William Groth v. Mike Pence, as Governor of the State of Indiana

FILED

Jan 09 2017, 8:23 am

[1]

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Gregory Bowes Joseph C. Chapelle

Greg Bowes Legal Services, P.C. Mark J. Crandley

Indianapolis, Indiana Barnes & Thornburg LLP

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

William Groth, January 9, 2017

Appellant-Plaintiff, Court of Appeals Case No.

49A04-1605-PL-1116

v. Appeal from the Marion Superior

Court

Mike Pence, as Governor of the The Honorable Michael D. Keele,

State of Indiana, Judge

Appellee-Defendant. Trial Court Cause No.

49D07-1506-PL-21548

Najam, Judge.

Statement of the Case

[1] The Indiana Access to Public Records Act (“APRA”) provides that “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.” Ind. Code § 5-14-3-1

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(Supp. 2014). Thus, in APRA our legislature declared that transparency in

government is the public policy of the State of Indiana. But the public’s right of

access to public records is also subject to well-recognized exceptions under

APRA.

[2] In December of 2014, Governor Mike Pence made the decision that Indiana

would join a Texas lawsuit against the President of the United States to contest

certain presidential executive orders on immigration. In response, William

Groth, a private citizen, submitted an APRA public records request to the

Governor for records related to the Governor’s decision. The Governor

responded to Groth’s request but, in doing so, partially redacted some of the

documents and withheld another. The Indiana Public Access Counselor

concluded that the Governor did not violate APRA. Acting on Groth’s ensuing

complaint, the trial court also concluded that the Governor’s response was

proper under APRA.

[3] On appeal, the parties raise the following four issues for our review:

1. Whether the Indiana Supreme Court’s recent opinion in

Citizens Action Coalition of Indiana v. Koch, 51 N.E.3d 236

(Ind. 2016), requires Indiana’s courts to abstain from

reviewing the Governor’s decision to redact or withhold

certain records from public disclosure.

2. Whether the trial court violated Groth’s due process rights

when it did not provide him with a written summary of the

contents of the undisclosed information after the court had

reviewed that information in camera.

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3. Whether the Governor violated APRA when he withheld

from disclosure a legal memorandum, referred to by the

parties as a “white paper,” created by a Texas deputy

solicitor general concerning the proposed Texas litigation

and disseminated to governors’ offices in Indiana and

numerous other states.

4. Whether the Governor violated APRA when he partially

redacted invoices from a private law firm he had hired to

represent Indiana in the Texas lawsuit and on Groth’s

complaint.

[4] We hold that, on these facts, Citizens Action Coalition does not apply to the

request for public records directed to the Governor. We also hold that the trial

court did not violate Groth’s due process rights. And we affirm on the merits of

the Governor’s decisions to withhold the white paper from public disclosure

and to partially redact the invoices. The white paper contains legal theories in

contemplation of litigation, was used by the Governor in his decision to join the

litigation, and is exactly the type of record that may be excluded from public

access under APRA. Similarly, the Governor’s redactions from the legal

invoices were within his discretion under APRA.

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Facts and Procedural History1

[5] On December 10, 2014, Groth submitted a written request to the Governor’s

office for documents relating to the Governor’s decision to join the State of

Texas in a federal lawsuit against the President of the United States with respect

to certain recent presidential executive orders on immigration. According to

Groth’s request:

Pursuant to [APRA], I am hereby requesting public records that

your office maintains concerning your discretionary decision to

hire outside counsel at Barnes & Thornburg [LLP] to represent

your office and/or the State of Indiana in litigation encaptioned

State of Texas, et al[.] v. United States of America, pending in the

United States District Court for the Southern District of Texas,

Brownsville Division, challenging the November 20, 2014, action

of the President of the United States to exercise discretion with

respect to certain individuals who came to the United States as

children and whose parents are United States citizens or

permanent residents. More specifically, I am requesting the

following records pertaining to said lawsuit: (1) all

correspondence between your office and the office of the Indiana

Attorney General, any other state official, any governmental

official from another state, or any private entity, with respect [to]

your decision to become a party in [the] litigation; (2) the

contract or agreement between your office and Barnes &

Thornburg LLP, retaining that firm to represent you and/or the

State of Indiana in said lawsuit; (3) any and all invoices from

1

We held oral argument on November 21, 2016, in the Indiana Supreme Court courtroom. At that

argument, counsel for Groth suggested that the Governor had partially redacted multiple emails he had

submitted in response to the APRA request. It is clear on appeal, however, that the only issues raised

regarding the Governor’s alleged noncompliance with APRA relate to the law firm invoices and the “white

paper,” the latter of which was an attachment to an email received by the Governor. The email to which the

white paper was attached was released in full and is reproduced in material part below.

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Barnes & Thornburg for professional services rendered or to be

rendered in connection with said lawsuit; and (4) evidence of any

payments made to Barnes & Thornburg for professional services

rendered in connection with said lawsuit.

Appellant’s App. Vol. 2 at 12.

[6] The Governor responded to Groth’s request with more than fifty pages of

documents.2 The Governor redacted portions of several of those documents,

and he declined to release the white paper, a legal memorandum. For example,

part of the Governor’s response for invoices from Barnes & Thornburg LLP

described the attorneys’ work as follows:

Worked on litigation, including review of district court filing

notices and update reports from Texas counsel, and work on

documenting potential damages to State.

[Redacted] conferred with Angela Colmenero, assistant Attorney

General in Texas, regarding declaration to support standing

arguments; reviewed material forwarded by Ms. Colmenero;

[redacted] began work on draft declaration.

Worked on litigation, including review of district court filing

notices.

Reviewed amicus brief filed by various immigrant groups;

communicated with Allison Karns about the amicus briefs;

reviewed various draft declarations from Texas and Wisconsin

2

Groth has included only eighteen pages of those documents in his appendix on appeal. Groth has also

omitted from his appendix the Governor’s response to Groth’s complaint to the Public Access Counselor.

And the Governor did not file an Appellee’s Appendix.

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representatives; [redacted] communicated with Angela

Carmenero regarding declarations; communicated with Andy

Oldham regarding hearing; [redacted].

Id. at 22. The invoices also described, without redactions, the dates of the

services rendered, the names of the attorneys providing the services, the hours

the attorneys logged for the services rendered, and the total invoice amounts.

[7] Another document submitted by the Governor in response to Groth’s request

was an unredacted email from Daniel Hodge, the chief of staff to then Texas

Governor-Elect Greg Abbott, dated November 25, 2014. The subject of

Hodge’s email was “Legal Challenge to President’s Executive Orders,” and

Hodge addressed his email to the “Chiefs of Staff” of governors in several

different states.3 Id. at 30. According to Hodge:

I am Texas Governor-Elect Greg Abbott’s Chief of Staff and am

contacting you to follow-up on comments my boss made during the

Governors-Only meeting last week. As some of you may have heard,

the State of Texas is preparing a legal challenge to the President’s

recent executive orders on immigration. During last week’s

meeting, Governor-Elect Abbott promised that we would circulate a white

paper outlining the legal theories supporting the State’s legal challenge to

the other Governors. A copy of that white paper is attached to this email.

