From the Twin Falls Times-News

Feb 3,2007 – Matt Christensen – TWIN FALLS TIMES-NEWS
BOISE – A House bill regarding public records is ruffling the feathers of environmental groups, but the bill’s supporters say the hubbub is a misunderstanding over wording.

The Idaho State Department of Agriculture wants the Legislature to pass a bill that would keep its laboratories’ test results confidential. Environmentalists say the bill’s wording is unclear , and withholding information from the public is un-American.

“We had a lot of folks jump to the conclusion that the bill covers water-quality samples and things like that,” said John Chatburn, deputy administrator in the ISDA’s division of animal industries. “And it doesn’t.”

House Bill No. 59 would seal ISDA lab results from the public. The agency sends tests involving environmental issues to non-ISDA labs, and those test results, Chatburn said, would remain in the public domain.

Others aren’t sure that’s true.

The wording in the bill makes unclear exactly which lab results would be kept confidential, said Courtney Washburn, community conservation director for the Idaho Conservation League, an environmental and watchdog group. “We’re not sure what the bill would entail,” she said.

That seems to be the consensus of environmentalists statewide, including Parma resident Alma Hasse, who used lab test results to shut down a Washington County dairy last spring.

“By attempting to shield more information from the public, it seems to me that we need to look even harder at what’s going on,” said Hasse, who has accused state agencies of stonewalling public-records requests.

That’s not what this bill is about, said Chatburn. The motivation behind the bill is, in part, to protect companies from trade-secret thefts, he said.

“The bill would protect the information that comes from tests we run for companies,” he said, “when (the tests) don’t involve enforcement activities.”

The bill leaves it up to the ISDA director to determine which lab results become public, and that raises the concern of at least one legislator in the committee in which the bill was presented.

“That’s putting up a flag for everybody,” said Donna Pence, D-Gooding, who sits on the House Agricultural Affairs Committee. “I’d like to see a whole lot more information on this, because it seems to me, and a whole lot of other people, that (ISDA) just slammed the door on public records.”

The bill is yet to be placed on the committee’s calendar, but it’s likely it will be discussed in the coming weeks.

From the Twin Falls Times-News

From the Idaho Statesman

Gov.-elect Butch Otter signed his official oath of office without announcing it Thursday, ignoring requests from news media outlets to witness the event on the public’s behalf.

Otter will have a ceremonial swearing-in Friday at the Capitol and had originally planned to take the legally required oath on Monday, the day he takes office.

As first reported Friday on IdahoStatesman.com, Otter signed the oath at 12:05 p.m. Thursday with Secretary of State Ben Ysursa and Deputy Secretary of State Miren Artiach in Artiach’s office. There were no other witnesses and no public announcement. The oath will be stamped to record its receipt on Monday, Artiach said.

Ysursa said Otter came alone on the spur of the moment, although he first made sure Artiach, a notary public, had not gone to lunch. Dressed in a blazer, tie, khaki pants and cowboy boots, Otter signed the oath form “on a magazine or something,” Ysursa said. “The thing was over in a matter of minutes,” he said.

Otter did not respond to repeated requests for comment Friday. His spokesman said he could not reach him.

“He doesn’t want to distract from the public event on the 5th, and he felt like this thing was kind of a tempest in a teapot and a storm of the media’s creation,” spokesman Jon Hanian said. “He says this is not a big deal. It is purely ceremonial and perfunctory and not that big a deal.”

Hanian said Otter still plans to take the oath again privately for out-of-state family members on Monday, with U.S. District Judge Ed Lodge administering it. Hanian said he did not know where or when that would happen, and he said the public and press are not invited.

Otter’s actions are completely legal, Artiach said. Four other statewide elected officials have taken and signed their oaths early, too. “As long as they’re in here by the date they take office, there is no issue,” she said. “He’s not pretending in any way to have already taken office.”

Idaho’s two previous elected governors, Phil Batt and Dirk Kempthorne, allowed reporters to witness their oaths. After Otter said he wouldn’t allow that, the Idaho Statesman and the Associated Press asked him Wednesday to change his mind.

