Family & Social Services Administration v. Robert E Saint

IN THE

Indiana Supreme Court

Supreme Court Case No. 25S-MI-101

Family & Social Services Administration FILED

Appellant (Defendant below) Apr 23 2025, 1:21 pm

CLERK

Indiana Supreme Court

–v– Court of Appeals

and Tax Court

Robert E. Saint

Appellee (Plaintiff below)

Argued: December 12, 2024 | Decided: April 23, 2025

Appeal from Marion Superior Court

No. 49D06-2210-MI-35140

The Honorable Kurt M. Eisgruber, Judge

On Petition to Transfer from the Indiana Court of Appeals

No. 23A-MI-2742

Opinion by Justice Massa

Chief Justice Rush and Justice Goff concur.

Justice Molter concurs with separate opinion.

Justice Slaughter did not participate in this matter.

Massa, Justice.

Appellee Robert Saint made an Access to Public Records Act request

for a legal memorandum, or “White Paper,” created by the private entity

HealthNet and given to Family & Social Services Administration (FSSA)

for use during Medicaid settlement negotiations. Although FSSA argued

that the White Paper was excepted from disclosure as intra-agency

deliberative material, the trial court ordered the document’s disclosure.

On appeal, FSSA again argues the deliberative material exception applies

because FSSA used the document for decision-making purposes. Finding,

however, that the White Paper is not “intra-agency material” that can thus

be withheld, we affirm the trial court.

Facts and Procedural History

HealthNet, Inc. (“HealthNet”) is a Federally Qualified Health Center

that owns and operates medical clinics throughout Indianapolis. It

provides services to indigent and Medicaid-enrolled patients. Appellant

FSSA oversees Indiana’s Medicaid program.

Appellee Saint is an attorney representing a whistleblower in a “qui

tam” action, a type of lawsuit that enables private plaintiffs to benefit by

exposing those who defraud the government. 1 The whistleblower here

sought claims under the False Claims Act, 2 alleging HealthNet received

1 “Qui tam” is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac

parte sequitur, which means “who pursues this action on our Lord the King’s behalf as

well as his own.” See Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 768 n.1

(2000); see also 3 W. Blackstone, Commentaries on the Law of England *160 (1768). Qui

tam actions were recognized in Europe prior to our nation’s founding and were adopted

in some of our earliest colonial statutes. See Marc S. Raspanti & David M. Laigaie, Current

Practice and Procedure Under the Whistleblower Provisions of the Federal False Claims Act, 71

Temp. L. Rev. 23, 23–24 (1998); see also U.S. ex rel. Stillwell v. Hughes Helicopters, Inc., 714 F.

Supp. 1084, 1086 n.2 (C.D. Cal. 1989) (listing statutes enacted by the First Congress

permitting qui tam actions). The private person bringing the action is referred to as the

“qui tam relator,” or more colloquially, the “whistleblower.” See Stevens, 529 U.S. at 769;

Raspanti & Laigaie, supra note 1 at 23 n.1.

2 In 1863, Congress—through the persistent urging of President Abraham Lincoln—

passed the False Claims Act as a principal mechanism for combatting fraud against the

United States government, particularly that involving “unscrupulous businessmen and

wartime profiteers who sold broken rifles, lame horses, and useless ammunition to the

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 2 of 19

Medicaid reimbursements to which it was not entitled. HealthNet’s

attorney prepared a legal memorandum, referred to as a “White Paper,”

and submitted it to FSSA for consideration during settlement negotiations

between HealthNet and FSSA.

While settlement negotiations were still ongoing, Saint filed a request

to FSSA to inspect and copy the White Paper under Indiana’s Access to

Public Records Act (APRA). Specifically, Saint requested from FSSA:

Copies of public records pertaining to all white [papers]

submitted on behalf of HealthNet between October 1, 2018,

until March 31, 2019, regarding HealthNet’s claim for

Medicaid reimbursements arising out of approximately $4.6

to $4.7 Million Dollars for mental healthcare (wraparound

claims between 2011 and 2016 for the services of mid-level

providers).

FSSA’s attorney responded that, after a due diligence search of FSSA’s

records, he could not release the requested records because they were

protected by the attorney-client privilege and were thus non-disclosable

under Indiana Code Section 5-14-3-4(a)(1) and (a)(8).

One of Saint’s clients filed suit against FSSA to compel compliance

with APRA. Saint was subsequently substituted in as plaintiff. Saint

argued that “as a member of the public,” he was interested in the White

Paper and that the denial was arbitrary and capricious, while FSSA

contended its reasoning for denying the request was based in law.

