Lawyer seeking Pence emails wants remand after learning about private account

An Indianapolis attorney who is asking the Indiana Supreme Court to release documents sent to former Gov. Mike Pence is now asking the high court to remand the case in light of recent revelations that Pence used a personal email account for state business while governor.

Labor attorney William Groth filed a motion to remand in the Indiana Supreme Court Monday asking the justices to “stay its proceedings following resolution of the issues already briefed, and to remand the case to the trial court…in light of new information showing Governor Pence used his private email account for public business and did not produce those private email messages for review until March 2, 2017… .” Groth’s motion, filed by his attorney, Gregory Bowes, comes less than a week after it was revealed that Pence, now vice president, used a personal AOL account to conduct state business and subsequently fell victim to a hack on that personal account.

Groth also filed a reply brief on transfer in the Indiana Supreme Court on Monday, urging the court to order the release of certain emails sent to Pence as governor after he made the decision to join a Texas lawsuit challenging a federal executive order on immigration.

Groth filed a public records request for the emails in December 2014. When Pence responded, some documents were redacted while others, including a “white paper” outlining Texas’ legal theories in the case, were withheld entirely.

During arguments before the Court of Appeals, Pence’s counsel argued that his responses to Access to Public Records Act requests are exempt from judicial review under an “executive privilege.” A divided Court of Appeals rejected that argument, yet held that the contents of the redacted and withheld documents, particularly the legal contents, were protected communications and, thus, not subject to public access laws.

Groth and Bowes filed for transfer to the Supreme Court last month, but after learning about Pence’s private email use on Thursday, Bowes wrote in his motion to remand that “Mr. Groth believes Governor Pence’s private email accounts may not have been reviewed as part (of) the governor’s response to his public records request, and is concerned some of those messages may have been responsive to his request.”

Pence turned over 13 boxes containing emails from his private account on March 2 to current Gov. Eric Holcomb to comply with a requirement that all email messages containing agency-related information be preserved under the APRA. In the Monday remand motion, Groth wrote that while those emails likely won’t shed any additional light on the issues raised in his client’s appeal, “they may be germane to the underlying trial case.”

Thus, Groth urged the court to remand the case to the Marion Superior Court “for consideration of the private email account by the trial court after this appeal is decided.”