Editorial from The Idaho Statesman

On Monday, legislative committees took up issues as varied and vital as school construction, pesticide safety, high school curriculum and elected officials’ salaries.

And on Monday, a divided Idaho Supreme Court missed an opportunity to stand up for your right to attend these meetings.

The court ruled 3-2 that the Idaho Constitution does not require legislators to keep committee meetings open. That decision essentially defends the status quo — House and Senate operating rules that allow a committee to close any meeting, for any reason, on a two-thirds vote.

It’s too bad Chief Justice Gerald Schroeder, Justice Dan Eismann and Justice Linda Copple Trout weren’t swayed by their colleagues, Justices Jim Jones and Roger Burdick. Jones’ dissenting opinion presented a powerful case for the importance of open committees:

• Committees — which debate and refine bills and accept public testimony — clearly conduct legislative business. As the state’s Constitution says, “The business of each house, and of the committee of the whole shall be transacted openly and not in secret session.”

• In a state Constitution where all political power is inherent in the people, the people maintain the right to instruct their elected officials. “There is no indication in the Constitution that the people intended their right to instruct to stop at the doors of a closed committee meeting,” Jones wrote.

• Committee meetings allow Idahoans to watch the formation of policy, not just the final vote on bills. If committees are allowed to do some of their work outside public view, Jones asked, what’s to stop a committee from debating bills in secret and emerging only to cast their final votes? “This is not a wise road on which to embark.”

Secrecy can become troubling in a hurry. That’s why the Idaho Press Club, a statewide media organization, sued the Legislature in 2004, after lawmakers closed seven meetings in 2003 and 2004. Press Club members wanted to stop closed meetings and force the Legislature to conduct public business in public view.

The court majority took no side on that issue, ruling only on whether the language of the Constitution requires open meetings. Eismann’s opinion focused on Idaho’s constitutional convention of 1889, trying to discern what the founding fathers meant when they advocated conducting legislative business in the open.

Interpreting 117-year-old deliberations is one thing. Interpreting the current will of the people, in this case, is easy.

Seventy-five percent of Idahoans said the Legislature should conduct its business in the open, according to a Boise State University survey released in January 2005. Later in 2005, the nonpartisan group The Common Interest found even more overwhelming opposition to secrecy; the group polled a sampling of its more than 700 members, and 95 percent opposed the House and Senate rules allowing closed meetings.

Since the Supreme Court didn’t rule on whether meetings should be open, that decision belongs to lawmakers. They have ample reason to replace current rules that invite secrecy with rules that preserve openness.

Editorial from The Idaho Statesman

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From the Associated Press

By CHRISTOPHER SMITH
Associated Press Writer

BOISE, Idaho (AP) – The Idaho Legislature followed a national trend toward increasing secrecy of government records over the past five years, passing twice as many laws restricting release of information as measures that increased access to documents, according to an Associated Press analysis.

Of the 60 bills affecting public records disclosure that were proposed by state lawmakers from 2001 through 2005, 33 passed. Of those, 22 created new or additional laws limiting the public’s ability to view records created by state or local governments and 11 created more openness in government records or meetings.

Only one of the new Idaho laws was in direct response to the Sept. 11, 2001 terrorist attacks, an event generally considered to be the starting point of a period of increased secrecy in government activities. Most of the other measures restricting access to Idaho public records were driven by an increased desire to protect privacy by restricting release of information on individuals that had been available in the public domain.

Those new privacy laws included classifying as confidential information on crime victims receiving compensation, some sex offender records, and basic information on voter registration cards, such as addresses and phone numbers.

That shift also reflected tendencies nationally.

“After 9/11, people were taking all sorts of government records off the Web and trying to close off public records, but that has died off over the past few years,” says David Cuillier, who teaches media law and public affairs reporting at the University of Idaho and who recently conducted a national survey on public records secrecy for Access Northwest, a nonpartisan research group at Washington State University’s Murrow School of Communication.

“Privacy invasion has been an increasing issue in citizens’ minds and probably legislators’ minds, even though the federal data on identity theft shows the crime doesn’t typically start with taking information from public records, it begins with a stolen wallet or mail.”

