Commentary by David Adler from the Idaho Statesman

The rush of commentary on the Obama administration’s efforts to equate investigative reporting with espionage has brought to a new pitch the tension between the perceived need for governmental secrecy and the virtues of freedom of the press.

When an administration seizes journalists’ telephone records and emails, and tracks reporters’ movements, it puts reporters on notice, chills investigations of governmental actions, dries up reporters’ sources and deters whistle-blowers and leakers.

If these practices, part and parcel of an attempt to define investigative journalism as criminal behavior, had become a pattern decades ago, Americans would have been deprived of journalistic disclosures that illuminated governmental deceit about the conduct of the Vietnam War, the Watergate cover-up, the CIA’s network of secret prisons, the National Security Administration’s eavesdropping program and the practice of waterboarding detainees. Without these disclosures, the government would have escaped accountability.

Governmental accountability is central to the maintenance of republican values and constitutional principles. Government officials cannot be held accountable for actions that have not been disclosed. As a consequence, executive secrecy cannot become an issue unless someone in a position to question it has decided to make an issue of it. That “someone” might be a member of Congress, but more often than not it is a reporter digging out the facts, bringing transparency to governmental actions, and exposing deceit and corruption, all in the name of informing the people.

“Our liberty cannot be guarded,” Thomas Jefferson wrote, “but by freedom of the press.” The Free Press Clause, often characterized as “the people’s right to know,” was designed to protect independent reporting on the affairs of government so that the sovereign people would not be dependent on self-interested governmental officials’ determination of what the people ought to know.

The tension between the perceived need for secrecy and freedom of the press, long a simmering issue in the politics of American life, exploded in 1971 in the landmark Pentagon Papers Case, when the Nixon administration sought to prohibit The New York Times and The Washington Post from publishing reports that revealed governmental deceit about the conduct of the Vietnam War.

The Supreme Court, acutely aware of the executive invocation of “national security” claims to hide political activities and embarrassing incidents, dismissed the administration’s claims that publication would “irreparably damage” our national security interests. The court also extolled the virtues of freedom of the press, as envisioned by the nation’s founders, and gave a green light to publication of the papers.

Secrecy has its claims, particularly in the realm of diplomacy and military activities, but problems abound. Executive abuse of the secrecy stamp has rightly resulted in skepticism.

Another problem involves the identification of the constitutional repository of authority to determine what the citizenry has a right, or a need, to know. Whoever has the authority to declare secrecy wields tremendous power. In the early days of the republic, Congress often made the decision, although usually in consultation with the president. Article 1, Section 5 of the Constitution – the only provision to address “secrecy”- granted to Congress, through publication of its journals, the authority to decide what information to withhold from the public. The Constitution grants to the president no comparable authority.

The framers of the Constitution, who exhibited a deep fear of executive power, had, by virtue of the separation of powers, entrusted legislators with the right and power to lawfully regulate secrecy. But Congress, for its own political and policy rationales, has failed to circumscribe executive secrecy. Indeed, the rise of the Imperial Presidency has been built, in part, on executive control of information, and the claim of authority to impose secrecy. Congressional failure has left it to reporters to maintain governmental transparency and accountability.

It’s fair to say, historically speaking, that the press has performed its responsibility pretty effectively. The press may not be Americans’ favorite institution, but it is critical, as Jefferson said, to the maintenance of our liberty. Efforts to subvert press freedom should be required to meet the highest standard – reporting that would inflict “irreparable damage” on our national security. It’s hard to imagine any recent reporting that has risen to that level.

Adler is the director of the Andrus Center for Public Policy at Boise State University, where he holds appointment as the Cecil D. Andrus Professor of Public Affairs. He has lectured nationally and internationally on the Constitution, presidential power and the Bill of Rights.

Commentary by David Adler from the Idaho Statesman

From the Coeur d’Alene Press

COEUR d’ALENE – A North Idaho College trustee is questioning the legality of a board meeting held earlier this month, and is calling for a motion passed as a result of that meeting to be rescinded.

Christie Wood has asked that the board members, when they meet next week, consider canceling the motion made by Ron Nilson and seconded by Todd Banducci.

The item is on the agenda for the board’s regular monthly meeting on Wednesday.

“We often talk about being open and transparent and this was non-transparent,” Wood said. “There was no opportunity for the board to have input.”