3

Hodge sent the email to thirty different recipients, some of whom had state-based email addresses and

some of whom did not. The recipients with clearly identifiable state-based email addresses were in the

following twenty-six states: Alabama, Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kansas,

Maine, Michigan, Mississippi, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North

Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Wisconsin, and Wyoming.

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Our hope is that other states will join the State of Texas’ legal

action so that we will have a broad coalition to challenge the

President’s action—just as we did when 26 states banded together

to challenge ObamaCare. Because Gov-Elect Abbott currently

serves as Attorney General of Texas, we have also contacted

many of your Attorneys General to inquire about their interest in

joining Texas’ legal challenge. Those offices have also been

provided a copy of the attached white paper.

However, because some Governors indicated last week that their

Attorneys General may not elect to join our legal challenge, Gov-

Elect Abbott asked that I share this white paper with your

office[s] so that Governors whose AGs decline to join the case

may do so on behalf of their states. Deputy Solicitor General

Andy Oldham is lead counsel for this matter and the drafter of

the attached white paper. . . .

Id. (emphases added). Although Hodge attached the white paper to his email,

Governor Pence withheld release of that document in his response to Groth’s

APRA request.

[8] Groth complained about the Governor’s response to Indiana’s Public Access

Counselor.4 According to Groth, the Governor’s response failed to comply

with APRA. The Public Access Counselor disagreed, stating:

4

The Public Access Counselor is appointed by the Governor. I.C. § 5-14-4-6. The Public Access Counselor

has the authority, among other things, to provide guidance to public agencies and officials regarding

Indiana’s public access laws. I.C. § 5-14-4-10. This authority includes the power “[t]o issue advisory

opinions to interpret public access laws . . . .” Id. Advisory opinions, by definition, are “nonbinding

statements.” Black’s Law Dictionary 1265 (10th ed. 2014).

Our General Assembly created the Public Access Counselor position to provide parties with efficient—but,

correspondingly, nonbinding—advice regarding compliance with Indiana’s public access laws. In light of

that purpose, a party “is not required to file a complaint” with the Public Access Counselor “before filing an

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The Governor’s Office has provided a proper response . . . as to

why parts of the document were redacted. Pursuant to Ind. Code

§§ 5-14-3-4(b)(2) and (6), the materials redacted may contain

attorney work product and deliberative materials between inter-

agency personnel and its designated contractor. Additionally,

under Ind. Code § 34-46-3-1, the records may have been excluded

because they include attorney-client communication. The

redaction of legal invoices for this purpose is not unusual and has

been addressed as appropriate in several prior Public Access

Counselor Opinions.

Pursuant to Ind. Code § 5-14-3-6, redactions should be made

with precision so non-disclosable records are separated from

disclosable material. The redactions made to the records you

have presented do not appear on their face to be overly redacted,

relative to other attorney invoices this Office has seen.

Public Access Counselor, Re: Formal Complaint 15-FC-133; Alleged Violation of the

Access to Public Records Act by the Office of Governor Mike Pence (May 27, 2015),

http://in.gov/pac/advisory/files/15-FC-133.pdf. The Public Access

Counselor then concluded that the Governor “did not violate the Access to

Public Records Act.” Id.

[9] Groth then filed his complaint in the Marion Superior Court. The trial court

reviewed the unredacted invoices and previously undisclosed white paper in

action” in the trial court for an alleged violation of Indiana’s public access laws. I.C. § 5-14-5-4. As such,

when a complaint is filed in a trial court after the Public Access Counselor has rendered an advisory opinion

on the matter, the court may find the Public Access Counselor’s opinion persuasive but the court owes no

deference to that opinion.

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camera and concluded, after a hearing, that the Governor had complied with

APRA. This appeal ensued.5

Discussion and Decision

Standard of Review

[10] Groth appeals the trial court’s judgment for the Governor. Under the Indiana

Code, the trial court’s review of Groth’s complaint for an alleged APRA

violation was de novo, or without deference to the public agency6 that denied the

access, and the initial burden of proof in the trial court was on the agency. I.C.

§ 5-14-3-9(f), (g)(1). The public agency meets its burden of proof by showing

that the undisclosed records fall within an exception listed under Indiana Code

Section 5-14-3-4 and by establishing the content of those records with adequate

specificity beyond merely relying on a conclusory statement or affidavit. I.C. §

5-14-3-9(f), (g). If the undisclosed records fall within a mandatory exception

listed under Indiana Code Section 5-14-3-4(a), as a matter of law the records

shall not be disclosed. If the undisclosed records fall within a discretionary

exception listed under Indiana Code Section 5-14-3-4(b), it is in the agency’s

discretion not to disclose the records. Once the agency has met its initial

5

The federal litigation that is the subject of Groth’s APRA complaint has already made its way through a

United States District Court and United States Court of Appeals to the United States Supreme Court and

been remanded to the district court while we are only now addressing the APRA complaint. See United States

v. Texas, 136 S. Ct. 2271 (2016). Nonetheless, the complaint here raises a viable question that has not been

obviated in the least by the legal proceedings in the federal forum.

6

The Governor and his staff constitute a public agency under APRA. See I.C. § 5-14-3-2(n)(1). Also, we

note that the 2016 version of Indiana Code Section 5-14-3-2 consists of two irreconcilable versions. But, as

noted in paragraph 1, our citations to the Indiana Code are as it existed at the time Groth made his APRA

request to the Governor at the end of 2014.

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burden of proof to show that undisclosed records fall within a discretionary

exception under Section 4(b), the burden shifts to the complaining party to

demonstrate that the agency’s denial of his access to those records was

“arbitrary and capricious.” I.C. § 5-14-3-9(g).

[11] Because the trial court’s review of the agency action was, as a matter of law, de

novo, and because the only evidence presented to the trial court here were paper

records, we are in just as good a position on appeal as the trial court was to

consider the merits of Groth’s complaint. Accordingly, our review of the trial

court’s judgment is de novo. E.g., Anderson v. Wayne Post 64, Am. Legion Corp., 4

N.E.3d 1200, 1206 (Ind. Ct. App. 2014), trans. denied. We disagree with the

Governor’s argument on appeal that we must defer to the trial court’s

assessment of the meaning of paper records when that assessment follows from

an in camera review. Cf. id. (holding that we review a paper record de novo).

[12] The Governor also asserts that we have no authority to conduct our own in

camera review of sealed documents. Again, we disagree. Among other reasons,

Article 7, Section 6 of the Indiana Constitution guarantees the right to one

appeal. The Governor’s argument would render that right illusory where, as

here, the merits of an appeal turn wholly on documents reviewed in camera by a

trial court. On appeal, we review the entire trial court record. Groth has

requested in camera review on appeal of the documents at issue, and to give

effect to his right to an appeal, we have, by separate order, granted his request.

However, we agree with the Governor that those documents shall remain

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excluded from public access pursuant to Indiana Appellate Rule 23(F)(2) and

Indiana Administrative Rule 9(G).

Issue One: Justiciability of APRA Requests to the Governor

[13] We first consider the Governor’s argument on appeal that Groth’s APRA

complaint is not justiciable. As the Indiana Supreme Court has explained:

justiciability is not a question of jurisdiction, but whether it is

prudent for the Court to exercise its jurisdiction. . . .