Statesman Managing Editor Bill Manny said Friday that he thought the point had been made that the public, through the press, should be able to witness Otter’s constitutional assumption of power. The paper has no plans to pursue the matter further, he said.

“We’re terribly disappointed the governor-elect didn’t see fit to include the public and press in what is a very vital moment for our state and government,” Manny said.

Jim Weatherby, a retired Boise State University political scientist, said Thursday’s oath could indicate that Otter won’t be open with the press.

“All of this may very well be much ado about nothing, and I hope it is — that it is merely an isolated event of questionable public relations,” Weatherby said. “However, if this becomes part of a pattern of denying access, then it does not auger well with for new administration.”

Idaho’s constitution says the governor, like all executive officers, must take office on the first Monday in January after the election. An Idaho law says the oath must be taken before he “enters upon the duties of his office.”

Artiach said it’s not uncommon for a public official to take the oath before its official due date, especially when that date falls on the New Year’s holiday.

But Idaho Press Club lawyer Allen Derr said he reads the constitution to say the governor should take the oath on the day he takes office, not before.

“I think that’s skirting what I consider to be the clear terms of the constitution,” Derr said. “The constitution starts a four-year term on the first Monday of January, and the old governor’s term doesn’t end before then.”

Derr said official government actions should be taken in public. “I can’t imagine a governor not wanting to do it in the open,” Derr said.

It is not known how many previous oaths of office were open to the public or press, but Artiach said many previous governors have more than one oath on file. Most recently, seven-month Gov. Jim Risch took the oath privately at home.

Seventy-eight percent of people said Otter should let the media in to cover his oath, according to an unscientific online poll of 1,755 people conducted Thursday at IdahoStatesman.com.

Other elected officials also have taken their oaths early this year, Artiach said. On file already are signed oaths from Attorney General Lawrence Wasden, Treasurer Ron Crane, Schools Superintendent-elect Tom Luna, and Ysursa. State Controller-elect Donna Jones and Lt. Gov.-elect Risch, now governor, will take their oaths on Monday. Of these officers, only Risch has announced that his Sun Valley oath-taking will be open to the press.

Topics Editor David Staatscontributed to this story. Contact Shawna Gamache at 377-6416 or sgamache@idahostatesman.com.

From the Idaho Statesman

From the Idaho Business Review

by By Eddie Kovsky

Jack Sjostrom’s company, Sentry Dynamics, collects information on Idaho properties and compiles it into a software application. His customers can access it through a Web browser to learn about individual parcels, to find maps and to facilitate real estate transactions all over the state.

Rather than traveling to courthouses or searching Web sites, Sentry Dynamics customers use the software to access data in one place.

It’s not that easy for Sjostrom. In fact, some public agencies are making things more and more difficult for him and others to stay in business.

Access to public electronic data isn’t always free or even provided for a reasonable fee. The cost of obtaining geographic information system (GIS) data varies widely from county to county, Sjostrom said.

Basic GIS information from Latah County is 10 cents per parcel. Order data for more than 15,000 parcels and it’s a flat fee of $1,500. Throw in ownership information about the parcels and it costs 5 cents more per parcel.

Want your data to include roads, the rural address, zoning districts or precincts? Each requires additional fees.

“That parcel information is a very small file that fits on an email attachment,” Sjostrom said. “The cost of copying on a CD and mailing it to us shouldn’t be more than $25.”

In contrast, Ada County shares map data amongst various agencies, said Mike McClenahan, administrative services manager. Basic map data is available through a subscription, he said. A CD with all parcel data is available each quarter for $100, said Anne Kawalec, land records supervisor.

Some departments create maps for specific projects, usually for internal use.

“But if somebody asked for that, we’d probably just give it to them,” McClenahan said.

Like Ada County, Nez Perce County charges a few hundred a year to copy information, Sjostrom said. But Bonner County refused to share GIS data until Sjostrom sued them, he said.

“Now we pay $150 per request,” Sjostrom said

In Kootenai County, access to GIS information is free, he said.

Idaho law has several statutes covering access to public information. Idaho Statute 9-338 states that a public agency can’t charge a fee that exceeds the cost of copying information.

But there is a specific exception to county governments and GIS data. Statute 31-875 (2) allows a county to collect fees not just for the release of public information, but also for the development and maintenance of the system itself.

