FILED
Jan 09 2017, 8:23 am
[1]
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory Bowes Joseph C. Chapelle
Greg Bowes Legal Services, P.C. Mark J. Crandley
Indianapolis, Indiana Barnes & Thornburg LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William Groth, January 9, 2017
Appellant-Plaintiff, Court of Appeals Case No.
49A04-1605-PL-1116
v. Appeal from the Marion Superior
Court
Mike Pence, as Governor of the The Honorable Michael D. Keele,
State of Indiana, Judge
Appellee-Defendant. Trial Court Cause No.
49D07-1506-PL-21548
Najam, Judge.
Statement of the Case
[1] The Indiana Access to Public Records Act (“APRA”) provides that “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.” Ind. Code § 5-14-3-1
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(Supp. 2014). Thus, in APRA our legislature declared that transparency in
government is the public policy of the State of Indiana. But the public’s right of
access to public records is also subject to well-recognized exceptions under
APRA.
[2] In December of 2014, Governor Mike Pence made the decision that Indiana
would join a Texas lawsuit against the President of the United States to contest
certain presidential executive orders on immigration. In response, William
Groth, a private citizen, submitted an APRA public records request to the
Governor for records related to the Governor’s decision. The Governor
responded to Groth’s request but, in doing so, partially redacted some of the
documents and withheld another. The Indiana Public Access Counselor
concluded that the Governor did not violate APRA. Acting on Groth’s ensuing
complaint, the trial court also concluded that the Governor’s response was
proper under APRA.
[3] On appeal, the parties raise the following four issues for our review:
1. Whether the Indiana Supreme Court’s recent opinion in
Citizens Action Coalition of Indiana v. Koch, 51 N.E.3d 236
(Ind. 2016), requires Indiana’s courts to abstain from
reviewing the Governor’s decision to redact or withhold
certain records from public disclosure.
2. Whether the trial court violated Groth’s due process rights
when it did not provide him with a written summary of the
contents of the undisclosed information after the court had
reviewed that information in camera.
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3. Whether the Governor violated APRA when he withheld
from disclosure a legal memorandum, referred to by the
parties as a “white paper,” created by a Texas deputy
solicitor general concerning the proposed Texas litigation
and disseminated to governors’ offices in Indiana and
numerous other states.
4. Whether the Governor violated APRA when he partially
redacted invoices from a private law firm he had hired to
represent Indiana in the Texas lawsuit and on Groth’s
complaint.
[4] We hold that, on these facts, Citizens Action Coalition does not apply to the
request for public records directed to the Governor. We also hold that the trial
court did not violate Groth’s due process rights. And we affirm on the merits of
the Governor’s decisions to withhold the white paper from public disclosure
and to partially redact the invoices. The white paper contains legal theories in
contemplation of litigation, was used by the Governor in his decision to join the
litigation, and is exactly the type of record that may be excluded from public
access under APRA. Similarly, the Governor’s redactions from the legal
invoices were within his discretion under APRA.
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Facts and Procedural History1
[5] On December 10, 2014, Groth submitted a written request to the Governor’s
office for documents relating to the Governor’s decision to join the State of
Texas in a federal lawsuit against the President of the United States with respect
to certain recent presidential executive orders on immigration. According to
Groth’s request:
Pursuant to [APRA], I am hereby requesting public records that
your office maintains concerning your discretionary decision to
hire outside counsel at Barnes & Thornburg [LLP] to represent
your office and/or the State of Indiana in litigation encaptioned
State of Texas, et al[.] v. United States of America, pending in the
United States District Court for the Southern District of Texas,
Brownsville Division, challenging the November 20, 2014, action
of the President of the United States to exercise discretion with
respect to certain individuals who came to the United States as
children and whose parents are United States citizens or
permanent residents. More specifically, I am requesting the
following records pertaining to said lawsuit: (1) all
correspondence between your office and the office of the Indiana
Attorney General, any other state official, any governmental
official from another state, or any private entity, with respect [to]
your decision to become a party in [the] litigation; (2) the
contract or agreement between your office and Barnes &
Thornburg LLP, retaining that firm to represent you and/or the
State of Indiana in said lawsuit; (3) any and all invoices from
1
We held oral argument on November 21, 2016, in the Indiana Supreme Court courtroom. At that
argument, counsel for Groth suggested that the Governor had partially redacted multiple emails he had
submitted in response to the APRA request. It is clear on appeal, however, that the only issues raised
regarding the Governor’s alleged noncompliance with APRA relate to the law firm invoices and the “white
paper,” the latter of which was an attachment to an email received by the Governor. The email to which the
white paper was attached was released in full and is reproduced in material part below.
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Barnes & Thornburg for professional services rendered or to be
rendered in connection with said lawsuit; and (4) evidence of any
payments made to Barnes & Thornburg for professional services
rendered in connection with said lawsuit.
Appellant’s App. Vol. 2 at 12.
[6] The Governor responded to Groth’s request with more than fifty pages of
documents.2 The Governor redacted portions of several of those documents,
and he declined to release the white paper, a legal memorandum. For example,
part of the Governor’s response for invoices from Barnes & Thornburg LLP
described the attorneys’ work as follows:
Worked on litigation, including review of district court filing
notices and update reports from Texas counsel, and work on
documenting potential damages to State.
[Redacted] conferred with Angela Colmenero, assistant Attorney
General in Texas, regarding declaration to support standing
arguments; reviewed material forwarded by Ms. Colmenero;
[redacted] began work on draft declaration.
Worked on litigation, including review of district court filing
notices.
Reviewed amicus brief filed by various immigrant groups;
communicated with Allison Karns about the amicus briefs;
reviewed various draft declarations from Texas and Wisconsin
2
Groth has included only eighteen pages of those documents in his appendix on appeal. Groth has also
omitted from his appendix the Governor’s response to Groth’s complaint to the Public Access Counselor.
And the Governor did not file an Appellee’s Appendix.
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representatives; [redacted] communicated with Angela
Carmenero regarding declarations; communicated with Andy
Oldham regarding hearing; [redacted].
Id. at 22. The invoices also described, without redactions, the dates of the
services rendered, the names of the attorneys providing the services, the hours
the attorneys logged for the services rendered, and the total invoice amounts.
[7] Another document submitted by the Governor in response to Groth’s request
was an unredacted email from Daniel Hodge, the chief of staff to then Texas
Governor-Elect Greg Abbott, dated November 25, 2014. The subject of
Hodge’s email was “Legal Challenge to President’s Executive Orders,” and
Hodge addressed his email to the “Chiefs of Staff” of governors in several
different states.3 Id. at 30. According to Hodge:
I am Texas Governor-Elect Greg Abbott’s Chief of Staff and am
contacting you to follow-up on comments my boss made during the
Governors-Only meeting last week. As some of you may have heard,
the State of Texas is preparing a legal challenge to the President’s
recent executive orders on immigration. During last week’s
meeting, Governor-Elect Abbott promised that we would circulate a white
paper outlining the legal theories supporting the State’s legal challenge to
the other Governors. A copy of that white paper is attached to this email.
3
Hodge sent the email to thirty different recipients, some of whom had state-based email addresses and
some of whom did not. The recipients with clearly identifiable state-based email addresses were in the
following twenty-six states: Alabama, Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kansas,
Maine, Michigan, Mississippi, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North
Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Wisconsin, and Wyoming.