The Indiana Constitution explicitly provides for the separation of

powers: “The powers of the Government are divided into three

separate departments; the Legislative, the Executive including the

Administrative, and the Judicial; and no person, charged with

official duties under one of these departments, shall exercise any

of the functions of another, except as in this Constitution

expressly provided.” Article 3, § 1. “[A]lthough the courts have

jurisdiction to review [a] case in the first instance, justiciability

concerns stemming from Article 3, Section 1, caution courts to

intervene only where doing so would not upset the balance of the

separation of powers.” Berry [v. Crawford], 990 N.E.2d [410,] 418

[(Ind. 2013)]. In other words, although this Court may have

subject matter jurisdiction, it may, “for prudential reasons,”

ultimately conclude that the issue presented is non-justiciable. Id.

“[W]here a particular function has been expressly delegated to

the legislature by our Constitution without any express

constitutional limitation or qualification, disputes arising in the

exercise of such functions are inappropriate for judicial

resolution.” Id. at 421.

Citizens Action Coalition, 51 N.E.3d at 240-41.

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[14] The Governor asserts that Citizens Action Coalition applies here. In that case, the

Indiana Supreme Court considered whether the legislative “work product”

exception to APRA’s disclosure rules was justiciable. Specifically, in Citizens

Action Coalition the plaintiffs requested correspondence that Eric Koch, a

member of the Indiana House of Representatives, or his staff had sent to or

received from business organizations with respect to specific legislation. Acting

on Representative Koch’s behalf, the Indiana House Republican Caucus denied

the requests because, in relevant part, APRA expressly “except[s]” from

disclosure “at the discretion of a public agency” the “work product of individual

members and the partisan staffs of the general assembly.” I.C. § 5-14-3-

4(b)(14).

[15] The Indiana Supreme Court held that it would not be prudent for an Indiana

court to define the “work product” of a member of the General Assembly or his

partisan staff under Section 4(b)(14), and, therefore, it dismissed the appeal as

not justiciable. Citizens Action Coalition, 51 N.E.3d at 241-43. Specifically, the

court stated:

To maintain the separation of powers, this Court “should not

intermeddle with the internal functions of either the Executive or

Legislative branches of Government.” [State ex rel.] Masariu [v.

Marion Sup. Ct. No. 1], 621 N.E.2d [1097,] 1098 [(Ind. 1993)7].

7

The Governor also relies on Masariu, which is inapposite. In Masariu, the Indiana Supreme Court held that

voting records of the Indiana House of Representatives were not subject to APRA or Indiana’s Open Door

Law because neither of those statutes “empower[s] the judicial branch to inquire into and interfere with the

internal operations of the” House. 621 N.E.2d at 1098. More specifically, the court held that the power of

the judiciary “cannot be authorized to undermine the exclusive constitutional authority of the presiding

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This Court has previously found a separation of powers issue

where legislation appears to empower the judicial branch to

“inquire into and interfere with the internal operations of the

Indiana House of Representatives.” Id. We determine that a

similar type of inquiry and interference with the internal

operations of the legislative branch is being requested in the

present case.

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, except as provided in section 4 of this

chapter.” Ind. Code § 5-14-3-3(a). . . .

***

The determinative issue in relation to justiciability arises instead

under Defendants’ assertion that even if APRA is applicable, the

requested documents are exempt from disclosure under APRA.

As stated above, Indiana Code section 5-14-3-4(b) provides in

pertinent part that “the following public records shall be excepted

from section 3 of this chapter at the discretion of a public

agency . . . The work product of individual members and partisan

staff of the general assembly.” The term “work product” is not

defined within APRA nor by rule. Thus, the question becomes whether,

under the principles of justiciability, this Court should define legislative

“work product” and order the legislature to disclose records in accordance

with this court-created definition. This we will not do.

***

offices of each house to authenticate all legislation.” Id. The records requested of the Governor here are not

analogous to the voting records of the members of the Indiana House of Representatives.

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Under Article 4, Section 16 of the Indiana Constitution, “[e]ach

House shall have all powers, necessary for a branch of the

Legislative department of a free and independent State.” The

General Assembly itself carries out those powers delegated to the

legislative branch under Article 4, Section 16. Consequently,

only the General Assembly can properly define what work

product may be produced while engaging in its constitutionally

provided duties. Thus, defining work product falls squarely

within a “core legislative function.” Moreover, the General

Assembly exercised its constitutional law-making authority when

it crafted Section 4(b) of APRA, which provides that legislative

work product “shall be excepted . . . at the discretion of a public

agency.” Ind. Code § 5-14-3-4(b) (emphasis added). Since the

General Assembly and its members constitute a “public agency,”

the statute itself expressly reserves to the General Assembly the

discretion to disclose or not to disclose its work product. We are

not inclined to make determinations that may interfere with the

General Assembly’s exercise of discretion under APRA.

We hold that determining whether the documents requested by

Plaintiffs are excepted under APRA as legislative work product

presents a non-justiciable question.

Id. at 241-43 (emphasis added; footnote omitted; some alterations original).

[16] Relying on Citizens Action Coalition, the Governor asserts as follows:

The question of whether Groth’s specific APRA requests at issue

are exempt from disclosure is not justiciable. Judicial inquiry

into what documents the Governor chose to withhold from

Groth in responding to his specific requests about Indiana’s

challenge to President Obama’s actions constitute intermeddling

with the internal functions of the executive branch . . . .

***

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Groth’s requests seek inquiry into core executive functions

reserved to the Governor . . . .

. . . Groth now seeks judicial enforcement of his APRA requests,

asking that the judicial branch interfere with these core functions

expressly delegated to the Governor.

Appellee’s Br. at 30-31. Thus, the Governor contends that his “own

determinations” under APRA are conclusive and that it would violate the

separation of powers doctrine for the judiciary to “second guess” those

determinations. Id. at 32-33. We cannot agree.

[17] This case is not a challenge to the Governor’s core executive functions or his

constitutional authority as chief executive to decide whether Indiana should

join Texas and other states as a plaintiff in a federal suit against the President.

Rather, the APRA requests here are merely requests for access to public records

that concern a matter of legitimate public interest. On the issue of justiciability,

the Governor does not assert a particular statutory exemption from APRA but,

rather, makes a categorical claim of executive privilege from disclosure of his

public records under APRA. The Governor’s argument would, in effect, render

APRA meaningless as applied to him and his staff. APRA does not provide for

any such absolute privilege, and the separation of powers doctrine does not

require it. We reject the Governor’s assertion that his “own determinations”

regarding whether to disclose public records are not subject to judicial review.

See id.

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[18] Moreover, Citizens Action Coalition does not apply to APRA requests to the

Governor for several additional reasons. First, the statutory exception at issue

in Citizens Action Coalition applies only to the General Assembly. See I.C. § 5-14-

3-4(b)(14). The Governor, obviously, did not rely on and could not have relied

on that provision in making his response to Groth’s APRA request. Second,

there is no statutory exception within APRA that is a “Governor’s version” of

Section 4(b)(14). That is, there is no statutory counterpart to the legislative

work product exception that applies to the Governor or his staff. See generally

I.C. § 5-14-3-4(a), (b). Thus, there is no APRA exception on which the

Governor could rely that might plausibly be captured by the holding in Citizens

Action Coalition. Indeed, at oral argument, counsel for the Governor

acknowledged that there is no text to be found in APRA that exempts the

Governor from an APRA request.