Sjostrom thinks the laws just allow county commissioners to be creative about their pricing. He said he has taken up the issue with prosecuting attorneys in several counties, but it hasn’t gotten him very far.

“They say it’s very costly to install and support these GIS systems and they need funding to support that,” Sjostrom said. “But I question that because it’s no different from any other management system the county uses. Why is the mapping system unique?”

Not all counties use the same systems or have the same level of sophistication, so using fees to cover development costs is justified, said Dan Chadwick, executive director of the Idaho Association of Counties.

“Every county is trying to make an honest estimation of what providing the information costs,” he said. “Not all the data is compiled in the same way. Systems are part of the cost of providing information.”

Sjostrom is far from satisfied with that answer.

“Taxes pay for equipment,” he said. “All we should pay for is material and staff time.”

Sjostrom has decided to take up his grievance with the state legislature. When members of the legislature visited Post Falls last month, he met them in a hallway and handed out a letter explaining his predicament:

“I fully understand the intent of this law as it was written prior to the technological advancements we are now accustomed to … It was a way for counties to accommodate the costs of technology advancement and new data development. This justification however, does not conform with our system today …”

So far, Sjostrom has only heard from State Sen. Brad Little, R-Emmett.

“I thought we’d fixed this a year ago,” Little said. “I don’t think we should expect we’re going to provide a source of income to buy new equipment and personnel. We need to ask the counties to sit down with the title companies and everybody that uses those services and come up with some reasonable fee. We might have to write legislation, but I’d much rather have them reach something reasonable on their own accord.”

Aside from the implications for his own business, Sjostrom believes the current fees for public records affect everyone.

“We don’t feel it’s fair that five or 10 individuals asking for this data have to pay,” he said. “Does each one of those people have to pay thousands? Does the 11th person get it for free? There needs to be some systematic approach to this at a state wide level.”

From the Idaho Business Review

From The Spokesman-Review

Betsy Z. Russell
Staff writer

Idaho’s public records law says all public records are open to the public unless they’re specifically exempted, and there’s no exemption for explicit e-mails sent by public employees on the job.

“There’s no specific exemption for e-mails, for any communication,” said Deb Kristensen, a media law attorney in Boise and a partner with Givens-Pursley law firm. “The public records act absolutely makes everything open. When a public employee is using public resources to conduct his or her business, those writings, regardless of form, are going to be considered public records.”

Kootenai County has repeatedly denied public release of certain county employee e-mails on the basis that the messages are private, even though they are created using publicly owned computer systems and the county’s policy states that e-mails are public records.

Attorneys for county employees have argued that public employees have a constitutional right to privacy that overrides the state open records statute.

Using that argument, the county is withholding an undisclosed number of e-mails between Kootenai County Chief Deputy Prosecutor Rick Baughman and three women who worked in his office. County officials have cited the privacy argument in declining to release the records.

In 2005, the county used the same argument in refusing to release 889 e-mail messages between County Prosecutor Bill Douglas and Marina Kalani, the former coordinator of a county juvenile court program.

Idaho District Judge John Stegner, in a July 2005 decision, ruled that county employees’ e-mails are public record. The case involved a lawsuit by The Spokesman-Review against Kootenai County for release of the Douglas-Kalani e-mails.

Douglas and Kalani appealed that ruling to the Idaho Supreme Court, but Douglas later dropped his appeal, while Kalani’s is pending. The court is not yet scheduled to hear arguments in the case.

Idaho’s Public Records Law contains dozens of exemptions from disclosure for specific types of information, from investigatory records of a law enforcement agency while the investigation is in progress, to medical records, trade secrets, and information in people’s individual income tax returns. But it says nothing about personal e-mails between government employees.

“So if they choose to use inappropriate language or include improper attachments, those are all going to be considered public record,” Kristensen said. “It’s just poor judgment in terms of using that language or putting those attachments on. But it doesn’t change the nature of the record. It’s still a public record.”

State Rep. George Eskridge, R-Dover, who has spoken out on public records issues in the state House of Representatives, said, “My opinion is when you’re using a government-supplied computer, the information you put on there is public information open to the public. I guess that makes it pretty simple.”

