From the Idaho Statesman

by BETSY Z. RUSSELL

BOISE — A divided House State Affairs Committee on Friday narrowly approved HB 601, the bill from Rep. Megan Blanksma to amend the Idaho Public Records Act to add new exemptions for lawmakers and public officials.

Blanksma, R-Hammett, told the committee the bill was intended to “tighten up” the law, because it takes “a massive amount of time” for government, including the Legislature, to respond to public records requests.

“This is to help you in your drafting process, to keep that out of the public eye when you’re trying to develop those ideas,” she told the lawmakers on the committee.

The bill includes new exemptions for the personal notes of any public official in Idaho that haven’t been shared with others, including the governor; research requests by legislators to legislative staff, including documents developed as a result; personal information, including names, in constituent communications to lawmakers; and communications between lawmakers that aren’t about public business. It also requires more specificity, including a specified date range, for all future public records requests.

Matt Davison, publisher of the Idaho Press, spoke against the bill on behalf of the Newspaper Association of Idaho.

“The laws we have in place are good, they’ve been tested over time, they’ve been backed up in courts multiple times,” Davison told the committee. “It seems to me we have a system that works and has worked.”

He added, “We don’t want to hamper you from doing your job. But we want to make sure that there are open records.”

Ken Burgess, lobbyist for the Idaho Press Club, also spoke in opposition to the bill. He thanked Blanksma for showing him and the club’s 1st Amendment Committee early versions of the bill, saying, “It is a softer version of the first couple that we saw, and I think we appreciate that.”

But Burgess said some of the new exemptions proposed in the bill were problematic. For example, Idaho Education News published a story about a publicly-announced meeting between the governor and the state schools superintendent, after requesting the governor’s notes from the meeting under the Public Records Act, which were willingly provided. That could no longer happen under the proposed bill.

The new exemptions aimed at the process of developing and drafting legislation are particularly troublesome, Burgess said. “Our experience has been in recent years, that the Legislature has been more willing to share that type of information … than it has been historically, and we’d like to keep that in place.”

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“In the end, that’s where the sausage-making really occurs with regards to public legislation, and we believe the public ought to have a right to know the ingredients that went into that sausage,” Burgess said.

Rep. Joe Palmer, R-Meridian, moved to send the bill to the full House with a recommendation that it “do pass.” The motion carried on a divided voice vote with slightly less than half the committee dissenting. Rep. Brent Crane, R-Nampa, asked to be recorded as voting “no.”

Rep. Brooke Green, D-Boise, said, “I’m actually really torn on this for a number of reasons. … There’s some parts I don’t think go far enough, and some … go too far. … I do believe that sometimes the media does go overboard and as a result hurt people.”

To become law, the bill still would need passage in the full House and Senate and the governor’s signature.

From the Idaho Statesman

From the Associated Press

By Rebecca Boone

BOISE, Idaho (AP) — Several news and legal organizations have told the Idaho Supreme Court that they believe state prison officials are required to reveal the source of drugs used in executions under public records law.

The American Bar Association, the Idaho Association of Criminal Defense Lawyers, the Idaho Press Club and others filed friend-of-the-court briefs in support of a lawsuit that University of Idaho professor Aliza Cover brought against the Idaho Department of Correction. Several news organizations, including The Associated Press, the Idaho Statesman, Boise television station KTVB and others joined with the Idaho Press Club in its brief.

Department of Correction didn’t have any comment on the filings, spokesman Jeff Ray said.

Cover, who is represented by the American Civil Liberties Union of Idaho, sued after prison officials largely denied her request for execution-related records in 2017. A state judge said last year that prison officials had to turn over much of the information she sought, including documents that would show the supplier of the lethal injection drugs used in the state’s most recent execution.

The Department of Correction appealed, and the state Supreme Court is expected to hear the case this year.

Many states are finding it more difficult to carry out executions because many drug companies don’t want their products used to kill inmates and are refusing to sell them to correctional departments.

