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EDITORIAL: High court sides with secrecy in legislator email case

April 23, 2016

The Indiana Supreme Court took a timid and legally dubious course on April 19 when it ruled that Indiana lawmakers can continue withholding their correspondence with lobbying groups and businesses.

The ultimate losers from the decision were the people of Indiana, who stand to benefit from an open and transparent government. It’s a concept that is a bedrock of our nation. As our second president, John Adams, put it: “Liberty cannot be preserved without a general knowledge among the people, who have a right and a desire to know.”

Beyond that, secrecy can foster corruption—especially in a state like Indiana with a part-time Legislature. Indiana’s 100 House members and 50 senators have a wide range of other jobs, creating abundant opportunities for conflicts of interests.

The Supreme Court ruling came in a case brought by consumer groups seeking emails between Rep. Eric Koch of Bedford and utility companies, which backed his unsuccessful push last year to lessen the economic viability of rooftop solar installations.

The Energy and Policy Institute, a pro-clean-energy think tank, in early 2015 made multiple requests to obtain Koch’s correspondence about the bill with various business organizations. The chief counsel of the Republican caucus shot them down, arguing the state’s Access to Public Records Act does not apply to the Indiana General Assembly and that it is “House tradition to treat all correspondence as confidential.”

The high court disagreed, finding the APRA does apply to the General Assembly. But rather than taking the next logical step—concluding the Koch correspondence must be made public—it backed away, citing a 1993 opinion on the separation of powers that concluded the high court “should not intermeddle with the internal functions of either the executive or legislative branches of government.”

Following that reasoning, Justice Steven David, writing for the majority, took a pass on the particulars of the Koch case. “Because the issue before the court would require invasion into a core function of the legislative branch, this court declines to exercise its jurisdiction,” he said.

Taking a stand on such an important case would not have struck us as meddling. After all, it is the role of the judicial branch to interpret the meaning of laws, apply laws to individual cases, and decide if they violate the Constitution.

The plaintiffs—the Citizens Action Coalition, Common Cause Indiana and the Energy and Policy Institute—told the court during oral arguments in March that the public is entitled to know about communications between interest groups and legislators.

Attorneys for the plaintiffs didn’t quarrel with the idea of keeping correspondence with constituents private but said it should not go beyond that.

“To protect communications with lobbyists outside the Statehouse is absolutely absurd,” Kerwin Olson, executive director of the Citizens Action Coalition, told The Associated Press after the decision.

We share his dismay, as should all Hoosiers who care about open government.•

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To comment on this editorial, write to ibjedit@ibj.com.

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