Saint later filed a “Petition for Order to Compel Disclosure of ‘White

Paper’ or Alternatively an In Camera Examination and Hearing.” In his

petition, Saint argued FSSA could not meet its burden to establish that an

attorney-client relationship and confidential communication existed

between HealthNet’s attorneys and FSSA. Saint further argued that FSSA

was not obtaining legal advice in the White Paper, and that even if an

Union Army.” Raspanti & Laigaie, supra note 1 at 24 (citing 132 Cong. Rec. H22339 (daily

ed. Sept. 9, 1986) (statement of Rep. Berman)). Following various amendments, the False

Claims Act is currently codified under 31 U.S.C. §§ 3729–3733.

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 3 of 19

attorney-client privilege existed, that privilege was waived upon

tendering the White Paper to FSSA.

FSSA responded by arguing that the White Paper fell under two

exceptions to APRA. First, FSSA reasserted the attorney-client privilege

under Indiana Code Section 5-14-3-4(a)(1) and (a)(8), and argued, “An

opposing party seeking to settle a claim with the government has a

reasonable expectation that materials submitted to governmental entities,

like FSSA, for purposes of settlement discussions will remain

confidential.” Second, FSSA cited to the deliberative materials exception to

disclosure under subsection 4(b)(6), stating:

[T]his white paper was received by FSSA, who used it within

their office, making it an intra-agency record. . . . This white

paper was an expression of legal opinion from [HealthNet’s]

counsel that FSSA used for the purpose of decision making in

settlement negotiations. As an intra-agency document, FSSA

has the discretion to withhold the White Paper from

disclosure under APRA.

Following a hearing, the trial court granted Saint’s petition and

ordered FSSA to deliver a copy of the White Paper for the court’s in-

camera review. The trial court found that FSSA failed to demonstrate the

existence of an attorney-client relationship between FSSA and HealthNet’s

attorneys, and moreover, that a common-interest privilege did not apply

because there was neither an ongoing joint enterprise nor a common legal

interest. The trial court also found that when HealthNet’s attorney

tendered the White Paper to FSSA, it was not deliberative material, nor

was it prepared for the purpose of FSSA’s decision-making. Following its

in-camera review, the trial court ordered FSSA to deliver the White Paper

to Saint within ten days. FSSA filed a motion to stay pending appeal,

which the trial court granted.

On appeal, FSSA reraised the deliberative material exception, arguing

(1) it applied because the White Paper contained statements of opinion

received by FSSA as part of its settlement negotiations with HealthNet;

and (2) was ultimately used within FSSA’s office in deciding whether to

settle. FSSA relied on the Court of Appeals’ prior decision in Groth v.

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 4 of 19

Pence, 67 N.E.3d 1104, 1122 (Ind. Ct. App. 2017), trans. denied, for the

proposition that legal white papers used for agency decision-making may

be withheld under APRA. In addition, FSSA also argued that (1)

HealthNet was a private contractor under the deliberative materials

exception because “it contracts with the FSSA to provide services to

patients enrolled in Medicaid”; and (2) the confidentiality exception under

Indiana Code Section 5-14-3-4(a)(8) applies because “[c]ommunications

that are part of confidential settlement negotiations are confidential under

the rules of the Indiana Supreme Court. See Ind. Evidence R. 408; Ind.

Alternative Dispute Resolution Rule 2.11.” FSSA did not reargue attorney-

client privilege on appeal.

The Court of Appeals panel, however, affirmed the trial court in a

divided published decision. Fam. & Soc. Servs. Admin. v. Saint, 237 N.E.3d

693 (Ind. Ct. App. 2024). After acknowledging that FSSA abandoned its

attorney-client privilege argument, the majority found the deliberative

materials exception did not apply because the White Paper was neither

“intra-agency” nor “interagency” as required under Indiana Code Section

5-14-3-4(b)(6). The court also declined to follow Groth, finding the relevant

language in that decision “arguably amounts to dicta.” Id. at 697, 698.

Lastly, the court found FSSA waived both its private contractor and

confidentiality arguments because FSSA either failed to raise them at the

trial court, in their opening brief, or both. See id. at 698–99 nn.7, 11 (citing

Safeco Ins. Co. of Ind. v. Blue Sky Innovation Grp., Inc., 230 N.E.3d 898, 907

(Ind. 2024) (holding that when an argument is not made in the trial court,

appellate review of that argument is waived) and Monroe Guar. Ins. Co. v.

Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005) (holding that an argument

is waived if it is made for the first time in a reply brief)).

