Archives for September 2011

From the Moscow-Pullman Daily News

By Katie Roenigk

According to the University of Idaho’s Office of General Counsel, there is one question to answer when determining whether Ernesto Bustamante’s personnel records should be released, and it concerns the phrase “former public official.” According to Idaho Code, the privacy of public officials remains intact even after they have left office. The question is whether privacy laws still cover a person once he or she is dead.

In First Amendment attorney Chuck Brown’s opinion, the privacy of the deceased is not protected. He said as much in a response brief filed Thursday in Latah County’s 2nd District Court.

Brown’s filing, along with one submitted Thursday by the University of Idaho, will be considered by Judge John Stegner, who will decide whether Bustamante’s records should be released.

Bustamante, who until Aug. 19 was employed at the UI, took his own life after a police standoff Aug. 23. He killed university graduate student Kathryn Benoit the previous evening.

In his brief, Brown wrote that Idaho’s statute does not contemplate protecting the records of a deceased person. In fact, he said that protection would bring up a “panoply” of issues related to the work of historians in later years, for example.

“Is the nondisclosure aspect applicable for 12 hours, 20 years, or 1,000 years?” Brown asked. “The statute is solely contemplating a public official who is alive. (Furthermore) the statute makes it clear that if there is any doubt (then) disclosure is contemplated and preferred.”

In a brief filed last week, he referred to the fact that Idaho Code requires written consent from a former employee to divulge private information.

“Thus, the statute itself is contemplating that ‘former’ must relate to a living person who has the discretion and ability to sign a written consent,” Brown wrote.

If the statute were to extend to a deceased person, the Legislature would have written it “to include representatives of the deceased’s estate,” he said.

Another of Brown’s main claims is that Bustamante surrendered any right to privacy when he murdered Benoit.

“Mr. Bustamante’s actions have totally divested him of any privacy rights enjoyed by a public official,” Brown wrote.

He quoted from the Idaho Public Records Law in writing that he and others requesting Bustamante’s personnel records seek to examine the information to “determine whether those entrusted with the affairs of government are honestly, faithfully and competently performing their functions as public servants.”

“What was the ‘governmental activity’ that took place in regard to protecting the health and well-being of a student from a ‘government official’ in its employ?” Brown wrote. “It is very clear that the acts or actions taken or not taken by the University in this entire situation should be viewed in the light of day. When the doors are shut, the worse is suspected. When the light of day floods through, everyone can gauge for themselves.”

According to a complaint filed by Benoit with the university in June, she entered a sexual relationship with Bustamante that began in fall 2010 while she was enrolled in one of his classes. The relationship apparently ended in mid-May after the former psychology professor put a gun to Benoit’s head. The UI has stated Bustamante’s employment ended at the university on Aug. 19.

Between the time of Benoit’s complaint and death, UI officials had been in contact with Benoit and Bustamante, who filed his own complaint against Benoit for defamation of character in July, according to UI and police documents.

The university has not confirmed what happened during those meetings, nor have they released information about any other sexual harassment complaints that may have been filed against Bustamante. Officials will not say whether the university was aware of Bustamante’s mental illness — sources close to him say he had multiple personality disorder — and whether Bustamante’s cessation of employment was due to Benoit’s complaint and investigation by the UI

The university has expressed its desire to release the personnel records, but officials have asked Stegner to determine if Idaho Code protects Bustamante’s right to privacy now that he is dead.

“There are arguments on either side of whether disclosure of the personnel information of the deceased employee … is appropriate,” UI’s general counsel wrote Thursday. “(We) ask this court to declare the meaning of the term ‘former public official.'”

The university in its brief supplied information about several cases in Idaho and throughout the country dealing with similar privacy issues. Many of the examples resulted in contradictory conclusions, though one case in Idaho indicated that the state considers common law privacy rights to end at death. In another situation, the person’s heirs inherit the right to divulge his or her private information.

Stegner will hear oral arguments from the UI and Brown on Monday, Oct 3.

From the Moscow-Pullman Daily News

From the Idaho Press-Tribune

CANYON COUNTY — A local history committee has taken on the task of consolidating Canyon County records that date back almost 30 years before it officially became a county in 1892.

But these records have been spread out in six different locations and haven’t always been cared for properly, resulting in the loss of little pieces of history.

To prevent this destruction, and to take inventory of what records the county has on hand, three people have headed up a committee to gather up all the documents and store them at the courthouse.

