Thursday, September 3, 2009

Trouble Ahead For Open Records Advocates?; Appointment of Barnes & Thornburg Attorney Andrew J. Kossack As Public Access Counselor

There is probably nothing in government I believe more in than open government, including open records. Like-minded friends have expressed great disappointment in the tenure of Heather Willis Neal and were wanting her gone from her post as Public Access Counselor. I've written about it on my blog. Neal too often seemed eager to offer excuses for agency non-compliance with open records laws, even when records could produced within minutes. Most open records advocates were hoping for a stronger PAC, someone who would enforce the law strictly and not repeatedly cut agencies the slack Neal was continuing to do.

We may dearly regret wishing Neal be replaced. The situation may have gotten worse.

Announced yesterday, Governor Daniels new appointment as Public Access Counselor is Andrew J. Cossack, a labor and employment lawyer at Barnes & Thornburg. B&T immediately took action, taking down Cossack's bio from their website. Barnes & Thornburg, of course, is the most politically connected law firm in town and represents numerous government entities as well as private companies contracting with government entities, which private companies are also subject to Indiana Open Records law.

One hopes that Cossack will do his job and not be influenced by his former ties to Barnes & Thornburg. One has to wonder, however. There is probably no major law firm in the state that is more non-compliant with the open records law (on behalf of their government and government contractor clients) than Barnes & Thornburg. It does not matter that the PAC has already established precedent requiring the open records be produced. B&T still won't produce the documents.

Months ago, I asked for invoices and other documentation from Corrections Corporation of American (CCA), which runs Marion County Jail #2, about how much in attorney's fees CCA had paid Barnes & Thornburg. The request stemmed from a mysterious $225,000 or so that the Marion County Sheriff had asked the Council to move from one account to another in order to pay CCA for things that were not at all owed to CCA under its contract. My guess is that money went to CCA and then into the pockets of CCA's attorneys, Barnes & Thornburg.

Barnes & Thornburg, on behalf of CCA, adamantly refused to produce the requested documentation, ironically documentation that could have proved I was wrong with where the money ended up. However, the information I had requested was exactly the same information good government activist Diana Vice had asked for from another another private contractor, also represented by Barnes & Thornburg. Heather Willis Neal had issued an opinion in that case that the information had to be turned over. Despite that opinion, Barnes & Thornburg (in fact Kossack's section of Barnes & Thornburg) still balked at producing the requested document.

Anyone who thinks politics did not play into some of Neal's open records decisions should know that Neal has simply sat on my request for months, never ruling, despite the fact that she had issued a ruling just months earlier on an identical request, finding in favor of the person seeking the records.

While the some times politicization of the office of Public Access Counselor with Heather Willis Neal was troubling, the appointment of Andrew Cossack, of the politically connected law firm, Barnes & Thornburg, has to ring alarm bells. Those of us committed to investigating and uprooting political corruption and influence peddling desperately need to be able to obtain public records without interference from agencies and private contractors that want to cover up wrongdoing. We have to hope that Governor Daniels has not appointed the proverbial fox to guard the hen house.


jabberdoodle said...

Councillor Ed Coleman has introduced Prop 303 to the Council. If passed, it would require that all City & County contracts be published on within 7 days of signing of the contract.

This has been assigned to the Rules Committee which next meets on September 29.

All those who value public access should support Prop. 303.

rose411 said...

I agree with you wholeheartedly on your opinion. My personal experience with this law firm coincides with your conclusions. I recently lost a case where the Barns and Thornburg firm represented a high powered Indianapolis Corporation. This was a case that I should have won hands down but, due to obvious political favoritism with the firm, I lost.

This is nothing more than “Good Ole' Boy” politics at its best. Thank you for bringing this issue to the forefront of discussion. Nothing would pleasure me more than to see this law firm and its lawyers be forced to play on a level playing field. Sadly, I don't think it is possible, as this steam engine is one power house that can't seem to be stopped.

Paul K. Ogden said...

Rose, B&T sells political influence. The quality of the firm's legal work is a secondary consideration, at best. Companies don't hire the firm because they are wanting outstanding legal work. They hire the firm because they want the political influence the firm has.

Diana Vice said...

Absolutely true, Paul. It's exactly why the AEPA no-bid scheme went on as long as it did...the players hired the right law firm and the politicians looked the other way. It took citizens demanding accountability for years to get it stopped.