[19] The exceptions relied on by the Governor in his response to Groth relate to

privileged attorney-client communications, attorney-client work product, and

deliberative material. See I.C. § 5-14-3-4(a)(1), (a)(8), (b)(2), and (b)(6). To

determine the meaning and apply those exceptions to an APRA request does

not interfere with a core executive function. When APRA is correctly

administered, the Governor’s prerogatives as the State’s chief executive remain

intact.

[20] Unlike the legislative work product exception at issue in Citizens Action Coalition,

the interpretation and application of the provisions at issue here do not present

novel legal questions. See Citizens Action Coalition, 51 N.E.3d at 242. Indiana

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case law readily defines privileged attorney communications. E.g., Corll v.

Edward D. Jones & Co., 646 N.E.2d 721, 724 (Ind. Ct. App. 1995). APRA

expressly defines “[w]ork product of an attorney,” as used in Section 4(b)(2).

I.C. § 5-14-3-2(r). And our courts have already defined and applied the term

“deliberative material” as used in Section 4(b)(6). E.g., An Unincorporated

Operating Div. of Ind. Newspapers, Inc. v. The Trustees of Ind. Univ., 787 N.E.2d

893, 909-15 (Ind. Ct. App. 2003), trans. denied.

[21] The Governor asks that we disregard those definitions in APRA and our case

law and, instead, apply Citizens Action Coalition to him and his staff, abstain

from considering the questions presented in this appeal on the merits, and hold

that “Groth does not present a justiciable issue.” Appellee’s Br. at 33. Again,

in Citizens Action Coalition, on prudential grounds the Indiana Supreme Court

invoked the separation of powers doctrine when it declined to impose a “court-

created definition” of the “work product of the individual members and the

partisan staffs of the general assembly.” 51 N.E.3d at 242. The court

concluded that Section 4(b) of APRA “expressly reserves to the General

Assembly the discretion to disclose or not to disclose its work product.” Id.

But the court also held that APRA does apply to the General Assembly and its

members. Id. And the court did not hold that a person’s APRA requests to a

co-equal branch of government are not justiciable. Thus, we conclude that

Citizens Action Coalition, which concerns a provision that applies only to the

legislature, does not apply to the Governor and his staff and that the separation

of powers doctrine does not require that we abstain from deciding this appeal

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on the merits. The questions presented in this appeal are justiciable, and to

determine the answers to those questions we need only apply APRA to the

facts.

Issue Two: Due Process

[22] We next consider Groth’s argument on appeal that the trial court’s refusal to

provide a summary of the undisclosed information, after the court had reviewed

that information in camera, denied him his right to due process. In particular,

Groth asserts that his opportunity to meet his burden to demonstrate that the

Governor had failed to comply with APRA “is necessarily hampered by his

inability to see what the particular item is.” Appellant’s Br. at 18-19. In light of

that concern, Groth requested that the trial court, following its in camera review,

describe “the general nature of the information with enough specificity to alert

the parties to what type of information is redacted” so that Groth could “make

arguments [regarding] whether that type of information is required to be

disclosed under the public records laws.” Appellant’s App. Vol. 2 at 32.

[23] We agree with the Governor that Groth’s due process rights were not

implicated by the trial court’s judgment.8 The Indiana Supreme Court has

considered and rejected a claim similar to Groth’s before. Specifically, the

Indiana Supreme Court has stated as follows:

8

The Governor also asserts that “the alleged violation of state law cannot form the basis of a due process

claim.” Appellee’s Br. at 28. But Groth does not assert that the trial court violated state law; Groth asserts

that the trial court did not fully protect his due process rights.

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As for the State’s claim that it has not been afforded the

opportunity to review the privileged documents to determine if

they contain non-privileged information, we conclude the State is

not entitled to review the documents. And this is so because the

very nature of the psychologist/patient privilege precludes the

State from gaining access to confidential communications absent

an exception. Rather, a determination must be made in the first

instance as to whether the State has a right of access to the

documents. Allowing the State itself to review the documents in

order to make that determination would eviscerate the reason the

privilege exists in the first place, namely: to protect confidential

communications between psychologists and patients.

In essence we entrust trial courts rather than sparring litigants

with the authority to preserve the inviolability of privileged

information. And although the trial court may have allowed the

State to review the requested documents in this case under a

confidential protective order, it was not compelled to do so.

Further, the notion of a trial court conducting an in camera

inspection of documents to determine whether information

contained in them is or is not discoverable is not particularly

remarkable. For example in Owen v. Owen, 563 N.E.2d 605 (Ind.

1990), we addressed the physician/patient privilege declaring:

[I]n those rare cases where the physician-patient

privilege is properly invoked, it is incumbent on the

party seeking to assert the privilege to identify to the

court specifically which documents are believed to

remain within the privilege, after which the court

will review the contested documents in camera to

ascertain their entitlement to the protection of the

privilege.

Id. at 608 (emphasis added). In sum, the State has not shown

any entitlement to review the contested documents, and the trial

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court did not abuse its discretion by conducting the in camera

inspection.

State v. Pelley, 828 N.E.2d 915, 920-21 (Ind. 2005) (some citations omitted).

[24] In other words, Pelley rejects an argument similar to Groth’s and holds that the

purpose of in camera review is for the court to determine independently whether

certain information should be disclosed to an opposing party. Id. Groth could

have requested the trial court to permit him to view the sealed records under a

confidential protective order, which the trial court in its discretion may or may

not have allowed, see id. at 921, but he did not make such a request. He cannot

avoid his forfeiture of that opportunity by claiming a due process violation.

The fundamental requirement of due process is the opportunity to be heard “at

a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S.

319, 333 (1976). Groth has not shown that he did not have an opportunity to

be heard at a meaningful time and in a meaningful manner. Accordingly, we

reject Groth’s argument that the trial court’s judgment violated his due process

rights.

Issue Three: White Paper

[25] We now turn to the substance of the Governor’s APRA decisions. We first

consider whether the Governor properly withheld disclosure of the white paper

that was attached to the email from Hodge, the chief of staff to the Governor-

Elect of Texas, which Hodge sent to Governor Pence’s office and to numerous

other governors’ offices throughout the United States. The Governor withheld

Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 20 of 41

this document under Indiana Code Sections 5-14-3-4(a)(1) and (a)(8), as a

privileged attorney-client communication; Indiana Code Section 5-14-3-4(b)(2),

as attorney work product; and Indiana Code Section 5-14-3-4(b)(6), as

deliberative material. We agree with the Governor that the white paper was a

privileged attorney-client communication and, also, that the Governor acted

within his discretion when he withheld the white paper as deliberative

material.9

[26] Pursuant to APRA, “[t]he following public records are excepted from section 3

of this chapter and may not be disclosed . . . : (1) Those declared confidential by

state statute. . . . (8) Those declared confidential by or under rules adopted by

the supreme court of Indiana.” I.C. § 3-14-3-4(a) (emphasis added).

