Indiana legislators opt out of open records law — again

INDIANAPOLIS — Gerry Lanosga respects a separation of powers between lawmakers and judges.

But he and other open-government advocates fear that citizens’ right to know is being lost — in secret emails, in this case — because courts don’t want to meddle in the Legislature’s affairs.

At issue is a lawsuit filed by environmentalist activists against House Republicans and state Rep. Eric Koch, R-Bedford. Koch is an influential lawmaker who’d filed a critical piece of utility legislation in this past session that activists feared was rigged against their cause.

Those activists, joined by Common Cause, asked to see email exchanges between Koch and public utility officials who appeared to benefit from his bill. They wanted to know if his personal investments and ties to the energy industry had anything to do with it.

Had a like request been made to local officials, they most likely would have had to comply. The state’s public access law puts email in the same category as other official correspondence. It’s part of the public record.

But the House Republican caucus told seekers of their emails, in essence, to take a hike.

Luke Britt, Indiana’s public access counselor, scolded them for doing so. In a non-binding opinion, he said the open records rules that the Legislature put into law — for every other government entity to follow — don’t exempt them from doing the same.

After House Republican leaders again denied the request, Britt chastised them: “The intent of the (Access to Public Records Act) is to foster trust and good faith between the public and the government.”

The GOP leaders didn’t see it that way. Their argument is that disclosing emails might lead to sharing correspondence that their constituents would rather keep confidential.

The dispute went to court, but the question of whether the open-records law applies to the Legislature wasn’t settled.

Instead, a Marion County judge dismissed the case, saying the judicial branch cannot interfere with internal legislative matters.

Lanosga, an Indiana University journalism teacher who heads the Indiana Coalition for Open Government, was disappointed.

“This is a perfect example of the fish rotting from the head,” he said.

He’s irritated by what he sees as the Legislature’s hypocrisy in writing a “substantive” public records law that, on paper if not practice, errs on the side of openness.

“Now they’re coming from behind saying, ‘I don’t want to comply with a law in the way that others have to,’” he said.

Steve Key, a lawyer who heads the Hoosier State Press Association, was also disappointed but not surprised. He’s seen similar scenarios.

House Republicans have long cited a 1993 state Supreme Court case to argue that lawmakers aren’t covered by the public records act. But, Key points out, that’s not quite so.

In the 1993 case, cited by the Marion County judge last week, the high court simply decided not to interfere with the Legislature’s internal operations — again citing separation of powers.

The unresolved dispute that year was also sparked by a case of secrecy. House Democratic leaders, in charge at the time, refused to record some potentially embarrassing roll call votes on amendments to the state budget.

The votes, cast electronically, briefly showed up on a giant vote-tally board in the House chamber before Democratic leaders ordered they be taken down.

“That was back in day before everyone had a smart phones with a camera,” said Key.

The current public-access fight isn’t over. Plaintiffs in the case may appeal. Lanosga hopes they do — even if they have slim odds of success.

If anything, he said, it will keep the issue in the court of public opinion. There he’ll remind lawmakers of the preamble to the public-records law, which states that “all persons are entitled to full and complete information regarding the affairs of government.”

“That’s not just rhetorical flourish,” he said. “It really should be as difficult as possible for people to have secret communications with politicians.”

Maureen Hayden is the CNHI Statehouse Bureau chief. Send comments to [email protected].