The meeting in question took place on Saturday, April 6, with three of the trustees on the five-member board in attendance: Nilson, Banducci and Judy Meyer.

A notice that the meeting would occur was posted on NIC’s website on April 3, in accordance with the state’s open meeting law. The notice stated the meeting would take place in executive session, meaning behind closed doors. The purpose of the meeting – to discuss personnel matters – is one of the few topics Idaho’s open meeting law allows government officials to discuss without the public present.

Wood said the meeting was held so Nilson and Banducci, the board’s newest trustees, could learn more about faculty members now being considered for tenure.

Tenure at NIC, according to the college’s policy, is awarded to full-time faculty members “in recognition of demonstrated proficiency.” With tenure comes the “reasonable right to continued employment,” unless the faculty member is terminated for cause, which the policy lists as any actions that may be damaging or detrimental to the college or its students. Other cases in which tenured faculty members may be terminated include under the college’s reduction in force policy and if the employee voluntarily retires, resigns or abandons his or her position.

Wood, who has been on the NIC board since 2004, said she did not attend the April 6 meeting because she didn’t have any questions about the candidates being considered. Wood said that Ken Howard, the trustee who chairs the board, was out of town at the time.

“From what I understand, they spent two hours talking about policy on tenure and sabbaticals,” Wood said.

Idaho Code requires that policy discussions occur in public, in open session.

Wood said she learned that during the executive session, Nilson called for a public forum to be held, to discuss the topics.

The minutes of the meeting show that it began at 10 a.m. and at 12:30 p.m., Nilson, Banducci and Meyer moved the meeting from executive session to open session. The minutes state that after a “brief discussion” about holding a public forum, Nilson made a motion to hold a forum in the near future, and Banducci seconded it, so with just three board members present, the motion passed.

“When I found out how that happened, I was very disappointed because that violated open meeting law,” Wood said.

Wood said she’s concerned because she would have wanted to be part of the policy discussion that took place, and that because it affects people’s jobs, it should have taken place in public so the faculty members could attend.

Wood said she asked Nilson to rescind the motion, but he refused. Banducci told her he would think about it, she said.

Nilson could not be reached for comment on Friday, and Banducci told The Press he didn’t think it was appropriate to discuss what occurred.

“I’m going to have to withhold comment at this time,” Banducci said.

Judy Meyer said she doesn’t feel an open meeting violation occurred, but she understands Wood’s concerns.

“She wasn’t there, and because it was an executive session, I can’t discuss it further,” Meyer said. “The solution is doing as she’s asked, and have all the board members take a look at it.”

The North Idaho College Board of Trustees will hold their regular monthly meeting Wednesday at 6 p.m. on the NIC campus, in the Edminster Student Union Building’s Lake Coeur d’Alene Room.

From the Coeur d’Alene Press

From the Associated Press

By REBECCA BOONE, Associated Press

BOISE, Idaho (AP) — The Idaho Department of Juvenile Corrections wants to have nearly all the documents produced as part of a lawsuit brought by whistleblowers made confidential and sealed to the public.

The lawsuit was filed in federal court last year by a group of employees who said some staffers at a juvenile detention facility in Nampa had sex with incarcerated youths, that the department is rife with cronyism and unsafe policies that put staffers and children in danger, that some employees are committing fraud and wasting money, and that managers failed to take action when one juvenile was caught inappropriately touching another.

Now the Idaho Department of Juvenile Corrections is asking the attorney for the employees who brought the federal lawsuit to sign off on a proposed agreement that would keep all the department’s records — including emails, personnel records, and files relating to juvenile offenders — confidential, even after the lawsuit comes to an end.

The attorney for the plaintiffs, Andrew Schoppe, of Boise, says he won’t agree to the proposal to keep everything secret, though he does agree that “maintaining the confidentiality of the juveniles in IDJC’s custody is of the utmost importance.”

Schoppe said he also agrees that some parts of personnel records should be protected as well.

“However, this is a case against an agency of the State of Idaho and its public officials, and it is therefore inherently of interest to the public,” Schoppe wrote in a letter to the department’s legal counsel. “… As I see it, IDJC is basically seeking a ‘gag order’ that will prevent the Plaintiffs from continuing to discuss the case with local media outlets, which have taken a very legitimate interest in the safety of the juveniles and staff at IDJC facilities statewide and in the operations of IDJC as a whole.”

