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A new opinion from Indiana’s Public Access Counselor critiqued redactions to public records that make it difficult to determine the amount of public dollars spent to defend Attorney General Todd Rokita’s law license.
The opinion came in response to a joint complaint filed by the Indiana Capital Chronicle and the Indiana Citizen.
At issue are 44 pages of heavily-redacted attorney invoices from the Schaerr Jaffe law firm. The redactions were made by the Indiana Comptroller, who pays the invoices.
The Washington, D.C.-based law firm was hired by the state to defend Indiana Attorney General Todd Rokita, whom the Indiana Supreme Court Disciplinary Commission began investigating in early 2023, as first reported by the Indiana Citizen.
The investigation — and ultimate reprimand — stemmed from the Republican attorney general’s televised comments about Indianapolis doctor Caitlin Bernard, who oversaw a medication abortion for a 10-year-old rape victim from Ohio in 2022.
But the same firm was handling the attorney general’s medical licensure case against Bernard, along with other cases, making it impossible to distinguish which expenditures were related to Rokita’s disciplinary matter.
Luke Britt, the Indiana Public Access Counselor (PAC) said in his March 12 report that some redactions are appropriate, but recommended that state officials only block out portions of the documents “consistent with basic tenets of transparency and good governance.”
“All descriptions of work performed have been redacted. This does not allow the public to know whether it got the benefit of the bargain from the service provider hired by the state,” Britt wrote in the ruling. “As stated previously, attorney invoices may have more redactions than other types of service providers, nonetheless, the public is entitled to know that its money is going to good use. Pinpoint, specific redactions are much more effective at accomplishing that goal.”
Rokita’s office did not comment on the PAC ruling or indicate if the office would release the invoices with lighter redactions.
The Indiana Comptroller handled the initial request but Rokita’s office has a pending request from October from the Indiana Citizen that it hasn’t filled.
Schaerr Jaffe’s contract with the state was first signed between the attorney general’s office and law firm in 2020. At that time, the agreement involved just one federal case. The contract has since been amended six times to include several other matters, including legal defense for Rokita’s law license.
But black-outs to the invoice descriptions make it unclear what line items are associated with each case. The redactions were made by the comptroller’s office after “solicit(ing) input” from the attorney general’s office, according to the PAC’s opinion.
Britt made clear that “to demonstrate the work performed, law firms will often include certain descriptive statements” in their itemizations “that could be construed to allow a public agency to withhold it as part of its enjoyment of the attorney-client privilege.”
As such, a public agency “may disclose communication sent and received as part of an attorney-client relationship,” but because that relationship is privileged, “it stands to reason it would be protective of that communication, and rightfully so.”
Even so, Britt said the amount of redaction is “unusually high. Without being able to see what exactly was withheld from the documents, though, “we cannot make a conclusive determination as to compliance” or if a violation occurred.
The Indiana Capital Chronicle is an independent, not-for-profit news organization that covers state government, policy and elections.
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