Judge Mathias dissented, arguing that Section 5-14-3-4(b)(6) exempts

“[r]ecords that are intra-agency or interagency advisory or deliberative

material,” and thus the material need only be “deliberative” to be exempt,

not intra-agency or interagency. Id. at 700–01 (Mathias, J., dissenting)

(emphasis in original). Further, Judge Mathias found that the source of the

White Paper’s origin was irrelevant under Section 5-14-3-4(b)(6) and that

FSSA’s “use” of the memorandum transformed it into “intra-agency

material.” Id. at 701 (citing Groth, 67 N.E.3d at 1122).

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FSSA petitioned for transfer, which we now grant through separate

order, thereby vacating the Court of Appeals’ decision. Ind. Appellate

Rule 58(A). 3

Standard of Review

Alleged APRA violations are reviewed de novo, without deference to

the public agency, and the initial burden in the trial court is on the public

agency. Ind. Code § 5-14-3-9(f), -(g)(1). The public agency meets its burden

of proof by (A) demonstrating that the undisclosed records fall within an

exception listed under Indiana Code Section 5-14-3-4, and (B) establishing

the content of the record with adequate specificity without relying on

conclusory statements or affidavits. Id. § -(g)(1). Once the agency has met

its burden of proof in the case of a discretionary exception under Indiana

Code Section 5-14-3-4(b), the burden then shifts to the requesting party to

prove that the denial of access is arbitrary or capricious. Id. § -(g)(2). “An

arbitrary and capricious decision is one which is ‘patentably

unreasonable’ and is ‘made without consideration of the facts and in total

disregard of the circumstances and lacks any basis which might lead a

reasonable person to the same conclusion.’” Sullivan v. Nat’l Election Def.

Coal., 182 N.E.3d 859, 868 (Ind. Ct. App. 2022) (quoting A.B. v. State, 949

N.E.2d 1204, 1217 (Ind. 2011)). “Whether documents fall under an

exception to APRA’s general rule of disclosure is a matter of statutory

construction.” Id. (citing J. Gazette v. Bd. of Trs. of Purdue Univ., 698 N.E.2d

826, 828 (Ind. Ct. App. 1998)).

Discussion and Decision

The sole question before us is whether FSSA satisfied its burden of

proof to establish the White Paper was subject to the deliberative material

3 We are granting transfer to address the deliberative material exception. As mentioned

above, the Court of Appeals found FSSA’s alternative arguments were waived.

Furthermore, in addition to finding these arguments waived, the court also found these

arguments failed on the merits. As to both its waiver and merits analysis of those waived

issues, we summarily affirm the Court of Appeals. See Ind. Appellate Rule 58(A)(2).

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 6 of 19

exception under Indiana Code Section 5-14-3-4(b)(6). Finding it did not,

we affirm the trial court.

The opening section of APRA provides:

A fundamental philosophy of the American constitutional

form of representative government is that government is the

servant of the people and not their master. Accordingly, it is

the public policy of the state that all persons are entitled to

full and complete information regarding the affairs of

government and the official acts of those who represent them

as public officials and employees. Providing persons with the

information is an essential function of a representative

government and an integral part of the routine duties of

public officials and employees, whose duty it is to provide the

information. This chapter shall be liberally construed to

implement this policy and place the burden of proof for the

nondisclosure of a public record on the public agency that

would deny access to the record and not on the person

seeking to inspect and copy the record.

Ind. Code § 5-14-3-1. As our courts have recognized, “APRA is intended to

ensure Hoosiers have broad access to most government records[.]”

Evansville Courier & Press v. Vanderburgh Cnty. Health Dep’t, 17 N.E.3d 922,

928 (Ind. 2014). To achieve its intended purpose, APRA provides that

“[a]ny person may inspect and copy the public records of any public

agency during the regular business hours of the agency[.]” Ind. Code § 5-

14-3-3(a). Where this opportunity is denied, the requesting party “may file

an action in the circuit or superior court of the county in which the denial

occurred to compel the public agency to permit the person to inspect and

copy the public record.” Ind. Code § 5-14-3-9(e).

Although APRA promotes the disclosure of public records, “[t]he Act

contains ‘a myriad of broad exceptions’” that exempt certain records from

these disclosure requirements. WTHR-TV v. Hamilton Se. Schs., 178 N.E.3d

1187, 1190 (Ind. 2022) (quoting Robinson v. Ind. Univ., 659 N.E.2d 153, 156

(Ind. Ct. App. 1995), trans. denied); see generally Ind. Code § 5-14-3-4. For

example, records described in Indiana Code Section 5-14-3-4(a) are

deemed “mandatory exceptions” and “may not be disclosed by a public

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agency as a matter of law.” Sullivan, 182 N.E.3d at 867 (emphasis in

original). In contrast, records described under Indiana Code Section 5-14-

3-4(b) are deemed “discretionary exceptions” and “are excepted from

disclosure at the discretion of the public agency.” Id. (emphasis in original).