Monty Prow, spokesman for the Idaho Department of Juvenile Correction, said the agency wouldn’t comment on pending litigation. But department director Sharon Harrigfeld has previously released a prepared statement that said the department’s detention facilities are safe and department officials take appropriate action when allegations of misconduct arise.

Part of the allegations in the lawsuit of an employee having sex with an incarcerated juvenile appear to reference Julie Elizabeth McCormick, a former employee at the Nampa juvenile detention center who was charged with lewd conduct with a minor after prosecutors said she sexually abused a juvenile offender. McCormick has pleaded not guilty in Canyon County’s 3rd District Court, and she’s scheduled to stand trial in May.

The federal lawsuit is still fairly early in the court process, and so both sides are still working out just what potential evidence they need to share with the opposing legal team. So far, the Juvenile Correction Department has notified Schoppe and his clients that it will provide documents about its policies for reporting sexual abuse allegations, as well as materials relating to any incidents of actual or suspected sexual abuse by employees, including McCormick.

But the department’s attorneys also notified Schoppe in a legal filing that the department doesn’t have any documents showing if those allegations were reported to the Board of Juvenile Corrections, which oversees the department. In another legal filing the department’s attorneys denied allegations that leaders falsified reports on serious incidents at juvenile facilities, and denied allegations that there was a practice of hiding sexual abuse reports.

From the Associated Press

From the Idaho Statesman

Ahead of Wednesday’s House vote, tea party and GOP groups have been fighting the business establishment.

By DAN POPKEY — dpopkey@idahostatesman.com

Using direct mail, radio spots and computer-generated phone calls, opponents of Gov. Butch Otter’s health insurance exchange bill are waging a campaign to try to reverse the momentum after last month’s 23-12 Senate vote.

Their efforts are dwarfed by dozens of lobbyists backing the exchange, led by the insurance and health care industries and broad-based business groups.

But the appeal to conservative Republican voters who will decide the 2014 legislative primaries has captured the attention of lawmakers.

“They’re saying we’re bought and paid for by the insurance companies,” said House Health and Welfare Committee Chairman Fred Wood, R-Burley, a target of a tea party mailer last week.

Wood, a physician, is the floor sponsor of House Bill 248, which is scheduled for debate Wednesday.

The heart of the opposition strategy is coupling hostility to the Affordable Care Act with Otter’s decision to cooperate with the federal government and operate the online insurance marketplace in Idaho, rather than leave the job to the feds.

“Idaho’s version of Obamacare is now before the Idaho Legislature, and it’s bad,” says a voice in a robocall that lets recipients automatically connect to lawmakers’ phone lines. “You can help stop it by telling your legislator to vote no on HB 248.”

Though the calls lack the legally required disclosure of the message’s sponsor, they came from Gem State Tea Party, said the group’s Boise president, Chad Inman. He founded the Gem State Tea Party last year, uniting 13 groups statewide. He said calls were made to all 35 legislative districts.

GOP LEADERS INVOLVED

Inman’s ally is the Idaho Business Alliance, founded in January by conservative Boise businessman and GOP funder George Gersema, Bonneville County Republican Chairman Doyle Beck and former GOP redistricting commissioner Lorna Finman of Post Falls.

Another former redistricting commissioner, political consultant Lou Esposito of Star, is helping with direct mail and radio.

“Too many in Boise say we have no choice but to submit to the economic destruction built into the very structure of Obamacare,” reads a Business Alliance postcard urging citizens to call lawmakers.

Last week, a mailer from Gem State Tea Party went to 4,000 recipients in the Magic Valley legislative district represented by three prominent Otter allies: Wood, R-Burley; House Speaker Scott Bedke, R-Oakley; and Senate Finance Committee Chairman Dean Cameron, R-Rupert.

The postcard indicates that the trio “are leading the effort over in Boise to impose Obamacare on the people of Idaho.” Pictured are piles of cash behind a “Show Us the Money” headline, along with an accounting of health, insurance and medical industry campaign contributions to the lawmakers.

“The garden path to Obamacare has been laid by tens of thousands of dollars to Idaho politicians over the past several years,” according to the mailer.