“We really want to get our documents out of rented storage with no temperature control, and the dust blows through the door, and it’s not a good environment,” said County Clerk Chris Yamamoto, who started the Historic Records Retention Committee with Nampa Historic Preservation Commission’s Joe Bell and former chief deputy and county controller Chris Harris.

But it’s not an easy task.

“It all takes time, and it all takes money, … money that we just don’t have a budget for,” Yamamoto said. “So we’re looking to figure out who’s going to do it and how we’re going to pay for it.”

Government grants may be part of the answer, he said. Beyond that, the committee is being as frugal as possible.

For example, the county will renovate the fourth floor of the jail, which previously closed down because it was too expensive to maintain, and use it for document storage. Yamamoto already got free shelving for the storage area when a company moved and left the shelves behind.

“We’re getting this storage at a very low cost,” Yamamoto said, noting it will save clerks a lot of time by eliminating trips to find documents at an off-site storage location.

The next step is to organize the collection and make it more accessible to the public by digitizing it — a slow process that has to be done step by step as the money comes in, Yamamoto said.

Whether you’re a fourth-grader working on a school project or a genealogist, you deserve to be able to dig through your county’s historic records, Bell said.

“What I like about the data is it’s the people of Canyon County,” he said. “This is our story, it belongs to us.”

The committee will continue to organize the space in the courthouse to make the most of it, and hopes to move documents into the new storage area by early 2012.

“I’ve always been interested in history, but the older you get, the more important it becomes,” Yamamoto said.

From the Idaho Press-Tribune

Editorial from the Lewiston Tribune

By Marty Trillhaase |

Ernesto Bustamante was licensed to carry a concealed firearm in the state of Idaho.

Nobody’s claiming that had anything to do with the former University of Idaho assistant psychology professor shooting down his former lover and student, Katy Benoit, on Aug. 22 before he committed suicide about nine hours later in a Moscow motel room.

But the incident does reveal something disturbing: Not only can virtually anybody in Idaho get such a permit, but when he does, it’s none of your business.

Latah County Sheriff Wayne Rausch acknowledged issuing Bustamante a concealed weapons permit because he cleared a background check. Bustamante had no felony conviction. He had not been adjudicated mentally ill. He was not wanted by the law. He was not a drug addict. Obviously, Bustamante did not check yes to any of the questions that might have disqualified him:

“Lacking mental capacity.”
“Mentally ill.”
“Gravely disabled.”
” Incapacitated.”

“I’m somewhat amused by the fact that what always seems to come to the fore is whether or not someone had a CWP as if that (not issuing him a permit) would have somehow prevented the guy from doing this thing,” Rausch told the Tribune’s David Johnson.

But when the Tribune filed a public records request to examine the document, it was denied. Idaho’s lawmakers decided the fact that someone had a CWP should be exempt from Idaho’s public records law.

In Idaho, your driver’s license is a public record. So is your car registration. Also a matter of public record is what real estate you own and what it’s worth for taxing purposes – as is whether you are current on your property taxes.

The same once was true for concealed weapon permits. When former Lewiston Democratic Sen. Bruce Sweeney helped grant ordinary Idahoans access to a concealed weapon permit in 1990, his bill provided public disclosure.

Go ahead and get a permit, but your neighbors had a right to know if you had one. In fact, it became common for Idaho newspapers to occasionally publish a list of people authorized to conceal and carry firearms.

Openness established equilibrium and accountability. Say, for the sake of argument, a university professor startles his students by announcing he suffers from multiple personalities with names such as “the beast” and the “psychopathic killer.” Now just assume one of those students is curious enough to file a public records request, learns that this apparently unstable professor is licensed to carry a weapon clandestinely and alerts either law enforcement or the university administration about his concerns.

Today’s law makes that absolutely impossible. In 1995, lawmakers pulled the weapons permit outside Idaho’s public records act. Twice since, they have updated the law – the last time in 2009 they did so unanimously.

What’s the sense of having a concealed weapons law if everybody knows who has a concealed weapon, lawmakers asked.

Just this: With public access, you can scrutinize the system and the people running it – and then decide whether it needs fixing.

If you see an elderly driver involved in an accident, you can evaluate whether Idaho should have issued him a license – or whether the law ought to change.

If a contractor defrauds a client, you can look into whether Idaho’s contractor licensing law is sufficiently stringent.

When someone in Idaho obtains a permit to carry a concealed weapon, however, you’ll just have to take law enforcement’s word that the system works. – M.T.

Editorial from the Lewiston Tribune