Relevant to the issue before us is the discretionary exception for

“deliberative material” under Indiana Code Section 5-14-3-4(b)(6), which

covers “[r]ecords that are intra-agency or interagency advisory or

deliberative material, including material developed by a private

contractor under a contract with a public agency, that are expressions of

opinion or are of a speculative nature, and that are communicated for the

purpose of decision making.” For a public agency to invoke the

deliberative material exception, the agency must demonstrate three

requirements: (1) that the records are intra-agency or interagency

deliberative or advisory material, including material developed by a

private contractor under a contract with a public agency; (2) the records

contained expressions of opinion or of a speculative nature; and (3) the

records were communicated for the purpose of decision making. 4 As it is

understood, the “ultimate purpose” of this exception “is to prevent injury

to the quality of agency decisions,” as the “‘frank discussion of legal or

policy matters’ in writing might be inhibited if the discussion were made

public; and . . . the ‘decision’ and ‘policies formulated’ would be poorer as

a result.” Newman v. Bernstein, 766 N.E.2d 8, 12 (Ind. Ct. App. 2002)

(quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 151 (1975)).

4In the separate opinion below, Judge Mathias recounts that the deliberative material

exception exempts from disclosure “[r]ecords that are intra-agency or interagency

advisory or deliberative material,” and reasons that the final “or” means the material

need only be “deliberative” to invoke the exception without regard as to whether it is

“intra-agency” or “interagency.” Saint, 237 N.E.3d at 701 (Mathias, J., dissenting)

(emphasis in original); see also id. (“[T]he majority’s analysis omits the italicized ‘or’ that

comes before deliberative material. The ‘or’ means that deliberative material need not be

either intra-agency or interagency. Rather, material that is merely deliberative (and an

expression of opinion or of a speculative nature) is exempt from disclosure.”). But while

this reading implies three separate categories—(1) intra-agency, (2) interagency, and (3)

advisory or deliberative—this is not the case. Instead, “intra-agency” or “interagency”

modifies “advisory or deliberative.” Thus, while the material must be advisory or

deliberative, it must also be either intra-agency or interagency (or be from a private

contractor) for the exception to apply.

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Here, neither party disputes that FSSA qualifies as a “public agency”

and that the White Paper qualifies as a “public record,” subjecting both to

APRA’s general disclosure requirement. See Ind. Code § 5-14-3-2(q)(1)

(defining “public agency” as any “board, commission, department,

division, bureau, committee, agency, office, instrumentality, or authority,

by whatever name designated, exercising any part of the executive . . .

power of the state”); id. § -(r) (defining “public records” to include “any

writing . . . created, received, retained, maintained, or filed by or with a

public agency”). To avoid the disclosure requirement, FSSA is relying on

the discretionary exception for “deliberative material.” Both parties

concede that FSSA has satisfied the second and third prongs of this

exception—that is, the White Paper contained expressions of opinion and

was used for agency decision-making. The parties, however, dispute

whether FSSA has satisfied the first prong—particularly, whether FSSA

has shown that the White Paper was “intra-agency” deliberative material.

While APRA defines “public agency,” it does not explicitly state what

constitutes “intra-agency” material. FSSA argues, though, that because the

White Paper was being used for agency decision-making as noted in Groth,

it qualifies as intra-agency deliberative material and thus may be withheld

from disclosure.

In Groth, 67 N.E.3d at 1109, appellant William Groth submitted an

APRA request for documents related to then-Governor Mike Pence’s

decision to join a Texas lawsuit against then-President Barack Obama with

respect to certain presidential executive orders related to immigration.

Although Governor Pence provided some unredacted and partially

redacted documents in response to Groth’s request, including an

unredacted email from then-Texas Governor-Elect Greg Abbott’s chief of

staff, he declined to provide a “white paper” legal memorandum that was

created by the Texas deputy solicitor general and attached to the chief of

staff’s email. Id. at 1110–11. The memorandum, which served as a “follow

up” to a “Governors-Only meeting” in which Governor-Elect Abbott

discussed with other governors the proposition of preparing a legal

challenge to President Obama’s immigration orders, “outlined the legal

theories supporting Texas’ legal challenge[.]” Id. at 1120 (cleaned up).

Groth complained about the withholding of this memorandum and

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 9 of 19

subsequently filed suit. Id. at 1111–12. Governor Pence’s office responded

by claiming the memorandum was excepted from disclosure as privileged

attorney-client communication under Section 5-14-3-4(a)(1) and (8) and as

deliberative material under Section 5-14-3-4(b)(6). Id. at 1117. Both the

Public Access Counselor and trial court agreed with Governor Pence,

finding that Governor Pence’s response properly complied with APRA. Id.

