Call to stay out of records fight disappointing

Indiana Attorney General Greg Zoeller’s recent decision not to support a legal challenge to Indiana lawmakers’ secrecy is all the more disappointing because it is a departure from an otherwise solid record on matters of public access.

Zoeller declined to issue an opinion, saying it would require his office to take a legal position in opposition to its own client — state government. He had been asked to weigh in on the matter by the government watchdog group Common Cause Indiana, which along with the Citizens Action Coalition and the Energy and Policy Institute filed a lawsuit against the Indiana House Republican Caucus and Rep. Eric Koch, R-Bedford, alleging they violated the Indiana Access to Public Records Act by not providing access to lawmaker emails.

The House has said the public records laws do not apply to it, despite an opinion from the Indiana Public Access Counselor that says the General Assembly should follow the state’s APRA.

Given the attorney general’s record on the issue of transparency in public records, Common Cause’s request isn’t surprising.

Just last month, Zoeller filed an amicus brief supporting ESPN’s argument that the University of Notre Dame should be required to release specific information from its campus police reports. The sports network sued Notre Dame after the university denied access to police reports related to student-athletes.

Indiana statute allows but doesn’t require the attorney general to file such briefs. It seems clear that Zoeller added the weight of his office to this legal battle to support, in his words, the concept that “all persons are entitled to full and complete information regarding the affairs of government.”

It was hardly the first time we took note of Zoeller’s defense of the public’s right to know. In 2012, he intervened when lawyers at the Department of Child Services tried to restrain The South Bend Tribune from publishing an article, transcript and tape recording detailing a desperate call the DCS hotline received from a neighbor of 10-year-old Tramelle Sturgis’ family six months before the South Bend boy was tortured and murdered by his father.

The DCS appeal led to The Tribune being temporarily forbidden from publishing its story. Zoeller stepped in, overruled DCS lawyers and moved to dismiss the appeal, allowing this newspaper to post and publish the information. He later publicly apologized to The Tribune for the matter — even though it wasn’t Zoeller’s office that precipitated the situation.

Earlier this month, in explaining his position not to take a legal position on the issue of legislative secrecy, Zoeller pointed to the separation of powers. Positioning his office with Common Cause would mean opposing its client, state government. The fact that the legislature has hired outside counsel — at taxpayer expense — in its fight to keep out the public doesn’t end his office’s obligation “to not act in our law client’s legal interest,” he wrote.

By declining to support the legal challenge to legislative opacity, Zoeller is definitely providing excellent service to lawmakers who wish to keep the public’s business private. Less certain is who will step forward to defend the public’s right to the “full and complete information regarding affairs of the government.”

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