When the Indiana Family and Social Services Administration argued to the Indiana Supreme Court on Dec. 12 that a white paper submitted to the agency as part of a Medicaid settlement negotiation was not subject to public disclosure, the justices appeared skeptical, saying FSSA’s interpretation of the exemption provision was so broad it would swallow the statute.

In FSSA v. Robert E. Saint, 23A-MI-02742, the state agency asserted the white paper was exempt under the deliberation-material exception of Indiana’s Access to Public Records Act. The document was created by HealthNet’s legal counsel in a dispute over a reimbursement of nearly $4.6 million in Medicaid supplemental wraparound payments that the private health-care provider believed it was owed. FSSA has described the white paper as a “memorandum outlining HealthNet’s legal position for settlement purposes” and said it was “used and considered” when the agency was deciding whether to settle a whistleblower case.

“This document is subject to withholding because it’s an opinion document that’s advising the agency about how to decide a matter … in which both entities have a contract,” Benjamin Jones, who is the assistant section chief of civil appeals in the Indiana Attorney General’s office and is representing FSSA, told the Supreme Court.

However, Saint, an Indianapolis attorney representing himself in this case, countered the FSSA has not shown the white paper was part of the deliberative process or that its disclosure could harm the agency’s decision making. Although he acknowledged allowing state government employees to have free discussions and deliberations when making decisions is good public policy, Saint stated the white paper was submitted by a third party, HealthNet, to explain why it wanted the Medicaid reimbursement.

“I simply asked FSSA … for a white paper that had been prepared by a third party, a health-care provider who was seeking Medicaid benefits,” Saint said during oral arguments. “I did not ask for any deliberations. I did not ask for how the white paper was being considered by FSSA. I didn’t ask for any internal communications, just the white paper from the moment it left (the HealthNet attorney’s) office.”

The white paper was connected to two whistleblower lawsuits in which Saint was representing the plaintiffs. His clients eventually settled their cases, but Saint continued to pursue the document “as a member of the public.”

In September 2023, the Marion County Superior Court ordered FSSA to release the white paper. A split Court of Appeals of Indiana affirmed the order in June 2024, finding the deliberative-material exception in APRA did not apply because the document was “communicated by a private healthcare provider to a state agency.”

The Indiana Supreme Court did not grant transfer but asked to hear oral arguments in the case. Now the high court can accept transfer and file an opinion or deny transfer and let the Court of Appeals’ opinion stand.

Justice Geoffrey Slaughter was not present at the oral arguments.

Clarity sought on exemption provision

Jones urged the justices to take the case and issue a ruling that provides clarity on APRA’s provision in Indiana Code section 5-14-3-4(b)(6), which exempts from disclosure “records that are intra-agency or interagency advisory or deliberative material, including material developed by a private contractor under a contract with a public agency, that are expressions of opinion or are of a speculative nature, and that are communicated for the purpose of decision making.”

For more than 20 years, the Court of Appeals, Jones said, has been unable to reach a consensus about what the provision means and how it should be applied. The appellate court’s decisions are divided between a broad application that keeps from public view any documents used to make a decision and a stricter approach that covers only the documents containing opinion and speculation for decision making, he said.

“At the end of the day, a definitive decision from this court … would provide the opportunity for the executive branch to know (which submissions are disclosable) and the legislative branch to take look at how this court interprets it and weigh in,” Jones said.

Under questioning from the justices, Jones asserted that regardless of whether the Court of Appeals’ broad or strict approach was applied, HealthNet’s white paper was protected from public disclosure. He said HealthNet had a contract with FSSA and the paper was an “opinion document” that advised the state agency how to decide a matter about Medicaid reimbursement.

However, Chief Justice Loretta Rush told Jones he was taking the exemption provision a “step too far.” HealthNet was under contract to provide a service, not produce deliberative materials, she said.

Jones maintained the white paper was covered by the APRA exemption because not only was HealthNet under contract when the document was produced, it included speculation and opinion intended to guide FSSA’s decision.

“What the exemption focuses on is the content of the document and how it is used, not who authored it,” Jones said.

Rush pushed back, saying that extending the exemption to cover any document that is used would “swallow the rule.”

“You want us to take it even broader,” Rush said of interpreting the APRA exemption, “and say, ‘If we used it, it’s out. If we look at it, if it entered our thought process at all, it’s out.’”

Jones pointed to precedent from the Court of Appeals, which ruled a document had to be used for decision making to be protected from public disclosure. The exemption is discretionary, he said, so the state agency could release any records or papers that were not used in the decision-making process.

In this case, Jones said FSSA has shown the white paper was addressing the unpaid Medicaid claims that were the focus of federal litigation and at the center of the dispute between the agency and HealthNet. “So I think they did establish it was used in determining what to do when evaluating those claims,” he said.