On appeal, a majority of the Court of Appeals panel affirmed. The

court’s primary holding was that the memorandum was excepted from

disclosure under attorney-client privilege. Specifically, the court found the

common-interest doctrine applied because “[w]hen two or more persons,

with a common interest in some legal problem, jointly consult an attorney,

their confidential communications with the attorney, though known to

each other, will of course be privileged in a controversy of either or both

the clients with the outside world.” Id. at 1120 (quoting Corll v. Edward D

Jones & Co., 646 N.E.2d 721, 725 (Ind. Ct. App. 1995)). In addition, because

privileged attorney-client communications fall under the list of mandatory

exceptions to disclosure under Section 5-14-3-4(a), “the Governor had no

discretion to release the information.” Id. at 1122. Groth, thus, is

fundamentally an attorney-client privilege case, and its holding in that

regard remains binding precedent on trial courts.

However, after discussing the attorney-client privilege exception at

length, the court then briefly addressed the deliberative material

exception, finding that exception applied as well. See id. There, the court

stated:

The Governor used that record within his office, making it an

intra-agency record. And the white paper was an expression of

legal opinion used by the Governor for the purpose of

decision making. Accordingly, the Governor acted within his

discretion when he withheld the white paper under the

deliberative material exception.

Id. (emphasis added).

Judge Vaidik dissented, arguing neither exception should have

applied. See id. at 1123–24. Targeting the majority’s conclusion as to the

deliberative material exception, Judge Vaidik stated:

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The majority also finds that the white paper is protected from

disclosure as deliberative material. I disagree. . . . The majority

finds that the white paper is a protected “intra-agency”

record. Although the white paper was not prepared by

anyone within the Governor’s office, the majority, without

citation to authority, finds that it qualifies as an intra-agency

record because Governor Pence “used” it within his office. I

do not believe that a public agency can protect a record from

disclosure as deliberative material just by “using” it.

Id. at n.13 (Vaidik, C.J., dissenting) (cleaned up).

Following the Court of Appeals’ decision in this matter, Judge Vaidik,

now writing for the majority, declined to follow Groth’s alternative

rationale. See Saint, 237 N.E.3d at 698 (“FSSA says that Groth controls here

and that so long as the document was a part of the agency’s decision-

making process, it is protected. Saint responds that this reading of the

deliberative-material exception is too broad. . . . We agree with Saint and

decline to follow Groth.”) (cleaned up). As the majority stated:

[The deliberative material] exception applies to

communications (e.g., letters, memorandums, and emails)

from one agency employee to another, if the communication

consists of opinions or thoughts about a future agency

decision. Applying this here, the deliberative-material

exception simply does not apply. Saint requested the White

Paper, which was a legal memorandum communicated by

HealthNet—a private healthcare provider and not a public

agency—to FSSA. Had Saint sought communications from

one agency employee to another about the White Paper, then

the exception would apply. But that is not what Saint seeks.

Id. (emphasis in original). According to the majority in the decision below,

the “use” of material within the agency does not automatically transform

that material into “intra-agency material.” Rather, to be “intra-agency

material,” the material must be generated within the agency and

communicated between two of the agency’s employees.

Because the decision below rejected Groth’s surplus holding on

deliberative material, this raised the question as to which approach is the

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most faithful in determining what material constitutes “intra-agency

material” under the deliberative material exception to APRA. Therefore,

the issue before us today is essentially one of statutory interpretation.

Based on a consideration of the deliberative material exception’s plain

language under APRA, as well as a review of prior decisions addressing

when material constituted intra-agency material, we agree with the

approach taken by the decision below. In doing so, we hold that “intra-

agency material” is material that originates from, and is communicated

between, employees of the same agency.

“Our first task when interpreting a statute is to give its words their

plain meaning and consider the structure of the statute as a whole.” ESPN,

Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016)

(cleaned up). Furthermore, “we consider both what the statute does—and

does not—say, because we cannot ‘add words or restrictions.’” WTHR-TV,

178 N.E.3d at 1191 (citation omitted). Where a statute’s language is

ambiguous, we will “avoid an interpretation that renders any part of the

statute meaningless or superfluous,” ESPN, 62 N.E.3d at 1199 (cleaned

up), and “do not presume that the Legislature intended language used in

a statute to be applied illogically or to bring about an unjust or absurd

result,” Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind. 2015) (cleaned up).

“Exceptions to public disclosure laws should be construed strictly, but

expressed exceptions specified by the legislature are not to be

contravened.” Sullivan, 182 N.E.3d at 868 (citing Robinson, 659 N.E.2d at

156).

