IN THE INDIANA SUPREME COURT CAUSE NO. CITIZENS ACTION COALITION, et a1., Appellants (Plaintiffs below), ERIC KOCH, et al., Appellee (Defendants below). Appeal from the Marion Superior Court Trial Court Case No. Hon. James Osborn BRIEF OF AMICI CURIAE INDIANA PROFESSIONAL CHAPTER OF THE SOCIETY OF PROFESSIONAL JOURNALISTS AND THE INDIANA ASSOCIATED PRESS MEDIA EDITORS IN SUPPORT OF PETITION FOR REHEARING Submitted by: Shannon O?Connell Egan Ind. Attorney Number: 31954?29 GRAYDON HEAD RITCHEY LLP 2400 Chamber Center Dr. Suite 300 Ft. Mitchell, KY 41017 Direct: (859) 578-7261 Fax: (859) 525-0214 Attorneys for Indiana Society of Professional Journalists and The Indiana Associated Press Media Editors TABLE OF CONTENTS TABLE OF AUTHORITIES ..ii QUESTION PRESENTED ..1 STATEMENT OF INTEREST OF AMICI CURIAE ..1 SUMMARY OF ARGUMENT Q. ..1 ARGUMENT ..3 1. The Court?s Ruling is Internally Inconsistent ..3 2. The Ruling is Vague ..S 3. The Ruling is Substantively Overly Broad ..7 4. The Ruling is Procedurally Overly Broad ..8 CONCLUSION ..10 CERTIFICATE OF SERVICE Q. ..II TABLE OF AUTHORITIES Cases Berry v. Crawford, 990 410, 418, 421 (Ind. 2013) .. 6 Popovich v. Indiana Department of State Revenue, 7 406 (Ind. Tax Ct. 2014) .. 5 Purdue University v. Wartell, 5 797 (Ind. Ct. App. 2014) .. 5 Statutes Ind. Code .. 8 Ind. Code .. 8 Ind. Code 5-14-3-1 through -10 .. 1, 7 Ind. Code (3) .. 6 QUESTION PRESENTED Whether Appellants are entitled to a rehearing of this Court?s April 19, 2016 ruling (?the Ruling?), affirming the trial court?s dismissal of Appellants? complaint under the Access to Public Records Act (APRA). STATEMENT OF INTEREST OF AMICI CURIAE The Indiana Professional Chapter of the Society of Professional Journalists and the Indiana Associated Press Media Editors (collectively, are not-for?profit organizations made up of reporters, broadcasters, editors, and publishers. They promote and protect First Amendment freedoms and the public?s right to know the workings of Indiana?s government. members, who work throughout the state, regularly report on the activities and actions of the Indiana General Assembly. SUMMARY OF ARGUMENT This court should grant a rehearing in this action and ultimately vacate the Ruling. The Ruling applied the separation of powers doctrine in a manner so expansive that it effectively eliminates the ability of the Indiana courts to enforce the provisions of the Access to Public Records Act, Indiana Code 5-l4-3?1 through -10 (APRA), against members of the Indiana General Assembly. And while the Ruling misapplies the law, its true danger lies with the potential for it to be applied to any effort to enforce the APRA against the executive branch as well. Thus, in the name of ?separation of powers? this court has put at risk the right of the public to monitor most of the activities of Indiana state government. The Ruling also severely limits the ability of the and the reporters, broadcasters, editors, and publishers who comprise their membership, to provide the public with a Window to the activities of Indiana?s government. Records of government activity provide the oxygen of investigative journalism. From the Pentagon Papers from nearly 50 years ago to the Panama Papers of today, the paper trail created by our elected and appointed of?cials allow investigative journalists to expose misfeasance, malfeasance, and nonfeasance. If ?sunshine is the best disinfectant? it is incumbent upon our courts not to allow any branch of the government to pull down the shade. If this ruling stands, however, an entire branch of the Indiana state government will be able to block the access of the press and public to information critical to uncovering and exposing corruption. This result is bad enough in and of itself, but is made even worse by the fact that the law compels no such ruling. Putting aside the Ruling?s ?nding that the General Assembly asserted the legislative work - product privilege?ma ?nding not supported in any way by the record?there are at least four reasons why this court should grant a rehearing. First, the Ruling is internally inconsistent. While the Court correctly found that the APRA applies to the General Assembly it effectively moots this ruling in the next breath by ?nding the General Assembly retains the unfettered, unreviewable discretion to determine what records are exempt. Second, the Ruling is vague. Does the ?nding that the General Assembly?s designation of an exemption is completely immune from judicial review apply just to an assertion of the legislative work product exemption, or does the court intend to give the General Assembly unreviewable discretion over any claimed exemption? Third, the Ruling is overly broad substantively. The underpinnings of the Ruling would support an argument that the General Assembly can never pass legislation covering its own conduct that invokes the participation of the judicial system. This ?nding is wholly unsupported by the separation of powers doctrine and would result in a scenario where the General Assembly is judge, jury and executioner for all matters in any way affecting it, even when it enacts legislation requiring judicial