Two stories about access to information created by people in positions of authority were in the news last week. One should stand up the hair on the neck of any Hoosier who cares about open government. The other should raise a red flag about the potential of secret police roaming the state.
The first one involves area legislator Eric Koch (R-Bedford) and the House Republican caucus, who were sued for the release of emails and other correspondence between Koch and utility company officials. Earlier this spring, state Public Access Counselor Luke Britt wrote in an advisory opinion that the Legislature is subject to the public records law and Koch’s correspondence should be released.
Last Tuesday, a Marion County judge dismissed the lawsuit. And those in legal circles expected him to do so.
The reason is a 1993 Indiana Supreme Court decision in which a 3-2 majority decided the court couldn’t interfere with the legislative branch.
In essence, while members of the General Assembly are subject to the Access to Public Records Act, any challenge will be met by a judicial system that won’t make them abide by it.
Here’s how this plays out.
A discussion of the 1993 decision, called Masariu in legal shorthand, is on the Indiana Law Blog edited by Indianapolis attorney Marcia J. Oddi. The court would not require the Clerk of the Indiana House of Representives (Betty Masariu) to make a record of roll call votes, citing separation of powers. The Indianapolis Star had sued, saying the Indiana Access to Public Records Act calls for records of a public agency — which one would think would include the Legislature — to make its records available for inspection and copying.
The Legislature didn’t want the roll call votes to be tracked, and so Masariu did not record the votes.
The Supreme Court ruled that Masariu was an employee of the Legislature, and therefore the Legislature had sole jurisdiction over her duties and performance. The majority opinion said: “(T)his Court has held repeatedly that courts should not intermeddle with the internal functions of either the Executive or Legislative branches of Government.” You could read this between the lines: “We judges won’t mess with you, if you lawmakers won’t mess with us.”
The Supreme Court voted 3-2 in the matter, and the dissenting opinion saw things differently.
“This case presents several issues of considerable importance about the operation of Indiana government, such as whether legislators’ votes should be recorded on amendments to the state’s multi-billion-dollar budget, how citizens can learn whether their own legislators voted yes or no on those amendments, and whether the distribution of powers article in the Indiana Constitution prevents the judiciary from taking notice of such matters.”
In other words, the public has a right to know what lawmakers are up to, but if the courts refuse to monitor that,who will?
Last week, Judge James Osborn cited Masariu in a very short opinion that email exchanges and other correspondence involving Rep. Koch and utility company officials can’t be seen by the public. In doing so, he ruled again that the courts aren’t going to get involved in deciding whether the Legislature violates access laws.
This is a much larger issue than whether there’s anything interesting or newsworthy in Koch’s email messages. The Supreme Court decision in 1993 and the continued reliance on it seems to give legislators the leeway to do their business in private when it suits them.
Hoosiers should be aware of that.
As for the other case, Indiana Attorney General Greg Zoeller filed an amicus brief Friday, arguing that the University of Notre Dame’s security police department should have to abide by the Access to Public Records Act even though Notre Dame is a private university. ESPN has sued Notre Dame for access to public records. Zoeller said he filed the brief on the side of ESPN because of the state government’s interest in transparency, and in support of Public Access Counselor Britt, who said in a non-binding opinion the records should be disclosed.
“The State takes the legal position that transparency is needed in the exercise of police power in order to maintain the public’s trust. Disclosing that a possible crime occurred and conveying basic pertinent information helps inform and protect the public and creates more transparency and accountability within the criminal justice system. ...,” Zoeller said in a statement.
He noted Notre Dame’s police officers are authorized through state statute.
“A police officer is perhaps the quintessential public employee, cloaked in the authority of the state to investigate, detain, arrest, incarcerate, carry and discharge a firearm, and generally maintain the safety of the citizenry. The notion that a police department exercising these core state powers can be shielded from public scrutiny by dint of its affiliation with a private university is antithetical to the important policy interests underlying the Access to Public Records Act,” he said.
He’s right. Now perhaps he could talk to the state’s legislators about their responsibility under the act.