Cameron, an insurance agent, objects, noting that Otter and the GOP-controlled Legislature heartily backed the lawsuit to overturn the Affordable Care Act. “We’ve been opposed to it all along,” said Cameron. “But we lost in court and we lost the presidential election.”

Exchange proponents – including Blue Cross, Idaho Hospital Association, Idaho Association of Commerce and Industry, and local chambers of commerce – say Idaho is better off running its own exchange, even under federal rules.

Beck, an Idaho Falls businessman, distrusts the powerful economic interests arrayed behind the exchange, asking, “Have you ever known anything favorable to the insurance industry that was also good for you and me?”

Cameron was among a group of GOP incumbents unsuccessfully targeted for defeat in 2012 by political action committees run by consultant Esposito. Cameron said the new campaign doesn’t prompt him to shy from the issue, though it might signal another serious primary challenge next year.

“If anything, it cements our resolve,” Cameron said. “We firmly believe the governor made the right decision and we’re standing behind him.”

GAPS IN SUNSHINE LAW

Campaign and lobbying spending by exchange proponents are disclosed under Idaho law. But spending by Gem State Tea Party and the Business Alliance can’t yet be quantified.

“They know what they’re doing,” said Secretary of State Ben Ysursa.

Tea Party Boise has a lobbyist, but he is unpaid, exempting the group from disclosure. Gersema told Ysursa’s office that the Business Alliance has no paid lobbyists and the group is funding the mailings itself, exempting it from monthly lobbying reports.

Esposito will have to report his PAC spending, but not until annual reports for 2013 are due on Jan. 31, 2014.

“No, I’m not disclosing a dime,” said Inman. “That’s the beauty of it.”

Said Esposito: “The amount of money we have spent on postcards and radio ads is a spit in the ocean compared to the money spent by Blue Cross, IACI, IHA and others on lobbyists, legislators and their media campaigns. When you factor in the complicity of a nonobjective news media, our efforts pale in comparison.”

Ysursa said he’s exploring possible amendments to the Sunshine Law in 2014. “What’s being done is lobbying; it’s pertaining to legislation, it doesn’t pertain to candidates,” he said.

Speaker Bedke said he’s also interested in tightening the law. “I am not comfortable with the large gaps of time in the reporting schedule. I think the public has a right to know,” he said.

Bedke remains optimistic that HB 248 will pass.

“With very few exceptions, they’ll vote their conscience, regardless of the pressure,” he said. “I haven’t seen a lot of legislators knuckle under.

Dan Popkey: 377-6438, Twitter: @IDS_politics

From the Idaho Statesman

From the Idaho Newspaper Foundation

Nominations are now being accepted for the 2013 Max Dalton Open Government Award sponsored by the Idaho Newspaper Foundation.

The 2013 award will be the 15th annual award given each year since 1999 to a citizen or group judged to be an outspoken advocate of openness in either public records or public meetings on the state or local level.

Nominations should be submitted by March 22 by sending a letter of nomination to starnews@frontier.com. Go to www.idnewsfound.org for more information and profiles of previous recipients.

The letter should provide a general description of the nominee’s dedication to open government and cite specific examples of the nominee’s use of the Idaho Open Meeting Law or the Idaho Public Records Law to advance the public interest. Examples can include links to newspaper articles or testimonials from citizens or public officials.

The Max Dalton Open Government Award has frequently been awarded in the past to citizen activists. However, activism by itself is not sufficient to receive the award, INF Executive Director Tom Grote said. Nominees must have demonstrated their use of the state’s open meetings or open records laws in support of their activism, said Grote, who is also publisher of The Star-News in McCall.

From the Idaho Newspaper Foundation

From the Idaho Statesman

Records requests by an armed man whose actions caused a stir last month – as well as new rules on public access – helped prompt a push to change Idaho law.

By DAN POPKEY — dpopkey@idahostatesman.com

From the Idaho Statesman

From The Spokesman-Review

Idaho’s cash-strapped courts are looking to go all-electronic in the future to save money and serve the public better.

State courts Administrator Patti Tobias told lawmakers Monday the courts have increasingly been using technology to gain efficiencies, and plan next year to bring the Legislature a proposal to allow Idahoans to “complete much of their court business in real time online, 24/7, without going to the courthouse.”