involvement. Fourth, the Ruling is procedurally overly broad in the context of this particular case. Even allowing for the court?s erroneous decision that the General Assembly?s designation of the legislative work product exemption is unreviewable, that exemption does not permit wholesale withholding of materials. Rather, to the extent the exemption applies, it requires redaction, not withholding. The Ruling, however, permits the General Assembly not just unfettered and unreviewable discretion in the designation of the material, but also the unfettered and unreviewable ability to hide from the public the very existence of materials, as opposed to the content of those materials. This result is not justi?ed by the APRA, the separation of powers, or logic. ARGUMENT l. The Court?s Ruling is Internally Inconsistent. The Appellee argued that the APRA cannot be applied at all to the General Assembly based on Appellee?s self-serving and overly expansive interpretation of the separation of powers doctrine. This court wisely rejected that argument, noting, the does apply to the General Assembly and its members.? But unfortunately for the public?s right to know, the Ruling went on to ?nd that the General Assembly can render the APRA null and void by designating any material it chooses ?legislative work product.? And the accuracy of that designation is off limits to judicial review. It is not entirely clear why the court adopted this ruling. One basis may be the provision of the APRA that states that legislative work product ?shall be excepted at the discretion of the public agency.? If so, the Court simply misread the APRA. The discretion afforded by the plain language quoted above is the discretion to produce or not produce material that is determined to constitute legislative work product. It is not an exercise of discretion for a member of the General Assembly to determine (with no judicial review) what is, and is not, legislative work product in the ?rst instance. The difference is easy to illustrate. Imagine that the APRA exempted documents printed on red paper and provided the General Assembly with discretion to except or not except those documents. This discretion would not give the General Assembly the discretion to deem documents printed on blue paper red. It would merely allow the General Assembly the discretion to produce or not produce red documents as it saw The same is true here. Some records constitute legislative work product and some do not. The General Assembly has the unfettered discretion to produce or not produce the former, but it does not have unfettered discretion to determine which records fall into that category. The Ruling, however, incorrectly grants that discretion. If the APRA applies to the General Assembly (by Virtue of the General Assembly?s decision to make it applicable) then it should apply completely. A necessary part of the APRA is the of judicial enforcement and review. And a critical part of that enforcement and review process is the determination whether the public agency correctly applied an exemption. Absent that mechanism, there is literally no way for the public to determine whether the public agency properly applied the exemption. The de?nition of ?work product? is suf?ciently established as a legal standard, so that a court may apply it without invading the province of the legislative or executive branch. Materials either re?ect the mental process and deliberations of individual members of the General Assembly, or they do not. The General Assembly has no monopoly on the ability to make this determination and the Indiana Constitution grants it none. In Popovich v. Indiana Department of State Revenue, 7 406 (Ind. Tax Ct. 2014), and Purdue University v. Wartell, 5 797 (Ind. Ct. App. 2014), Indiana courts examined materials claimed to be work product, and rendered decisions on the applicability of that privilege. Popovich, in particular, involved an assertion of work-product by another branch of government, but the Court nevertheless adjudicated the issue against the Department of Revenue. Popovz'ch, 7 at 418. Courts should be permitted to do the same when the General Assembly claims the work- product exemption. It is inconsistent for this court to correctly ?nd the APRA applies to the General Assembly but also conclude that Indiana courts cannot enforce it. The facts of this case make the point clear. Among the requested records are correspondence authored by ?various business organizations in relation to speci?c legislation.? Given the undeniable truth that legislative work product covers the mental processes and deliberations of legislators, how can material composed by someone who is not a member of the General Assembly constitute legislative work product? It can?t. But the Ruling allows a member of the General Assembly to determine that such material is legislative work product. And that determination is ?nal and unreviewable the moment it is made. The Indiana Constitution cannot mandate any such result. 