In response to a recent request for employee e-mails, the county on Tuesday gave The Spokesman-Review some sexually explicit e-mail exchanges between Baughman and a woman who worked in the prosecutor’s office and has accused him of sexual harassment.

Citing its privacy argument, the county had intended to withhold the e-mails, which included nude photos and sex videos, but inadvertently gave them to the newspaper on a computer disc.

“It just seems like this is the kind of information the public should be entitled to see, if your public officials are sending around naked pictures of people,” Kristensen said. “Is that really what they should be spending their time doing? The public has a right to know that.”

Eskridge said public employees at work should not be sending explicit e-mails.

“It’s not the right thing to do, it’s just not the right use of government-supplied equipment,” he said. “I mean, you’re in a public office, doing business for the public, and all transactions that you do should be in the interest of the public. If you want to do something privately, do it on your own equipment, or do it by personal mail that you’re paying for.”

In his July 2005 ruling, Stegner ruled that the public has a right to read the full contents of the e-mail exchanges between Douglas and Kalani.

Stegner ruled the e-mail messages fall under the state’s open records law because they were written on county property and contain information “relating to the conduct or administration of the public’s business.”

The judge rejected arguments by Douglas and Kalani that releasing the messages would infringe on their constitutional right to privacy and that the contents of the messages were also protected as employee records.

“E-mails between a supervisor and his subordinate are not personnel information; they are communications regarding the operation of the public’s business,” Stegner wrote.

From The Spokesman-Review

From Tom Grote, The Star-News

A judge has ordered the city of McCall to release to the public a 2005 investigation into the conduct of the former McCall police chief and two of his former top officers. The release came following a formal request for the release by The Star-News in McCall.

Fourth District Court Judge George Carey issued the ruling on Oct. 18, the same day he heard arguments on the case from attorneys for The Star-News and the city.

On Oct. 26, the McCall City Council decided not to appeal Carey’s ruling, and the report was given to The Star-News.

In a report on the contents of the investigation published on Nov. 2, The Star-News said investigators had found serious incidents of mishandling of evidence by a police detective in two high-profile cases, but that the chief of police and his lieutenant tried to downplay the extent of the problem. “In spite of early warning signs . . . the upper command of (the police department) ignored problems with apparent hopes of it fading away” the
report said.

After a three-year tenure marked by controversy, Chief Ralph Appa resigned as the head of McCall’s police force in June 2005. Also submitting their resignations were Lt. Chris Moore and Det. Sgt. Lance Rogers.

The three were suspended with pay from their duties earlier in June 2005 by McCall City Manager Lindley Kirkpatrick.

Kirkpatrick launched an investigation into the officers, hiring Northwest Investigative Solutions, headed by Garden City Police Chief Jim Bensley. The report was completed in October 2005 but was not released despite a public records request by The Star-News.

In court filings prior to the Oct. 18 hearing, the city claimed the Bensley report could not be released under state laws that exempt disclosure of personnel records. Release of the report also would be an unwarranted invasion of privacy of the three former police officers, the city claimed. Carey rejected those claims in his ruling. “This is a close question, but the court concludes that the documents do not amount to the personnel record of the three officers, because the report and its supporting document were not submitted until after the officers had left the police department,” Carey wrote.

“Consequently, the documents were more in the nature of an administrative review of a perceived problem than a personnel record of an individual officer or several officers,” he wrote.

Carey also dismissed the city’s claim that Bensley’s firm was a law enforcement agency, which would have qualified the report under state law to be exempt from disclosure. “Arguably the report was prepared for law enforcement purposes, but patently Northwest Investigative Solutions did not come within the statutory definition of a law enforcement agency, ” Carey wrote in his opinion.

Free to speak after to the release of the report, Valley County Prosecuting Attorney Matt Williams told The Star-News that he had to scramble to counteract the mistakes made by the police department to prevent the two high-profile cases from turning into what he called “a circus,” where the conduct of the police department would sidetrack the prosecution of the cases.

The defendants in both cases, a shooting that injured two people and an embezzlement from the McCall Area Chamber of Commerce, pleaded guilty to reduced charges and no trials were ever held.