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Our hope is that other states will join the State of Texas’ legal
action so that we will have a broad coalition to challenge the
President’s action—just as we did when 26 states banded together
to challenge ObamaCare. Because Gov-Elect Abbott currently
serves as Attorney General of Texas, we have also contacted
many of your Attorneys General to inquire about their interest in
joining Texas’ legal challenge. Those offices have also been
provided a copy of the attached white paper.
However, because some Governors indicated last week that their
Attorneys General may not elect to join our legal challenge, Gov-
Elect Abbott asked that I share this white paper with your
office[s] so that Governors whose AGs decline to join the case
may do so on behalf of their states. Deputy Solicitor General
Andy Oldham is lead counsel for this matter and the drafter of
the attached white paper. . . .
Id. (emphases added). Although Hodge attached the white paper to his email,
Governor Pence withheld release of that document in his response to Groth’s
APRA request.
[8] Groth complained about the Governor’s response to Indiana’s Public Access
Counselor.4 According to Groth, the Governor’s response failed to comply
with APRA. The Public Access Counselor disagreed, stating:
4
The Public Access Counselor is appointed by the Governor. I.C. § 5-14-4-6. The Public Access Counselor
has the authority, among other things, to provide guidance to public agencies and officials regarding
Indiana’s public access laws. I.C. § 5-14-4-10. This authority includes the power “[t]o issue advisory
opinions to interpret public access laws . . . .” Id. Advisory opinions, by definition, are “nonbinding
statements.” Black’s Law Dictionary 1265 (10th ed. 2014).
Our General Assembly created the Public Access Counselor position to provide parties with efficient—but,
correspondingly, nonbinding—advice regarding compliance with Indiana’s public access laws. In light of
that purpose, a party “is not required to file a complaint” with the Public Access Counselor “before filing an
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The Governor’s Office has provided a proper response . . . as to
why parts of the document were redacted. Pursuant to Ind. Code
§§ 5-14-3-4(b)(2) and (6), the materials redacted may contain
attorney work product and deliberative materials between inter-
agency personnel and its designated contractor. Additionally,
under Ind. Code § 34-46-3-1, the records may have been excluded
because they include attorney-client communication. The
redaction of legal invoices for this purpose is not unusual and has
been addressed as appropriate in several prior Public Access
Counselor Opinions.
Pursuant to Ind. Code § 5-14-3-6, redactions should be made
with precision so non-disclosable records are separated from
disclosable material. The redactions made to the records you
have presented do not appear on their face to be overly redacted,
relative to other attorney invoices this Office has seen.
Public Access Counselor, Re: Formal Complaint 15-FC-133; Alleged Violation of the
Access to Public Records Act by the Office of Governor Mike Pence (May 27, 2015),
http://in.gov/pac/advisory/files/15-FC-133.pdf. The Public Access
Counselor then concluded that the Governor “did not violate the Access to
Public Records Act.” Id.
[9] Groth then filed his complaint in the Marion Superior Court. The trial court
reviewed the unredacted invoices and previously undisclosed white paper in
action” in the trial court for an alleged violation of Indiana’s public access laws. I.C. § 5-14-5-4. As such,
when a complaint is filed in a trial court after the Public Access Counselor has rendered an advisory opinion
on the matter, the court may find the Public Access Counselor’s opinion persuasive but the court owes no
deference to that opinion.
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camera and concluded, after a hearing, that the Governor had complied with
APRA. This appeal ensued.5
Discussion and Decision
Standard of Review
[10] Groth appeals the trial court’s judgment for the Governor. Under the Indiana
Code, the trial court’s review of Groth’s complaint for an alleged APRA
violation was de novo, or without deference to the public agency6 that denied the
access, and the initial burden of proof in the trial court was on the agency. I.C.
§ 5-14-3-9(f), (g)(1). The public agency meets its burden of proof by showing
that the undisclosed records fall within an exception listed under Indiana Code
Section 5-14-3-4 and by establishing the content of those records with adequate
specificity beyond merely relying on a conclusory statement or affidavit. I.C. §
5-14-3-9(f), (g). If the undisclosed records fall within a mandatory exception
listed under Indiana Code Section 5-14-3-4(a), as a matter of law the records
shall not be disclosed. If the undisclosed records fall within a discretionary
exception listed under Indiana Code Section 5-14-3-4(b), it is in the agency’s
discretion not to disclose the records. Once the agency has met its initial
5
The federal litigation that is the subject of Groth’s APRA complaint has already made its way through a
United States District Court and United States Court of Appeals to the United States Supreme Court and
been remanded to the district court while we are only now addressing the APRA complaint. See United States
v. Texas, 136 S. Ct. 2271 (2016). Nonetheless, the complaint here raises a viable question that has not been
obviated in the least by the legal proceedings in the federal forum.
6
The Governor and his staff constitute a public agency under APRA. See I.C. § 5-14-3-2(n)(1). Also, we
note that the 2016 version of Indiana Code Section 5-14-3-2 consists of two irreconcilable versions. But, as
noted in paragraph 1, our citations to the Indiana Code are as it existed at the time Groth made his APRA
request to the Governor at the end of 2014.
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burden of proof to show that undisclosed records fall within a discretionary
exception under Section 4(b), the burden shifts to the complaining party to
demonstrate that the agency’s denial of his access to those records was
“arbitrary and capricious.” I.C. § 5-14-3-9(g).
[11] Because the trial court’s review of the agency action was, as a matter of law, de
novo, and because the only evidence presented to the trial court here were paper
records, we are in just as good a position on appeal as the trial court was to
consider the merits of Groth’s complaint. Accordingly, our review of the trial
court’s judgment is de novo. E.g., Anderson v. Wayne Post 64, Am. Legion Corp., 4
N.E.3d 1200, 1206 (Ind. Ct. App. 2014), trans. denied. We disagree with the
Governor’s argument on appeal that we must defer to the trial court’s
assessment of the meaning of paper records when that assessment follows from
an in camera review. Cf. id. (holding that we review a paper record de novo).
[12] The Governor also asserts that we have no authority to conduct our own in
camera review of sealed documents. Again, we disagree. Among other reasons,
Article 7, Section 6 of the Indiana Constitution guarantees the right to one
appeal. The Governor’s argument would render that right illusory where, as
here, the merits of an appeal turn wholly on documents reviewed in camera by a
trial court. On appeal, we review the entire trial court record. Groth has
requested in camera review on appeal of the documents at issue, and to give
effect to his right to an appeal, we have, by separate order, granted his request.
However, we agree with the Governor that those documents shall remain
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excluded from public access pursuant to Indiana Appellate Rule 23(F)(2) and
Indiana Administrative Rule 9(G).
Issue One: Justiciability of APRA Requests to the Governor
[13] We first consider the Governor’s argument on appeal that Groth’s APRA
complaint is not justiciable. As the Indiana Supreme Court has explained:
justiciability is not a question of jurisdiction, but whether it is
prudent for the Court to exercise its jurisdiction. . . .
The Indiana Constitution explicitly provides for the separation of
powers: “The powers of the Government are divided into three
separate departments; the Legislative, the Executive including the
Administrative, and the Judicial; and no person, charged with
official duties under one of these departments, shall exercise any
of the functions of another, except as in this Constitution
expressly provided.” Article 3, § 1. “[A]lthough the courts have
jurisdiction to review [a] case in the first instance, justiciability
concerns stemming from Article 3, Section 1, caution courts to
intervene only where doing so would not upset the balance of the
separation of powers.” Berry [v. Crawford], 990 N.E.2d [410,] 418
[(Ind. 2013)]. In other words, although this Court may have
subject matter jurisdiction, it may, “for prudential reasons,”
ultimately conclude that the issue presented is non-justiciable. Id.