2. The Ruling is Vague. The Ruling is not clear whether the grant of unfettered and unreviewable discretion to the General Assembly applies only with respect to its designation of legislative work product or whether it applies to any exemption designation. While the unreviewable ability to designate any material it chooses ?legislative work product? is a powerful tool for gutting the APRA, if this unfettered, unreviewable power is granted to the General Assembly with respect to every exemption, the effect is even worse. Unfortunately, the Ruling is not clear on that point. If the Ruling is intended to give the General Assembly this power with respect to all exemption designations, the Court should immediately reconsider. Such a grant is not only bad policy, it is completely unwarranted for any legal purpose. The APRA provides a fairly simple mechanism for addressing the designation of exemptions. In the ?rst instance, the public agency determines whether an exemption applies. If the requesting party wishes to challenge that designation?because it is erroneous, or overly broadw?it is up to the court to ultimately decide the issue. And that is the case in virtually any statutory cause of action. At the end of the day, the court is the ?nal arbiter. The Ruling indicates however, that with respect to records maintained by the General Assembly, that body is better suited to make the exemption designation, and a court should not presume to weigh in. The Ruling is contradicted by the very text of the APRA and is not supported by the traditional application of the separation of powers doctrine. Berry v. Crawford, 990 410, 418, 421 (Ind. 2013). Moreover, from a policy perspective, it is a needless abdication of authority. And it begs the question, why is the legislature better suited to apply the legal standard of ?work produc than the courts? And how far does this deference extend? The APRA provides, for example, an exemption for records required to be kept con?dential by federal law, or declared con?dential by state statute. Ind. Code (3). Legislators are in the business of passing laws. Are they better suited than judges to determine what materials are subject to federal or state law con?dentiality provisions? If a local health department claims that certain records are con?dential under HIPAA, should the courts as a policy matter defer to those experts? Traditionally, the answer to both questions is no. Courts weigh the evidence and determine issues, if necessary, with the aid of expert testimony. But courts do not and should not abdicate their core function to ?experts.? The Ruling?to the extent it is based on the notion that the General Assembly is better suited to determine the applicability of APRA exemptions?is an erroneous legal determination and bad policy. The purpose of the APRA is to ensure government transparency at all levels of state government. To permit a branch of government the unfettered and unreviewable power to decide what records it will provide not only denies transparency, but the very hope of transparency. The APRA eloquently states the public policy of Indiana as follows: ?[A]ll persons are entitled to full and complete information regarding the affairs of government and the of?cial acts of those who represent them as public of?cials and employees.? Ind. Code 5-14-3- l. The Ruling, however, ensures this will no longer be the case. 3. The Ruling is Substantively Overly Broad. Beyond the more narrow question of whether the separation of powers doctrine guts the courts? ability to oversee the application of exemptions under the APRA, the broader issue created by the Ruling is whether the General Assembly can ever effectively pass legislation that requires court intervention. On its face, the Ruling suggests not. The justi?cation for the Ruling is that the determination of what is and is not work product is a ?core legislative function.? Thus, a court may not invade the territory even if the very statute provides for the court to do so. It is worth noting that this case does not present a scenario where the court is crashing a party uninvited. This is a case where the courts have been expressly invited to participate in the legislatively created process. The Ruling, however, allows the General Assembly to rescind the invitation at will. And given the court?s justi?cation for this grant of power, it would appear to apply across the board. - Consider the anti-bolting legislation codi?ed at Indiana Code 2-2.1-4-7. That statute mandates certain minimum attendance requirements and provides for a judicial remedy if a legislator violates the statute. See Ind. Code 2-2.1-4-10 penalty imposed under this chapter on a member who violated section 7 of this chapter is in addition to any penalties imposed by the member?s body under the Constitution of the State of Indiana or the rules adopted by the member?s chamber?). But the decision of when to attend a session and when not to attend a session would surely seem to be a core legislative function, and one over which legislators exercise discretion every day. It is no stretch to imagine that this legislation would fall to the same challenge that the court applied to the APRA here. A legislator who willfully violates the anti-bolting law would never be subject to the judicial remedy mandated by the statute due to the expansive interpretation of separation of powers adopted by the Ruling. The unfortunate, but logical extension of the Ruling?s reasoning is that the General Assembly can continue to enact statutes with lofty and laudable goals and then ignore them at will. To quote Charles Dickens, ?if the law supposes that . . . the law is a ass.? Charles Dickens, Oliver Twist 489 (1970, first published serially 1837?1839). 