The groups that filed friend-of-the-court briefs in Idaho said information about the source of lethal injection drugs should be available to the public to ensure that the state isn’t violating the Constitution’s prohibition on cruel and unusual punishment.

The Idaho Press Club said in its filing Friday that reliable information is needed so the public can determine whether executions are fair and humane.

“Not only does allowing the press to report on executions promote a more informed discussion of the death penalty, it promotes the public perception of fairness and transparency concerning the death penalty,” the news organizations wrote.

The American Bar Association made a similar argument, contending that secrecy undermines public confidence in the justice system.

From the Associated Press

From the Twin Falls Times-News

by RYAN BLAKE

BOISE — Companies that supply Idaho with drugs used to execute death row inmates will remain secret for now, despite objections from some lawmakers and open-government advocates.

Rules outlining the state’s process for the death penalty were approved Wednesday by committees in the House and Senate.

The rules prevent the Department of Correction from sharing information that could jeopardize the ability to carry out an execution. They were updated last year to clarify specific exemptions, like the names of medical staff carrying out the execution.

But the update also included a provision that prevents disclosure of information that would identify the pharmaceutical company supplying the state with lethal injection drugs — a long-debated issue in the state.

Department director Josh Tewalt said most details on executions are already publicly available. Allowing the supplier to be identified would create negative attention, limiting the state’s access to the drugs, Tewalt said.

“Our interests are aligned with people who have concerns about the process,” he said. “None of us want this to be a process that is conducted without integrity, without professionalism.”

University of Idaho law professor Aliza Cover sued for access to the supplier information in 2018. A state judge ruled the department had violated the public records law by withholding the information, but the decision was appealed and will go before the Idaho Supreme Court later this year.

Cover said the rule undermines democratic participation and government accountability and increases concern about “botched” executions. As execution drugs have become less available, states like Idaho have increased secrecy and many in the public may be uncomfortable if they knew the process, Cover said.

“Idahoans, whatever their view on the death penalty, have an interest in knowing how their officials are obtaining those drugs and how they are using taxpayer dollars,” she said. “It seems now the Board of Correction is seeking not to increase its transparency but to limit it further.”

Members of the ACLU and the Idaho Press Club also spoke in opposition to the rule.

Agencies in Idaho use administrative rules to interpret and enforce state laws. Idaho’s public records law allows the Board of Corrections to set it’s exemption rules but requires them to balance the need for secrecy versus the public’s right to know.

Rep. Jason Monks, R-Nampa, said the rule simply clarifies the existing rules.

“I believe the department had the ability to withhold that information before because this … could jeopardize the department’s ability to carry out that execution,” Monks said.

A court already decided the rule violated public records law, and adding it would open the state up for more litigation, Rep. John Gannon, D-Boise, said.

“I think the best thing to do at this point is to follow the decision that’s been made and to be careful what we put in rules,” Gannon said. “It will just end up costing more money in legal fees if the department is wrong again.”

A motion in the House committee to reject only the section related to the exemption for suppliers failed 7-11. The rules were approved as written on a subsequent vote.

The Senate committee also approved the rules as written, with Sen. Grant Burgoyne, D-Boise, casting the lone vote against. He said the rule could violate public records law and disclosure benefits those for and against the death penalty.

“I do not think that looking at (the statute) that the interest in confidentiality clearly outweighs the public interest,” Burgoyne said.

From the Twin Falls Times-News

From the Idaho State Journal

By Jeff Papworth

ARIMO — The new Marsh Valley School District 21 board chairman says the board has unknowingly violated the Idaho open meetings law for years by conducting its entire annual superintendent evaluation behind closed doors.

For all of the 13 years that K.G. Fonnesbeck has been a Marsh Valley school board member, he said the board’s vote on approving the superintendent’s evaluation and contractual changes have been accomplished in one motion in executive sessions, a method the board recently discovered was an open meetings law violation.

