Sunday, January 25, 2009

City Legal Refuses to Comply With Indiana's Open Records Law

Reported in Behind Closed Doors today is a blurb about the head of City Legal, Chris Cotterill, himself a former Barnes & Thornburg attorney, refusing the Indianapolis Star's open records request for emails between Barnes & Thornburg partners, Bob Grand and Joe Loftus, and the Mayor. The request was made on November 13, 2008. The article was published on December 21, 2008.

The Behind Closed Doors blug, in its entirety, is published below:

Hey, it's private

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.

So, 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.

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:
(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.
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.

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.



I talked to Robert Vane (Ballard's press secretary) yesterday at the Luau. He wants to sit down and talk with us (activists that fought to elect Ballard) point by point, about the problems we have with the CIB and Barnes & Thornburg, and lack of the promised open accountable government.

Robert Vane believes that there is likely acceptable reason for some of it and agreed that other issues need to be discussed directly with Mayor Ballard.

He also said that he recently met with Gary Welsh of Advance Indiana.

We need to put this meeting together sooner than later.

And as far as I am concerned, ANY document that comes out of city hall is to be made available to the public upon demand. Those records belong to THE PEOPLE!

Anonymous said...

There are no acceptable reasons for keeping public records hidden. Be wary of spin meisters, and don't pay heed to criticism like, "You're not a team player;" "You're a loose cannon," etc... It's nothing more than a manipulation tactic. These people have damage to control, and their goal is to stifle the criticism, which means they must silence the critics. It's obvious their tactic of trying to kill the messenger isn't working, so the next step is to play nice and pretend to be your friend. Do not stop demanding accountability. These people work for the taxpayers, which means they answer to taxpayers.

Barnes & Thornburg is making a small fortune off taxpayers, but they don't like being held accountable for their actions. Well, too bad for them. Hold them accountable.

Paul K. Ogden said...

Thanks, Anon. I've seen all the tricks they pull. That's one of the few good things that come from getting older. Sort of makes up for the aches and pains.

Melyssa, I have no problem meeting but there are no acceptable reasons for B&T partners, Grand and Loftus sitting in on weekly meetings. They is no acceptable reason for them using their positions to benefit themselves and their law firm at the expense of the Mayor's political future and the Republican majority council.

Unless there is some chance Grand and Loftus are willing to back off their domination of the Mayor's Office and the Council, I'm not sure any meeting is going to be anything more than a waste of time. If there is a chance of change on their part, I think a meeting would be productive. I just don't see any effort whatsoever to curb the behavior, despite a plethora of criticism from REPUBLICANS. The Mayor's "Diversity Awards" where Ballard put Grand on the committee selecting the winners and Grand selected B&T and three B&T clients as winners of the five awards is yet more evidence that they have no intention of changing how they operate.

I totally agree with you on open records, Melyssa, but the denial of the records has become standard operating procedure for the City and for B&T. This kind of thing continues to go on. This secrecy nonsense and covering stuff (i.e. lack of transparency and openness in government)is what we complained of with Peterson. Ballard has promised to be different.

Anonymous said...

Of course Robert Vane wants to sit down and talk; well, mainly listen--to take it all back to B&T so they'll know who to HARRASS!

Don't waste your time with Vane, he can't make any changes. He's cute and sweet as can be, but has no power; just a job he's required to perform.

Anonymous said...

Give me a break! Sounds like sour grapes, and whoever Anon 4:15 is, don't want the truth to come out.

Yes meet with them, why not? I remember Ice Miller law firm and Bakers and Daniels running the show for Peterson with Atty. Lacy Johnson chair of the Airport Authority and a key advisor.

Where were you then? It appears there is a fight behind the scenes amongst law firms wanting to do business with the city promoting this controversy.

If I recall, nobody wanted ro support Greg Ballard when he ran because he was not a political insider. Other prominent republican feared Peterson and his $3 million was chest but appeared sick on election night when he won.

The people voted for Ballard and the people will reelect him.

In a tight economy they must be hurting for business. Tom John, county chair joined Ice Miller and other prominent republicans work for Bakers and Daniels. Are they the ones stirring up this mess? The truth will come out in the end.

Paul K. Ogden said...

Anon 5:04 a.m., well I've been accused of a lot of things, but never that I was working for Tom John and Ice Miller. As I recall, I have been very critical of Tom John.

Anon 5:04 a.m. is yet another person who refuses to address the problems raised and instead tries to discredit the messenger. So let me ask again. Why aren't the records being disclosed? Try answering that question.

Anonymous said...

The America-hating Heather Neal takes orders well and will issue a prejudicial opinion against the party seeking records.

The GOP is a bad party that hates freedom.


I doubt activists are worried about being harassed by B & T. If so, we would not sign our names to our opinions and blog in the sunshine.

Also, Robert isn't going to be hearing anything that we don't call out publicly on the blogs anyway. I even told him I didn't see the point since it is all published.

I hope one day the anonymous posters realize that they need not fear the elites. Can't you see? They fear THE PEOPLE!

Remember how I used to say I could smell the fear on Peterson? It's true. They are now on the defensive and they'll be kept there. If they dare lash out at a citizen, the court of public opinion will have a field day with it.

More of you should sign your names to your opinions. We can track where you come from on our web stats anyway.

We see when Ice Miller and the city are on our websites. Heck, I even caught someone from a Congressional office in DC harassing me on the HFFT blog (they thought they were anonymous).

The more people step forward in name to protest and correct these outrages against the taxpayers, the faster we'll get change made.

In the meantime, be sure to tune in here everyday. I am quite sure Paul will not quit until he's at the bottom of it.

And Paul? I think Abdul might be afraid he'll piss his elite drinking buddies off if he has you on his show. Read the comments on his blog under the "Illuminati" post.