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In separate motions for summary judgment, the parties in the lawsuit about Indiana Attorney General Todd Rokita’s previous job in the private sector are arguing over whether the Office of Inspector General has the authority to shield its reports from public review.
The lawsuit — Barbara Tully v. Theodore (“Todd”) Rokita, in his official capacity as Indiana Attorney General, 49D06-2107-PL-025333 — is seeking an “informal advisory opinion” that the inspector general issued in January 2021. Reportedly, the opinion examined Rokita’s continued employment as an adviser to Apex Benefits while he was starting his first term at attorney general.
Rokita’s office referenced the opinion in a Feb. 16, 2021, article published in Indianapolis Business Journal. The office said the inspector general determined the attorney general’s “interests and outside employment are all squarely within the boundaries of the law and do not conflict with his official duties.”
The attorney general resigned from his position in the company in March 2021.
When Barbara Tully, a private citizen, asked to see the advisory opinion, the Attorney General’s Office claimed it was confidential.
Rokita’s office had tried to get the case dismissed in October 2021. The memorandum in support of the motion argued, in part, that the inspector general’s opinion was an “intra-agency or interagency advisory or deliberative material” that could be exempted from the Indiana Access to Public Records Act.
After the Marion Superior Court denied the attorney general’s request, Tully filed a motion for summary judgment.
Rokita is relying on 42 Indiana Administrative Code 1-8-1(b). That rule allows the inspector general to issue informal advisory opinions that can be used for deliberation and decision making and “shall be considered to be confidential under (Indiana Code section) 5-14-3-4(b)(6).”
Tully argued in her motion for summary judgment that the statute establishing the Office of Inspector General does not give “specific authority” to the agency to classify informal advisory opinions as confidential material.
“… (T)he statute that created the OIG and defines its responsibilities and authority did not expressly give the OIG the power to create a category of ethics opinion unknown to statute and to declare such ‘informal’ opinions by rule exempt from disclosure despite APRA’s public policy of governmental transparency,” Tully’s motion asserted. “Only the Legislature, not an administrative agency, may authorize exceptions to APRA’s transparency requirements.”
Rokita’s response, filed in September, included a cross-motion for summary judgment.
The attorney general argued Rule 8 of the code of ethics falls within the scope of the inspector general’s statutory authority to implement the code of ethics for state government. Key to the inspector general’s advising state employees on ethical matters through informal opinions is confidentiality, he argued, because privacy “facilitates openness and (encourages) state actors to seek advice.”
In addition, Rokita asserted the statute creating the Office of Inspector General does not expressly prohibit the office from promulgating a rule that makes informal advice confidential.
The inspector general’s informal advisory opinion rule is consistent with the state’s public records act’s discretionary exemption, which allows public agencies to decide whether to disclose reports that fall within the exemption, Rokita’s motion argued. “That Indiana Code chapter 4-2-7 does not render informal advisory opinions ‘confidential’ means only that disclosure of those opinions is not forbidden.”
In her reply brief filed Wednesday, Tully countered that nothing in state statute authorizes the Office of Inspector General “to simply declare, by rule, that certain ‘informal’ but final written ethics opinions are exempt from disclosure.”
Tully noted I.C. 4-2-7-2(e) does hold that the inspector general’s investigative reports and records that identify an informant are confidential, but it does not include any language about informal advisory opinions or specifically authorize the office to make a rule limiting public disclosure.
“Rokita argues that the lack of express authority in the (Office of Inspector General’s) enabling statute doesn’t matter because that statute ‘does not prohibit the [OIG] from rendering confidential advice by rule,’” Tully asserted in her brief. “But section 4(a)(2) of APRA requires more than mere implicit authority. If the OIG wishes to promulgate a rule declaring a certain type of public record exempt from disclosure it must demonstrate that its enabling statute gives that agency ‘specific authority’ to do so.”
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