To begin, while APRA defines “public agency,” neither it, nor our

caselaw, specifically defines “intra-agency.” Thus, we consult general

dictionary definitions on what the prefix “intra” means. See Rainbow Realty

Grp., Inc. v. Carter, 131 N.E.3d 168, 174 (Ind. 2019) (internal citation

omitted) (quoting Ind. Code § 1-1-4-1(1)) (“[W]hen a statutory term is

undefined, the legislature directs us to interpret the term using ‘its plain,

or ordinary and usual, sense.’ We generally avoid legal or other

specialized dictionaries for such purposes and turn instead to general-

language dictionaries.”). General dictionaries define “intra” as “within or

inside.” Legal dictionaries seem to suggest the same. See Intra, MERRIAM-

WEBSTER, Intra- Definition & Meaning - Merriam-Webster (last visited

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 12 of 19

Apr. 22, 2025) (defining “intra” as “within”); Intra, CAMBRIDGE

DICTIONARY, INTRA- | English meaning - Cambridge Dictionary (last

visited Apr. 22, 2025) (defining “intra” as “used to form adjectives

meaning ‘within’”); see also Inter- vs Intra-, DICTIONARY.COM, Inter- vs

Intra- Dictionary.com (last visited Apr. 22, 2025) (comparing the definition

of “inter,” meaning “between or among groups,” with “intra,” meaning

“within or inside”); cf. Intra, Black’s Law Dictionary (12th ed. 2024)

(defining “intra” as “within”). Therefore, under a plain dictionary

reading, when an agency is claiming material is “intra-agency,” it suggests

the agency is claiming the material relates to being “within or inside” that

agency, rather than outside of it. But while this reading is rather

straightforward, it does not necessarily address which approach is the

most appropriate, as both Groth’s “use” analysis and the majority’s

“between agency employees” analysis could arguably fit the bill under the

right circumstances and be “within” the agency.

A review of prior cases, however, lends credence to the approach we

adopt today—that is, that the material must originate from and be

communicated by employees of the same agency to qualify as “intra-

agency.”

For example, in Indiana State Highway Commission v. Morris, 528 N.E.2d

468, 470 (Ind. 1988), this Court addressed the procedural sufficiency of a

plaintiff’s notice under the Tort Claims Act where an injured motorist

sued the Indiana State Highway Commission (today known as the Indiana

Department of Transportation or INDOT). There, although the motorist

only provided notice to the Commission and not the Attorney General, as

is required by the Tort Claims Act, the Commission later passed the notice

to the Attorney General on its own accord. Id. The record revealed that the

plaintiff discovered this after deposing the Commission employee who

sent the Attorney General a copy of the tort claim notice, and from agency

admissions that the Attorney General timely received the notice from the

deposed employee. Id. at 470. The Court found that because the Attorney

General timely received a copy of the tort claim notice, the plaintiff had

satisfied their procedural duty under the Tort Claims Act. Id.

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Chief Justice Shepard, joined by Justice Dickson, concurred with the

Court’s decision but wrote separately to address the revelation of the

Commission’s communication to the Attorney General, arguing that the

communication was privileged and thus should not have been subject to

disclosure in discovery. Id. Chief Justice Shepard noted that “[t]he

relationship of attorney and client clearly applies to the Attorney General

and the state agencies he represents,” and further, that “a privileged

communication between attorney and client is exempt from public

inspection because it is declared confidential by statute and Supreme

Court rule.” Id. at 474–75 (Shepard, C.J., concurring). Moreover, in a

footnote attached to the latter statement, he also analogized why the

communication was non-disclosable under the deliberative material

exception:

While this exemption is not particularly applicable to

attorney-client confidences, the communication in this case was

intra-agency. One purpose for the communication was to

allow the Attorney General to determine the advisability of

settling the claim, and thus was made for the purpose of

[decision-making]. It was therefore exempt from disclosure at

the discretion of the agency.

Id. at 475 n.1 (emphasis added). Thus, according to Chief Justice Shepard’s

reasoning, because the communication was generated, sent, and received

by individuals within the same agency—or as there, a fiduciary of the

agency—and because the communication was, in theory, intended to

remain with that agency alone, the communication would have been

“intra-agency.”

In Newman, 766 N.E.2d at 9, the Court of Appeals directly addressed

the deliberative material exception in deciding whether the Marion

County Prosecutor’s Office was required to disclose its plea negotiation

policies. There, the prosecutor denied two written requests for records of

policies related to plea negotiations and agreements because the records

were “intra-agency advisory or deliberative in nature, communicated for

the purpose of decision making.” Id. Following a request for in-camera

review, the trial court ordered the disclosure of two policies, finding the

prosecutor failed to establish these documents fell within the deliberative

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material exception as the court questioned “whether the deputy

prosecutors—those for whom the plea policy manual was created—were

decision makers” under the exception. Id. at 11.

