# Family & Social Services Administration v. Robert E Saint

> Indiana Supreme Court · April 23, 2025

URL: https://www.frixlaw.com/law-library/cases/10849428

## Case

- **Court:** Indiana Supreme Court
- **Decided:** April 23, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10849428

## How later opinions describe it (automated extraction)

- holding that an argument is waived if it is made for the first time in a reply brief

## Opinion text

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).

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 5 of 19
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

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 7 of 19
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.

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 8 of 19
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:

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 10 of 19
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

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 11 of 19
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.

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 13 of 19
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

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 14 of 19
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

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 15 of 19
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

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 16 of 19
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

Indiana Supreme Court | Case No. 25S-MI-101 | April 23, 2025 Page 17 of 19
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10849428. Public record. Not legal advice.