Communications that fall within the attorney-client privilege are confidential

under state law and the rules of the Indiana Supreme Court. As then-Chief

Justice Shepard explained:

the rationale underlying the attorney-client privilege supports its

application to state agencies and their attorneys. The privilege

protects those in need of legal services by providing for complete

and confidential information to an attorney so the attorney may

be fully advised in serving the client while assuring the client that

these confidences will not be revealed. Colman v. Heidenreich

(1978), 269 Ind. 419, 381 N.E.2d 866. A state agency has the

same need for confidential legal advice.

9

We need not discuss whether the attorney work product exception under Indiana Code Section 5-14-3-

4(b)(2) applies to the white paper.

Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 21 of 41

***

This privilege is not defeated by the requirement of open public

records. Generally, any person may inspect the public records of

any public agency. Ind. Code § 5-14-3-3(a) (Burns 1987 Repl.).

The legislature has created an exception to this rule for records

declared confidential by statute or by Supreme Court rule. Ind.

Code § 5-14-3-4(a)(1), (8). Privileged communications between

attorney and client are protected by both. Ind. Code § 34-1-14-5

[now I.C. § 34-46-3-1] renders attorneys incompetent to testify as

to confidential communications made to them in the course of

their professional business. This statute is the codification of the

attorney-client privilege. Key v. State (1956), 235 Ind. 172, 132

N.E.2d 143 (construing the predecessor statute, § 2-1714 (Burns

1946 Repl.)). An attorney also has a statutory duty to preserve

the confidences and secrets of his client. Ind. Code § 34-1-60-4

[now I.C. § 33-43-1-3(5)]. This is a further codification of the

privilege. Colman, 269 Ind. at 422, 381 N.E.2d at 868.

Additionally, privileged communications are excluded from

discovery by Trial Rule 26(B)(1), Ind. Rules of Procedure. Thus,

a privileged communication between attorney and client is

exempt from public inspection because it is declared confidential

by statute and Supreme Court rule.

When a client seeks advice from an attorney in his professional

capacity, the communication between attorney and client within

the scope of the professional relationship should be treated as

strictly confidential. This privilege applies to all communications

made to an attorney for the purpose of professional advice or aid,

regardless of any pending or expected litigation. Colman, 269

Ind. at 423, 381 N.E.2d at 869.

Ind. State Highway Comm’n v. Morris, 528 N.E.2d 468, 474-75 (Ind. 1988)

(Shepard, C.J., concurring) (footnote omitted).

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[27] The attorney-client privilege “applies to all communications between the client

and his attorney for the purpose of obtaining legal advice or aid regarding the

client’s rights and liabilities.” Corll, 646 N.E.2d at 724. A person asserting the

privilege must show that “(1) an attorney-client relationship existed and (2) a

confidential communication was involved.” Id. “Minimally, meeting this

burden entails establishing that ‘the communication at issue occurred in the

course of an effort to obtain legal advice or aid, on the subject of the client’s

rights or liabilities, from a professional legal advisor acting in his or her capacity

as such.’” TP Orthodontics, Inc. v. Kesling, 15 N.E.3d 985, 995-96 (Ind. 2014)

(quoting Mayberry v. State, 670 N.E.2d 1262, 1266 (Ind. 1996)). Again, the

Governor carried the initial burden in the trial court to show that the white

paper fell within the attorney-client privilege and was, therefore, not subject to

disclosure pursuant to Section 4(a). I.C. § 5-14-3-9(f).

[28] The white paper is a privileged attorney-client communication and is protected

by the common interest privilege. As we have explained:

The common interest privilege is an extension of the attorney-

client privilege. United States v. BDO Seidman, LLP, 492 F.3d 806,

815 (7th Cir. 2007). In effect, the common interest privilege extends the

attorney-client privilege to otherwise nonconfidential communications

between parties represented by separate attorneys. Id. The common

interest privilege “treats all involved attorneys and clients as a

single attorney-client unit, at least insofar as a common interest is

pursued.” 2 Stephen A. Saltzberg, et al., Federal Rules of

Evidence Manual 501-30 (10th ed. 2011). The privilege is an

exception to the general rule that the attorney-client privilege is waived

when privileged information is disclosed to a third party. BDO

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Seidman, 492 F.3d at 815; see Cavallaro v. United States, 284 F.3d

236, 250 (1st Cir. 2002).

The common interest privilege permits parties whose legal interests

coincide to share privileged materials with one another in order to more

effectively prosecute or defend their claims. Hunton & Williams v. U.S.

Dep’t of Justice, 590 F.3d 272, 277 (4th Cir. 2010). The privilege

has been recognized in cases for over a century. United States v.

McPartlin, 595 F.2d 1321, 1336 (7th Cir. 1979). It applies in civil

and criminal litigation, and even in purely transactional contexts.

In re Teleglobe Commc’ns Corp., 493 F.3d 345, 364 (3rd Cir. 2007).

The privilege is limited to those communications made to further

an ongoing joint enterprise with respect to a common legal

interest. BDO Seidman, 492 F.3d at 816; see Hunydee v. United

States, 355 F.2d 183, 185 (9th Cir. 1965) (statements to and

among attorneys “should be privileged to the extent that they

concern common issues and are intended to facilitate

representation in possible subsequent proceedings”). It is

fundamental that the privilege cannot be waived without the

consent of all parties to the defense. John Morrell & Co. v. Local

Union 304A of United Food & Commercial Workers, 913 F.2d 544,

556 (8th Cir. 1990).

Price v. Charles Brown Charitable Remainder Unitrust Trust, 27 N.E.3d 1168, 1173

(Ind. Ct. App. 2015) (emphases added), trans. denied.

[29] In Corll, we held that the common interest privilege applied to attorneys’

communications to prospective co-plaintiffs. 646 N.E.2d at 724-25. As we

stated:

there is no question that the purpose of each preliminary meeting

[between plaintiffs’ attorneys and prospective co-plaintiffs] was to

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discuss a potential lawsuit. . . . Where, as here, a group of

individuals meet with attorneys concerning potential litigation,

and the purpose of that consultation is to provide legal advice

regarding rights and liabilities, we conclude that any

communications made in furtherance of that purpose are

“confidential communications” between attorney and client and

carry with them an expectation of confidentiality.

Id. We further noted:

Whether or not any one [prospective client] had retained any of

the attorneys prior to a specific meeting is of no

consequence. . . . [T]he preliminary nature of the meetings does

not remove the meetings from the scope of the attorney-client

privilege. What is essential to the existence of the attorney-client

privilege is the confidential relation of client and attorney, and

not the pendency of litigation or payment of a fee.

Id. at 725 n.4. Thus, we concluded that, “[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 725 (quoting McCormick on Evidence § 91 (4th ed. 1992)).

[30] As Hodge’s email explains, the white paper was drafted by a Texas deputy

solicitor general on behalf of the State of Texas. Thereafter, Hodge circulated

the white paper as a “follow-up” to a “Governors-Only meeting” in which the

Governor-Elect of Texas had discussed with other governors that his state was

“preparing a legal challenge to the President’s recent executive orders on

immigration.” Appellant’s App. Vol. 2 at 30. The Governor-Elect of Texas

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had discussed the proposed litigation with the other governors on the

“hope . . . that other states will join the State of Texas’ legal action . . . .” Id.

