COA upholds disclosure of voting integrity docs, also orders secretary of state to pay appellate attorney fees

A nonprofit that secured judgment against the Indiana secretary of state after documents related to election security were withheld has also been awarded appellate attorney fees.

In January 2021, Marion Superior Judge Heather Welch ordered then-Indiana Secretary of State Connie Lawson’s office to pay the National Election Defense Coalition attorney fees totaling $48,683.20 and costs totaling $219.95, for a total award of $48,903.15. NEDC, a nonpartisan nonprofit whose stated mission is to promote secure, reliable and transparent elections, received the award after suing the Indiana secretary of state for not complying with the Indiana Access to Public Records Act.

The nonprofit had alleged in June 2019 that the office repeatedly denied or delayed turning over emails and attachments that would support Lawson’s “frequently issued statements” about the security and trustworthiness of voting systems in the United States, made in her role as president of the National Association of Secretaries of State. The secretary had asserted that the correspondence between herself and NASS were exceptions to the Indiana Access to Public Records Act, but Welch ordered the Secretary of State’s Office in June 2020 to give to the court the materials it had been withholding under the counterterrorism exception.

The court subsequently issued an order telling Lawson to turn the documents over to NEDC with limited redactions, and to pay attorney fees and costs.

The secretary of state — now Republican Holli Sullivan — appealed Welch’s decision, but the Court of Appeals of Indiana affirmed in a Thursday order, finding the trial court did not err in ordering the disclosure of the documents.

“The trial court found that the Secretary failed to meet its burden of showing that documents were excepted from disclosure because they are trade secrets. We agree,” Judge Margret Robb wrote.

The COA found that the secretary simply made conclusory statements that the emails at issue met each of the elements of a trade secret. It also concluded that the secretary did not designate any evidence to establish the content of the records with adequate specificity, nor in support of its assertions that NASS derives economic value from the content of the emails.

The appellate judges also noted NASS was the party that would suffer the greatest harm by disclosure of its trade secret information, and the fact that it did not intervene “strongly suggests that the information at issue does not meet the requirements for the trade secret exemption[.]”

The COA ruled similarly on the deliberative materials discretionary exception. It found that the secretary had not shown that the particular records requested by NEDC were intra-agency communications, or that they contained expressions of opinion or were speculative in nature and communicated for the purpose of decision-making.

It also agreed with the trial court on the public safety exception in Holli Sullivan, Secretary of State, in her Official Capacity v. National Election Defense Coalition, 21A-PL-349.

“Synthesizing the approaches of our sister states with our own statute and rules of statutory construction, we conclude that where a class of documents closely resembles the records listed as examples of protected documents in our public safety exception, they are more likely to fall within the exception and proof they do meet the exception need not be as detailed,” the COA wrote. “… However, regardless of the record sought, the public agency cannot simply rely on its own assessment of the documents and the likely risks and consequences of disclosure or a conclusory or speculative statement that disclosure has a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack.”

The COA agreed with the trial court that the secretary did not met its burden of showing that the majority of the withheld documents were “[i]nfrastructure records that disclose the configuration of critical systems such as voting system and voter registration system critical infrastructure,” or other records, the disclosure of which “have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack.”

Finally, the court concluded NEDC is entitled to reasonable trial and appellate attorney fees for substantially prevailing in the litigation.

The court rejected as “too broad” the secretary’s reading of Anderson v. Huntington Cnty. Bd. of Comm’rs, 983 N.E.2d 613 (Ind. Ct. App. 2013), trans. denied, in its argument that NEDC did not “substantially prevail” because the trial court found on summary judgment that NEDC’s request for records was not reasonably particular.

Thus, the appellate court remanded for the trial court to determine and award reasonable appellate attorney fees and costs to NEDC.