4. The Ruling is Procedurally Overly Broad. Even if the Ruling correctly ruled that the General Assembly is entitled to unfettered and unreviewable discretion to designate its records as legislative work product, the Ruling applied this ?nding in a fashion that is procedurally overly broad. The Ruling not only defers to the General Assembly the designation of what constitutes legislative work product, it permits the General Assembly to withhold every bit of the designated material. That result violates the letter and the spirit of the APRA, because it permits the General Assembly to withhold from the public the very existence of the record, in addition to the record?s content. At a minimum, the court should grant a rehearing so the court can do its duty and order the General Assembly to produce the records with only the exempt material redacted. Given the nature of the request, it is fair to assume that many of the records cannot facially constitute legislative work product. For example, an unsolicited letter from an outside business organization simply does not contain the mental process of a legislator. To contend otherwise would be akin to saying that a communication between non?lawyers is subject to the attorney client privilege. It is not on its face. Accordingly, even accepting the court?s reasoning, there must be records in the requested population that facially cannot be subject to the legislative work product exemption. And yet, the Ruling puts these records beyond the public?s reach. And on a more narrow basis, even records that disclose legislative work product are not entirely exempt. To effectuate the underlying policy of the APRA, those records should be produced with only the legislative work product redacted. For example, the fact that a lobbyist wrote a letter to a legislator on a certain subject does not in itself disclose the mental process of the legislator. Thus, at a minimum, that letter should be produced with the name of the sender, the recipient, the date, and the subject matter line unredacted even if the rest of the letter is blacked out. Any litigator is familiar with a privilege log used in civil discovery. The log displays I information demonstrating the validity of the asserted privilege without disclosing the privileged material itself. Certainly a statute intended to guarantee that ?all persons are entitled to full and complete information regarding the affairs of government and the of?cial acts of those who represent them as public officials and employees? requires as much. The effect of the Ruling is to allow legislators to hide from the public the very existence of correspondence with lobbyists. But disclosing the fact that a legislator corresponded with a lobbyist (or with anyone for that matter) without disclosing the substance of the correspondence does not disclose the mental process or deliberation of the legislator. Again, if the legislator were claiming a communication with a lawyer was subject to the attorney client privilege, that legislator would still need to disclose the existence of the communication separate and apart from the content. But here, the public is not only denied the right to know what in?uence a lobbyist exerted on Appellee, it is denied the right to determine Whether the communication even occurred. This result might be expected in a totalitarian state, but in a system that venerates and depends on transparency, it shocks the conscience. CONCLUSION This Court should grant Appellants? Request for Rehearing to correct or at least clarify the Ruling. The stakes?Which include the public?s right to know and the ability of the press to gather the information?are too high to do otherwise. Of Counsel: Sh oWan GRAYDON HEAD RITCHEY LLP In . 'ey umber: 31954-29 1900 Fifth Third Center AYDON HEAD RITCHEY LLP 511 Walnut Street 2400 Chamber Center Drive, Suite 300 Cincinnati, OH 45202-3157 Ft. Mitchell, KY 41017 Phone: (513) 621-6464 Direct: (859) 578-7261 Fax: (513) 651-3836 Fax: (859) 525-0214 E?mail: segan@graydon.com Attorneys for Indiana Professional Chapter of the Society of Professional Journalists and Indiana Associated Press Media Editors 10 CERTIFICATE OF SERVICE I hereby certify that an accurate copy of the foregoing Brief of Amici Curiae in Support of Appellants? Petition for Rehearing was served this 19th day of May, 2016, by ?rst-class mail, postage prepaid, upon the following: William R. Grotlr David T. Vlink Fillenwarth Dennerline Groth Towe, LLP 429 E. Vermont Street, Suite 200 Indianapolis, IN 46202 Aftomeysfor Appellants Geoffrey Slaughter Russell Menyhart Taft Stettinius Hollister One Indiana Square, Suite 3500 Indianapolis, IN 46204 Attorneys for Appellee Sh of @61954?29) 63873634 11