And the attached white paper “outlin[ed] the legal theories supporting [Texas’]

legal challenge . . . .” Id.

[31] Moreover, in another email disclosed by the Governor in response to Groth’s

complaint, a reporter asked the Governor’s office “to follow up on the

[G]overnor’s statement[10] about President Obama’s executive order on

immigration.” Id. at 25. The reporter also asked if Governor Pence agreed

with “some governors” in other states that the President’s order would “pose

operational challenges for states, including whether to issue driver’s licenses to

immigrants or grant in-state tuition.” Id. The reporter’s email to the

Governor’s office was sent three days prior to Hodge’s email with the white

paper attachment.

[32] Governor Pence met his burden to show that the white paper was not subject to

disclosure under APRA. There is no question that the Governor was aware of

and disagreed with the President’s immigration orders. And, based on Hodge’s

10

The reporter’s inquiry was in response to a press release issued by the Governor. We take judicial notice

that, in that press release, Governor Pence expressed his disagreement with the President’s immigration

decisions. Governor Pence Calls President’s Executive Order ‘End Run Around Democratic Process’ (Nov. 20, 2014),

http://www.in.gov/activecalendar/EventList.aspx?fromdate=11/20/2014&todate=11/20/2014&display=D

ay&type=public&eventidn=195043&view=EventDetails&information_id=208023; see also Ind. Evidence

Rule 201(a), (d) (providing for judicial notice); Troyer v. Troyer, 987 N.E.2d 1130, 1138 n.3 (Ind. Ct. App.

2013) (noting that judicial notice may be taken on appeal), trans. denied. Indeed, the Governor’s press release

preceded Hodge’s email by five days, and, in that press release, the Governor stated that “[t]he State of

Indiana will carefully evaluate the details of the Executive Order and take any available legal actions

necessary to restore the rule of law and proper balance to our constitutional system of government.” Governor

Pence Calls President’s Executive Order ‘End Run Around Democratic Process’, supra.

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email to the Governor’s Chief of Staff, Jim Atterholt, the Governor was aware

of the Governor’s-only meeting; he was aware that the State of Texas intended

to “lead the charge” against the President’s orders in a federal lawsuit; he was

aware that the State of Texas sought to collaborate with other states to

prosecute that legal challenge; and he recognized that the white paper had been

distributed to assist likely co-plaintiffs in their decision whether to join the

contemplated litigation. Further, it is clear that the white paper was created by

a Texas deputy solicitor general on behalf of his client, the State of Texas. And,

having reviewed the white paper in camera, we agree with the Governor that it is

devoted to a discussion of legal theory and strategy to be used in the federal

lawsuit.

[33] Thus, we agree with the Governor that, “[i]n the case of the white paper, one

party is sharing a legal memo, drafted by its lead counsel, with other potential

parties in order to assist those parties in determining whether to join in the

lawsuit.” Id. at 65. As such, the white paper was a communication made to

further an ongoing joint enterprise with respect to a common legal interest.

Price, 27 N.E.3d at 1173. Accordingly, we hold that the white paper was

privileged attorney-client communication under the common interest doctrine.

See Corll, 646 N.E.2d at 724-25. As promised by Texas Governor-Elect Abbott,

Hodge sent the white paper to Governor Pence and other governors to explore

their common interest in contesting the President’s executive orders. This

communication of a legal opinion occurred as Texas sought to determine

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whether other states would agree to join in the federal suit and, as a result,

twenty-five states joined Texas as plaintiffs.11

[34] Here, similar to Corll, a group of like-minded governors shared legal theories

and strategies via email to consider whether to join in litigation. 646 N.E.2d at

724-25. The purpose of that consultation was to provide legal advice to the

prospective co-plaintiffs. See id. Thus, the communications made in

furtherance of that purpose were confidential communications between

attorney and clients and “carr[ied] with them an expectation of confidentiality.”

Id. As such, we conclude that the Governor met his burden to demonstrate that

the white paper was a privileged communication and therefore exempt from

disclosure under APRA. See I.C. § 5-14-3-4(a)(1), (8).

[35] Nonetheless, Groth contends that the attorney-client privilege does not apply to

the white paper for two reasons.12 First, Groth asserts that, at the time the

Texas deputy solicitor general created the white paper, the State of Indiana was

not his client. In other words, he characterizes the white paper as an

“unsolicited email” or, stated another way, an uninvited solicitation from

Texas’ lawyers. Reply Br. at 10. But no one suggests that the Governor would

11

For the same reasons, the Governor asserts that the white paper is privileged attorney work product not

subject to discovery pursuant to Indiana Trial Rule 26(B).

12

Groth also asserts that, insofar as the white paper might contain factual recitations in addition to

privileged information, those recitations are subject to disclosure. Having reviewed the white paper in

camera, we agree with the trial court that no part of it is subject to disclosure. The facts mentioned in the

white paper are facts counsel considered significant and integral to the memorandum’s legal analysis and

opinion and, as such, are a privileged communication.

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have employed the Texas deputy solicitor general to represent the State of

Indiana in the federal lawsuit. And Groth’s solicitation theory is not supported

by the record, which shows that the Governor and other governors knew of the

President’s orders and Texas’ plan to contest those orders and that they

anticipated receiving additional information from Texas to consider in deciding

whether their states would become co-plaintiffs. The Hodge email with a legal

memorandum attached was not the beginning but the continuation of a

discussion already underway among the governors and, as such, was not an

unsolicited email.

[36] Groth also asserts that the communication of the white paper to Governor

Pence was not confidential because it was attached to an email that had been

“sent to thirty recipients. The context of the [email] itself shows that the

recipients were not clients of the author[] because it specifically discusses parties

who may or may not have decided to join the lawsuit.” Id. at 15. In support of

that argument, Groth relies on precedent from the Fourth Circuit Court of

Appeals, which provides that the common interest privilege does not apply if a

public agency is “simply considering whether to become involved” in litigation.

Hunton & Williams, 590 F.3d at 274. But that is not the Indiana rule, which

recognizes that the attorney-client privilege attaches to preliminary discussions

between attorneys, prospective clients, and other potential parties who share a

common interest concerning a potential lawsuit. Corll, 646 N.E.2d at 724-25.

As we explained in Price, the common interest privilege “is an exception to the

general rule that the attorney-client privilege is waived when privileged

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information is disclosed to a third party.” 27 N.E.3d at 1173. Indeed, the

common interest privilege expressly “permits parties whose legal interests

coincide to share privileged materials . . . .” Id. And, again, under Corll, the

fact that such information was shared with others who may or may not have

decided to join the lawsuit does not vitiate the common interest privilege.

Thus, we reject Groth’s arguments.

[37] Because we hold that the Governor has met his burden to show that the white

paper falls under Section 4(a) as privileged attorney-client communication, the

Governor had no discretion to release the information. Rather, his

nondisclosure of that document was mandatory. I.C. § 5-14-3-4(a). And we

cannot agree with Groth’s arguments to the contrary.

