Bill Groth and David Vlink Win Important Public Transparency Case
One of the Firm’s passions, aside from labor and employment law, is public transparency law. The main government sunshine law in the state of Indiana is called the Access to Public Records Act, known as “APRA.” The APRA contains strong aspirational language stating that “government is the servant of the people and nor their master” and, as such, “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.” With language like this, you would think that public agencies would faithfully adhere to their disclosure obligations under APRA; unfortunately, reality is not that simple. The APRA contains numerous mandatory and discretionary exceptions, many of which are broadly written, so an agency or official that does not want to disclose a particular record can almost always find an exception to rely on.
The APRA contains procedures for parties who are denied access to public records. First, the APRA allows such parties to file a complaint with the Indiana Public Access Counselor, or “PAC,” who will take the parties’ positions and issue an advisory opinion. The PAC’s opinion is not binding, and he has no ability to force a public agency to follow it; but it is still important to file a complaint with the PAC because the PAC’s opinions are often persuasive to the courts and the parties, and you can only get attorney’s fees if you obtain an opinion from the PAC before filing a lawsuit. Second, regardless of whether you received an opinion from the PAC, the APRA permits parties to file suit in the Indiana trial courts to compel an agency to disclose a public record.
Such was the case with the Indiana Secretary of State in Sullivan v. NEDC, No. 21A-PL-349 (Ind. Ct. App. Jan. 20, 2022), available here, where the Indiana Secretary of State sought to withhold records regarding election security as “trade secrets,” “deliberative material,” and records “the public disclosure of which would have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack.”
The trial court ordered the Secretary of State’s office to disclose virtually all of the records it withheld, and the Secretary appealed. The Court of Appeals affirmed.
The upshot of the case is that, in order to take advantage of an exception, the agency must prove, with evidence, that the exception applies. The agency cannot “simply make conclusory statements” or “assert” in a written brief, untethered to admissible evidence, that an exception applies. In layman’s terms, the Court of Appeals was saying that if you are a public agency and you are sued to disclose a public record that you have withheld under an APRA exception, you must “put up or shut up; don’t just tell me an exception applies, prove it.”
The second takeaway from Sullivan v. NEDC is that, if the party who was denied the records “substantially prevails” in the trial court and is awarded attorney’s fees, the party is also entitled to attorney’s fees for the appeal. This rule seems obvious, but Sullivan v. NEDC is the first time the Indiana Court of Appeals has said that specifically with regard to the APRA.