The Governor and Public Records

Groth v. Pence is one of the cases which make the news because it involves a highly political issue. But it makes it to this discussion because of its interesting legal issues.

In December of 2014, then-Governor Mike Pence made the decision that Indiana would join a Texas lawsuit against the President of the United States to contest certain presidential executive orders on immigration. Groth submitted a request for public records related to this decision under the Access to Public Records Act. The Governor provided a number of documents, but redacted some, and withheld a legal memorandum.

Groth complained about this response to the Public Access Counselor, who found that the Governor’s response was proper. Groth then filed a complaint with the Marion Superior Court, who also found the Governor’s response was proper after conducting an in camera review. Groth then appealed.

On appeal, the first dispute dealt with the standard of review. As the trial court conducted a de novo review of a paper record, the Court found that it could also conduct a de novo review. The Governor disagreed, arguing that appellate courts must defer to the trial court’s assessment of the meaning of the paper records after an in camera review and that the Court could not conduct its own in camera review. The Court disagreed.

The Court began its substantive discussion by addressing a case we spoke about last April, Citizens Action Coalition of Indiana v. Koch, 51 N.E.3d 236 (Ind. 2016), which declined to define legislative work product on the basis of a lack of justiciability. The Governor argued that the same principles were at work here, and made “a categorical claim of executive privilege from disclosure of his public records under APRA.” The Court did not agree, noting that “there is no APRA exception on which the Governor could rely that might plausibly be captured by the holding in Citizens Action Coalition.” The exceptions to public access which did apply (privileged attorney-client communications, attorney-client work product, and deliberative material), were all well-established, and applying these standards would not impinge on the Governor’s core executive functions. Therefore, the Court found that the dispute was justiciable.

Groth next argued that the trial court denied him due process when conducting it’s in camera review of the documents because the trial court did not “provide a summary of the undisclosed information” after it’s in camera review. Groth argued that he could not effectively challenge the trial court’s decision without such a summary. The Court was not persuaded because Groth did not preserve the argument in the trial court.

As for the documents which were withheld, the Court first addresses the legal memorandum, or white paper, and found it was privileged. It noted that the memo was drafted by a Texas deputy attorney general in an effort to recruit states to jointly challenge recent executive orders on immigration. This implicated the common-interest privilege, which the Court had previously applied to attorney communications to prospective co-plaintiffs. In doing so, the Court rejected a narrower construction of the privilege, which would find that it would not apply if a public agency was merely considering whether to become involved in litigation.

Chief Judge Vaidik dissented on this last issue. She would hold that the common interest privilege would only apply if “the parties must first come to an agreement, and documents exchanged before an agreement is reached are not protected from disclosure.” As there was no evidence of an agreement before the memo was sent, it should not be covered by that privilege. Rather, it was lobbying and soliciting, which are not activities protected by the common interest privilege.

This dispute over when the common interest doctrine applies may be of greatest interest to the bar, as it may affect our communications with prospective clients. Therefore, attorneys should be mindful of these issues—and watch out for transfer.


  1. If a trial court conducts an in camera review of documents, then the appellate courts also need to review those documents to provide an effective appellate review.
  2. Litigants do not have a due process right to a summary of any documents reviewed in camera.
  3. Disputes regarding whether the Governor complied with the APRA are justiciable.
  4. The common interest doctrine may extend greater protection to attorney-client communications in Indiana than it does in other jurisdictions.

Read the full March 2017 Law Club Handout or listen to the recording here.

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