“[W]here a particular function has been expressly delegated to
the legislature by our Constitution without any express
constitutional limitation or qualification, disputes arising in the
exercise of such functions are inappropriate for judicial
resolution.” Id. at 421.
Citizens Action Coalition, 51 N.E.3d at 240-41.
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[14] The Governor asserts that Citizens Action Coalition applies here. In that case, the
Indiana Supreme Court considered whether the legislative “work product”
exception to APRA’s disclosure rules was justiciable. Specifically, in Citizens
Action Coalition the plaintiffs requested correspondence that Eric Koch, a
member of the Indiana House of Representatives, or his staff had sent to or
received from business organizations with respect to specific legislation. Acting
on Representative Koch’s behalf, the Indiana House Republican Caucus denied
the requests because, in relevant part, APRA expressly “except[s]” from
disclosure “at the discretion of a public agency” the “work product of individual
members and the partisan staffs of the general assembly.” I.C. § 5-14-3-
4(b)(14).
[15] The Indiana Supreme Court held that it would not be prudent for an Indiana
court to define the “work product” of a member of the General Assembly or his
partisan staff under Section 4(b)(14), and, therefore, it dismissed the appeal as
not justiciable. Citizens Action Coalition, 51 N.E.3d at 241-43. Specifically, the
court stated:
To maintain the separation of powers, this Court “should not
intermeddle with the internal functions of either the Executive or
Legislative branches of Government.” [State ex rel.] Masariu [v.
Marion Sup. Ct. No. 1], 621 N.E.2d [1097,] 1098 [(Ind. 1993)7].
7
The Governor also relies on Masariu, which is inapposite. In Masariu, the Indiana Supreme Court held that
voting records of the Indiana House of Representatives were not subject to APRA or Indiana’s Open Door
Law because neither of those statutes “empower[s] the judicial branch to inquire into and interfere with the
internal operations of the” House. 621 N.E.2d at 1098. More specifically, the court held that the power of
the judiciary “cannot be authorized to undermine the exclusive constitutional authority of the presiding
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This Court has previously found a separation of powers issue
where legislation appears to empower the judicial branch to
“inquire into and interfere with the internal operations of the
Indiana House of Representatives.” Id. We determine that a
similar type of inquiry and interference with the internal
operations of the legislative branch is being requested in the
present case.
APRA provides that “[a]ny person may inspect and copy the
public records of any public agency during the regular business
hours of the agency, except as provided in section 4 of this
chapter.” Ind. Code § 5-14-3-3(a). . . .
***
The determinative issue in relation to justiciability arises instead
under Defendants’ assertion that even if APRA is applicable, the
requested documents are exempt from disclosure under APRA.
As stated above, Indiana Code section 5-14-3-4(b) provides in
pertinent part that “the following public records shall be excepted
from section 3 of this chapter at the discretion of a public
agency . . . The work product of individual members and partisan
staff of the general assembly.” The term “work product” is not
defined within APRA nor by rule. Thus, the question becomes whether,
under the principles of justiciability, this Court should define legislative
“work product” and order the legislature to disclose records in accordance
with this court-created definition. This we will not do.
***
offices of each house to authenticate all legislation.” Id. The records requested of the Governor here are not
analogous to the voting records of the members of the Indiana House of Representatives.
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Under Article 4, Section 16 of the Indiana Constitution, “[e]ach
House shall have all powers, necessary for a branch of the
Legislative department of a free and independent State.” The
General Assembly itself carries out those powers delegated to the
legislative branch under Article 4, Section 16. Consequently,
only the General Assembly can properly define what work
product may be produced while engaging in its constitutionally
provided duties. Thus, defining work product falls squarely
within a “core legislative function.” Moreover, the General
Assembly exercised its constitutional law-making authority when
it crafted Section 4(b) of APRA, which provides that legislative
work product “shall be excepted . . . at the discretion of a public
agency.” Ind. Code § 5-14-3-4(b) (emphasis added). Since the
General Assembly and its members constitute a “public agency,”
the statute itself expressly reserves to the General Assembly the
discretion to disclose or not to disclose its work product. We are
not inclined to make determinations that may interfere with the
General Assembly’s exercise of discretion under APRA.
We hold that determining whether the documents requested by
Plaintiffs are excepted under APRA as legislative work product
presents a non-justiciable question.
Id. at 241-43 (emphasis added; footnote omitted; some alterations original).
[16] Relying on Citizens Action Coalition, the Governor asserts as follows:
The question of whether Groth’s specific APRA requests at issue
are exempt from disclosure is not justiciable. Judicial inquiry
into what documents the Governor chose to withhold from
Groth in responding to his specific requests about Indiana’s
challenge to President Obama’s actions constitute intermeddling
with the internal functions of the executive branch . . . .
***
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Groth’s requests seek inquiry into core executive functions
reserved to the Governor . . . .
. . . Groth now seeks judicial enforcement of his APRA requests,
asking that the judicial branch interfere with these core functions
expressly delegated to the Governor.
Appellee’s Br. at 30-31. Thus, the Governor contends that his “own
determinations” under APRA are conclusive and that it would violate the
separation of powers doctrine for the judiciary to “second guess” those
determinations. Id. at 32-33. We cannot agree.
[17] This case is not a challenge to the Governor’s core executive functions or his
constitutional authority as chief executive to decide whether Indiana should
join Texas and other states as a plaintiff in a federal suit against the President.
Rather, the APRA requests here are merely requests for access to public records
that concern a matter of legitimate public interest. On the issue of justiciability,
the Governor does not assert a particular statutory exemption from APRA but,
rather, makes a categorical claim of executive privilege from disclosure of his
public records under APRA. The Governor’s argument would, in effect, render
APRA meaningless as applied to him and his staff. APRA does not provide for
any such absolute privilege, and the separation of powers doctrine does not
require it. We reject the Governor’s assertion that his “own determinations”
regarding whether to disclose public records are not subject to judicial review.
See id.
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[18] Moreover, Citizens Action Coalition does not apply to APRA requests to the
Governor for several additional reasons. First, the statutory exception at issue
in Citizens Action Coalition applies only to the General Assembly. See I.C. § 5-14-
3-4(b)(14). The Governor, obviously, did not rely on and could not have relied
on that provision in making his response to Groth’s APRA request. Second,
there is no statutory exception within APRA that is a “Governor’s version” of
Section 4(b)(14). That is, there is no statutory counterpart to the legislative
work product exception that applies to the Governor or his staff. See generally
I.C. § 5-14-3-4(a), (b). Thus, there is no APRA exception on which the
Governor could rely that might plausibly be captured by the holding in Citizens
Action Coalition. Indeed, at oral argument, counsel for the Governor
acknowledged that there is no text to be found in APRA that exempts the
Governor from an APRA request.
[19] The exceptions relied on by the Governor in his response to Groth relate to
privileged attorney-client communications, attorney-client work product, and
deliberative material. See I.C. § 5-14-3-4(a)(1), (a)(8), (b)(2), and (b)(6). To
determine the meaning and apply those exceptions to an APRA request does
not interfere with a core executive function. When APRA is correctly
administered, the Governor’s prerogatives as the State’s chief executive remain
intact.