Fonnesbeck, the board’s new chairman, said the board first learned it was committing the open meetings law violations when it was notified by the Idaho Department of Education’s attorneys last month that it had broken the law at its Dec. 10 meeting by approving Marsh Valley School District Superintendent Marvin Hansen’s evaluation, contract extension and pay increase during a closed-door executive session.

On Dec. 10, the school board unanimously approved Hansen’s evaluation, contract extension and 3 percent salary increase in one motion during the executive session before announcing the moves during its subsequent open meeting before the public later that night.

The board opened Tuesday’s meeting by unanimously approving a motion acknowledging December’s open meetings violation and voiding the closed-door approvals regarding Hansen.

While the closed-door approvals were a violation, Fonnesbeck added that it was within the board’s right to do the actual evaluation in a private session.

“As soon as you know you’re doing something wrong, you change it and do it the right way and that’s what we’ve done,” Fonnesbeck said. “Now we know. And in the future, it’ll be done that way. Anything that’s a compensation or a benefit will be dealt with in open session.”

Subsequently at Tuesday’s meeting, the school board approved Hansen’s evaluation and contract extension in separate motions while deciding to postpone a decision on his raise until May or June.

“We are not going to give him any kind of pay raise until we have our meeting with our school teachers,” Fonnesbeck said, “and we know what kind of cost of living raises they will be getting.”

Hansen’s evaluation was approved by a 3-0 board vote on Tuesday with new board members Jill Gunter and Paige Armstrong abstaining.

The extension of Hansen’s contract for the 2020-21 school year was then approved by a 3-2 board vote.

“When we feel like we have a really top-notch superintendent, it’s kind of a bonus for them to have that contract extended, so they’re not out shopping or looking to go to another school district,” Fonnesbeck said after Tuesday’s board meeting. “That’s kind of one of those things that helps you keep them around.”

Board member Kathy Egan, who opposed extending Hansen’s contract, said during the meeting, “It sounds to me like we need to err on the side of caution. I can’t see any reason why we can’t push (the decision on the extension) off.”

Also at Tuesday’s meeting, the board unanimously decided to make Fonnesbeck its new chairman. Fonnesbeck took over the chairman’s position from board member Don Nielsen who endorsed him prior to the board’s vote on the matter.

“The only difference is I have the gavel,” Fonnesbeck said about his new position. “The only improvement is if we can improve on our communications. If you look at anything across the country, the No. 1 thing that causes problems is lack of good communications. Anything you can do to improve communications is a benefit. I don’t think I can improve on it any more than Don did, but I will keep working at it.”

Fonnesbeck retired as a Bannock County Sheriff’s Office captain in 2016.

He said he regularly asks law enforcement officers to be present at the school board’s meetings but this recently became an issue when some district residents said the presence of Bannock County sheriff’s deputies at the board’s November and December meetings made the residents feel intimidated.

There were no sheriff’s deputies at Tuesday’s board meeting.

“We hear a lot of bad about our district right now. There’s a lot of turmoil,” Fonnesbeck said during Tuesday’s board meeting. “But when you look at the (Idaho Standards Achievement) test, it’s just amazing that there’s only two schools that scored higher than us in all of Eastern Idaho. That’s a pretty great accomplishment.”

From the Idaho State Journal

From the Idaho Press Club “Communicator”

By Betsy Russell

The Idaho Press Club has won a significant legal ruling in our lawsuit against Ada County, the state’s largest county, over its non-compliance with the Idaho Public Records Act.

We sued, with the support of numerous news organizations in Idaho, and we won. In a sharply worded 31-page ruling, 4^th District Judge Deborah Bail found that the county “not only did not follow the Idaho Public Records Act, it acted as though a different Act had been enacted – a reverse image of Idaho law.”

