Tuesday, July 19, 2011

Public Access Counselor Continues Practice That Favors Government Agencies Over Private Citizens; Are Government Attorneys Engaging in Prohibited Ex Parte Communication with PAC?

Recently Pat Andrews asked for open records relating to Keystone Construction and partners' winning bid to build and run the Broad Ripple Parking Garage, a deal which will cost the taxpayers about $6 million for which they no ownership and no revenue.  The City responded with the claim that the information was protected from disclosure because it supposedly is a "trade secret"

Indiana Public Access Counselor Andrew Kossack
The information Pat asked for was the same information the City was willing to provide on the losing bids. The City also said that it would provide the information with respect to Keystone after the deal was finalized.  The response completely belied the City's claim that the information requested is some sort of trade secret.

Pat decided to take the refusal of the City to provide the documents to the Indiana Public Access Counselor.  I wasn't too keen on going to the PAC.  The PAC has a long history of siding with government against citizen and media requests for information.  The current PAC is Andrew Kossack, a former Barnes and Thornburg attorney.  Barnes represents scores of governmental entities and is renowned for getting their attorneys appointed to positions in which they can protect the firm's clients.   We all hoped Kossack would be different from his predecessor Heather Willis Neal, who consistently failed to support open government.  Kossack though has proven to be as bad as his predecessor.

The biggest problem with the PAC is how the office handles open records complaints. The typical practice in government is that when you receive a consumer complaint about someone you regulate, you ask for a response from the regulated party.  Then when you have that response you show it to the original complainant. This allows for rebuttal and the complainant to point out any facts that allegedly aren't true in the response.

This Complaint-Response-Reply procedure is a practice that is used throughout state government.  It is used in state and federal court.  It is NOT used by the Indiana's PAC.

The practice of the PAC under Willis Neal and Kossack is to submit the complaint to the government agency and get a response.  The PAC doesnt't share the response with the original complainant.  Instead the PAC writes an opinion, assuming that what the government agency said is 100% true.  Of course this procedure greatly favors the government agency. Apparently that is completely fine with Willis Neal and Kossack.  That flawed procedure was once again followed by Kossack in his denial of Pat Andrews' request for information on the Broad Ripple Parking garage.

An additional note.  Attorneys are very cognizant of their ethical obligation to send the opposing parties copies of any communication with a government official deciding a matter in which their client is a party.  Yet when it comes to the PAC, attorneys representing government agencies often don't send their response to the other side?  Why? They know the PAC doesn't follow the normal Complaint-Response-Reply process and will issue a ruling based simply on the agency's response.  If the attorney sends the complainant the response, the information the agency is giving can be contradicted.  It is clear the only reason for the attorney to engage in ex parte communication with the PAC is to gain an advantage in the case before the PAC.

The Indiana Supreme Court needs to take a good hard look at the practice of the government agency attorneys engaging in ex parte communication with the PAC is a violation of Rule 3.5 of the Indiana Rules of Professional Conduct.  That rule would seem to prohibit ex parte communication with the PAC during the consideration of the open records complaint.    Also, Mr. Kossack might be violating ethical rules as well since he is a willing party to the ex parte communication with the government agency's attorney.  His practice of not making the the agency attorney's response available to the original complainant could well be deemed his participation in ex parte communication in violation of the ethical rules.


Cato said...

"The Indiana Supreme Court needs to take a good hard look at the practice of the government agency attorneys engaging in ex parte communication with the PAC..."

Oh, blah. The Indiana Supreme Court is more likely to investigate you for complaining about it.

They'll say something like it's an advisory, not adversarial proceeding, so adversarial rules don't apply, and they'll skewer you for impugning the character of something or other.

You're still fuzzy on the purpose of Indiana government. Get the hell out of here while you're still young enough to have a good life somewhere else.

Had Enough Indy? said...

Yes Paul, the PAC decision is disappointing for public access in Indiana. Its hard enough to get sunshine laws through the legislature. Too bad the PAC, through the Governor's choice in appointees, is more of a closed records advocate, than an advocate for the public who wants to know what the government is doing.

Paul K. Ogden said...


You have a point. Attorneys should not be punished for exercising their free speech rights. We have so much ethical problems out there in the legal profession. It would be good to concentrate on those problems rather than the messenger.

Bradley said...

This guy is a joke as PAC. I had a friend who worked for the state -- she asked to see her personnel file, because as you know Paul, public employees can ask to see them just as if it was a public document. According to the open door laws, whatever agency or organization it is has to provide that person the file. The state agency refused to allow her to see and make copies of the file. She waited the requisite time needed to give the agency time and filed a complaint with the PAC. The agency waited almost 40 days before they finally allowed her to see the personnel file. The PAC ruled there was no violation because the agency eventually provided the document.

The law doesn't say "if they eventually let you see it, it's okay even if it's beyond the statutorily-required time period!", but apparently he can't read; or, as you suggest and probably is more likely, he does what he is told by the government agencies and their lawyers.

Why not? The UI Review Board and the State Employee's Appeals Commission (out of 2 I know of) more-than-likely engage in ex parte communication. If no one's going to do a damn thing about it, we deserve the government we get.

Paul K. Ogden said...


You have an absolute right to see your personnel file as a state employee or as a former state employee. I don't know why he wouldn't have pointed that out. Waiting 40 days to produce a state personnel file that should have been produced in 5 minutes is inexcusable.

Cato said...

Paul, again, it isn't what's in the law that's the law. It's what they let you do that's the law.

Continually pointing at the Indiana Code as if it means something just means that you don't get it.

The Indiana Code is for them, not you. When they need something, they'll cite the Code. When you need something, you'll just get bounced out on your ear, with any explanation they think is good enough.

Bradley said...

Paul gets it Cato, and he's right. You are absolutely right, too, but thankfully Paul at least puts it out there on his blog for us to all see. Maybe someday others will wake-up, see it the way you do (and Paul does), and say "not any more". I'm not holding my breath, but we can at least try for it.

Paul -- I said the exact same thing when my friend got that decision from Kossack. We know it's wrong, which either makes him incompetent or a crook. Both are allowed to happen, unfortunately.

Thank you for exposing the PAC's questionable activities among so many other things on your blog.

Diana Vice said...

The PAC's flawed opinions should be challenged in court. Maybe when a majority of his opinions get overturned in a real court of law, he'll stop the unfair and unethical practice of turning a blind eye.

Paul K. Ogden said...
This comment has been removed by the author.
Paul K. Ogden said...


The PAC should be bypassed entirely. I know that means you'll probably give up the right to attorney's fees, but the problem is once the PAC issues an opinion, a lot of judges will accord it great and undue deference because the Courts don't routinely handle open records complaints like the PAC does.