Greg Weaver: Public access is at risk in pair of court cases

Two cases being considered by the Indiana Supreme Court could have a dramatic effect on Hoosiers’ rights to obtain government documents under the state’s Access to Public Records Act.

Last week, the state’s high court heard arguments to decide whether to take on a case in which the Indiana Family and Social Services is asking the justices to endorse its use of the “deliberative materials” exception to the state’s access law.

In that case, the agency denied attorney Robert Saint access to a document submitted to FSSA by HealthNet Inc. in an attempt to settle how much the health care provider should be reimbursed by Medicaid.

Also pending before the court is a case it heard last month that could change how and whether petitioners should be reimbursed for legal fees when they win a court judgment that requires a government entity to cough up documents that were wrongly withheld.

The FSSA case seems the most perilous in its potential to severely limit public access to government records, particularly if the court buys the agency’s arguments that any document submitted by a third party to state or local government could be exempt from disclosure if it is merely looked at by agency leaders as they work to reach a decision.

Thankfully, though, a couple of justices pushed back on that argument when it was raised last week in court by Benjamin Jones, a deputy attorney general representing FSSA.

Chief Justice Loretta Rush particularly took issue with that interpretation, saying it “contravenes the purpose of having government transparency.”

Simply looking at a document or using information from it when drafting a decision does not mean the document itself discloses any deliberative material, Rush suggested.

Both the trial court and the Indiana Court of Appeals have ruled that the HealthNet document should be released. The state’s high court has yet to decide whether to accept FSSA’s appeal of those rulings on transfer.

The state Supreme Court also is weighing whether to accept on transfer the appeal of an Indiana Court of Appeals decision that denied reimbursement for attorney’s fees to a resident who won a judgment for the release of one of three documents he sought from the Indiana Election Division.

The appeals court ruled in May that Christopher Nardi did not qualify for reimbursement because he did not “substantially prevail” in the case.

That overturned a trial court ruling that said he was entitled to one-third of his attorney fees, or roughly $20,000.

Oral arguments before the state Supreme Court last month centered on the meaning of “substantially prevail.”

While the case might not directly curb disclosure of public records, denial of the reimbursement of legal fees could have a chilling effect on news organizations and everyday residents filing lawsuits to make sure the state’s public access law is enforced.

In both pending cases, let’s hope the state’s high court follows the preamble of the public access act, which calls for it to be liberally construed in favor of disclosure and reimbursement.

Transparency is paramount in a democracy, and Hoosiers deserve more, not less.

That’s especially true in the aftermath of the Indiana General Assembly’s decision this year to constrict interpretations of the law by the state’s public access counselor, whose role is to help to resolve such disputes so that expensive court battles can be avoided.

Fortunately, the state Supreme Court is under no such restrictions.•

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Weaver is the editor of Indiana Lawyer. Write him at gweaver@ibj.com.