Massa, J.
Appellee Robert Saint made an Access to Public Records Act request for a legal memorandum, or “White Paper,” created by the private entity HealthNet and given to Family & Social Services Administration (FSSA) for use during Medicaid settlement negotiations. Although FSSA argued that the White Paper was excepted from disclosure as intra-agency deliberative material, the trial court ordered the document’s disclosure. On appeal, FSSA again argues the deliberative material exception applies because FSSA used the document for decision-making purposes. Finding, however, that the White Paper is not “intra-agency material” that can thus be withheld, we affirm the trial court.
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The sole question before us is whether FSSA satisfied its burden of proof to establish the White Paper was subject to the deliberative material exception under Indiana Code Section 5-14-3-4(b)(6). Finding it did not, we affirm the trial court.
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Here, neither party disputes that FSSA qualifies as a “public agency” and that the White Paper qualifies as a “public record,” subjecting both to APRA’s general disclosure requirement. See Ind. Code § 5-14-3-2(q)(1) (defining “public agency” as any “board, commission, department, division, bureau, committee, agency, office, instrumentality, or authority, by whatever name designated, exercising any part of the executive . . . power of the state”); id. § -(r) (defining “public records” to include “any writing . . . created, received, retained, maintained, or filed by or with a public agency”). To avoid the disclosure requirement, FSSA is relying on the discretionary exception for “deliberative material.” Both parties concede that FSSA has satisfied the second and third prongs of this exception—that is, the White Paper contained expressions of opinion and was used for agency decision-making. The parties, however, dispute whether FSSA has satisfied the first prong—particularly, whether FSSA has shown that the White Paper was “intra-agency” deliberative material. While APRA defines “public agency,” it does not explicitly state what constitutes “intra-agency” material. FSSA argues, though, that because the White Paper was being used for agency decision-making as noted in Groth, it qualifies as intra-agency deliberative material and thus may be withheld from disclosure.
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A review of prior cases, however, lends credence to the approach we adopt today—that is, that the material must originate from and be communicated by employees of the same agency to qualify as “intra-agency.”
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Taking these cases and the decision below together, a common-denominator can be derived from the facts of each—that is, where courts have found material to be “intra-agency,” the case only involved one agency where all players were agents or employees of that agency and the communication was generated within that agency…
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Lastly, this reasoning aligns with the underlying purpose behind APRA, which is to ensure Hoosiers maintain a broad access to government documents. See Evansville Courier, 17 N.E.3d at 928. As part of that purpose, it is stipulated within APRA that policies of general disclosure should be liberally construed, see Ind. Code § 5-14-3-1, while exceptions to disclosure “should be construed strictly,” Sullivan, 182 N.E.3d at 868. Thus, given these imputed limitations, we must read “intra-agency” as a narrow, rather than broad, classification for purposes of the exception. We therefore conclude that our newly adopted approach— finding material to be “intra-agency material” where it was generated within and sent between employees of the same agency—is the narrower, and thus correct, approach.
Applying this to the case at hand, we find that because the White Paper was generated by HealthNet—an outside private entity—and sent to FSSA, it does not fall under the deliberative materials exception as “intra-agency material.” While FSSA may have used the White Paper for the purpose of deciding whether to settle with HealthNet, FSSA did not generate the White Paper within its agency. As such, we find FSSA has failed to meet its burden of proof in establishing the White Paper was an “intra-agency” record under the deliberative material exception.
Conclusion
Because we find the deliberative material exception does not apply, we affirm the trial court’s order requiring the disclosure of the White Paper.
Rush, C.J. and Goff, J., concur.
Molter, J., concurs with separate opinion.
Slaughter, J., did not participate in this matter.
Molter, J., concurring.
I join the Court’s opinion and write separately to note three points.
First, although we hold the White Paper was not exempt from disclosure as deliberative material, that does not mean it could not have been withheld under a different APRA exemption…
Second, and relatedly, FSSA abandoned its attorney-client privilege argument on appeal, so that question is not before us…
Finally, while the White Paper itself does not fall under the deliberative material exemption, derivative materials may still fall under the exemption…