Sullivan v. Nat'l Election Def. Coal.

• Decision Date: 20 January 2022
• Docket Number: Court of Appeals Case No. 21A-PL-349
• Citation: 182 N.E.3d 859
• Parties: Holli SULLIVAN, Secretary of State, in her Official Capacity, Appellant-Defendant, v. NATIONAL ELECTION DEFENSE COALITION, Appellee-Plaintiff
• Court: Indiana Appellate Court

182 N.E.3d 859

Holli SULLIVAN, Secretary of State, in her Official Capacity, Appellant-Defendant,

v.NATIONAL ELECTION DEFENSE COALITION, Appellee-Plaintiff,

Court of Appeals Case No. 21A-PL-349

Court of Appeals of Indiana.

FILED January 20, 2022

Attorneys for Appellant: Theodore E. Rokita, Attorney General of Indiana, Natalie F. Weiss, Deputy Attorney General, Indianapolis, Indiana

Attorneys for Appellee: William R. Groth, David T. Vlink, Vlink Law Firm, LLC, Indianapolis, Indiana

Robb, Judge.

Case Summary and Issues

[1] The National Election Defense Coalition ("NEDC") requested access to public records regarding election security from the office of the Indiana Secretary of State ("Secretary"). The Secretary withheld certain emails and attachments as exceptions to the Indiana Access to Public Records Act ("APRA"). NEDC then filed a complaint against the Secretary for unlawfully denying access to the records. The Secretary now appeals the trial court's determination that the Secretary failed to demonstrate the withheld records were excepted from disclosure, and also appeals the trial court's award of attorney's fees to NEDC. Concluding the trial court did not err in ordering the Secretary to disclose documents for which it had not proven an exception applied and that NEDC is entitled to reasonable trial and appellate attorney's fees for substantially prevailing in this litigation, we affirm and remand for the trial court to award a reasonable appellate attorney's fee.

Facts and Procedural History

[2] In 2017-18, then-Secretary of State Connie Lawson was president of the National Association of Secretaries of State ("NASS"). In that role, Lawson made various public statements about the security and trustworthiness of voting systems in the United States.

[3] On September 13, 2018, NEDC requested from the Secretary's office records of correspondence between the Secretary and NASS. NEDC sought information about the origins of the Secretary's public statements related to her position in NASS and asked for copies of correspondence between the Secretary's office and NASS from May 1, 2017 to present. Several rounds of correspondence between counsel for NEDC and Jerold Bonnet, General Counsel to the Secretary, ensued.

[4] Bonnet objected to the specificity and particularity of NEDC's request even after NEDC narrowed its search parameters and asserted that in the Secretary's view, "its communications with [NASS] are (generally) not available for public inspection[.]" Appellant's Appendix, Volume 2 at 98. Bonnet claimed the requested records were excepted from public disclosure by a) copyright and trade secrets protection; b) the discretion of the agency with respect to deliberative materials; and c) public safety concerns. Unsatisfied with the Secretary's response and the content of the records the Secretary did produce which "did not contain a single email message between the Secretary's office and NASS[,]" id. at 95, NEDC filed a complaint with the Indiana Public Access Counselor ("PAC") in early 2019.

[5] On April 11, NEDC received an advisory opinion from the PAC. The opinion notes several times that without reviewing the materials in question, the PAC was unable to make a final determination of whether any exceptions apply but concludes:

[T]his office declines to issue a definitive declaration on the issue of timeliness [of the Secretary's response] in this case. While five months is normally much too long to produce documents pursuant to a request, the request itself did not meet reasonable standards [of specificity].

The [Secretary] has, however, carried its burden ... that some, if not all, of the cited exemptions to disclosure could possibly apply to the withheld materials. As always, without in camera review, this determination is solely on the merits of its legal arguments but not necessarily on any unknown underlying facts.

Id. at 65.

[6] On June 20, NEDC filed a complaint in Marion Superior Court alleging the Secretary had "unlawfully den[ied] access to public records regarding the reliability and security of voting machines" in violation of APRA. Id. at 14. NEDC alleged in Count I of its complaint that the Secretary unlawfully denied or interfered with NEDC's right to inspect records and in Count II that the Secretary unreasonably delayed in providing access to records. NEDC requested the trial court order the Secretary to produce all responsive and non-excepted documents and a log of all documents being withheld or redacted pursuant to a statutory exception; perform an in camera review of information allegedly excepted from disclosure by an APRA exception and determine whether the documents have been properly withheld or redacted; and award attorney's fees as provided by APRA.