Idaho law states that that all public records are presumed to be open and available to the public unless a specific, statutory exemption exempts them from disclosure. It sets strict timelines for compliance, and strict standards about the charging of fees. Ada County, instead, has had a pattern and practice, the lawsuit showed, of presuming that all records are closed if they could possibly affect an array of broad concerns including “privacy,” “deliberative process,” “attorney-client,” “personnel,” and so forth – without reference to any of the more than 100 specific exemptions in the law. Its approach, in the judge’s words, “emphasized delay, unsupportable interpretations of privilege and secrecy.”

It’s not that the elected Ada County officials, from the commissioners to the sheriff, have necessarily been purposely attempting to evade the public records law. Instead, it’s the county prosecuting attorney’s office, which acts as the in-house counsel for the county and its elected officials, that has been operating under a fundamental misunderstanding of the law, and has been enforcing that misunderstanding in all its legal advice to our elected officials, leading them to violate the law over and over again.

This ruling should mark the end of those practices. County commissioners, in their reactions to the ruling, have emphasized that they want to be open and transparent, and that they plan additional training and review of their practices in regard to the Idaho Public Records Act. That training and review clearly needs to extend to the office of Ada County Prosecutor Jan Bennetts, an elected official who has overseen all of this faulty legal work.

“The Court finds that the evidence is overwhelming that public records were improperly and frivolously withheld,” the judge wrote. “The Idaho Press Club is the prevailing party and is entitled to its attorney fees and costs. … The documents must be supplied forthwith.”

The documents in question, which had been requested by four different reporters with three different news organizations, have now been turned over in their full, unredacted form. And we learned some very interesting things from those documents; please see the article in this issue of the Communicator from IPC Vice President and 1^st Amendment Committee Chair Melissa Davlin for more on that.

County commissioners voted 2-1 against appealing the ruling to the Idaho Supreme Court, so this ruling is the final word in this case.

Here are some of the main points from the judge’s ruling:

The law means what it says. “The right of the public to know, in depth, how its public servants handle the public’s business is embodied in the Idaho Public Records Act,” Judge Bail wrote. “It gives the public broad access to the public records of Idaho government at every level, in every form – from state, to county, to city, to every type of commission and board. Public records are presumed to be open at all reasonable times for inspection by the public.” Governmental agencies have the burden of proving that a requested record falls under a specific exemption and therefore shouldn’t be released, and the exemptions in the law are to be narrowly construed.

Requests must be granted or denied within three working days; if the agency needs more time to “locate or retrieve” the record, it must notify the requester in writing that it will provide the record within 10 working days. Under certain circumstances, the agency can work out a mutually agreed upon extension beyond the 10 days, but it can’t legally do so unilaterally.

As far as fees, the first two hours of labor and the first 100 pages must be provided at no charge. Thereafter, fees are limited to actual costs, and may be waived. The only recourse under the law when records have been improperly denied is to go to court, which is what the Idaho Press Club did.

Ada County threw up a number of procedural defenses to the Press Club’s lawsuit, including that the Press Club lacked standing to sue, that we improperly named the county rather than individual officials as the defendants, and that each of the four reporters should have sued separately. All were found entirely without merit by the court.

Then, the county claimed “vague denials for ‘attorney-client privilege,’ ‘personnel information,’ ‘privacy,’ and ‘deliberative process’” that “do not satisfy Ada County’s burden under the Idaho Public Records Act,” the judge wrote.

Attorney-client privilege. Citing a 1908 Idaho Supreme Court case, the judge found that attorney-client privilege applies to “confidential communications between the public attorney and the public agency client for the purpose of giving or receiving legal advice,” such as entering contracts or assessing the agency’s legal position in litigation. But it “should be narrowly construed in the context of public agencies,” she found. If public agency lawyers are doing something other than providing legal advice – like performing administrative or clerical functions involving responding to public records requests – their work isn’t privileged. Also, the judge noted that public attorney’s names aren’t privileged against public disclosure.