On appeal, the prosecutor argued that the policies were protected

under the deliberative material exception for two reasons: (1) that “there is

no question that the memoranda submitted for in camera review are intra-

agency” because “[t]he memoranda are from the Prosecutor of Marion

County, or from one of his deputies, to other deputy prosecutors working

in the Marion County Prosecutor’s Office”; and (2) “the memoranda are

clearly communicated for the purpose of decision making.” Br. of

Appellant at 16, Newman, 766 N.E.2d 8. The Court of Appeals agreed with

the prosecutor and reversed, finding the deliberative material exception

applied. Newman, 766 N.E.2d at 12. Specifically, the court stated it did “not

think the plea policy manual should be disclosed” because “the deputy

prosecutors are decision makers” and “[the prosecutor] does not issue a

new final directive for each and every plea negotiation to be mechanically

applied by the deputy prosecutor.” Id. The court did not explicitly state

what made the policies “intra-agency.” However, as part of reaching its

conclusion that the deputy prosecutors were “decision makers,” the court

focused on the interaction of the memoranda between the prosecutor and

his deputy prosecutors, as well as the potential harm that could occur to

the prosecutors’ decision-making capabilities if the plea-bargaining

policies escaped outside the prosecutors’ clutch. Id. at 12–13. And under

the circumstances there, the policies at issue were generated and sent

entirely “in-house” between the prosecutor and deputy prosecutors—all

of whom were “within” the same agency—for the deputy prosecutors to

use in planning their plea negotiations.

Lastly, in Sullivan, 182 N.E.3d at 862, the Court of Appeals considered

whether correspondence between Indiana’s Secretary of State and the

National Association of Secretaries of State (NASS) was subject to

nondisclosure under the deliberative material exception. There, the trial

court denied the Secretary’s motion for summary judgment, finding the

Secretary failed to prove that documents exchanged with NASS were

excepted as intra-agency or inter-agency material. Id. at 865. On appeal,

the Secretary focused on arguing the correspondence was excepted as

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intra-agency deliberative material, asserting they “regularly communicate

with NASS and its members for the purpose of discussing policy and to

aid the Indiana Secretary of State’s Office in making decisions as an

agency, . . .” Id. at 871. The Court of Appeals, however, disagreed, stating

that while “NASS may act as a medium for the exchange of information

between states and foster cooperation in the development of public policy

. . . the Secretary has not shown that the particular records requested by

NEDC—emails between the Secretary and NASS—were intra-agency

communications . . . .” Id. (cleaned up). Moreover, despite addressing the

deliberative material question after Groth, the Sullivan court did not follow

Groth’s “use” analysis, even where the Secretary explicitly argued they

used the communications within their office for decision-making

purposes. The court, instead, disregarded this argument and only

provided a cf. citation to Groth and its reasoning. See id.

Taking these cases and the decision below together, a common-

denominator can be derived from the facts of each—that is, where courts

have found material to be “intra-agency,” the case only involved one

agency where all players were agents or employees of that agency and the

communication was generated within that agency. This can be seen in the

Morris concurrence, where the Indiana State Highway Commission’s

communication of the tort claim notice went from a Commission

employee to the Commission’s counsel (the Attorney General), and was

especially noticeable in Newman, where the plea-bargaining policies were

generated entirely within the prosecutor’s office and distributed only

amongst the prosecutor and deputy prosecutors. In comparison, where

courts found the material was not intra-agency, such as in Sullivan and the

majority’s decision below, the communication, despite being “used”

within the agency, originated from outside the agency.

As to that last point, Groth appears to stand as an outlier, as no

subsequent decision has elected to follow Groth’s interpretation of

deliberative material. To the degree that Groth has been cited within this

state, those cases simply follow Groth for its primary holding with respect

to attorney-client privilege. Moreover, when looking to the only two cases

since Groth to have considered the deliberative exception—Sullivan and

the decision below—those decisions could have, but chose not to, follow

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Groth, even where the agency explicitly argued that their “use” of the

material qualified it as intra-agency material. Thus, this effort to avoid

actively relying on Groth’s other holding, or at the very least, to provide a

mere cf. citation to its reasoning, is telling.

