67 N.E.3d 1104
Ind. Ct. App.2017Background
- In Dec. 2014 William Groth requested records under Indiana APRA about Governor Pence’s decision to join Texas’s federal suit challenging presidential immigration orders, including communications, the contract with Barnes & Thornburg, invoices, and related materials.
- Governor Pence produced over fifty pages but withheld a Texas-drafted legal "white paper" and partially redacted law‑firm invoices, citing attorney-client privilege, attorney work product, and deliberative‑material exceptions.
- The Indiana Public Access Counselor issued a nonbinding opinion that the Governor did not violate APRA; Groth then sued in Marion Superior Court. The trial court conducted an in camera review, upheld the Governor, and Groth appealed.
- The Court of Appeals reviewed de novo, conducted its own in camera review (under seal), and addressed justiciability, due process, and the merits of withholding the white paper and redacting invoices.
- Outcome: the court affirmed—Citizens Action Coalition did not bar judicial review here; no due process violation from the court’s in camera handling; the white paper was privileged under the common‑interest doctrine and deliberative‑material exception; the invoice redactions were proper attorney work‑product.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Are APRA challenges to the Governor justiciable (Citizens Action Coalition)? | Groth: APRA applies and courts may review the Governor’s withholdings. | Pence: Citizens Action Coalition and separation of powers bar judicial inquiry into Governor’s discretion. | Citizens Action Coalition does not apply; requests to the Governor are justiciable and subject to APRA review. |
| 2. Did the trial court deny due process by not summarizing sealed material after in camera review? | Groth: Without a summary he could not meaningfully challenge nondisclosure. | Pence: In camera review by the court protects privileges; Groth could have sought a protective order to view sealed records. | No due process violation; in camera inspection is standard and Groth forfeited the chance to request a protective order. |
| 3. Was the Texas "white paper" disclosable? | Groth: The memo was soliciting/recruiting and not privileged; factual portions (if any) should be disclosed. | Pence: White paper is privileged lawyer memo shared among potential co‑plaintiffs (common‑interest) and is deliberative material. | Withheld: Court finds white paper protected by attorney‑client/common‑interest privilege and permissibly withheld as deliberative material. |
| 4. Were redactions to Barnes & Thornburg invoices lawful? | Groth: Redactions improperly conceal factual information or material shared with third parties and thus exceed work‑product protection. | Pence: Redactions reflect attorney work product (legal theories, communications); otherwise invoices show dates, hours, names, totals. | Affirmed: Redactions fall within attorney work‑product exception; Groth did not show the decision was arbitrary and capricious. |
Key Cases Cited
- Citizens Action Coalition of Indiana v. Koch, 51 N.E.3d 236 (Ind. 2016) (prudential separation‑of‑powers limits judicial definition of legislative work product)
- Corll v. Edward D. Jones & Co., 646 N.E.2d 721 (Ind. Ct. App. 1995) (common‑interest extension of attorney‑client privilege for prospective co‑plaintiffs)
- Ind. State Highway Comm’n v. Morris, 528 N.E.2d 468 (Ind. 1988) (attorney‑client privilege applies to state agencies and is an APRA exception)
- State v. Pelley, 828 N.E.2d 915 (Ind. 2005) (in camera review by court can protect privileged materials without disclosure to opposing party)
- Price v. Charles Brown Charitable Remainder Unitrust Tr., 27 N.E.3d 1168 (Ind. Ct. App. 2015) (discussion of common‑interest privilege as an exception to waiver of attorney‑client privilege)