[38] We also agree with the Governor that he acted within his discretion when he

withheld the white paper as deliberative material. Indiana Code Section 5-14-3-

4(b)(6) permits a public agency, in its discretion, to withhold from disclosure

“[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.” As we have

explained: “The purpose of protecting such communications is to prevent

injury to the quality of agency decisions. The frank discussion of legal or policy

matters in writing might be inhibited if the discussion were made public, and

the decisions and policies formulated might be poorer as a result.”

Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 30 of 41

Unincorporated Operating Div. of Ind. Newspapers, 787 N.E.2d at 909-10 (citations,

quotations, and footnote omitted).

[39] Here, the white paper is a “paper . . . received . . . by . . . a public agency” and

is therefore a record under APRA. I.C. § 5-14-3-2(o). 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.

[40] The burden thus shifted to Groth to demonstrate that the Governor’s denial was

“arbitrary and capricious.” I.C. § 5-14-3-9(g). “An arbitrary and capricious

decision is one which is ‘patently 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.’” A.B.

v. State, 949 N.E.2d 1204, 1217 (Ind. 2011) (quoting City of Indianapolis v.

Woods, 703 N.E.2d 1087, 1091 (Ind. Ct. App. 1998)). We are not persuaded by

Groth’s argument that the Governor’s response was arbitrary and capricious.

See I.C. § 5-14-3-9(g).

[41] Thus, we affirm the trial court’s judgment for the Governor with respect to the

white paper.

Issue Four: Law Firm Invoices

[42] Finally, we turn to the Governor’s decision to redact the invoices of Barnes &

Thornburg LLP, the private law firm the Governor had hired to represent

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Indiana and his office in the Texas litigation and on Groth’s APRA claim,

respectively. The Governor redacted those invoices pursuant to Section 4(b)(2),

which permits the Governor, “at [his] discretion,” to limit his production of

requested public documents when such documents are “[t]he work product of

an attorney representing . . . a public agency[ or] the state . . . .”

[43] The Governor has met his burden to show that the information redacted from

the legal invoices falls within the scope of Section 4(b)(2). Having reviewed the

unredacted invoices in camera, we agree with the Governor that the redacted

information refers to the attorneys’ research and legal opinions, theories,

communications, or conclusions with respect to various aspects of litigation

involving the State and the Governor. As such, the Governor acted within his

discretion when he redacted that information from the invoices as the work

product of attorneys representing the State of Indiana or the Governor.

[44] The burden thus shifted to Groth to demonstrate that the Governor’s denial of

full access to the invoices was “arbitrary and capricious.” I.C. § 5-14-3-9(g).

Groth has not met that burden. Groth asserts that the Governor’s decision to

redact the invoices was arbitrary and capricious because the attorney work

product exception does not protect either information the Governor might have

shared with third parties or factual information. But Groth cites no evidence

that the Governor has shared the invoices with third parties. And, having

reviewed the documents in camera, we reject Groth’s assertion that the

Governor erroneously redacted information that is not attorney work product,

as defined in Indiana Code Section 5-14-3-2(r). Accordingly, Groth has not met

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his burden of demonstrating that the Governor’s partial redaction of the legal

invoices was arbitrary and capricious, and we affirm the trial court’s judgment

for the Governor with respect to the legal invoices.

Conclusion

[45] In sum, we reject the Governor’s claim that executive privilege renders his

response to APRA requests immune from judicial review. We also reject

Groth’s argument that the trial court’s judgment violated his due process rights.

We affirm the trial court’s judgment for the Governor on the merits of the

Governor’s decision to redact or withhold the records in question.

[46] Affirmed.

Baker, J., concurs.

Vaidik, C.J., concurs in part and dissents in part with separate opinion.

Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 33 of 41

IN THE

COURT OF APPEALS OF INDIANA

William Groth,

Appellant-Plaintiff,

Court of Appeals Case No.

v. 49A04-1605-PL-1116

Mike Pence, as Governor of the

State of Indiana,

Appellee-Defendant.

Vaidik, Chief Judge, concurring in part and dissenting in part.

[47] I concur with the majority as to all issues except one. That is, I dissent from the

majority’s conclusion that Governor Pence has met his burden of showing that

the white paper is not subject to disclosure under APRA because it is a

privileged attorney-client communication pursuant to the common-interest

doctrine.13 In order for the common-interest doctrine to apply, the parties must

first come to an agreement, and documents exchanged before an agreement is

reached are not protected from disclosure. Here, there is no evidence in the

13

The majority also finds that the white paper is protected from disclosure as deliberative material. I

disagree. Indiana Code section 5-14-3-4(b)(6) permits a public agency, in its discretion, to withhold from

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

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

making.” 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. Slip op.

at 30. I do not believe that a public agency can protect a record from disclosure as deliberative material just

by “using” it.

Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 34 of 41

record that Governor Pence and Texas officials reached an agreement before

the white paper was emailed. As a result, I believe that the email served as a

recruiting or lobbying tool by the State of Texas to encourage other states to

join its legal challenge to President Obama’s executive orders on immigration.

Because lobbying and soliciting are not protected by the common-interest

doctrine, I believe that Governor Pence has not met his burden of showing that

the white paper is protected from disclosure under APRA.

[48] As our legislature recognized in the opening sentence of APRA, “A

fundamental philosophy of the American constitutional form of representative

government is that government is the servant of the people and not their

master.” Ind. Code § 5-14-3-1. Accordingly, it is the policy of this 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.” Id. This is so because “[p]roviding 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.” Id. In short, “APRA is intended to ensure

Hoosiers have broad access to most government records.” Evansville Courier &

Press v. Vanderburgh Cty. Health Dep’t, 17 N.E.3d 922, 928 (Ind. 2014). APRA is

liberally construed to implement this policy, with the burden for nondisclosure

on the public agency denying access. I.C. § 5-14-3-1; ESPN, Inc. v. Univ. of Notre

Dame Police Dep’t, 62 N.E.3d 1192, 1196 (Ind. 2016).

Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 35 of 41

[49] Here, the majority finds that Governor Pence has met his burden of showing

that the white paper is not subject to disclosure under APRA because it is a

privileged attorney-client communication pursuant to the common-interest

doctrine. The common-interest doctrine is an exception to the general rule that

no privilege attaches to communications between a client and an attorney in the

presence of a third person. United States v. BDO Seidman, LLP, 492 F.3d 806,

815 (7th Cir. 2007); Price v. Charles Brown Charitable Remainder Unitrust Tr., 27

N.E.3d 1168, 1173 (Ind. Ct. App. 2015), trans. denied. The common-interest

doctrine permits parties whose legal interests coincide to share privileged

materials with one another in order to more effectively prosecute or defend their

claims. Am. Mgmt. Servs., LLC v. Dep’t of the Army, 703 F.3d 724, 732 (4th Cir.

2013); Price, 27 N.E.3d at 1173.