Also, members of the city council said that Kirkpatrick, and not them, took the lead in the investigation and suspension of the three officers. Some in the community had accused council members of targeting Appa and the officers because of previous crackdowns by the police of liquor violations by McCall bars. That crackdown had angered bar owners, who in turn complained to the council.

The Star-News was represented in the case by Boise attorney Debora Kristensen of the law firm of Givens Pursley.

From Tom Grote, The Star-News

Press release.

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE WASDEN
For Immediate Release
September 14, 2006
Media Contact: Bob Cooper
(208) 334-4112
Attorney General reaches settlement with Teton County Commissioners on Open Meeting Law violation

(Boise) – The Office of Attorney General and the Teton County Commissioners have reached a settlement in a civil lawsuit involving allegations that the Teton County Commissioners violated the Idaho Open Meeting Law. The settlement, filed Wednesday, is subject to approval by the District Court in Teton County.

Under terms of the settlement, Commissioners Mark Trupp, Jay Calderwood and Roger Hoopes acknowledged that they violated the Open Meeting Law on May 30, 2006, by meeting in executive session without providing meeting and agenda notice and by failing to take written minutes of the executive session. The commissioners have each paid a civil penalty of $75.

“Although there were violations of the Open Meeting Law, the findings of our investigation indicate that they were inadvertent, rather than deliberate,” Attorney General Lawrence Wasden said. “The commissioners should be commended for admitting, and taking responsibility for, their mistakes, rather than condemned for having made them.”

Teton County Prosecuting Attorney Bart Birch referred the matter to the Attorney General after receiving a complaint from Jeanette Boner, Managing Editor of the Teton Valley News.

An investigation by Deputy Attorney General Mitch Toryanski found that Teton County Clerk Nolan Boyle called Ms. Boner on the morning of May 30th to invite a representative of the Teton Valley News to observe the commissioners’ canvass of primary election ballots. Following the canvass, the commissioners met in executive session. The commissioners had not provided advanced written notice to the public of that executive session, as required by law. Additionally, the commissioners did not provide for the taking of written minutes. The Idaho Open Meeting Law requires governing bodies to take written minutes of all meetings and make them available for public inspection within a reasonable time after the meeting.

-30-

Idaho Conservation League wins suit

From The Spokesman-Review

Betsy Z. Russell
Staff writer

BOISE – The Idaho Supreme Court has ruled that a state agency can’t keep public records secret by handing them over to someone else and saying they’re no longer in the agency’s possession.

“These documents are clearly public records that are not expressly exempted by statute, regardless of whether ISDA (Idaho state Department of Agriculture) retains possession of them,” Justice Linda Copple Trout wrote in the decision filed Monday. The 3-2 decision also said the court was “not persuaded by the ISDA’s attempts to circumvent these statutes.”

The case involved a lawsuit by the Idaho Conservation League against the state Department of Agriculture because the department refused to disclose nutrient management plans – plans showing how large quantities of manure and wastewater would be disposed of – for beef cattle feedlots. The department cited a law that requires its staff to give all copies of the required plans back to the feedlot operators after it has reviewed and approved them.

“The department made a good-faith effort to comply with statute,” department spokesman Wayne Hoffman said Monday. “From time to time, courts hand down decisions that require agencies to re-evaluate how they do business.”

Hoffman said the department still is reviewing the decision.

Justin Hayes, program director for the conservation league, said, “Average citizens just want to know that the waste that’s being generated is being disposed of properly, in a way that’s not going to harm their air quality or their water quality or result in blankets of flies smothering their grandchildren when they come over for a picnic.”

“When ISDA tries to hide these things from people, it makes people very angry at their government,” he said.

A district court had reached the same conclusion, but the state department appealed to the Idaho Supreme Court. The Supreme Court ordered the department to pay the league’s attorney fees for the appeal, concluding that the department’s appeal was “frivolously pursued” because it focused on who had possession of the records – not on whether the records were public or not.

The court wrote, “A state agency is expressly prohibited from preventing examination of a public record ‘by contracting with a non-governmental body to perform any of its duties or functions.’ … This statute indicates a clear policy by the Legislature that the public has a right to view and inspect records relating to the public’s business and this right cannot be denied by having some other entity conduct the public’s business at some other location.”

