Divided appeals court rules in favor of Pence in public records case

The Indiana Court of Appeals on Monday upheld a trial court decision finding that former Indiana Gov. and Vice President-elect Mike Pence did not violate open records laws when he redacted and withheld certain documents related to his decision to join a Texas lawsuit challenging federal executive orders on immigration.

The court decided in a divided opinion that the information in the white paper in question is protected from public access.

In December 2014, William Groth submitted a public records request under the Access to Public Records Act, seeking documents on the governor’s decision to hire Barnes & Thornburg LLP to represent the state in the lawsuit.

Pence responded to with more than 50 pages of documents, but redacted several documents and declined to release a related white paper, which was a legal memorandum.

Groth challenged the governor’s office in oral arguments before the Court of Appeals on Nov. 21. But, in a Monday opinion, a divided Court of Appeals upheld the trial court in a 41-page decision, finding that Pence’s actions did not violate the APRA.  

“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,” Judge Edward Najam wrote for the divided Court of Appeals.

However, the trial court rejected Pence’s argument that “executive privilege renders his response to APRA requests immune from judicial review.”

Chief Judge Nancy Vaidik both concurred and dissented in a separate opinion.

“Because the record reflects that (then Texas Gov-elect Greg Abbott’s chief of staff Daniel) 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,” Vaidik wrote. “I would therefore reverse the trial court on this issue and order Governor Pence to produce the white paper.”