Personnel information. “Ada County’s generic claim of ‘Personnel’ as a basis for non-disclosure without reference to a specific statutory exemption is a violation” of the Idaho Public Records Act, the judge found. The names of public employees and their positions are not exempt from disclosure under the act, she wrote. Exemptions in the law are specific to such matters as birth date, social security number, applications, testing and scoring materials, grievances and performance evaluations. “None of them apply,” the judge found.

“Privacy.” The law does contain an array of specific exemptions regarding privacy concerns, the judge noted, such as making juvenile records largely exempt, protecting the physical address of crime victims or law enforcement officers from release even when they appear in otherwise public documents, and exempting from public release information on which books a patron checked out from a public library. Ada County argued, in this case, that it had to go further to protect privacy or it might get sued. But the judge found that argument “not persuasive” because the Public Records Act specifically grants agencies immunity if they inadvertently disclose something private while attempting in good faith to comply with the Public Records Act. “There is no basis for this Court to adopt the amorphous privacy exemption argued for by Ada County,” Judge Bail wrote; it “has no basis in any specific exemption or anywhere else in Idaho law.”

Plus, the judge noted, “A broad, standard-less interpretation of IC 74-104(1) would negate the entire Act.” She added, “Ada County’s approach to this particular issue where it even deleted the reporter’s own email address and emails asking about the status of their public records request because of ‘Privacy’ is so lacking in good faith that it is striking.”

Deliberative process. “A considerable number of records were withheld because of Ada County’s assertion of a ‘Deliberative Process Privilege,’” Judge Bail wrote. But there is no such privilege in Idaho’s law. The 1988 federal Freedom of Information Act contains such a privilege with regard to certain federal records, and it’s led to “considerable litigation” there, but it’s the Idaho Public Records Act that governs state and local records in Idaho. “Since the deliberative process privilege has been a part of the federal Freedom of Information Act since 1988, the Legislature’s decision not to include it in the Idaho Public Records Act is significant,” the judge found. “Had they wanted to include the privilege, they could have done so. … There is no deliberative process privilege in the Idaho Public Records Act. This court declines the invitation to make one up. Idaho has opted for greater transparency. The decision to narrow the range of public records open to the public belongs to the Legislature.”

This ruling should mark a significant change in how Ada County approaches it compliance with this important open government law, but it doesn’t only apply to them. Other public agencies in the state also have applied their own overly broad interpretations to this law that have led to improper denials, delays, fees and redactions. They all need to pay attention, too.

And what this issue shows at heart is a basic flaw in our public records law: That the only recourse for those improperly denied public records under the law is to get a lawyer and go to court. That’s an expensive proposition, and for that reason, it rarely happens. That allows a public agency to develop patterns and practices that don’t comply with the law, and continue following them until someone hauls them into court.

Many states have intermediate levels of appeal short of going to court, whether it’s an administrative review, a public records review board, an ombudsman’s office or another approach. Our state has looked into these options in recent years, but we haven’t gotten there. It’d be a great addition to this important Idaho law.

Betsy Russell is the Boise bureau chief for the Idaho Press, and is the president of the Idaho Press Club.

From the Idaho Press Club “Communicator”

From Idaho Education News

by Devin Bodkin

ARIMO — The Marsh Valley School Board secretly approved a contract extension and pay raise for its superintendent — and board chair Don Nielsen would not disclose the decision’s financial impact on taxpayers.

“I don’t know if I’m allowed to tell you that,” Nielsen told EdNews.

Nielsen and trustees agreed — during a closed-door executive session on Dec. 10 — to extend Superintendent Marvin Hansen’s contract to a three-year agreement and fund an unspecified “salary increase” effective July 2020, according to draft board minutes obtained by EdNews through a public records request. The meeting’s agenda includes nothing about prospective changes to Hansen’s contract with the district.

The board reached the decision while in an executive session through “unanimous consensus,” Nielsen said.

Nielsen justified the secretive process by citing the district’s past handling of superintendent contracts.