The Access Northwest survey completed March 4 asked 403 randomly selected adults from across the country questions on their attitudes toward openness in government and public records. Eight in 10 said democracy requires government to operate in the open and two-thirds said openness keeps government officials honest. Most respondents said the press should have access to several types of public records, from property tax rolls and elected officials’ expense accounts and e-mail to police reports and public utility records.

But in matters of homeland security, Cuillier said people he surveyed supported government curbs on press access to records that potentially could be used by terrorists.

“My study showed while people strongly support the idea of open government, the majority think it’s OK for government to close records if it’s going to protect us from terrorism,” he said. “A majority said we should leave it up to the government to decide what to leave open and what not to leave open.”

The pros and cons of that sentiment played out in the Idaho Legislature in the 2002 session that began three months after the Sept. 11 attacks. Then-Idaho Attorney General Al Lance asked lawmakers to approve a package of “anti-terrorism” bills, including one that would have let judges shut down any public record if state agencies argued the release of the information could threaten public or individual safety.

“There was a huge hysteria after 9/11 about how the terrorists were coming to get us and there was this rush to close everything down,” said Debora Kristensen, a Boise attorney who lobbied for the Idaho Press Club in the 2002 session. “The Press Club was saying no, no, no, this was bad policy, but there was a strong sentiment in favor of closing off all kinds of information.”

The measure passed the House but it was killed on a 6-3 vote in a Senate committee after some lawmakers questioned the need for such an open-ended opportunity for state agencies to close records. In its place, a compromise bill was adopted that prevents disclosure of documents related to public agency buildings or operational plans “when the disclosure of such information would jeopardize the safety of persons or the public safety.”

“The first attempt was so overly broad as to preclude release of anything,” said Roy Eiguren, a Boise attorney who represented the Allied Daily Newspapers in the 2002 Legislature. “After that was blocked in committee we were able to work with the attorney general to come up with something that wasn’t so all-encompassing.”

The battle between the Idaho press and lawmakers over open records in 2002 has since morphed into a fight over open meetings. In 2003, Republican majority lawmakers held six meetings of standing legislative committees in secret, claiming security issues and the Legislature’s inherent right to close a committee meeting to the public at any time.

The Idaho Press Club sued, arguing that the state constitution specifies the Legislature’s business must be conducted “openly, and not in secret session.”

In 2004, a state judge determined framers of the Idaho Constitution intended only the general floor sessions of the House and Senate should always be open, not the committee hearings. The media has appealed to the Idaho Supreme Court, which has yet to rule.

Cuillier said the tussles between press and politicians over access reflects a public interest in open democracy.

“If the public doesn’t support these ideas, there’s nothing stopping government from making everything secret,” he said.

From the Associated Press
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On the Net:
Idaho Press Club: https://www.idahopressclub.org/
Access Northwest: https://www.wsu.edu/~accessnw/index.html

From The Associated Press

By CHRISTOPHER SMITH
Associated Press Writer

BOISE, Idaho (AP) – If the Idaho Supreme Court agrees with a district judge that the state constitution does not require public access to legislative committee meetings, citizens will be shut out of the fundamental business of democracy, a lawyer for the Idaho Press Club argued before the high court.

“The framers (of the constitution) took openness very seriously,” attorney Debora Kristensen said Monday in asking the justices to overturn a lower court ruling that found the Idaho Constitution requires only the floor sessions of the state Senate and House need be open to the public while committee meetings _ where lawmakers hear from witnesses and discuss pending legislation in detail _ can be closed at any time for any reason.

“The only place in the current legislative process where the public has the ability to instruct their legislators in their business is in committee,” said Kristensen.
But the attorney representing lawmakers maintained that, like a judge closing sensitive court proceedings, the Idaho Legislature has a right and need to close committee meetings when it chooses.

And such occasions have been rare, said Deputy Attorney General James Carlson.
“We don’t have abuse of this authority whatsoever,” said Carlson, noting that the appeal focused on just seven committee meetings that were closed, compared to thousands that were conducted openly. Lawmakers had good reason to go behind closed doors in such instances when they were discussing potential terrorist attacks on Idaho water supplies or settlement of a long-standing water rights dispute with the Nez Perce Tribe, he said.
“The Legislature understands and respects public involvement,” Carlson said. “I would submit those (closures) are a prudent use of executive committee to discuss sensitive subjects.”

