Cost of keeping government secret is steep


Here’s what you get for $440 an hour these days: An Indiana House of Representatives determined to keep secrets, all on your dime.

The latest episode in just how far Indiana legislators will go to prove they are above the state’s open records laws twisted down a new hole with the revelation that they’d hired outside counsel to help the cause.

As reported by the Fort Wayne Journal Gazette, House Speaker Brian Bosma bypassed Attorney General Greg Zoeller’s office — essentially on retainer in defense of the state in most cases — to bring in Indianapolis attorney Geoffrey Slaughter. A part of the Taft Stettinius & Hollister law firm, Slaughter makes that aforementioned $440 an hour.

What will it buy?

Specifically, Bosma is looking to tamp down open records requests into the emails of state Rep. Eric Koch, R-Bedford, regarding House Bill 1320. The Citizens Action Coalition of Indiana, the Energy and Policy Institute and Common Cause of Indiana have made two requests to inspect Koch’s emails related to the bill dealing with solar energy.

They wanted to know how Koch’s personal investments and ties to the energy industry — pointed out in an Indianapolis Star investigation earlier in the session — might have fueled his motivation.

After being denied twice by the Indiana House Republican Caucus, the nonprofit groups sued.

In a larger, more important sense, Bosma is looking to preserve what lawmakers defended as “House tradition,” as the Indiana House Republican Caucus put it when denying access to Koch’s email. That is, the Indiana House believes the Indiana Access to Public Records Law is for every branch of government other than the General Assembly.

When it comes to protecting that tradition, money is no object.

Closed door tricks are no object, either.

Here’s the short course.

Luke Britt is Indiana’s public access counselor, assigned to arbitrate questions and complaints about open meetings and open records. In a nonbinding, March 6 advisory opinion on the request for Koch’s email on HB 1320, Britt concluded that “nowhere in the (Access to Public Records Act) does the statute exempt the General Assembly from its provisions.”

Britt gave the Indiana House an out, though: Because the General Assembly offered an exemption for anything deemed a “legislative work product,” there could be some latitude to hold some things back. Then again, as Britt pointed out, when the General Assembly gave itself the exemption, it never included a definition of what exactly a “work product” was.

In a follow-up opinion issued April 1, addressing the rejection of a more specific records request to get Koch’s emails, Britt noted that courts had suggested the General Assembly had the discretion to define what was and wasn’t considered a work product. But Britt implored the General Assembly “to be judicious in deciding what to withhold and what to release” and that “the scales should favor transparency.”

Bosma’s response? (You must know where this is going …)

As reported in late May, again by the Journal Gazette’s Kelly, the House waited until after the 2015 session to update its handbooks with a revised definition, without bothering to commit it to an actual law.

The new House rules define the work product as “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.”

In other words, everything — from deep-weed, game-changing records to text messages about specials at downtown Indianapolis food trucks. House members are immune, according to convenient House rules written by House leaders.

Bosma has defended the concept of legislator-constituent privilege in the past. (Though Britt pointed out in his April 1 opinion that state law doesn’t explicitly give lawmakers that right.) What Bosma really was doing was gaming a system that already offers wide allowances for closed-door deliberation and action at the Statehouse.

“The intent of the (Access to Public Records Act) is to foster trust and good faith between the public and the government,” Britt wrote on April 1, bolstering his track record for pro-transparency stances since coming into the job in August 2013. (It’s enough to make you wonder how long he’ll last in that job, rubbing so many of the right people the wrong way.)

“It is a safeguard for accountability and stewardship for civil servants,” Britt wrote. “I am confident the General Assembly strives to espouse those virtues.”

A $440-an-hour contract with an outside attorney says Britt’s a bit optimistic on that one.

Dave Bangert is a writer for the (Lafayette) Journal and Courier. Send comments to [email protected].

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