“This is the same process the board has followed for at least 16 years,” he said, adding that trustees did not formally vote on the matter behind closed doors. “You can’t vote in executive session.”

After the “unanimous” decision in executive session, trustees returned to an open meeting where Nielsen disclosed a looming increase to Hansen’s salary. Nielsen did not say how much the increase would be.

Idaho’s open meeting law requires the formation of public policy to be conducted in open meetings. Private approval of the extended contract and pay raise — and Nielsen’s refusal to disclose the details — make it impossible for taxpayers to understand their financial obligation to Hansen.

Idaho law also requires districts and charters to post contracts on their websites and update them at least every 30 days. A day after this story first ran, personnel contracts, including Hansen’s, were uploaded to Marsh Valley’s website. Hansen’s 2019-20 salary: $108,973.

EdNews filed a complaint Wednesday with Bannock County Prosecutor Stephen Herzog regarding the apparent open meeting violation.

The Marsh Valley district is located in Arimo, some 25 miles south of Pocatello. The district enrolls around 1,300 students from several surrounding small towns.

From Idaho Education News

From the Idaho Statesman

By Scott McIntosh, Opinion editor, Idaho Statesman

Opinion column from the Idaho Statesman ~ Dec. 18, 2019

Reading the decision by 4th District Judge Deborah Bail in the Idaho Press Club’s lawsuit against Ada County over public records was cathartic.

In what can only be described as a smackdown, Bail gave voice to the frustrations that so many journalists — and I’m sure some members of the public — have had when it comes to asking for simple documents that are supposed to be public records.

“Ada County not only did not follow the Idaho Public Records Act, it acted as though a different Act had been enacted — a reverse image of Idaho law,” Bail wrote. “No public agency is free to create its own Public Records Act.”

Preach.

We’ve been upset with the amount of time it takes to respond to requests. We’ve been upset at being charged for records. We’ve been upset at being denied for records that we know aren’t legitimate reasons for a denial.

But most of all, we’ve been upset when a public agency does not follow the state law when it comes to public records.

It’s one thing for journalists to sit in their newsrooms and grouse (we are very good at that). It’s quite another matter to file a lawsuit challenging the records denial. In Idaho, the only recourse we have is to file a lawsuit, and that takes time and money. Even if we know we’re in the right, in today’s anti-media landscape, there’s no guarantee that a decision will go our way.

So it was with some trepidation that the Idaho Press Club, of which I am a board member, decided to file suit against Ada County over what we thought were clearly egregious violations of the state’s public records law.

Bail agreed, and in her decision released Friday, ruling in favor of the Idaho Press Club and ordering Ada County to pay all attorney fees and court costs, her words were clear and strong.

“It is absolutely remarkable that Ada County would claim privilege for the name of an attorney and the stock confidentiality notice,” Bail wrote.

“Ada County’s approach to handling the Idaho Public Records Act requests in this case was troubling.”

“Ada County’s refusal to provide records was frivolous and it has frivolously pursued its positions in this case.”

“The Court finds that the evidence is overwhelming that public records were improperly and frivolously withheld.”

“Moreover, it has not met its burden in this Court of proving that the documents requested fit within one of the statutory exemptions. Ada County has not met its responsibilities under the Idaho Public Records Act.”

“Ada County did not adequately detail its costs for production of the public records.”

“Most seriously, the vague denials for: ‘Attorney-Client Privilege, Personnel Information, Privacy, and Deliberative Process Privilege’ do not satisfy Ada County’s burden under the Idaho Public Records Act.”

“There is no basis for this Court to adopt the amorphous privacy exemption argued for by Ada County.”

“The broad ‘Privacy’ basis for not providing public records information requested as argued by Ada County has no basis in any specific exemption or anywhere else in Idaho law.”

Judge Bail’s decision should be required reading for every lawyer who represents a fire district, a city, a school district or a gopher district in the state of Idaho.