She said, “You will file court cases, pay your traffic ticket if you got one, find out when a case is scheduled for hearing, check criminal records, and view documents filed in a case – all electronically. … Idahoans will see better access, greater convenience, and more information.”

Meanwhile, an emergency surcharge on all Idaho offenders may be made permanent, now that it makes up more than $4 million of Idaho’s annual court system funding. The surcharge was enacted in 2010 to partially offset $5 million in budget cuts to the state’s courts, keeping the state’s courthouse doors open. “These critical services cannot be maintained at their present levels, however, without continued support from the emergency surcharge,” Tobias said.

After holding off for five years on added much-needed additional judges, the courts are requesting three new district judges next year and two new magistrate positions.

Tobias told legislative budget writers, “We are absolutely committed to finding innovative and efficient ways to meet the needs of Idahoans, using the resources that you have provided.”

From The Spokesman-Review

Editorial from the Idaho Statesman

It’s time for the Idaho Legislature to eliminate those closed-door caucus meetings. The timing for taking such action has rarely been better.

Secret sessions simply are not necessary in today’s Legislature, and they add nothing to the process but suspicion and mistrust. In this day of texts, tweets and emails, closed caucus meetings are as outdated as rotary telephones.

So kick the habit and get rid of them. Abolishing closed-door sessions would send the right message at a time when lawmakers are paying more attention to applying higher standards to themselves. Lawmakers gathered last week for ethics training, a first in Idaho and hopefully not a last.

The personalities are in place to make it happen. House Speaker Scott Bedke and Senate President Pro Tem Brent Hill are capable leaders, but they are not —and don’t pretend to be — party bosses. On the Democratic side, Rep. John Rusche and Sen. Michelle Stennett are congenial people who hardly fit the profile of arm-twisters.

Over the years, legislators have given a lot of reasons (more like excuses) for having closed-door sessions. The meetings have been viewed as an opportunity for legislators to gather in a relaxed setting, let their hair down and say what’s on their minds without worrying about being quoted by pesky reporters. There have been times in Idaho’s history when leaders used closed sessions to bring caucus members in line on certain issues.

The landscape is much different from the days of smoke-filled rooms. Top leaders have many ways to make their views clear on issues, including old-fashioned press releases and guest editorials. As for the rank-and-file members, they vote the way they want and are not shy about expressing their views through social networks and other outlets. Today’s legislators generally don’t respond well to edicts, threats or party discipline. Judging by the participation at the ethics-training session (Bedke made it clear that attendance was mandatory), there’s more sensitivity these days to issues of public trust and accountability.

Idaho politicians have had their share of dark moments over the years, including Sen. Monty Pearce’s failure to disclose his oil interests before voting on new laws governing the petroleum industry; former Sen. John McGee’s escapades with drinking and inappropriate conduct with a staffer, and allegations of sexual harassment; former Rep. Phil Hart’s refusal to pay taxes; and U.S. Sen. Mike Crapo’s recent drunken driving arrest. Last year, the Senate State Affairs Committee created another embarrassment by refusing to even consider legislation brought forth by supporters of the “Add the Words” campaign.

Former Iowa State Rep. Scott Raecker, who spoke at the ethics session, challenged Idaho lawmakers to “raise the bar” on ethical standards and have the courage to break from tradition in the effort to promote an atmosphere of trust and accountability.

Republican and Democratic leaders in Idaho should answer that challenge and abolish those outdated secret meetings.

“Our View” is the editorial position of the Idaho Statesman. It is an unsigned opinion expressing the consensus of the Statesman’s editorial board. To comment on an editorial or suggest a topic, email editorial@idahostatesman.com.

Editorial from the Idaho Statesman

From the Associated Press

By REBECCA BOONE, Associated Press

BOISE, Idaho (AP) — The former attorneys for convicted murderer Joseph Duncan are asking a judge to let them testify in secret about whether Duncan was mentally competent during his death penalty hearing four years ago.

Duncan’s current attorneys — not the lawyers who represented him in 2008 — filed a motion Sunday in Boise’s U.S. District Court asking a judge to either close the courtroom for the former attorneys to testify or to allow them to testify at another private location.

Such secrecy is needed, the attorneys say, to keep from scaring other clients, who may fear that their lawyers will someday reveal protected information about them in court.

