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.