Fatima Hussein

fatima.hussein@indystar.com

Vice President Mike Pence continued to fight to keep secret a political white paper emailed to him while he was Indiana governor, petitioning the Indiana Supreme Court not to review a public records denial for the controversial papers.

If opened, the communications could reveal a slew of Republican political strategies that Pence and dozens of other U.S. governors devised to fight former President Barack Obama and an executive order of his concerning immigration.

If the justices take the case, the court also could redefine the bounds of open, public communication for Indiana's executive office.

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The case stems from a public records request made in December 2014 by Indianapolis attorney William Groth, a Democrat, who was gathering information about the former Republican governor's use of outside counsel for the immigration litigation and its cost to Indiana taxpayers.

Pence produced the requested emails “but those documents included substantial redaction,” including a white paper the governor failed to produce, according to court records.

The white paper in question contains legal theories used by many governors in their decision to joinState of Texas et al v. United States of America, which challenged the Obama administration's executive order regarding immigration.

After Groth filed suit in Marion County Superior Court, a judge ruled in favor of Pence, saying the redactions the administration made to the public record were "proper."

The ruling left open the possibility that the executive branch could claim that its redactions were nonjusticiable, a legal term that means not for the court to decide. That finding was based on an earlier Supreme Court ruling in Citizens Action Coalition, et al. v. Indiana House Rep. about redactions made by the legislature.

Groth appealed the decision in April. This January, the Indiana Court of Appeals ruled that Groth does not have the right to view the political white paper, but disagreed with the governor's contention that it would violate the separation of powers doctrine for the judiciary to second guess the redactions.

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That was an important finding to advocates of government transparency, who feared a Pence victory in the suit could set a broader precedent that would embolden future governors to refuse to disclose or heavily redact public documents with no court oversight.

Earlier this month, Groth petitioned the Indiana Supreme Court to take up the case.

Indianapolis attorney Greg Bowes filed the 19-page petition on behalf of Groth claiming the appeals court erred in determining that the white paper did not have to be released because it was "deliberative material" for the purpose of preparing for litigation.

Groth is arguing the Court of Appeals improperly applied the attorney-client relationship doctrine because the white paper was emailed to a wide range of people outside of the attorney-client relationship. He is also asking the court whether the court of appeals improperly created a "deliberative materials exception" to state public records.

Calling Groth's lawsuit "unfounded" in court documents, Joseph Chapelle, Pence's attorney from Indianapolis law firm Barnes & Thornburg, last week filed the 30-page response.

Pence's legal team argues to keep email secret

Chapelle told IndyStar that the appellate court majority’s decision should stand and that if the Supreme Court takes on the case, "it will be an opportunity for the court to clarify the separation of powers doctrine."

In the latest court documents, Chapelle maintains that Pence will use executive privilege as a defense in the future. "There are policy reasons for executive privilege," Chapelle said.

Groth told IndyStar Sunday that he wants to see transparency in government.

"Hoosiers are entitled to and should continue to demand more, rather than less, openness from all governmental officials, but especially from their governor," he said.

Call IndyStar reporter Fatima Hussein at (317) 444-6209. Follow her on Twitter: @fatimathefatima.

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