[20] Unlike the legislative work product exception at issue in Citizens Action Coalition,
the interpretation and application of the provisions at issue here do not present
novel legal questions. See Citizens Action Coalition, 51 N.E.3d at 242. Indiana
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case law readily defines privileged attorney communications. E.g., Corll v.
Edward D. Jones & Co., 646 N.E.2d 721, 724 (Ind. Ct. App. 1995). APRA
expressly defines “[w]ork product of an attorney,” as used in Section 4(b)(2).
I.C. § 5-14-3-2(r). And our courts have already defined and applied the term
“deliberative material” as used in Section 4(b)(6). E.g., An Unincorporated
Operating Div. of Ind. Newspapers, Inc. v. The Trustees of Ind. Univ., 787 N.E.2d
893, 909-15 (Ind. Ct. App. 2003), trans. denied.
[21] The Governor asks that we disregard those definitions in APRA and our case
law and, instead, apply Citizens Action Coalition to him and his staff, abstain
from considering the questions presented in this appeal on the merits, and hold
that “Groth does not present a justiciable issue.” Appellee’s Br. at 33. Again,
in Citizens Action Coalition, on prudential grounds the Indiana Supreme Court
invoked the separation of powers doctrine when it declined to impose a “court-
created definition” of the “work product of the individual members and the
partisan staffs of the general assembly.” 51 N.E.3d at 242. The court
concluded that Section 4(b) of APRA “expressly reserves to the General
Assembly the discretion to disclose or not to disclose its work product.” Id.
But the court also held that APRA does apply to the General Assembly and its
members. Id. And the court did not hold that a person’s APRA requests to a
co-equal branch of government are not justiciable. Thus, we conclude that
Citizens Action Coalition, which concerns a provision that applies only to the
legislature, does not apply to the Governor and his staff and that the separation
of powers doctrine does not require that we abstain from deciding this appeal
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on the merits. The questions presented in this appeal are justiciable, and to
determine the answers to those questions we need only apply APRA to the
facts.
Issue Two: Due Process
[22] We next consider Groth’s argument on appeal that the trial court’s refusal to
provide a summary of the undisclosed information, after the court had reviewed
that information in camera, denied him his right to due process. In particular,
Groth asserts that his opportunity to meet his burden to demonstrate that the
Governor had failed to comply with APRA “is necessarily hampered by his
inability to see what the particular item is.” Appellant’s Br. at 18-19. In light of
that concern, Groth requested that the trial court, following its in camera review,
describe “the general nature of the information with enough specificity to alert
the parties to what type of information is redacted” so that Groth could “make
arguments [regarding] whether that type of information is required to be
disclosed under the public records laws.” Appellant’s App. Vol. 2 at 32.
[23] We agree with the Governor that Groth’s due process rights were not
implicated by the trial court’s judgment.8 The Indiana Supreme Court has
considered and rejected a claim similar to Groth’s before. Specifically, the
Indiana Supreme Court has stated as follows:
8
The Governor also asserts that “the alleged violation of state law cannot form the basis of a due process
claim.” Appellee’s Br. at 28. But Groth does not assert that the trial court violated state law; Groth asserts
that the trial court did not fully protect his due process rights.
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As for the State’s claim that it has not been afforded the
opportunity to review the privileged documents to determine if
they contain non-privileged information, we conclude the State is
not entitled to review the documents. And this is so because the
very nature of the psychologist/patient privilege precludes the
State from gaining access to confidential communications absent
an exception. Rather, a determination must be made in the first
instance as to whether the State has a right of access to the
documents. Allowing the State itself to review the documents in
order to make that determination would eviscerate the reason the
privilege exists in the first place, namely: to protect confidential
communications between psychologists and patients.
In essence we entrust trial courts rather than sparring litigants
with the authority to preserve the inviolability of privileged
information. And although the trial court may have allowed the
State to review the requested documents in this case under a
confidential protective order, it was not compelled to do so.
Further, the notion of a trial court conducting an in camera
inspection of documents to determine whether information
contained in them is or is not discoverable is not particularly
remarkable. For example in Owen v. Owen, 563 N.E.2d 605 (Ind.
1990), we addressed the physician/patient privilege declaring:
[I]n those rare cases where the physician-patient
privilege is properly invoked, it is incumbent on the
party seeking to assert the privilege to identify to the
court specifically which documents are believed to
remain within the privilege, after which the court
will review the contested documents in camera to
ascertain their entitlement to the protection of the
privilege.
Id. at 608 (emphasis added). In sum, the State has not shown
any entitlement to review the contested documents, and the trial
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court did not abuse its discretion by conducting the in camera
inspection.
State v. Pelley, 828 N.E.2d 915, 920-21 (Ind. 2005) (some citations omitted).
[24] In other words, Pelley rejects an argument similar to Groth’s and holds that the
purpose of in camera review is for the court to determine independently whether
certain information should be disclosed to an opposing party. Id. Groth could
have requested the trial court to permit him to view the sealed records under a
confidential protective order, which the trial court in its discretion may or may
not have allowed, see id. at 921, but he did not make such a request. He cannot
avoid his forfeiture of that opportunity by claiming a due process violation.
The fundamental requirement of due process is the opportunity to be heard “at
a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S.
319, 333 (1976). Groth has not shown that he did not have an opportunity to
be heard at a meaningful time and in a meaningful manner. Accordingly, we
reject Groth’s argument that the trial court’s judgment violated his due process
rights.
Issue Three: White Paper
[25] We now turn to the substance of the Governor’s APRA decisions. We first
consider whether the Governor properly withheld disclosure of the white paper
that was attached to the email from Hodge, the chief of staff to the Governor-
Elect of Texas, which Hodge sent to Governor Pence’s office and to numerous
other governors’ offices throughout the United States. The Governor withheld
Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 20 of 41
this document under Indiana Code Sections 5-14-3-4(a)(1) and (a)(8), as a
privileged attorney-client communication; Indiana Code Section 5-14-3-4(b)(2),
as attorney work product; and Indiana Code Section 5-14-3-4(b)(6), as
deliberative material. We agree with the Governor that the white paper was a
privileged attorney-client communication and, also, that the Governor acted
within his discretion when he withheld the white paper as deliberative
material.9
[26] Pursuant to APRA, “[t]he following public records are excepted from section 3
of this chapter and may not be disclosed . . . : (1) Those declared confidential by
state statute. . . . (8) Those declared confidential by or under rules adopted by
the supreme court of Indiana.” I.C. § 3-14-3-4(a) (emphasis added).
Communications that fall within the attorney-client privilege are confidential
under state law and the rules of the Indiana Supreme Court. As then-Chief
Justice Shepard explained:
the rationale underlying the attorney-client privilege supports its
application to state agencies and their attorneys. The privilege
protects those in need of legal services by providing for complete
and confidential information to an attorney so the attorney may
be fully advised in serving the client while assuring the client that
these confidences will not be revealed. Colman v. Heidenreich
(1978), 269 Ind. 419, 381 N.E.2d 866. A state agency has the
same need for confidential legal advice.
9
We need not discuss whether the attorney work product exception under Indiana Code Section 5-14-3-
4(b)(2) applies to the white paper.
Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 21 of 41
***
This privilege is not defeated by the requirement of open public
records. Generally, any person may inspect the public records of
any public agency. Ind. Code § 5-14-3-3(a) (Burns 1987 Repl.).
The legislature has created an exception to this rule for records
declared confidential by statute or by Supreme Court rule. Ind.
Code § 5-14-3-4(a)(1), (8). Privileged communications between
attorney and client are protected by both. Ind. Code § 34-1-14-5
[now I.C. § 34-46-3-1] renders attorneys incompetent to testify as
to confidential communications made to them in the course of
their professional business. This statute is the codification of the
attorney-client privilege. Key v. State (1956), 235 Ind. 172, 132
N.E.2d 143 (construing the predecessor statute, § 2-1714 (Burns
1946 Repl.)). An attorney also has a statutory duty to preserve
the confidences and secrets of his client. Ind. Code § 34-1-60-4
[now I.C. § 33-43-1-3(5)]. This is a further codification of the
privilege. Colman, 269 Ind. at 422, 381 N.E.2d at 868.
Additionally, privileged communications are excluded from
discovery by Trial Rule 26(B)(1), Ind. Rules of Procedure. Thus,
a privileged communication between attorney and client is
exempt from public inspection because it is declared confidential
by statute and Supreme Court rule.
When a client seeks advice from an attorney in his professional
capacity, the communication between attorney and client within
the scope of the professional relationship should be treated as
strictly confidential. This privilege applies to all communications
made to an attorney for the purpose of professional advice or aid,
regardless of any pending or expected litigation. Colman, 269
Ind. at 423, 381 N.E.2d at 869.
Ind. State Highway Comm’n v. Morris, 528 N.E.2d 468, 474-75 (Ind. 1988)
(Shepard, C.J., concurring) (footnote omitted).
Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 22 of 41
[27] The attorney-client privilege “applies to all communications between the client
and his attorney for the purpose of obtaining legal advice or aid regarding the
client’s rights and liabilities.” Corll, 646 N.E.2d at 724. A person asserting the
privilege must show that “(1) an attorney-client relationship existed and (2) a
confidential communication was involved.” Id. “Minimally, meeting this
burden entails establishing that ‘the communication at issue occurred in the
course of an effort to obtain legal advice or aid, on the subject of the client’s
rights or liabilities, from a professional legal advisor acting in his or her capacity
as such.’” TP Orthodontics, Inc. v. Kesling, 15 N.E.3d 985, 995-96 (Ind. 2014)
(quoting Mayberry v. State, 670 N.E.2d 1262, 1266 (Ind. 1996)). Again, the
Governor carried the initial burden in the trial court to show that the white
paper fell within the attorney-client privilege and was, therefore, not subject to
disclosure pursuant to Section 4(a). I.C. § 5-14-3-9(f).
[28] The white paper is a privileged attorney-client communication and is protected
by the common interest privilege. As we have explained:
The common interest privilege is an extension of the attorney-
client privilege. United States v. BDO Seidman, LLP, 492 F.3d 806,
815 (7th Cir. 2007). In effect, the common interest privilege extends the
attorney-client privilege to otherwise nonconfidential communications
between parties represented by separate attorneys. Id. The common
interest privilege “treats all involved attorneys and clients as a
single attorney-client unit, at least insofar as a common interest is
pursued.” 2 Stephen A. Saltzberg, et al., Federal Rules of
Evidence Manual 501-30 (10th ed. 2011). The privilege is an
exception to the general rule that the attorney-client privilege is waived
when privileged information is disclosed to a third party. BDO
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Seidman, 492 F.3d at 815; see Cavallaro v. United States, 284 F.3d
236, 250 (1st Cir. 2002).
The common interest privilege permits parties whose legal interests
coincide to share privileged materials with one another in order to more
effectively prosecute or defend their claims. Hunton & Williams v. U.S.
Dep’t of Justice, 590 F.3d 272, 277 (4th Cir. 2010). The privilege
has been recognized in cases for over a century. United States v.
McPartlin, 595 F.2d 1321, 1336 (7th Cir. 1979). It applies in civil
and criminal litigation, and even in purely transactional contexts.
In re Teleglobe Commc’ns Corp., 493 F.3d 345, 364 (3rd Cir. 2007).
The privilege is limited to those communications made to further
an ongoing joint enterprise with respect to a common legal
interest. BDO Seidman, 492 F.3d at 816; see Hunydee v. United
States, 355 F.2d 183, 185 (9th Cir. 1965) (statements to and
among attorneys “should be privileged to the extent that they
concern common issues and are intended to facilitate
representation in possible subsequent proceedings”). It is
fundamental that the privilege cannot be waived without the
consent of all parties to the defense. John Morrell & Co. v. Local
Union 304A of United Food & Commercial Workers, 913 F.2d 544,
556 (8th Cir. 1990).
Price v. Charles Brown Charitable Remainder Unitrust Trust, 27 N.E.3d 1168, 1173
(Ind. Ct. App. 2015) (emphases added), trans. denied.
[29] In Corll, we held that the common interest privilege applied to attorneys’
communications to prospective co-plaintiffs. 646 N.E.2d at 724-25. As we
stated:
there is no question that the purpose of each preliminary meeting
[between plaintiffs’ attorneys and prospective co-plaintiffs] was to
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discuss a potential lawsuit. . . . Where, as here, a group of
individuals meet with attorneys concerning potential litigation,
and the purpose of that consultation is to provide legal advice
regarding rights and liabilities, we conclude that any
communications made in furtherance of that purpose are
“confidential communications” between attorney and client and
carry with them an expectation of confidentiality.
Id. We further noted:
Whether or not any one [prospective client] had retained any of
the attorneys prior to a specific meeting is of no
consequence. . . . [T]he preliminary nature of the meetings does
not remove the meetings from the scope of the attorney-client
privilege. What is essential to the existence of the attorney-client
privilege is the confidential relation of client and attorney, and
not the pendency of litigation or payment of a fee.
Id. at 725 n.4. Thus, we concluded that, “[w]hen two or more persons, with a
common interest in some legal problem, jointly consult an attorney, ‘their
confidential communications with the attorney, though known to each other,
will of course be privileged in a controversy of either or both the clients with the
outside world.’” Id. at 725 (quoting McCormick on Evidence § 91 (4th ed. 1992)).
[30] As Hodge’s email explains, the white paper was drafted by a Texas deputy
solicitor general on behalf of the State of Texas. Thereafter, Hodge circulated
the white paper as a “follow-up” to a “Governors-Only meeting” in which the
Governor-Elect of Texas had discussed with other governors that his state was
“preparing a legal challenge to the President’s recent executive orders on
immigration.” Appellant’s App. Vol. 2 at 30. The Governor-Elect of Texas
Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 25 of 41
had discussed the proposed litigation with the other governors on the
“hope . . . that other states will join the State of Texas’ legal action . . . .” Id.
And the attached white paper “outlin[ed] the legal theories supporting [Texas’]
legal challenge . . . .” Id.
[31] Moreover, in another email disclosed by the Governor in response to Groth’s
complaint, a reporter asked the Governor’s office “to follow up on the
[G]overnor’s statement[10] about President Obama’s executive order on
immigration.” Id. at 25. The reporter also asked if Governor Pence agreed
with “some governors” in other states that the President’s order would “pose
operational challenges for states, including whether to issue driver’s licenses to
immigrants or grant in-state tuition.” Id. The reporter’s email to the
Governor’s office was sent three days prior to Hodge’s email with the white
paper attachment.