Furthermore, the cases demonstrate that today’s approach is the most

consistent with a plain reading of the statute. As previously noted, both

our approach and Groth’s could be consistent with a plain reading of

“within” under the right circumstances. In particular, if we assume our

approach and take a communication between two employees of the same

agency, that communication would clearly be “intra-agency” because it

would both originate from and be used within the agency. Where Groth’s

approach breaks down, however, is when one considers the approach

broadly. Under Groth, if we assumed that simply “using” material within

an agency made it “intra-agency,” then the material would always be intra-

agency, regardless of whether it originated from within the agency or

outside of it. This is because the agency, as a matter of simply invoking

the exception, would have to “use” the communication. But importantly,

this reading would distort the plain text of the deliberative material

exception under APRA because it would essentially eliminate the

distinction between “intra-agency,” “interagency,” and even “private

contractor,” all three categories of which address from where the material

came. Because we must “avoid an interpretation that renders any part of

the statute meaningless or superfluous,” see ESPN, 62 N.E.3d at 1199

(cleaned up), the broad approach taken under Groth’s other holding

cannot endure.

Lastly, this reasoning aligns with the underlying purpose behind

APRA, which is to ensure Hoosiers maintain a broad access to

government documents. See Evansville Courier, 17 N.E.3d at 928. As part of

that purpose, it is stipulated within APRA that policies of general

disclosure should be liberally construed, see Ind. Code § 5-14-3-1, while

exceptions to disclosure “should be construed strictly,” Sullivan, 182

N.E.3d at 868. Thus, given these imputed limitations, we must read “intra-

agency” as a narrow, rather than broad, classification for purposes of the

exception. We therefore conclude that our newly adopted approach—

finding material to be “intra-agency material” where it was generated

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within and sent between employees of the same agency—is the narrower,

and thus correct, approach.

Applying this to the case at hand, we find that because the White

Paper was generated by HealthNet—an outside private entity—and sent

to FSSA, it does not fall under the deliberative materials exception as

“intra-agency material.” While FSSA may have used the White Paper for

the purpose of deciding whether to settle with HealthNet, FSSA did not

generate the White Paper within its agency. As such, we find FSSA has

failed to meet its burden of proof in establishing the White Paper was an

“intra-agency” record under the deliberative material exception.

Conclusion

Because we find the deliberative material exception does not apply, we

affirm the trial court’s order requiring the disclosure of the White Paper.

Rush, C.J. and Goff, J., concur.

Molter, J., concurs with separate opinion.

Slaughter, J., did not participate in this matter.

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 18 of 19

ATTORNEYS FOR APPELLANT

Theodore E. Rokita

Attorney General of Indiana

Angela N. Sanchez

Chief Counsel of Appeals

Indianapolis, Indiana

Benjamin M. L. Jones

Section Chief of Civil Appeals

Indianapolis, Indiana

Natalie F. Weiss

Deputy Attorney General

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Robert E. Saint

Emswiller, Williams, Noland & Clarke, LLC

Indianapolis, Indiana

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 19 of 19

Molter, J., concurring.

I join the Court’s opinion and write separately to note three points.

First, although we hold the White Paper was not exempt from

disclosure as deliberative material, that does not mean it could not have

been withheld under a different APRA exemption. FSSA argued on appeal

that the document could have been withheld as part of confidential

settlement negotiations under our Court’s rules, and that argument might

have some force. But as the Court of Appeals correctly noted, by failing to

raise that argument before the trial court, FSSA waived any claim to a

settlement-negotiations exemption. The Court’s opinion summarily

affirms not only the Court of Appeals’ conclusion that the argument was

waived, but also its conclusion that the argument would fail on the merits

anyway. By only summarily affirming those conclusions, though, the

conclusions remain “Court of Appeals’ authority” rather than our Court’s

authority, Ind. Appellate Rule 58(A)(2), so future Court of Appeals panels

may revisit the issue on the merits, see Wellman v. State, 210 N.E.3d 811,

816 n.4 (Ind. Ct. App. 2023) (“Indiana does not recognize horizontal stare

decisis.”).

Second, and relatedly, FSSA abandoned its attorney-client privilege

argument on appeal, so that question is not before us. Ante, at 5. Thus,

while the Court leaves in place as “binding precedent on trial courts” the

attorney-client privilege holding in Groth v. Pence, 67 N.E.3d 1104 (Ind. Ct.

App. 2017), trans. denied, that too remains the authority of the Court of

Appeals rather than our Court. Ante, at 10.

Finally, while the White Paper itself does not fall under the deliberative

material exemption, derivative materials may still fall under the

exemption. For example, suppose an agency employee receives an

external document like the White Paper and then passes it to a superior

within the agency along with a note saying the employee agrees or

disagrees with the White Paper’s analysis. The employee’s note may still

be covered by the deliberative material exemption—even though the

White Paper is not—because the note, unlike the White Paper, would be

an intra-agency communication for deliberative purposes. See ante, at 17

(“In particular, if we assume our approach and take a communication

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 1 of 2

between two employees of the same agency, that communication would

clearly be ‘intra-agency’ because it would both originate from and be used

within the agency.”).

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 2 of 2