The Press Club sued the Legislature in 2003 for closing meetings of official committees, arguing that the state constitution requires the “business of each house” must be conducted “openly, and not in secret session.” But in successive rulings, 4th District Judge Kathryn Sticklen of Boise determined the framers of the Idaho Constitution intended only the general sessions of the House and Senate always to be open, not the committee hearings.

Her rulings rely on another constitutional provision that says a quorum must be present before the Legislature can conduct business.

Kristensen pointed to the transcripts of the Idaho Constitutional Convention debates of 1889 and 1890 where delegates proclaimed their intent to have all business of the Legislature open to the public, adding “it doesn’t say when only a quorum is present.”
Republican legislative leaders have argued that closed-door committee meetings are sometimes critical to the legislative process so that lawmakers may openly discuss ideas or proposals, or consider issues of security, litigation and state employee discipline.

Minority Democrats have sided with the Idaho Press Club in the case and criticized GOP leadership for the secrecy policy. But they have balked at signing onto a Republican proposal for a “limited closure” rule that would keep meetings open except in extraordinary circumstances, with Democratic leaders saying they prefer to wait for the Supreme Court to rule in the appeal before deciding whether to support any limited closure rule.

Chief Justice Gerald Schroeder gave no indication whether the high court would rule before the current session of the Legislature _ which opened Monday _ adjourns in late March or early April. He ended Monday’s hearing by saying the justices would issue a decision “in due course.”
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On the Net: Idaho Supreme Court Oral Arguments Audio https://www.isc.idaho.gov/audio.htm

From The Associated Press

From The Spokesman-Review

State agriculture officials met with seed companies

James Hagengruber, Staff writer, January 5, 2006

Idaho’s open meeting law was violated when state officials held two days of meetings with grass seed company officials without notifying the public, according to a lawsuit filed Wednesday by a public health group that’s been pushing for an end to field burning in North Idaho.

The group, Safe Air For Everyone, or SAFE, learned of the December meetings through documents obtained in a request of records and correspondence from the Idaho Department of Agriculture. Decisions on field burning management were made at the sessions, which were held at a hotel in Moscow, Idaho, and neither publicized nor opened to residents, according to a copy of the complaint filed in Idaho’s 4th District Court in Boise.

Patti Gora, executive director of SAFE, believes the meetings are part of a trend toward increased secrecy of state business and are evidence of preference shown to grass growers. “We were shocked,” she said. “We’re appalled at the arrogance of those who are entrusted with guarding public health.”

The complaint was filed Wednesday. SAFE wants the meetings to be declared null and void and each of the six Agriculture Department employees in attendance fined the maximum $150.

Mike Everett, deputy director of the state’s Department of Agriculture, said he was aware of the suit but had not yet reviewed the eight-page document. He would only say that state employees take the open meetings law “very seriously.”

Apart from the lawsuit, Gora said her group has obtained e-mail records that she said are evidence of state employees “mocking” public health advocates. Copies of the e-mails were distributed to the media Wednesday. In an e-mail that Gora said caused particular offense, the state’s burning program manager suggested gathering after the sessions to toast a departing air quality program employee with flaming cocktails. In another e-mail, the same state employee mentioned post-meeting talks ” ‘where we discuss food, drink and/or the meaning of smoke (I burn, therefore I am…?).’ ”

The Idaho Department of Agriculture employee accused of sending the e-mails, Sherm Takatori, refused to comment and referred all questions to the Idaho attorney general’s office.

The lawsuit, however, is only concerned with what happened during the actual meetings. Minutes obtained by SAFE show 19 state, federal and tribal officials attended the sessions. Three representatives from seed companies were also present. Much of the discussion was a recap of the 2005 burning season, which saw a 25 percent increase in fields burned over the previous year on the Rathdrum Prairie and Coeur d’Alene Indian Reservation.