[32] Governor Pence met his burden to show that the white paper was not subject to
disclosure under APRA. There is no question that the Governor was aware of
and disagreed with the President’s immigration orders. And, based on Hodge’s
10
The reporter’s inquiry was in response to a press release issued by the Governor. We take judicial notice
that, in that press release, Governor Pence expressed his disagreement with the President’s immigration
decisions. Governor Pence Calls President’s Executive Order ‘End Run Around Democratic Process’ (Nov. 20, 2014),
http://www.in.gov/activecalendar/EventList.aspx?fromdate=11/20/2014&todate=11/20/2014&display=D
ay&type=public&eventidn=195043&view=EventDetails&information_id=208023; see also Ind. Evidence
Rule 201(a), (d) (providing for judicial notice); Troyer v. Troyer, 987 N.E.2d 1130, 1138 n.3 (Ind. Ct. App.
2013) (noting that judicial notice may be taken on appeal), trans. denied. Indeed, the Governor’s press release
preceded Hodge’s email by five days, and, in that press release, the Governor stated that “[t]he State of
Indiana will carefully evaluate the details of the Executive Order and take any available legal actions
necessary to restore the rule of law and proper balance to our constitutional system of government.” Governor
Pence Calls President’s Executive Order ‘End Run Around Democratic Process’, supra.
Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 26 of 41
email to the Governor’s Chief of Staff, Jim Atterholt, the Governor was aware
of the Governor’s-only meeting; he was aware that the State of Texas intended
to “lead the charge” against the President’s orders in a federal lawsuit; he was
aware that the State of Texas sought to collaborate with other states to
prosecute that legal challenge; and he recognized that the white paper had been
distributed to assist likely co-plaintiffs in their decision whether to join the
contemplated litigation. Further, it is clear that the white paper was created by
a Texas deputy solicitor general on behalf of his client, the State of Texas. And,
having reviewed the white paper in camera, we agree with the Governor that it is
devoted to a discussion of legal theory and strategy to be used in the federal
lawsuit.
[33] Thus, we agree with the Governor that, “[i]n the case of the white paper, one
party is sharing a legal memo, drafted by its lead counsel, with other potential
parties in order to assist those parties in determining whether to join in the
lawsuit.” Id. at 65. As such, the white paper was a communication made to
further an ongoing joint enterprise with respect to a common legal interest.
Price, 27 N.E.3d at 1173. Accordingly, we hold that the white paper was
privileged attorney-client communication under the common interest doctrine.
See Corll, 646 N.E.2d at 724-25. As promised by Texas Governor-Elect Abbott,
Hodge sent the white paper to Governor Pence and other governors to explore
their common interest in contesting the President’s executive orders. This
communication of a legal opinion occurred as Texas sought to determine
Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 27 of 41
whether other states would agree to join in the federal suit and, as a result,
twenty-five states joined Texas as plaintiffs.11
[34] Here, similar to Corll, a group of like-minded governors shared legal theories
and strategies via email to consider whether to join in litigation. 646 N.E.2d at
724-25. The purpose of that consultation was to provide legal advice to the
prospective co-plaintiffs. See id. Thus, the communications made in
furtherance of that purpose were confidential communications between
attorney and clients and “carr[ied] with them an expectation of confidentiality.”
Id. As such, we conclude that the Governor met his burden to demonstrate that
the white paper was a privileged communication and therefore exempt from
disclosure under APRA. See I.C. § 5-14-3-4(a)(1), (8).
[35] Nonetheless, Groth contends that the attorney-client privilege does not apply to
the white paper for two reasons.12 First, Groth asserts that, at the time the
Texas deputy solicitor general created the white paper, the State of Indiana was
not his client. In other words, he characterizes the white paper as an
“unsolicited email” or, stated another way, an uninvited solicitation from
Texas’ lawyers. Reply Br. at 10. But no one suggests that the Governor would
11
For the same reasons, the Governor asserts that the white paper is privileged attorney work product not
subject to discovery pursuant to Indiana Trial Rule 26(B).
12
Groth also asserts that, insofar as the white paper might contain factual recitations in addition to
privileged information, those recitations are subject to disclosure. Having reviewed the white paper in
camera, we agree with the trial court that no part of it is subject to disclosure. The facts mentioned in the
white paper are facts counsel considered significant and integral to the memorandum’s legal analysis and
opinion and, as such, are a privileged communication.
Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 28 of 41
have employed the Texas deputy solicitor general to represent the State of
Indiana in the federal lawsuit. And Groth’s solicitation theory is not supported
by the record, which shows that the Governor and other governors knew of the
President’s orders and Texas’ plan to contest those orders and that they
anticipated receiving additional information from Texas to consider in deciding
whether their states would become co-plaintiffs. The Hodge email with a legal
memorandum attached was not the beginning but the continuation of a
discussion already underway among the governors and, as such, was not an
unsolicited email.
[36] Groth also asserts that the communication of the white paper to Governor
Pence was not confidential because it was attached to an email that had been
“sent to thirty recipients. The context of the [email] itself shows that the
recipients were not clients of the author[] because it specifically discusses parties
who may or may not have decided to join the lawsuit.” Id. at 15. In support of
that argument, Groth relies on precedent from the Fourth Circuit Court of
Appeals, which provides that the common interest privilege does not apply if a
public agency is “simply considering whether to become involved” in litigation.
Hunton & Williams, 590 F.3d at 274. But that is not the Indiana rule, which
recognizes that the attorney-client privilege attaches to preliminary discussions
between attorneys, prospective clients, and other potential parties who share a
common interest concerning a potential lawsuit. Corll, 646 N.E.2d at 724-25.
As we explained in Price, the common interest privilege “is an exception to the
general rule that the attorney-client privilege is waived when privileged
Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 29 of 41
information is disclosed to a third party.” 27 N.E.3d at 1173. Indeed, the
common interest privilege expressly “permits parties whose legal interests
coincide to share privileged materials . . . .” Id. And, again, under Corll, the
fact that such information was shared with others who may or may not have
decided to join the lawsuit does not vitiate the common interest privilege.
Thus, we reject Groth’s arguments.
[37] Because we hold that the Governor has met his burden to show that the white
paper falls under Section 4(a) as privileged attorney-client communication, the
Governor had no discretion to release the information. Rather, his
nondisclosure of that document was mandatory. I.C. § 5-14-3-4(a). And we
cannot agree with Groth’s arguments to the contrary.
[38] We also agree with the Governor that he acted within his discretion when he
withheld the white paper as deliberative material. Indiana Code Section 5-14-3-
4(b)(6) permits a public agency, in its discretion, to withhold from disclosure
“[r]ecords that are intra-agency or interagency advisory or deliberative material,
including material developed by a private contractor under a contract with a
public agency, that are expressions of opinion or are of a speculative nature,
and that are communicated for the purpose of decision making.” As we have
explained: “The purpose of protecting such communications is to prevent
injury to the quality of agency decisions. The frank discussion of legal or policy
matters in writing might be inhibited if the discussion were made public, and
the decisions and policies formulated might be poorer as a result.”
Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 30 of 41
Unincorporated Operating Div. of Ind. Newspapers, 787 N.E.2d at 909-10 (citations,
quotations, and footnote omitted).