[7] NEDC subsequently moved for summary judgment in its favor. The Secretary opposed NEDC's motion and filed its own cross-motion for summary judgment with an accompanying memorandum but without designating any evidence in support of its motion. The trial court summarized the motions at issue as follows:

[NEDC] seeks summary judgment on Count I and Count II of its Complaint: denial of right to inspect records in violation of APRA and unreasonable delay in providing records in violation of APRA, respectively. In addition, [NEDC] asks the Court to declare that [the Secretary] violated APRA, award reasonable attorney's fees and costs, and grant any other relief deemed necessary to effectuate the public transparency purposes underlying APRA. In the alternative, [NEDC] requests the Court grant partial summary judgment in [its] favor on [the Secretary's] Cross-Motion for Summary Judgment holding that the copyright notice in NASS email messages does not render them exempt from disclosure under Ind. Code § 5-14-3-4(a)(3) as a matter of law and that [NEDC] should be granted summary judgment on the trade secrets exemption^[1] because that must be raised by NASS not the Secretary.

[The Secretary] responded by filing a Cross-Motion for Summary Judgment, arguing she is entitled to summary judgment because the Office properly withheld documents from [NEDC's] APRA request under appropriate exemptions. [The Secretary] also asks the Court deny [NEDC's] Motion for Summary Judgment. [NEDC] responds by further requesting that, as to the [public safety] exception and wherever else the Court deems appropriate, the Court review the withheld records in camera under Ind. Code § 5-14-3-9(h).

Id. at 185.²

[8] In a lengthy and thorough order ("Summary Judgment Order"), the trial court determined:

• NEDC's requests do not meet the "reasonable particularity" standard because the "search terms provided in the narrowed request remain overly broad when looking at the overall context of the request" and therefore NEDC's motion for summary judgment on the issue of reasonable particularity was denied, id. at 190-91;

• Because NEDC's requests were not reasonably particular, the question of whether the Secretary responded in a reasonable time was moot and therefore NEDC's motion for summary judgment on timeliness was denied, id. at 191;

• Because NEDC did not substantially prevail on its motion for summary judgment, NEDC's motion for attorney's fees and costs was denied, id. at 192;

• The Secretary failed to meet the burden of proof for withholding documents pursuant to the public safety exception and therefore, the Secretary's cross-motion for summary judgment that documents were properly withheld under the public safety exception was denied and NEDC's request for the court to conduct an in camera review of the documents the Secretary claimed were subject to this exception was granted, id. at 195-96;

• The Secretary failed to prove that documents exchanged with NASS were subject to the deliberative materials exception and therefore, the Secretary's cross-motion for summary judgment that documents were properly withheld under the intra-agency or interagency deliberative materials exception was denied, id. at 197-98; and

• The Secretary failed to prove that documents were properly withheld under the trade secrets or copyright exceptions and therefore the Secretary's cross-motion for summary judgment that documents were properly withheld under those exceptions was denied, id. at 201, 204; further, because the copyright and trade secrets exceptions "must be raised by the proper party, NASS[,]" NEDC's partial motion for summary judgment on the Secretary's cross-motion for summary judgment was granted on those issues, id. at 204.

In sum,

The Court hereby denies [NEDC's] Motion for Summary Judgment on Counts I and II of [its] Complaint, and further denies [NEDC's] request for attorney's fees and costs. The Court hereby denies [the Secretary's] Cross-Motion for Summary Judgment for documents being properly withheld under APRA exemptions under the [public safety] exemption and under the intra-agency/interagency ... deliberative materials exemption, and under the trade secrets and copyright exemptions. The Court hereby grants [NEDC's] request that partial summary judgment be entered on [the Secretary's] Cross-Motion for Summary Judgment on the trade secrets and copyright exemptions. The Court further grants [NEDC's] request to conduct an in camera review of the documents wherein the Secretary claims an exemption applies under [the public safety exception]. The [Secretary] shall submit said records to the Court within 15 days of the issuance of this order under seal as permitted under Indiana law.

Id. at 204-05.

[9] As ordered, the Secretary provided for in camera review the documents it designated as confidential because alone or read in conjunction with other documents, they might disclose sensitive operational and security protocol for elections. The Secretary also asked "to be heard on any particular issue before any disclosure of the documents." Transcript of Evidence, Volume II at 5. Accordingly, the trial court held a hearing at which the Secretary requested that, if the trial court felt the...