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The Indiana Court of Appeals has reversed a trial court opinion granting summary judgment to a plaintiff requesting information from an informal advisory opinion issued to Attorney General Todd Rokita.
Barbara Tully submitted a public records request for access to an informal advisory opinion from the Indiana Office of Inspector General concerning the ethics of Rokita’s outside employment with Apex Benefits.
A few weeks after Rokita received the opinion, a spokesperson for the Office of the Attorney General told the Indianapolis Business Journal that Rokita received the opinion and that it stated his “interests and outside employment are all squarely within the boundaries of the law and do not conflict with his official duties.”
The Office of the Attorney General refused Tully’s records request, claiming the opinion was confidential under Rule 8 of the Indiana Code of Ethics, which states that informal advisory opinions issued by the Inspector General “shall be considered confidential under IC 5-14-3-4(b)(6).” 42 I.A.C. 1-8-1(b).
Eventually, Tully sued Rokita, alleging he had violated the state’s Access to Public Records Act.
The Marion Superior Court granted Tully summary judgment and invited Rokita to provide a redacted copy of the opinion to Tully.
Rokita, in turn, appealed.
While the appeal was pending, the Indiana General Assembly amended Indiana Code Section 4-2-7-3, inserting the following subsection (Subsection 9) to the Inspector General’s duties:
The inspector general shall . . . [p]rovide informal advisory opinions to current, former, and prospective state employees, state officers, and special state appointees. An informal advisory opinion issued by the office of the inspector general is confidential under IC 5-14-3-4, including any previously issued informal advisory opinion by the office of the inspector general that recites that it is confidential.
On appeal, Rokita claimed the Court of Appeals should apply Subsection 9 in the case, which would resolve the appeal in his favor.
Tully countered, saying Subsection 9, in this case, violated Article 3, Section 1 and Article 4, Section 19 of the Indiana Constitution.
She further argued that Rokita waived confidentiality when the attorney general’s spokesperson made a comment to the Indianapolis Business Journal.
In its opinion, the Court of Appeals stated that Rokita did not waive confidentiality, saying the spokesperson’s statement that Rokita sought and received an advisory opinion is like the “very generalized overview with very little specific information” which was deemed insufficient in Ind. Newspapers, Inc. v. Trs. of Ind. Univ.
In that case, the Indianapolis Star sought access to records, under Indiana’s Access to Public Records Act, from the trustees of Indiana University regarding an investigation into then-head basketball coach Bob Knight’s behavior toward his players.
The appellate court claimed the trustee’s records regarding the investigation were a generalized overview of the investigation and didn’t warrant the waiver of exceptions under the public records act.
The Court of Appeals also stated Subsection 9 applies to the Inspector General’s advisory opinion because the new change plainly states it is retroactive, and the court must “honor the legislature’s choice to make a law retroactive unless doing so would violate a vested right or constitutional guarantee.”
Further, the court dismissed Tully’s claim that Subsection 9 violates Article 3, Section 1 and Article 4, Section 19 of the Indiana Constitution.
In arguing a violation of Article 3, Section 1, Tully believes the legislature “usurped judicial powers” by invalidating her interest in the trial court’s final judgment.
The appellate court stated that Tully misinterpreted “final judgment” in this context, arguing a trial court does not have the final say in the state’s judicial department.
In response to Tully’s claim that using Subsection 9 violates Article 4, Section 19, the appellate court noted that Subsection 9 has some “rational connection” to P.L. 201-2023’s general purpose to provide efficient state administration.
Finally, the appellate court stated the legislature sets public policy, not the courts, and the courts should interpret the law as written. The appellate court concluded the statute does not violate the Indiana Constitution.
In reversing and remanding, the appellate court gives instructions that the trial court grant Rokita’s cross-motion for summary judgment.
The case is Theodore Rokita v. Barbara Tully, 23A-PL-00705.
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