[50] For the doctrine to apply, the parties must first come to an agreement. See In re

Pac. Pictures Corp., 679 F.3d 1121, 1129 (9th Cir. 2012) (“[A] shared desire to see

the same outcome in a legal matter is insufficient to bring a communication

between two parties within this exception. Instead, the parties must make the

communication in pursuit of a joint strategy in accordance with some form of

agreement—whether written or unwritten.” (citation omitted)); Hunton &

Williams v. U.S. Dep’t of Justice, 590 F.3d 272, 274 (4th Cir. 2010) (explaining

that it is “not enough that the agency was simply considering whether to

Court of Appeals of Indiana | Opinion 49A04-1605-PL-1116 | January 9, 2017 Page 36 of 41

become involved”; rather, an agreement is required) 14; see also Restatement

(Third) of the Law Governing Lawyers § 75 cmt. a (Am. Law Inst. 2010)

(“Whether a client-lawyer relationship exists between each client and the

common lawyer is determined under § 14, specifically whether they have

expressly or impliedly agreed to common representation in which

confidential information will be shared. A co-client representation can begin

with a joint approach to a lawyer or by agreement after separate representations

had begun.” (emphasis added)).

[51] Timing of the agreement is important. “Documents exchanged before a

common interest agreement is established are not protected from disclosure.”

Hunton & Williams, 590 F.3d at 285 (emphasis added). The danger in extending

the common-interest doctrine to a point in time before an agreement is reached

is that “mere lobbying efforts, as opposed to joint litigation strategy, will be”

protected. Id.; see also Am. Mgmt. Servs., 703 F.3d at 732 (explaining that for the

common-interest doctrine to apply, there must be an agreement “at the time of

the communications at issue” (emphasis added)); Hunton & Williams, 590 F.3d

at 285 (“Thus, a proper assessment of the applicability of the common interest

doctrine in this case requires a determination of the point in time when DOJ

14

The majority recognizes this principle of law. See slip op. at 29. However, the majority, relying on Corll v.

Edward D. Jones & Co., 646 N.E.2d 721 (Ind. Ct. App. 1995), trans. not sought, finds that it is “not the Indiana

rule,” as Indiana recognizes that “the attorney-client privilege attaches to preliminary discussions between

attorneys, prospective clients, and other potential parties who share a common interest concerning a potential

lawsuit.” Slip op. at 29. As explained later in my dissent, I believe that Corll is factually distinguishable from

this case. Moreover, I believe that Indiana law requires that the communication at issue be made in pursuit

of a joint strategy in accordance with some form of agreement—written or unwritten.

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decided that it was in the public interest for RIM to prevail in its litigation with

NTP and agreed to partner with RIM in doing so.” (emphasis added)); Price, 27

N.E.3d at 1173 (“The privilege is limited to those communications made to

further an ongoing joint enterprise with respect to a common legal interest.”

(citation omitted) (emphasis added)).

[52] Here, I believe that Governor Pence has not met his burden of showing that he

had agreed to partner with Texas in its legal challenge to President Obama’s

executive orders on immigration when Hodge emailed the white paper to the

thirty recipients (including Governor Pence’s chief of staff) on November 25,

2014. The record shows that Hodge emailed the thirty recipients “to follow-up

on comments my boss made during the Governors-Only meeting last week.”

Appellant’s App. Vol. 2 p. 30. Hodge explained that “[d]uring last week’s

meeting, Governor-elect Abbott promised that we would circulate a white paper

outlining the legal theories supporting [Texas’] legal challenge [to President

Obama’s recent executive orders on immigration] to the other Governors.” Id.

Contrary to the majority’s implication, there is no evidence in the record that

Governor Pence or anyone from his staff knew about, let alone attended, this

meeting or that Governor Pence or anyone from his staff found out before

receiving the email what was actually discussed at the meeting. See Oral Arg. at

23:28-23:35 (Governor Pence’s attorney conceding at oral argument that there

is no evidence in the record that Governor Pence attended the meeting); see also

id. at 13:00-13:43 (Groth’s attorney noting at oral argument that the record does

not disclose information about the meeting). This lack of evidence is buttressed

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by the email itself, which says, “As some of you may have heard, the State of

Texas is preparing a legal challenge to the President’s recent executive orders on

immigration.” Appellant’s App. Vol. 2 p. 30 (emphasis added). There is also

no evidence in the record that Governor Pence or anyone from his staff asked

to receive, agreed to receive, or expected to receive the email. See Oral Arg. at

9:50-10:07 (Groth’s attorney pointing out at oral argument that the record is

silent as to whether Governor Pence was expecting to receive the email). In

short, there is simply no evidence in the record that Governor Pence or a

member of his staff communicated with Texas officials in any way about

joining Texas’ legal challenge to President Obama’s executive orders on

immigration before the white paper was emailed on November 25, 2014. 15

[53] As such, I believe that Hodge’s email served as a lobbying or soliciting tool by

Texas to encourage other states to join its legal challenge. As the email itself

states, “Our hope is that other states will join the State of Texas’ legal action so

that we will have a broad coalition to challenge the President’s action . . . .”

Appellant’s App. Vol. 2 p. 30 (emphases added). The common-interest doctrine

does not protect mere lobbying efforts but rather only joint strategy. See Hunton

15

The majority sua sponte takes judicial notice of a press release that Governor Pence issued on November

20, 2014, five days before the white paper was emailed. In the press release, Governor Pence indicated that

he disagreed with President Obama’s executive orders on immigration. The press release, however, does not

establish that an agreement existed between Governor Pence and Texas when the November 25, 2014, email

was sent. The majority also cites as support an email that Governor Pence disclosed to Groth wherein a

reporter asked Governor Pence’s communications director if the governor had any comment regarding “talk

among some governors” that President Obama’s executive orders would pose operational challenges for the

states. Appellant’s App. Vol. 2 p. 25. Again, this email does not establish that Governor Pence and Texas

had an agreement when the November 25, 2014, email was sent.

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& Williams, 590 F.3d at 285. Accordingly, I believe that the white paper, which

was emailed before any sort of agreement was reached, is not protected from

disclosure as a privileged attorney-client communication pursuant to the

common-interest doctrine.

[54] Furthermore, this case is easily distinguishable from Corll v. Edward D. Jones &

Co., 646 N.E.2d 721 (Ind. Ct. App. 1995), trans. not sought, which the majority

heavily relies on. In that case, several prospective plaintiffs attended a series of

group meetings that were also attended by attorneys who later became the

plaintiffs’ counsel. The purpose of the meeting was to gather prospective

plaintiffs who had dealt with a brokerage firm’s employee in order to discuss

their investment losses. We set forth the following rule:

When 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 725 (quoting McCormick on Evidence § 91 (4th ed. 1992) (emphasis added));

see now McCormick on Evidence § 91.1 (7th ed. 2013). Unlike Corll, where the

parties came together in pursuit of a joint strategy, here there is no evidence that

Governor Pence and Texas’ lawyers came together in pursuit of a joint strategy

at any point before the white paper was emailed. In the absence of such

evidence, the email was a one-way solicitation designed to encourage Indiana

to join Texas’ legal challenge to President Obama’s executive orders on

immigration.

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[55] The policy of APRA is to provide the public with full and complete information

about the affairs of the government. Indeed, providing the public with

information “is an essential function of a representative government.” I.C. § 5-

14-3-1. Because the record reflects that Hodge emailed the white paper to

Governor Pence’s chief of staff in order to lobby or solicit Indiana to join Texas’

legal challenge, and before any sort of agreement between Governor Pence and

Texas was reached, I believe that Governor Pence has not met his burden of

showing that the white paper is protected from disclosure under APRA. I

would therefore reverse the trial court on this issue and order Governor Pence

to produce the white paper.

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