Chief Justice Gerald Schroeder and Justice Daniel Eismann dissented. Justice Roger Burdick and Justice Pro-Tem Wayne Kidwell concurred in the majority opinion.

Eismann wrote that the majority suggests that public documents remain so forever. “Such reasoning could require agencies to search landfills for public documents they threw away,” he wrote.

The American Civil Liberties Union represented the Idaho Conservation League in the case. Jack Van Valkenburgh, head of the Idaho ACLU, said under current law, “many agencies have records retention policies, and if they call for the destruction at some point of a document … it is no longer a public record.”

But in this case, Van Valkenburgh said, the state conceded in court that the nutrient management plans were public records. “The dispute was whether surrendering custody of a record means it’s no longer accessible to the public. Fortunately, the court said no. You can’t evade the law by simply transferring the custody holder.”

The feedlots in question don’t include dairies, though mega-dairies and the waste they produce have been a hot issue in Southern Idaho. Both Hayes and Hoffman said nutrient management plans for dairies have routinely been released to the public. Only feedlots for beef cattle were affected by the law about returning the plans to the operators.

The court also upheld the district court’s ruling on another issue, affirming that plans submitted as part of the “Idaho OnePlan” online system operated by the Department of Agriculture are exempt from public disclosure. That’s because the Idaho Public Records Law includes an exemption for the OnePlan system, through which operators can confidentially seek guidance on how to improve their practices.

Hayes hailed the court ruling. “A state agency and the Legislature tried to open up a huge hole in the Idaho Open Records Law by basically farming out documents,” he said. “That was a blatant attempt to make it hard for citizens to learn important information to protect their quality of life.”

From The Spokesman-Review

Editorial from the Idaho Statesman

Faced with a defining decision that will reshape Garden Valley, Boise County commissioners made an abject mess of things.

They met behind closed doors without proper notice, without taking minutes — and without justification. Even their attorney, county Prosecutor Theresa Gardunia, says commissioners shouldn’t have met behind closed doors.

Minutes after the closed meeting, the commissioners approved Southfork Landing, a 606-home, 858-acre development that has divided Garden Valley’s 1,800 residents. When commissioners faced the most scrutiny — when the process mattered the most — they botched it.

They succumbed to the notion that closed doors make for good governing.

The commissioners’ July 24 closed executive session on Southfork was riddled with potential Open Meeting Law violations. Commissioners didn’t put the meeting on the agenda. They failed to provide 24 hours’ notice. They failed to have a clerk take minutes.

During the closed meeting, commissioners discussed what information to include in the public record before approving Southfork, said Gardunia, who was summoned from court to sit in on the commissioners’ meeting. Preparing a complete record is a legitimate step, she said, but something that could have been done in the open. “I think the executive session was unauthorized,” she said Thursday.

Commissioners can meet behind closed doors under select circumstances. For instance, they can discuss a probable or pending lawsuit — and given the public concern over Southfork, a lawsuit may be inevitable. But litigation never came up in the closed session, Gardunia said.

Now, each commissioner could face a $150 fine for breaking the Open Meeting Law, which may be the least of their problems. The botched meeting could provide an opening for critics who want to stop Southfork by getting a judge to nullify the vote to approve the project. The tortured process certainly casts a shadow on Southfork — a project that, by size alone, would be controversial under any circumstance.

Gardunia acknowledges the process looks bad to outsiders, and concedes the closed meeting was unjustified. She deserves credit for that. By contrast, Ada County officials have spent $17,781.25 in taxpayer money on legal fees fighting an alleged Open Meeting Law violation, dating back to June 2005.

The Boise County situation underscores the need for training. Attorney General Lawrence Wasden has toured the state teaching elected officials about how to operate under the Open Meeting Law; obviously, there is still work to do.

The cautionary tale — for part-time office-holders such as Boise County’s commissioners or full-timers like the Ada commissioners — is to work in public, rather than looking for excuses for secrecy. The excuses won’t fly with skeptical citizens — and sometimes, they violate the law.

If Boise County commissioners don’t believe that, they ought to talk to their lawyer.

Editorial from the Idaho Statesman