The Behind Closed Doors blug, in its entirety, is published below:
Hey, it's privateSo, for the record, the request is made on November 13, 2008. By the time the article is published on December 21st the documents had still not been provided. Even though Cotterill identifies hundreds of emails in response to the request, it takes him 9 weeks to conclude that ANY emails between Loftus/Grand and the Mayor are subject to the open records request.
Mayor Greg Ballard and his team have made a big deal about transparency in everything government does, pledging since they took over last year to lay open their records and their financial books.
In that vein, Ballard held the latest of his quarterly budget reviews last week and, as he has in the past, invited the public. During the campaign for mayor, Ballard had complained repeatedly that the budget process under Democrat Bart Peterson had been shrouded in secrecy.
So it was curious that on Tuesday, the city's top attorney sent an e-mail to The Indianapolis Star denying a records request for e-mails between top city officials and two attorneys from the Barnes & Thornburg law firm, Joseph Loftus and Bob Grand.
The request, sent on Nov. 13, was part of research for a Star story about
the close relationship between Ballard's administration and the firm, which includes sitting in on staff meetings and contracts to represent the city as its lobbyist and attorney.
Chris Cotterill, a former Barnes & Thornburg attorney and now the city's top attorney, said he identified hundreds of e-mails in response to the request. He said he was not able to review them before the story was published Dec. 21.Last week, Cotterill said none of the e-mails was "disclosable."On the phone, Cotterill said the decision should not be surprising considering that all communication with the firm falls under attorney-client privilege, one of the reasons state public-records law allows for a denial.
To paraphrase Rex Early, some of us were born at night, but we weren't born last night. Is there any doubt that the timing of this response by Cotterill was deliberate so that the refusal to provide the open records requests would not become a part of Brendan O'Shaughnessey's story in the Star?
Nonetheless, Cotterill is dead wrong about the law. First, under IC 5-14-3-3(b)(2), the attorney client-privilege ONLY applies to work product of attorneys who have been appointed by the public agency. Second, "work product" is defined by IC 5-14-3-2(1) as follows:
(q) "Work product of an attorney" means information compiled by an attorney in reasonable anticipation of litigation. The term includes the attorney's:Unless the City can show that Grand and Loftus were appointed to represent the City in litigation and the emails concerned "information compiled by an attorney in reasonable anticipation of litigation" the exception does not apply and the records need to be produced.
(1) notes and statements taken during interviews of prospective witnesses;
(2) legal research or records, correspondence, reports, or memoranda to the
extent that each contains the attorney's opinions, theories, or conclusions.
Further, even if City Legal were correct that the emails fall within the attorney-client work product exception (which clearly they do not), that exception is one of the discretionary open records exceptions outlined in IC 5-14-3-4(b). In other words, the City could still produce the emails if the Mayor chose to do so.
This isn't the first time the City and Barnes & Thornburg have snubbed their collective noses at the Open Records Law. With actions like this, the Mayor is tossing aside his campaign promise of open and transparent government.