Session attendees also noted an increase in the number of public complaints over smoke. Public health advocates have long fought the annual harvest-time practice of burning grass stubble, saying it causes respiratory trauma to thousands of residents in North Idaho and Eastern Washington. The practice is banned in Washington. At least 500 doctors across the region have signed a petition calling for an end to the practice in Idaho.

Bluegrass farmers say burning is the fastest, cheapest method of removing crop stubble. Torching the fields also reduces the need for chemical weed killers on the Rathdrum Prairie, which sits atop the region’s aquifer. The grass seed grown in these fields is used across the nation in lawns and golf courses.

Although field burning increased statewide this year – thanks largely to higher fuel costs that made it more expensive to plow and prepare a field with a tractor – the practice is rapidly dwindling on the Rathdrum Prairie. The flat, fertile ground north of Post Falls was once a carpet of green each summer and the origin of many complaints about field burning. Many of the fields are now subdivisions.

Thousands of acres of grass fields continue to be cultivated and burned south of Coeur d’Alene. State officials worry that growth will only increase pressure to end the practice, according to minutes from the December meeting in Moscow. Many new residents “will not understand the need for field burning and will need information on the process. This will be a challenge in future years.”

Officials at the meeting also decided to boost the maximum allowable number of acres burned each day during next year’s season, according to the lawsuit. This is a policy decision that demands public input, Gora said.

“If the state is serious about protecting public health, then it has to include the public,” Gora said. “They don’t even return our calls.”

From The Spokesman-Review

From the Associated Press

By CHRISTOPHER SMITH, Associated Press Writer

BOISE, Idaho (AP) – Environmental, civil rights and voter education groups are joining the legal fight of an Idaho media club asking the state Supreme Court to stop lawmakers from closing legislative meetings to the public.

The Idaho Supreme Court has granted a request by the Idaho Conservation League, the American Civil Liberties Union of Idaho Foundation and the League of Women Voters of Idaho to submit arguments in support of the Idaho Press Club’s appeal of a district judge’s ruling that found the Idaho Legislature can close committee meetings whenever lawmakers choose to go into secret session.

“All three of these organizations represent a group of Idaho citizens who are concerned about their ability to actively participate in the legislative process if the business of the Legislature is done in closed committee meetings,” said Sara Shepard, a Boise attorney who is representing the three organizations as “friends of the court” in the case.

The state’s high court is scheduled to hear oral arguments in the appeal Monday, the opening day of the 2006 Idaho Legislature. The Supreme Court order allowing the three groups to submit arguments in support of the Idaho Press Club position was granted Friday.

The Press Club sued the Legislature in 2003 for closing meetings of official committees, arguing that the state Constitution requires that all business of the lawmaking body must be conducted “openly, and not in secret session.” But in successive rulings, 4th District Judge Kathryn Sticklen determined the framers of the Idaho Constitution intended only the general sessions of the House and Senate always to be open, not the committee hearings.

The groups challenge that conclusion in briefs filed with the Supreme Court, noting that records of the debate during the Idaho Constitutional Convention of 1889 and 1890 show that delegates intended that all deliberations undertaken by state legislators _ not just the debates on the floor _ were to be conducted in public.

“I want the electric light of publicity turned upon everything the Legislature has to do in our halls,” Alan Parker, the delegate who proposed the open meetings language at the constitutional convention, was recorded as saying in the record of the official proceedings.

The groups note in court documents that open government was such a priority with the framers that they hired professional stenographers from Denver to record verbatim the entire debates of the Idaho Constitutional Convention.

Between 1990 and 2003, legislative analysts say only one of thousands of committee hearings was closed to the public. But in 2003 six committee meetings were held secretly, prompting the media group’s lawsuit.

As lawmakers negotiated a contentious water rights settlement with the Nez Perce Tribe in the 2004 session, other meetings were also held behind closed doors. No meetings were closed last year, but the Senate voted in February for rule changes allowing committees to close hearings for any reason as long as two-thirds of their members voted in support.

Republican legislative leaders have argued that closed-door committee meetings are sometimes necessary for lawmakers to openly discuss ideas or proposals, or to consider issues of security, litigation and state employee discipline.

