Lawyers for Indiana Governor and Republican Vice President-elect Mike Pence argued in court Monday that the state's judicial branch has no authority to require him to comply with Indiana's public records law.
The civil case before Indiana's Court of Appeals was brought by Indianapolis attorney William Groth, who sued the Pence administration in 2015 after it denied his request for a document related to the efforts of Republican governors to stop President Barack Obama's immigration executive order.
Pence has long presented himself as a champion of a free press and the First Amendment. On the campaign trail, he aggressively criticized Democrat Hillary Clinton for refusing to release emails sent from a private server she maintained while secretary of state. Earlier this year, he vetoed a bill that some say would have limited public access to police records at private colleges and universities in Indiana.
But, in other cases, the Pence administration in a number of cases has argued against the public release of emails and other documents that could shed light on his tenure as governor. In some cases, the administration has withheld documents, delayed responses or flatly denied public records requests filed by The Associated Press and other news organizations.
On Monday, Pence attorney Joseph Chapelle told the judges that the separation of powers established under the state's constitution should prevent the court system from forcing Pence and his immediate staff to comply with the open records law if they are sued.
"An inquiry into the personal papers of the governor, in this situation, would intermeddle with the affairs with of the governor's office. He's different than other state agencies," said Chapelle, who added that such an exemption "only applies to the governor and his immediate staff."
The appellate court took up the case after a lower court ruled that Pence did not have to turn over a document sought by Groth that was authored by the chief-of-staff to now-Texas Gov. Greg Abbott. The document outlined legal arguments for the GOP's successful challenge to Obama's immigration executive order.
Pence's administration released 57 pages of emails to Groth, a Democrat. But it declined to provide the attached document, which Abbott's staff had emailed to many Republican governors while trying to recruit other states to join the legal challenge, according to court documents.
Pence's attorneys argue that the governor's office acted within its rights by refusing to release the document, which they say is a "work product" that is "deliberative" in nature and also protected by attorney client privilege. But Pence's attorneys also argued that an Indiana Supreme Court ruling that effectively exempted the state's General Assembly from releasing emails should also apply to them.
The state's highest court ruled in April that that it could not order the Legislature to release lawmakers' email correspondence because it would violate the state constitution's separation of powers between the legislative and judicial branches of government.
A ruling in the case against Pence is not expected immediately. But government watchdog groups say that if the courts ultimately agree with that interpretation, the Indiana governor's office would police itself when it comes to the release of public records, seriously weakening the law by limiting the ability to sue for records.
Appeals Court Judge Edward W. Najam, Jr. aggressively questioned Pence's attorney, asking Chapelle if he could point to a specific passage in the state's open records law that exempted Pence.
"No, your honor," Chapelle replied.
Spokeswoman Kara Brooks said the release of public records is not the only way to judge the transparency of the Pence administration.
"We provide information to reporters and the public daily by answering questions, providing statements, press releases, and other non-confidential and deliberative documents," Brooks said in an emailed statement. "Any time we withhold documents or redact information, we provide statutory justification and requirements that explain the reason behind withholding the information."