly is subject to the Access to Public Records Act.
Regards,
Luke H. Britt
Public Access Counselor
Cc: Jill. S. Carnell, Esq.
Statehouse, Room 3-8
200 west Washington Street
INDIANAPOLIS. INDIANA 46204
Jill S. Carnell
Chief Counsel
(317) 232-9631
[email protected]
March 3, 2015
Mr. Luke H. Britt
Public Access Counselor
Indiana Govemment Center South
402 West Washington Street, Room W460
Indianapolis, Indiana 46204-2745
PUBliC ACCESS COUNSELOR
Dear Mr. Britt:
-----------
This letter is in response to Complaint number IS-FC-69 (Priority), which alleges violations of
the Access to Pnblic Records Act on or about January 20 and February 9, 2015, by Representative Eric
Koch and the Indiana House Republican Caucus because I denied the requests for certain constituent
correspondence made by the Energy and Policy Institute.
hl both responses to the Energy and Policy Institute, 1 explained that the Access to Public
Records Act does not apply to the Indiana House of Representatives ("House"). Pursuant to Article 4,
Section lOaf the Indiana Constitution, "each House shall choose its own officers ... determiue the rules
of its proceeding, and sit upon its own adjournment." In determining the rules of its proceeding, the
House has a tradition of treating all correspondence as confidential. This encourages constituents-and
anyone else-to communicate all necessary information to their legislative representative without
fearing that the information (which is often personal and private in nature) could be released to an
outside party.
The Indiana Supreme Court 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 brauch of
governmeut to decide its own internal procedural rules relating to the release of records. In Berry ef al.
v. Crawford, ef 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 IC 5-14-3, does not apply to the Indiana General Assembly.
Finally, even if the Access to Public Records Law applied to the General Assembly, Ie 5-14-34(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.
;-:-:
Mr. Luke Britt
March 3, 2015
Page 2
Therefore, pursuant to the Indiana Constitution and two cases decided by the Indiana Snpreme
Court, the Indiana House of Representatives is well within its authority to deny access to constituent
correspondence.
Sincerely,
~C~~l~f~
Chief Counsel
House Republican Caucus
cc:
Speaker Brian Bosma
Representative Eric Koch
Lesley Crane, Esq.
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