The justices did not press Saint as hard as Jones, with Rush remaining silent and not asking any questions while he argued. In fact, about four minutes shy of the 20 minutes he was allotted, Saint told the court he had presented his arguments and was preparing to sit down when the justices asked a few more questions.

Saint asserted the white paper should be disclosed because it was issued in a dispute between HealthNet and FSSA, and it involves the publicly funded Medicaid program. Also, he said, precedent has not expanded the deliberative material provision to include almost any document that was submitted by a third party who is not under contract as an attorney to provide advice.

“The most concerning thing that I see in terms of the state’s argument is we don’t want to be in a position where we have to rely upon an individual in state government to make determinations as to whether this documents falls under the deliberative material statute,” Saint said.

On his rebuttal, Jones reiterated the need for the Supreme Court to issue a ruling in this case.

“Executive branch officials shouldn’t have to guess about what’s confidential, about which Court of Appeals case applies, (or about) what rules apply to which document,” Jones said, adding that the decision-makers will then know “who they communicate with and solicit opinions from, knowing that that will be confidential.”

Another week came and went in Indiana political circles. It brought fresh examples of Hoosiers in positions of power saying and doing things that were, at best, nonsensical and, at worst, inexcusable.

Let’s start with the nonsensical.

U.S. Rep. Victoria Spartz, R-Indiana, never has been a model of personal stability or intellectual consistency.

She earned the dubious honor of being named by congressional staffers as the worst boss on Capitol Hill. Her support for her native land of Ukraine has wavered like a weathervane in a hurricane during that nation’s war to defend itself against Russian aggression. And she threatened or promised to leave the U.S. House of Representatives so many times that political scorekeepers threw up their hands and stopped keeping count.

A few days ago, though, she gave political observers fresh reason to shake their heads in disbelief.

Spartz announced that she was not going to serve on any congressional committees—where much of the important legislative work takes place—or caucus with her fellow Republicans.

Instead, she said, she was going to focus on government efficiency and federal debt reduction.

She said she wanted to work with incoming President Donald Trump to get the government’s deficits under control.

That’s what prompted the collective head-scratching.

Trump is many things, but a deficit hawk isn’t one of them. He increased the debt in four years almost as much as his predecessor, Barack Obama, did in eight.

Obama’s deficits occurred because he was pulling the United States out of the deepest recession since the Great Depression and because he extended health care to tens of millions of Americans who did not have it before.

Trump’s deficits happened because he wanted to give his fellow billionaires a massive tax cut—a tax cut that did surprisingly little to stimulate the economy and significantly expanded the gulf separating the haves and have-nots in this country.

If Spartz really wanted to get deficits under control, she’d tell Trump and his cronies that they really don’t need a tax break for that desperately needed 12^th mansion or fourth luxury yacht.

But doing that would make sense.

And making sense really isn’t on brand for Victoria Spartz.

During many weeks, Spartz’ latest departure from reality would be the big Hoosier political news.

But then Indiana Sen. Greg Taylor, D-Indianapolis, decided to make a horrible situation even worse.

The Indianapolis Star reported not long ago that three different women had accused Taylor, the Indiana Senate minority leader, of sexual harassment.

The Star followed that reporting with accounts from another three women—and supporting witnesses—saying that Taylor harassed them, too.

When the first three women came forward, Taylor offered a half-hearted apology that implicitly acknowledged unspecified misbehavior but stopped well short of being a statement of genuine contrition.

When the second trio of women told their stories, Taylor responded by denying everything, even though doing so contradicted his earlier semi-apology.

Worse, he suggested the stories were part of a conspiracy to topple a Black man from the dizzying heights of serving as Indiana Senate minority leader.

At least two things make Taylor’s posture absurd.

The first is that his Democratic Party controls only 10 of the 50 seats in the state Senate. About the only government position in America that has less power and prestige than that of being Senate minority leader here would be serving as a crossing guard at the loneliest country road in the most remote part of Alaska.

The second is that it ignores the fact that the late Indiana Sen. Earline Rogers, D-Gary, provided the political, policy and intellectual muscle for Senate Democrats for years. A Black woman and one of the finest Hoosier lawmakers of the past half-century, Rogers was the powerhouse in the Indiana Senate Democratic caucus regardless of who served as the nominal leader.

If there is a concerted movement to do something, it’s a coordinated effort to get the Indiana General Assembly to take sexual harassment seriously and stop degrading female interns, staffers and lobbyists who just want to do their jobs.

Just as Spartz now has an opportunity to embrace common sense by saying the uberwealthy don’t deserve a pass on bearing their share of the tax burden, Taylor has a chance to exhibit common decency.

The bet here is that neither will do so.

Again, where do we find these people?