“The solution for this problem is for the court to allow defense witnesses who are subject to the attorney-client privilege to testify outside the presence of the public,” Duncan’s attorneys wrote in their motion to the court.

Duncan snatched 9-year-old Dylan Groene and Dylan’s younger sister from their Wolf Lodge, Idaho, home after murdering several of their family members in 2005. He kept the children at a remote Montana campsite for weeks before he shot Dylan and returned with Dylan’s sister to Coeur d’Alene, Idaho, where he was arrested.

He was convicted in state court of murdering the children’s family members and sentenced to life in prison without parole. His crimes against the two children were handled in federal court, where Duncan pleaded guilty, represented himself, and was sentenced to death.

In 2011, however, the 9th U.S. Circuit Court of Appeals ruled that the federal judge should have held a hearing to determine if Duncan was competent when he waived his right to appeal his sentence. Last week U.S. District Judge Edward Lodge began presiding over a retrospective competency hearing, designed to help him decide if Duncan was competent back in 2008.

Duncan’s defense team first raised the possibility that his former attorneys may try to testify in secret last week — a proposal that federal prosecutors said caught them by surprise.

At the time, U.S. Attorney Wendy Olson told the judge that federal policy bars her from agreeing to a closed courtroom without getting prior approval from leaders with the U.S. Department of Justice, a process that can take weeks.

Olson has until later this week to file a response to Duncan’s motion.

From the Associated Press

From The Spokesman-Review

BOISE – Idaho’s governor and state controller unveiled a new state government transparency website Thursday, with extensive data about the state’s finances and workforce that’s automatically updated every night.

“We’ve always provided our public information whenever it’s requested, but this allows the citizens to quickly get to it without having to come through the office,” said state Controller Brandon Woolf, who at 40 is the youngest statewide official in Idaho. “They get right to the data.”

Perhaps most remarkably, the transparency site was set up within the controller’s existing budget – with no additional appropriation of state funds.

“Compared to other states, they have spent millions to do their state transparency websites,” Woolf said. “To this point, we have done it within our existing budget.”

The new transparent.idaho.gov site features myriad charts and graphs, tons of detail to dig into, and is searchable by cross-tabs including agency, county and more. “There’s thousands and thousands of reports that are available and that are out there now,” Woolf said.

Gov. Butch Otter compared it to public records requests “on steroids,” and said it’ll put state financial data “just a click away.” He called the new site “a very important big step in transparency in state government.”

“We’ve been able to enable the existing technology that we have in our office,” Woolf explained, including a data warehouse that has financial, personnel and payroll data the state controller receives from state agencies. “So when state agencies key in financial information, personnel or payroll information, it’s updated nightly as it goes through the process into our systems and into the data warehouse, and eventually to the website.”

Woolf, who has a political science degree and an MBA, has worked at the controller’s office since starting as an intern in 1997. He was named chief of staff in 2011, and was appointed state controller in October.

He said work on the transparency site started last spring. “At that point it was just some conceptual ideas,” Woolf said, crediting “some brilliant individuals” on his staff who came up with new ways to use their existing technology. “I really appreciate their hard work and their smart ideas,” he said; he introduced and recognized his staffers at a press conference Thursday with the governor in the state Capitol.

Woolf said the transparency site is a work in progress, and doesn’t yet have a capability he’d like to see: A searchable, online version of the state’s checkbook, enabling citizens to look up how much an agency spent on a particular vendor. Getting to that point will require an additional investment, he said; he may request funds for that next year, “if there’s an opportunity down the road to make it a more useful tool for the citizens.”

Woolf was appointed state controller Oct. 15 after former Controller Donna Jones resigned to focus on recovering from serious injuries suffered in a car accident. Woolf will serve out Jones’ term and has already said he plans to then seek election in his own right.

A humble Woolf said at the press conference, “Gov. Otter has continued to ensure that there are no dark corners in government spending,” and added, “I would like to thank my staff whose hard work and dedication and bright ideas made this possible.”

Otter said he expects some savings for the state due to fewer formal public records requests, because they’re seeking data that’s now readily available. “If we can lessen that … time and expense … plus provide the transparency that we should provide for the people of Idaho, I think there’s going to be some economies and some savings in that,” the governor said.

From The Spokesman-Review