[39] Here, the white paper is a “paper . . . received . . . by . . . a public agency” and
is therefore a record under APRA. I.C. § 5-14-3-2(o). The Governor used that
record within his office, making it an intra-agency record. And the white paper
was an expression of legal opinion used by the Governor for the purpose of
decision making. Accordingly, the Governor acted within his discretion when
he withheld the white paper under the deliberative material exception.
[40] The burden thus shifted to Groth to demonstrate that the Governor’s denial was
“arbitrary and capricious.” I.C. § 5-14-3-9(g). “An arbitrary and capricious
decision is one which is ‘patently unreasonable’ and is ‘made without
consideration of the facts and in total disregard of the circumstances and lacks
any basis which might lead a reasonable person to the same conclusion.’” A.B.
v. State, 949 N.E.2d 1204, 1217 (Ind. 2011) (quoting City of Indianapolis v.
Woods, 703 N.E.2d 1087, 1091 (Ind. Ct. App. 1998)). We are not persuaded by
Groth’s argument that the Governor’s response was arbitrary and capricious.
See I.C. § 5-14-3-9(g).
[41] Thus, we affirm the trial court’s judgment for the Governor with respect to the
white paper.
Issue Four: Law Firm Invoices
[42] Finally, we turn to the Governor’s decision to redact the invoices of Barnes &
Thornburg LLP, the private law firm the Governor had hired to represent
Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 31 of 41
Indiana and his office in the Texas litigation and on Groth’s APRA claim,
respectively. The Governor redacted those invoices pursuant to Section 4(b)(2),
which permits the Governor, “at [his] discretion,” to limit his production of
requested public documents when such documents are “[t]he work product of
an attorney representing . . . a public agency[ or] the state . . . .”
[43] The Governor has met his burden to show that the information redacted from
the legal invoices falls within the scope of Section 4(b)(2). Having reviewed the
unredacted invoices in camera, we agree with the Governor that the redacted
information refers to the attorneys’ research and legal opinions, theories,
communications, or conclusions with respect to various aspects of litigation
involving the State and the Governor. As such, the Governor acted within his
discretion when he redacted that information from the invoices as the work
product of attorneys representing the State of Indiana or the Governor.
[44] The burden thus shifted to Groth to demonstrate that the Governor’s denial of
full access to the invoices was “arbitrary and capricious.” I.C. § 5-14-3-9(g).
Groth has not met that burden. Groth asserts that the Governor’s decision to
redact the invoices was arbitrary and capricious because the attorney work
product exception does not protect either information the Governor might have
shared with third parties or factual information. But Groth cites no evidence
that the Governor has shared the invoices with third parties. And, having
reviewed the documents in camera, we reject Groth’s assertion that the
Governor erroneously redacted information that is not attorney work product,
as defined in Indiana Code Section 5-14-3-2(r). Accordingly, Groth has not met
Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 32 of 41
his burden of demonstrating that the Governor’s partial redaction of the legal
invoices was arbitrary and capricious, and we affirm the trial court’s judgment
for the Governor with respect to the legal invoices.
Conclusion
[45] In sum, we reject the Governor’s claim that executive privilege renders his
response to APRA requests immune from judicial review. We also reject
Groth’s argument that the trial court’s judgment violated his due process rights.
We affirm the trial court’s judgment for the Governor on the merits of the
Governor’s decision to redact or withhold the records in question.
[46] Affirmed.
Baker, J., concurs.
Vaidik, C.J., concurs in part and dissents in part with separate opinion.
Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 33 of 41
IN THE
COURT OF APPEALS OF INDIANA
William Groth,
Appellant-Plaintiff,
Court of Appeals Case No.
v. 49A04-1605-PL-1116
Mike Pence, as Governor of the
State of Indiana,
Appellee-Defendant.
Vaidik, Chief Judge, concurring in part and dissenting in part.
[47] I concur with the majority as to all issues except one. That is, I dissent from the
majority’s conclusion that Governor Pence has met his burden of showing that
the white paper is not subject to disclosure under APRA because it is a
privileged attorney-client communication pursuant to the common-interest
doctrine.13 In order for the common-interest doctrine to apply, the parties must
first come to an agreement, and documents exchanged before an agreement is
reached are not protected from disclosure. Here, there is no evidence in the
13
The majority also finds that the white paper is protected from disclosure as deliberative material. I
disagree. Indiana Code section 5-14-3-4(b)(6) permits a public agency, in its discretion, to withhold from
disclosure “[r]ecords that are intra-agency or interagency advisory or deliberative material . . . that are
expressions of opinion or are of a speculative nature, and that are communicated for the purpose of decision
making.” The majority finds that the white paper is a protected “intra-agency” record. Although the white
paper was not prepared by anyone within the Governor’s office, the majority, without citation to authority,
finds that it qualifies as an intra-agency record because Governor Pence “used” it within his office. Slip op.
at 30. I do not believe that a public agency can protect a record from disclosure as deliberative material just
by “using” it.
Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 34 of 41
record that Governor Pence and Texas officials reached an agreement before
the white paper was emailed. As a result, I believe that the email served as a
recruiting or lobbying tool by the State of Texas to encourage other states to
join its legal challenge to President Obama’s executive orders on immigration.
Because lobbying and soliciting are not protected by the common-interest
doctrine, I believe that Governor Pence has not met his burden of showing that
the white paper is protected from disclosure under APRA.
[48] As our legislature recognized in the opening sentence of APRA, “A
fundamental philosophy of the American constitutional form of representative
government is that government is the servant of the people and not their
master.” Ind. Code § 5-14-3-1. Accordingly, it is the policy of this 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.” Id. This is so because “[p]roviding 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.” Id. In short, “APRA is intended to ensure
Hoosiers have broad access to most government records.” Evansville Courier &
Press v. Vanderburgh Cty. Health Dep’t, 17 N.E.3d 922, 928 (Ind. 2014). APRA is
liberally construed to implement this policy, with the burden for nondisclosure
on the public agency denying access. I.C. § 5-14-3-1; ESPN, Inc. v. Univ. of Notre
Dame Police Dep’t, 62 N.E.3d 1192, 1196 (Ind. 2016).
Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 35 of 41
[49] Here, the majority finds that Governor Pence has met his burden of showing
that the white paper is not subject to disclosure under APRA because it is a
privileged attorney-client communication pursuant to the common-interest
doctrine. The common-interest doctrine is an exception to the general rule that
no privilege attaches to communications between a client and an attorney in the
presence of a third person. United States v. BDO Seidman, LLP, 492 F.3d 806,
815 (7th Cir. 2007); Price v. Charles Brown Charitable Remainder Unitrust Tr., 27
N.E.3d 1168, 1173 (Ind. Ct. App. 2015), trans. denied. The common-interest
doctrine permits parties whose legal interests coincide to share privileged
materials with one another in order to more effectively prosecute or defend their
claims. Am. Mgmt. Servs., LLC v. Dep’t of the Army, 703 F.3d 724, 732 (4th Cir.
2013); Price, 27 N.E.3d at 1173.
