State lawmakers attempt to conceal legislative records in SB 528 conference committee

Posted by Laura Arnold  /   April 28, 2015  /   Posted in 2015 Indiana General Assembly  /   No Comments


April 28, 2015 1:34 PM

Bill concealing legislative records from public scrapped

Niki Kelly, The Journal Gazette

INDIANAPOLIS - A last-second attempt to conceal legislative records from the public hit a wall Tuesday morning.

A conference committee hearing had been called for Senate Bill 528 - a bill about public records. Legislative leaders were considering adding language to officially exempt legislative calls and emails.

The move is related to a recent lawsuit filed against the Indiana House, and multiple opinions by the Indiana Public Access Counselor that the General Assembly must follow the state public records law.

But the Tuesday meeting was scrapped.

"Ultimately I thought it was inadvisable to put legislation together at the last second despite the appropriateness of it and the need for it," said Republican House Speaker Brian Bosma. "Probably best not to do it."

Citizens Action Coalition, Common Cause Indiana and the Energy and Policy Institute filed a lawsuit earlier this month in Marion County against the Indiana House Republican Caucus and State Rep. Eric Koch, R-Bedford, for violating the Indiana Access to Public Records Act.

According to a press release, the groups are asking the court to declare that Koch and the caucus are subject to the state open records law, which the GOP legislators have denied, and to order disclosure of correspondence between Rep. Koch and utility companies regarding solar energy issues.

Both the House and Senate have long held that they aren't subject to the public records law though there isn't a specific exemption in the law. Judges have been hesitant in the past to step into legislative affairs due to the separation of powers.

"As Indiana Public Access Counselor, I humbly and respectfully request the caucus reconsider its position on the blanket inapplicability of the Access to Public Records Act and treat public records requests in a manner consistent with the spirit of transparency and openness," the April PAC ruling said.

He said the caucus could define their own work product as an exception to the law.

"I implore the General Assembly to be judicious in deciding what to withhold and what to release," the ruling said. "It indeed requires a delicate balance, but the scales should favor transparency.

Effort to withhold state legislative records stalls

A last-minute push to protect state lawmakers from having to disclose public records, including their emails and other documents, has stalled, but is likely to resurface next year.

Senate and House lawmakers had scheduled a conference committee for Tuesday morning to consider a measure that would have specifically exempted their exchanges from public disclosure. But the meeting was cancelled at the last minute Tuesday morning.

House Speaker Brian Bosma, whose lawyers are fighting off a challenge from a Washington-based environmental group, said the protection is needed, but will probably have to wait.

"Ultimately I thought it was inadvisable for us to put legislation together at the last second, despite the appropriateness of it and the need for it," he said Tuesday.

Lawmakers are a little more than 24 hours from wrapping up work on their 2015 legislative session. The issue of access to public records arose earlier in the session when the Energy and Policy Institute sought emails between House Energy Chairman Eric Koch, R-Bedford, and Duke Energy regarding solar energy legislation.

Bosma's staff flatly refused the request, citing a 1993 court case that allegedly exempted all state lawmakers from the state's public records laws. But Indiana's public access counselor, who is appointed by the governor to interpret state open records laws, determined at the time that lawmakers, along with other public agencies, are still subject to the law.

"It is the opinion of the public access counselor the Indiana General Assembly is subject to the Access to Public Records Act," Public Access Counselor Luke Britt wrote in the conclusion of his March 6 opinion.

But because the opinion's are only advisory, and not enforceable, Bosma's staff replied that they would still not release the emails. Specifically, Bosma's chief counsel, Jill Carnell, argued that a pair of Indiana Supreme Court cases left the decision solely up to the General Assembly, as to whether disclose.

"For all of these reasons, the Indiana Access to Public Records (in the Indiana Code 5-14-3) does not apply to the Indiana General Assembly," Carnell wrote in a March 16 reply.

A month later, the Energy Policy Institute and a pair of local liberal watchdog groups -- Common Cause of Indiana and The Citizen Action Coalition -- filed suit against the Indiana House in Marion County Superior Court.

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