This ruling was a vindication that we’re not just complaining for the sake of complaining. We recognize there are legitimate exemptions to public records law, and when presented with the legitimate and legally accurate statutory claims for exemption, we understand. But when public agencies run afoul of the state law, it’s incumbent upon us to call them out on it.

And it’s not just a victory for journalists; it’s a victory for the public, on whose behalf we are seeking these records.

Hopefully, in the wake of this unambiguous ruling, public agencies will get it right the first time and won’t find themselves wasting taxpayer dollars getting a smackdown in court.

From the Idaho Statesman

From the Idaho Press

BOISE — The Ada County Board of Commissioners will not appeal a judge’s ruling that the county failed its legal responsibilities to provide public documents.

The board voted 2-1 Monday not to appeal the ruling, with Commissioners Kendra Kenyon and Diana Lachiondo voting against appealing the ruling and Commissioner Rick Visser voting for the appeal according to county spokesperson Elizabeth Duncan.

“While the Board understands Judge Deborah Bail’s decision that the county can be more transparent and timely in releasing public records, it is important to note that under the current board’s direction, internal improvements in process and procedures were already underway long before the judge’s ruling,” a press release from the county said Monday, and noted training for Ada County’s public records custodians “is currently being implemented county wide.”

“We have already taken steps that are improving the way Ada County handles public records requests,” Ada County Commission Chairwoman Kendra Kenyon said in the release. “We have hired a Director of Communications, provided even more clarity on our website, and we directed our staff, and encouraged the attorneys, to be more open and timely in responding to public records requests.”

The Idaho Press Club released a statement Monday in response to the board’s decision not to appeal the ruling.

“The judge’s ruling was crystal clear: Ada County’s delays, denials, over-redactions, excessive fees and vague excuses for withholding public records didn’t stand up in court, and public agencies in our state must comply with the Idaho Public Records Act,” the Press Club’s statement reads. “We look forward to working with them on that basis in the future, and hope the court’s timely reminders of the need to follow this important law resonate with every public agency in our state.”

The Idaho Press Club, a nonprofit trade association of working journalists from all media in Idaho, brought the case on behalf of all of its members, including four journalists whose requests were improperly denied by Ada County.

The lawsuit, involving Idaho Statesman reporters Cynthia Sewell and Katy Moeller, Idaho Public Television reporter Melissa Davlin and Idaho Education News Managing Editor Jennifer Swindell, contended county officials repeatedly violated the state public records law by wrongly denying access to some documents, over-redacting others and otherwise mishandling public information requests.

In Friday’s ruling, 4th District Judge Deborah Bail wrote that the county’s approach to the public records requests it had received from the journalists was so far removed from the requirements of the state law that it was as though the county were doing the opposite of what the Idaho Public Records Act required.

Bail said all of the documents requested by the journalists, with the exception of just a few, must be turned over to them. She also ordered Ada County to pay the Idaho Press Club’s attorneys fees.

“Ada County’s approach to handling the Idaho Public Records Act requests in this case was troubling,” the judge wrote. “The Act favors timeliness, narrow exclusions and openness; Ada County’s approach emphasized delay, unsupportable interpretations of privilege and secrecy.”

From the Idaho Press

By Rebecca Boone

BOISE, Idaho (AP) — The Idaho Press Club and four Boise-area journalists have won a lawsuit they filed against Ada County officials under Idaho Public Records Act.

In Friday’s ruling, 4th District Judge Deborah Bail wrote that the county’s approach to the public records requests it had received from the journalists was so far removed from the requirements of the state law that it was as though the county were doing the opposite of what the Idaho Public Records Act required.

Bail said all of the documents requested by the journalists, with the exception of just a few, must be turned over to them. She also ordered Ada County to pay the Idaho Press Club’s attorneys fees.

“Ada County’s approach to handling the Idaho Public Records Act requests in this case was troubling. The Act favors timeliness, narrow exclusions and openness; Ada County’s approach emphasized delay, unsupportable interpretations of privilege and secrecy,” the judge wrote in Friday’s ruling.

