Lawmakers in the Indiana House are working to keep internal correspondence secret by quietly changing the definition of a "work product" in a way that could shield nearly every communication from public view.
The move, which came just after the end of the legislative session, would exempt documents, notes and other writing or records in any form if they are created, edited or modified by House members or their staff. It includes email, voice mail, text messaging and audio recordings.
The change comes amid a lawsuit filed over records sought by the Citizens Action Coalition of Indiana and the Energy and Policy Institute. The groups filed an open records request in January seeking correspondence between Rep. Eric Koch and various utilities regarding a bill about solar power.
The Indiana House denied the request, saying the Legislature is exempt from Indiana's Access to Public Records Act. Public Access Counselor Luke Britt disagreed and ruled the Legislature must comply with the law.
The Indiana General Assembly has no policy outlining what records are accessible to the public. Lawmakers in 2001 passed a law that exempted them from the public records law, but Gov. Frank O'Bannon vetoed the measure.
"Legislative history shows they are still a part of the statute," Steve Key, lobbyist for the Hoosier State Press Association, told The Indianapolis Star.
Other states have specific rules.
Florida exempts "a legislatively produced draft, and a legislative request for a draft, of a bill, resolution, memorial, or legislative rule, and an amendment thereto, which is not provided to any person other than the member or members who requested the draft, an employee of the Legislature, a member of the Legislature who is a supervisor of the legislative employee, a contract employee or consultant retained by the Legislature, or an officer of the Legislature."
The New York State Assembly has a detailed guide that includes a list of all available records.
Indiana offers one specific exemption for "the work product of individual members and the partisan staffs" of the Legislature.
House Minority Leader Scott Pelath said lawmakers need to make it clear what is accessible and what isn't.
"It needs to be done carefully and clearly so the public and the lawmakers understand the ground rules and the implications," said Pelath, D-Michigan City.
House Majority Leader Brian Bosma declined comment, citing pending litigation.
Kerwin Olson, executive director of Citizens Action Coalition, said he and the Energy and Policy Institute want to know what utilities, lobbyists and special interest groups are working with legislators and how cozy the relationships are.
"The energy and utility industry drives policy. These aren't legislators coming up with great public policy ideas. It comes from the industry, and I thought we could expose that," he said.
Britt said in his ruling that the Legislature can define its own work product but urged lawmakers to favor transparency.
Key said the broad definition lawmakers came up with goes against the construction of the statute, which focuses on the content of a record, not the form.
"An email about lunch would be work product," he said. "They are trying to define everything they do as work product, which is very unfortunate."