By Marilyn Odendahl
The Indiana Citizen
March 28, 2024
Despite finding an “unusually high” amount of redactions on invoices from Indiana Attorney General Todd Rokita’s office do not violate the state’s open records law, the Indiana public access counselor noted the sections marked out prevent Hoosiers from seeing how their tax dollars were spent.
Luke Britt, the public access counselor, presented his findings in an opinion issued March 12 in response to a complaint filed by The Indiana Citizen and Indiana Capital Chronicle over the redacted invoices. Both news organizations said the blacked-out portions made the invoices indecipherable.
The invoices were submitted by Schaerr Jaffe, a Washington, D.C.-based law firm. It has been handling legal matters for the state attorney general’s office since 2019, but the scope of those services has broadened under Rokita to include defending him and his law license before the Indiana Supreme Court Disciplinary Commission.
The Citizen and the Capital Chronicle each submitted requests to the Indiana comptroller for the Schaerr Jaffe invoices submitted from July 2022 through July 2023. Both received copies of invoices from July 2022 through April 2023. The comptroller is the state agency that pays the bills.
When copies of the invoices were made available, only the date and dollar amount in multiple line items were visible. The description of the services provided was censored. According to Britt’s opinion, the comptroller redacted the invoices but only did so after soliciting input from the attorney general before the redactions were made.
“We do not fault the Comptroller for exercising caution on behalf of the OAG,” Britt wrote, referencing the office of the attorney general. “Nonetheless, input from the OAG should have been consistent with the basic tenets of transparency and good governance.”
Britt noted he had access only to the redacted invoices when writing his opinion. As a result, he said he could not conclusively determine if the redactions complied with state law.
“It is my recommendation, however, that the OAG revisit these materials and potentially redact the invoices with a much lighter touch so that the documentation is objectively readable,” Britt wrote.
When asked for clarification as to how much redacting it recommended to the comptroller and why the office wanted to mark out parts of the invoices, the attorney general’s office did not respond. However, the office did reply to the question of whether it would be providing less-redacted invoices, saying the public access counselor’s opinion does not require it to release the invoices.
Zachary Baiel, president of the Indiana Coalition for Open Government, said the redactions in the Schaerr Jaffe invoices are heavier than what he had typically seen. The descriptions of work performed should have been left on the invoices, he said, so the public could have known not only how their tax dollars were being spent but also where the attorney general’s office is expending its time and attention.
“To deny the entirety of the line-item description on an invoice is absurd,” Baiel said. “It mocks the very nature of the Access to Public Records Act.”
Redactions make invoices ‘largely moot’
Britt pointed out in his opinion that confidential communications between an attorney and a client are protected as privileged under Indiana law but the term “communications” is nuanced and the question here is whether the redacted information in the attorney general’s legal bills was confidential. Even though legal invoices can contain privileged information, the primary purpose of the bill, Britt said, is to demand payment.
“To the extent privileged information makes its way onto a bill as a vehicle for communication, the why and how of communication is privileged,” Britt said, “but not always necessarily the what, when, where, and who.”
The invoices requested by the Citizen and Capital Chronicle covered the period of time when Schaerr Jaffe would have been handling several matters related to Dr. Caitlin Bernard, the Indianapolis OB/GYN. In the summer of 2022, The Indianapolis Star reported that Bernard had performed a medication abortion on a 10-year-old rape victim from Ohio. Rokita publicly denounced the physician and revealed in television interviews and on social media that his office was investigating her.
In November 2022, Bernard and her colleague, Dr. Amy Caldwell, an OB/GYN, sued Rokita in Marion County Superior Court, claiming that without judicial intervention, the attorney general would “continue to unlawfully harass physicians and patients who are engaged in completely legal conduct.”
A short time later, Rokita filed a complaint against Bernard with the Medical Licensing Board of Indiana. Also, he faced his own disciplinary complaint alleging misconduct in his handling of the Bernard investigation.
The invoices that Schaerr Jaffe submitted during these months would likely have covered the work the law firm did defending the attorney general’s office against Bernard’s lawsuit, helping to prosecute Bernard before the medical licensing board and representing Rokita before the disciplinary commission.
Yet, determining what actual work the law firm was billing for was impossible since the descriptions of the work had been blacked out on the invoices.
In response to a request from the Capital Chronicle for an explanation, the comptroller pointed to the Indiana code to justify the redactions. The agency cited to statutes establishing that communications between attorneys and clients are confidential and giving the public agency discretion in disclosing the work product of an attorney.
Subsequently, the news organizations filed a joint complaint with the public access counselor in November 2023. The complaint noted the invoices were “largely moot,” because the heavy redactions obscure the matter or case for which the law firm is billing.
“We respect attorney-client privilege, but the public deserves to know what taxpayer dollars are being used on each specific matter,” the complaint stated. “The overuse of redactions makes that impossible, as does the way the invoices are filed.”
Britt said that in a previous dispute the counselor’s office was “highly critical” of the redaction of an entirety of an invoice that left just the firm’s letterhead and a “few random de-contextualized numbers.”
Here, the Schaerr Jaffe invoices present a similar situation, Britt said in the opinion. The public cannot know if its money was put to good use because the descriptions are obscured, but, he said, taxpayers have gotten a bit more information when legal invoices released from other agencies did not redact the general descriptions such as “review and revise draft agreement;” “attend meeting;” and “conference with client.”
“These details do not lay bare any sensitive information, yet provide assurances that the work was being performed in a tangible way,” Britt said.
APRA request for additional invoices
The Indiana Citizen filed an Indiana Access to Public Records Act letter with the attorney general’s office in October 2023, asking for the Schaerr Jaffe invoices from July 2022 through October 2023.
Since acknowledging the request, the attorney general’s office has not provided any invoices. The Citizen asked for an update in January and the office pointed to a public access counselor’s 2018 opinion that examined the “reasonable time” state statute gives state agencies and public officials to respond to records’ requests.
When asked to provide another update on the status of fulfilling the APRA request, the press office initially said no request had been filed. Then provided with a copy of the acknowledgement letter, the office replied, “Your request is still under review. Our advisory team says they hopefully will have something soon on it.”
The bulk of the work that Schaerr Jaffe was charging for during that time period would likely have been for representing Rokita in the disciplinary matter.
Rokita reached a conditional agreement with the Indiana Supreme Court Disciplinary Commission that called for one of the three charges to be dropped in exchange for him receiving a reprimand. A narrow 3-2 majority on the Indiana Supreme Court adopted the agreement and recommended punishment in the form of a public reprimand of Rokita in its November 2023 order.
Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.