[50] For the doctrine to apply, the parties must first come to an agreement. See In re
Pac. Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012) (“[A] shared desire to see
the same outcome in a legal matter is insufficient to bring a communication
between two parties within this exception. Instead, the parties must make the
communication in pursuit of a joint strategy in accordance with some form of
agreement—whether written or unwritten.” (citation omitted)); Hunton &
Williams v. U.S. Dep’t of Justice, 590 F.3d 272, 274 (4th Cir. 2010) (explaining
that it is “not enough that the agency was simply considering whether to
Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 36 of 41
become involved”; rather, an agreement is required) 14; see also Restatement
(Third) of the Law Governing Lawyers § 75 cmt. a (Am. Law Inst. 2010)
(“Whether a client-lawyer relationship exists between each client and the
common lawyer is determined under § 14, specifically whether they have
expressly or impliedly agreed to common representation in which
confidential information will be shared. A co-client representation can begin
with a joint approach to a lawyer or by agreement after separate representations
had begun.” (emphasis added)).
[51] Timing of the agreement is important. “Documents exchanged before a
common interest agreement is established are not protected from disclosure.”
Hunton & Williams, 590 F.3d at 285 (emphasis added). The danger in extending
the common-interest doctrine to a point in time before an agreement is reached
is that “mere lobbying efforts, as opposed to joint litigation strategy, will be”
protected. Id.; see also Am. Mgmt. Servs., 703 F.3d at 732 (explaining that for the
common-interest doctrine to apply, there must be an agreement “at the time of
the communications at issue” (emphasis added)); Hunton & Williams, 590 F.3d
at 285 (“Thus, a proper assessment of the applicability of the common interest
doctrine in this case requires a determination of the point in time when DOJ
14
The majority recognizes this principle of law. See slip op. at 29. However, the majority, relying on Corll v.
Edward D. Jones & Co., 646 N.E.2d 721 (Ind. Ct. App. 1995), trans. not sought, finds that it is “not the Indiana
rule,” as Indiana recognizes that “the attorney-client privilege attaches to preliminary discussions between
attorneys, prospective clients, and other potential parties who share a common interest concerning a potential
lawsuit.” Slip op. at 29. As explained later in my dissent, I believe that Corll is factually distinguishable from
this case. Moreover, I believe that Indiana law requires that the communication at issue be made in pursuit
of a joint strategy in accordance with some form of agreement—written or unwritten.
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decided that it was in the public interest for RIM to prevail in its litigation with
NTP and agreed to partner with RIM in doing so.” (emphasis added)); Price, 27
N.E.3d at 1173 (“The privilege is limited to those communications made to
further an ongoing joint enterprise with respect to a common legal interest.”
(citation omitted) (emphasis added)).
[52] Here, I believe that Governor Pence has not met his burden of showing that he
had agreed to partner with Texas in its legal challenge to President Obama’s
executive orders on immigration when Hodge emailed the white paper to the
thirty recipients (including Governor Pence’s chief of staff) on November 25,
2014. The record shows that Hodge emailed the thirty recipients “to follow-up
on comments my boss made during the Governors-Only meeting last week.”
Appellant’s App. Vol. 2 p. 30. Hodge explained that “[d]uring last week’s
meeting, Governor-elect Abbott promised that we would circulate a white paper
outlining the legal theories supporting [Texas’] legal challenge [to President
Obama’s recent executive orders on immigration] to the other Governors.” Id.
Contrary to the majority’s implication, there is no evidence in the record that
Governor Pence or anyone from his staff knew about, let alone attended, this
meeting or that Governor Pence or anyone from his staff found out before
receiving the email what was actually discussed at the meeting. See Oral Arg. at
23:28-23:35 (Governor Pence’s attorney conceding at oral argument that there
is no evidence in the record that Governor Pence attended the meeting); see also
id. at 13:00-13:43 (Groth’s attorney noting at oral argument that the record does
not disclose information about the meeting). This lack of evidence is buttressed
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by the email itself, which says, “As some of you may have heard, the State of
Texas is preparing a legal challenge to the President’s recent executive orders on
immigration.” Appellant’s App. Vol. 2 p. 30 (emphasis added). There is also
no evidence in the record that Governor Pence or anyone from his staff asked
to receive, agreed to receive, or expected to receive the email. See Oral Arg. at
9:50-10:07 (Groth’s attorney pointing out at oral argument that the record is
silent as to whether Governor Pence was expecting to receive the email). In
short, there is simply no evidence in the record that Governor Pence or a
member of his staff communicated with Texas officials in any way about
joining Texas’ legal challenge to President Obama’s executive orders on
immigration before the white paper was emailed on November 25, 2014. 15
[53] As such, I believe that Hodge’s email served as a lobbying or soliciting tool by
Texas to encourage other states to join its legal challenge. As the email itself
states, “Our hope is that other states will join the State of Texas’ legal action so
that we will have a broad coalition to challenge the President’s action . . . .”
Appellant’s App. Vol. 2 p. 30 (emphases added). The common-interest doctrine
does not protect mere lobbying efforts but rather only joint strategy. See Hunton
15
The majority sua sponte takes judicial notice of a press release that Governor Pence issued on November
20, 2014, five days before the white paper was emailed. In the press release, Governor Pence indicated that
he disagreed with President Obama’s executive orders on immigration. The press release, however, does not
establish that an agreement existed between Governor Pence and Texas when the November 25, 2014, email
was sent. The majority also cites as support an email that Governor Pence disclosed to Groth wherein a
reporter asked Governor Pence’s communications director if the governor had any comment regarding “talk
among some governors” that President Obama’s executive orders would pose operational challenges for the
states. Appellant’s App. Vol. 2 p. 25. Again, this email does not establish that Governor Pence and Texas
had an agreement when the November 25, 2014, email was sent.
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& Williams, 590 F.3d at 285. Accordingly, I believe that the white paper, which
was emailed before any sort of agreement was reached, is not protected from
disclosure as a privileged attorney-client communication pursuant to the
common-interest doctrine.
[54] Furthermore, this case is easily distinguishable from Corll v. Edward D. Jones &
Co., 646 N.E.2d 721 (Ind. Ct. App. 1995), trans. not sought, which the majority
heavily relies on. In that case, several prospective plaintiffs attended a series of
group meetings that were also attended by attorneys who later became the
plaintiffs’ counsel. The purpose of the meeting was to gather prospective
plaintiffs who had dealt with a brokerage firm’s employee in order to discuss
their investment losses. We set forth the following rule:
When two or more persons, with a common interest in some
legal problem, jointly consult an attorney, “their confidential
communications with the attorney, though known to each other,
will of course be privileged in a controversy of either or both the
clients with the outside world.”
Id. at 725 (quoting McCormick on Evidence § 91 (4th ed. 1992) (emphasis added));
see now McCormick on Evidence § 91.1 (7th ed. 2013). Unlike Corll, where the
parties came together in pursuit of a joint strategy, here there is no evidence that
Governor Pence and Texas’ lawyers came together in pursuit of a joint strategy
at any point before the white paper was emailed. In the absence of such
evidence, the email was a one-way solicitation designed to encourage Indiana
to join Texas’ legal challenge to President Obama’s executive orders on
immigration.
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[55] The policy of APRA is to provide the public with full and complete information
about the affairs of the government. Indeed, providing the public with
information “is an essential function of a representative government.” I.C. § 5-
14-3-1. Because the record reflects that Hodge emailed the white paper to
Governor Pence’s chief of staff in order to lobby or solicit Indiana to join Texas’
legal challenge, and before any sort of agreement between Governor Pence and
Texas was reached, I believe that Governor Pence has not met his burden of
showing that the white paper is protected from disclosure under APRA. I
would therefore reverse the trial court on this issue and order Governor Pence
to produce the white paper.
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