Secrecy fight brews for legislators
| The Journal Gazette
May 31, 2015 1:03 AM
INDIANAPOLIS – Indiana legislators are fighting to hide internal communications of all kinds on the heels of a recent lawsuit filed seeking access.
While that case goes through the courts, the Indiana House quietly changed a key definition in its employee handbook that could be used to shield virtually everything from public view.
And House Speaker Brian Bosma doesn’t want to talk about it. His spokeswoman declined several interview and information requests because of pending litigation.
The battle comes at a time when secrecy is being panned on the national level. Democratic presidential candidate Hillary Clinton has been embroiled in a controversy over deleted emails and a furtive negotiation with Iran has unnerved lawmakers and the public.
“I think we need to work on making it more clear what is accessible and what isn’t,” said House Democrat Leader Scott Pelath. “It needs to be done carefully and clearly so the public and the lawmakers understand the ground rules and the implications.”
The Indiana General Assembly currently has no policy delineating what records are accessible to the public. Other states have very specific rules and regulations.
For instance, in Florida there is an exemption from access for “A legislatively produced draft, and a legislative request for a draft, of a bill, resolution, memorial, or legislative rule, and an amendment thereto, which is not provided to any person other than the member or members who requested the draft, an employee of the Legislature, a member of the Legislature who is a supervisor of the legislative employee, a contract employee or consultant retained by the Legislature, or an officer of the Legislature.”
And the New York State Assembly has a detailed guide on how to seek records and a list of all available records.
The Indiana Access to Public Records Act provides one specific exemption for “the work product of individual members and the partisan staffs of the general assembly.”
But there is no definition of what “work product” is.
When the Citizens Action Coalition of Indiana and the Energy and Policy Institute filed an open records request in January they sought correspondence between Rep. Eric Koch and various utilities regarding a bill about solar power.
The Indiana House immediately denied the request saying the Indiana General Assembly is exempt from Indiana’s Access to Public Records Act.
The state’s Public Access Counselor disagreed and ruled the legislature must comply with the state law.
Kerwin Olson, executive director of Citizens Action Coalition, pointed out that if the General Assembly was wholly exempt why would there be a specific exemption for work product of legislators and staffs?
And Steve Key, lobbyist for the Hoosier State Press Association, said lawmakers in 2001 passed a law that carved themselves out but it was vetoed by Gov. Frank O’Bannon.
“Legislative history shows they are still a part of the statute,” he said.
Olson said over the years his group has been turned down numerous times for various legislative records.
“It was accepted that this was the way it was but it bothered us,” Olson said.
But he said this year’s attack on solar energy was too much to ignore.
“I felt this issue was important enough to pursue. The energy and utility industry drives policy. These aren’t legislators coming up with great public policy ideas. It comes from the industry, and I thought we could expose that.”
A second request was drafted to more directly specify what records were sought. But the Indiana House still balked, continuing to claim it isn’t required to by law but also now referencing the work product exception in denying the request.
Public Access Counselor Luke Britt said in his ruling that the legislature has the discretion to define its own work product, but he cautioned lawmakers to favor transparency.
“I hope they use that exception conservatively but I don’t think that’s the end game,” he told The Journal Gazette.
Leadership considered putting a new work product definition into law on the last few days of session, but Bosma pulled back.
Instead, just after session ended in late April, the House came out with an updated work product definition that appears to cover any and all communications of any kind.
“Work product of the individual members, the staff and officers of the House of Representatives includes but is not limited to, documents, notes, or other writing or records, in any form, composed, edited, or modified by members, staff or officers of the House and any communications that are made or received by means of electronic mail, voice mail, text messaging, paper or video audio recording or in any other form.”
The Senate did not make changes to its rules or definition.
Bosma’s spokeswoman, Tory Flynn, declined to explain the definition or give examples of things that would not be covered by the definition.
Key said the definition is extremely broad and goes against the construction of the statute that focuses on content of a record, not the form.
“An email about lunch would be work product,” he said. “They are trying to define everything they do as work product which is very unfortunate.”
In the past Bosma and Senate President Pro Tem David Long, who also declined to comment, have stressed that constituent communication needs to be respected.
They note that average Hoosiers regularly share personal information with lawmakers when they are having a problem with state government.
That’s why in Colorado any “communication from a constituent to the member that clearly implies by its nature or content that the constituent expects that it is confidential or a communication from the member in response to such a communication from a constituent” is protected.
But Olson said their request isn’t about that, and constituent privacy is being used to block discussion on the real issue.
He said he and the Energy and Policy Institute want to know what utilities, lobbyists and special interest groups are working with legislators and how intimate and cozy the relationships are.
“An email from me to Rep. Koch is not work product. And I know they are shared with the energy association because we frequently see handouts that are in response to our correspondence,” Olson said. “If they can give my stuff to the energy association then that should go both ways.”
Key said a 1993 Indiana Supreme Court ruling complicates the entire debate. In that case, the court declined to get involved in a voting record dispute citing the separation of powers.
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