Minority Democrats have chastised the GOP leadership for the secrecy policy, and have balked at signing onto a Republican proposal for a “limited closure” rule that would keep meetings open except in extraordinary circumstances.

Democratic leaders have said they prefer to wait for the Supreme Court to rule in the Idaho Press Club appeal before deciding whether to support any limited closure rule.

Idaho, Nevada and Wyoming are the only Western states where legislative committees can cite any reason to close hearings to the public.

Montana, Oregon and Washington require legislative committee hearings always to be open, while Arizona, California, Colorado, New Mexico and Utah allow committees to close hearings only for specified extraordinary reasons.

From the Associated Press

From The Associated Press

By CHRISTOPHER SMITH
Associated Press Writer
Dec. 1, 2005

BOISE, Idaho (AP) – A statewide organization of Idaho citizens is overwhelmingly opposed to lawmakers having carte blanche to close legislative committee hearings, putting more pressure on legislative leaders to craft new rules and end a prolonged court battle over the current closed-door option.

Common Interest is a grass roots organization launched a year ago by a bipartisan group of former Idaho legislators in an effort to give average citizens a voice in the political process.

The 700 members are asked before each legislative session to vote on their top lobbying priorities.

“Our members, and Idahoans in general, consider it a violation of the fundamental principle of democracy that people should be excluded when their business is being discussed,” said Keith Allred, president of the Eagle-based group.

Allred said Common Interest would lobby the Legislature in the 2006 session for a limited closure rule that would allow meeting closures for pending litigation, employee discipline and security matters.

The Idaho Press Club sued the Legislature in 2003 for closing meetings of official committees, arguing that the state Constitution requires all business of the lawmaking body to be conducted “openly, and not in secret session.” A 4th District judge has twice ruled that the framers of the Constitution intended only the general sessions of the House and Senate to be always open, not the committee hearings.

The Press Club has appealed and oral arguments are scheduled Jan. 9 before the Idaho Supreme Court.

Idaho, Nevada and Wyoming are the only western states that allow legislative committees to use any reason to close hearings. Montana, Oregon and Washington require legislative committee hearings to always be open, while Arizona, California, Colorado, New Mexico and Utah allow committees to close hearings in specified extraordinary circumstances.

Between 1990 and 2003, legislative analysts said, only one of thousands of committee hearings was closed. Tension between lawmakers and the media rose in 2003, when six committee meetings were closed. Additional meetings were closed in 2004 as lawmakers negotiated a landmark water rights settlement with the Nez Perce Tribe.

No meetings were closed in the 2005 session, but the Senate voted in February for rule changes allowing committees to close hearings for any reason as long as two-thirds of their members voted in support.

The issue flared up Monday, when Republican members of a joint legislative study committee on state worker salaries voted to go into closed session. That prompted House Speaker Bruce Newcomb, R-Burley, to issue an admonition that secret caucuses were not appropriate for joint committees.

“I would like to make it clear, as speaker of the House, that our policy is that no committee, standing or interim, have a session in which a subcommittee meets behind closed doors,” Newcomb wrote. He could not be reached Wednesday for comment.

Senate Majority Leader Bart Davis, R-Idaho Falls, sponsor of the February measure to allow closure with two-thirds support, said Republicans and Democrats had previously agreed on a limited closure rule until Democrats “starting getting political pressure on the editorial pages” and sided with the Press Club in the current litigation.

“I just didn’t feel like there was the commitment from that point,” Davis said Wednesday. “I was willing to do it then, I’m willing to do it now, but I just don’t know where the other side stands on it.”

Senate Minority Leader Clint Stennett, D-Ketchum, said his caucus prefers to wait for the Supreme Court ruling since his Democrats want to “err on the side of more openness rather than less.” He also scoffed at GOP entreaties to join with Democrats in crafting a new rule when Republicans control 80 percent of the Idaho Legislature.

“Since when did Bart need my votes to do anything?” Stennett said Wednesday. “If they want to pass that rule, they have the votes to do so anytime they want to. We’ll wait to see what the Supreme Court says.”

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On the Net: https://www.TheCommonInterest.org

From The Associated Press