In the lawsuit, Idaho Statesman reporters Cynthia Sewell and Katy Moeller, Idaho Public Television reporter Melissa Davlin and Idaho Education News editor Jennifer Swindell contended county officials repeatedly violated the state public records law by wrongly denying access to some documents, over-redacting others and otherwise mishandling public information requests.

In court documents filed in response to the lawsuit, Ada County Deputy Prosecuting Attorney James Dickinson said the Ada County Board of Commissioners and the Ada County Sheriff’s office followed the law and legally redacted information to protect individuals’ rights.

The judge rejected those claims, calling the denials frivolous. She said the county denials were vague and over-reaching.

“While the attorney-client privilege can be asserted for confidential communications between a lawyer and the client for the purpose of legal advice, delegating the administrative/clerical function of gathering public records to a lawyer does not make everything the lawyer touches or copies other employees subject to the protection of the privilege,” Bail wrote.

Davlin said the ruling marks “a great day for government transparency in Idaho.”

“I’m hoping that other government entities are paying attention, because Ada County certainly wasn’t the only one that had public records practices outside the law,” Davlin said. “So, hopefully this ruling means we can avoid these fights in the future.”

Dickinson did not immediately respond to a request for comment from The Associated Press.

Ada County Commission Chair Kendra Kenyon told the Idaho Press she could not comment specifically on the lawsuit, but said she looked forward to reading the ruling. “The Board will look diligently at our internal process and procedure,” Kenyon said, and added she and the commission were committed to “access and transparency.”

“Those are vital to the community and we look forward to this process,” Kenyon said. She said no decision had been made on whether or not Ada County would appeal the ruling made by Judge Bail, but that commissioners would be looking at their options early next week after the county’s lawyers had combed through the ruling.

You can read Bail’s 31-page ruling here:

Idaho Press Club Decision and Order

From the Associated Press

By Rebecca Boone

BOISE, Idaho (AP) — Idaho prison officials have changed their administrative rules to ensure secrecy surrounding the source of the state’s lethal injection drugs.

Like previous versions, the rule updated earlier this year forbids the Idaho Department of Correction from disclosing “under any circumstance” information that department director Josh Tewalt determines could jeopardize the department’s ability to carry out an execution. But this version also specifically forbids the release of information that could potentially identify both past and future suppliers of lethal injection drugs.

The rule doesn’t include allowances for court orders. That could complicate an appeal in a lawsuit against the department from a University of Idaho professor who is seeking access to lethal injection records. A state judge has ordered the state to turn over the documents, but prison officials have appealed and the state Supreme Court is expected to hear the case next year.

“This certainly raises some concerns with what the judge has ruled,” Kathy Griesmyer, policy director with the ACLU of Idaho, said on Monday.

The American Civil Liberties Union is representing the professor, Aliza Cover, who sued the Idaho Department of Correction under Idaho’s public record law for access to the documents and won much of what she sought under a ruling from 4th District Judge Lynn Norton.

Shortly after correction attorneys filed the appeal in May, the Board of Correction approved the rule change.

Similar attempts to increase secrecy have failed in the past. In 2015, Tewalt — then the deputy prison chief — pushed for a state law that would have made it illegal for the department to turn over records involving the source of lethal injection drugs in response to subpoenas or other preliminary legal inquiries. The legislation never made it beyond the Senate Judiciary and Rules Committee amid concerns that it was overly broad.

Idaho Department of Correction spokesman Jeff Ray said the rule was adopted during a public meeting and doesn’t exempt any new information or make substantive changes to current procedure.

“Rather, the revisions articulate precisely what information is exempt from disclosure,” Ray wrote in an email on Tuesday.

The rule is part of the Idaho Administrative Procedure Act, a document of state policies that also spells out how state agencies interpret and enforce state law.

The state Public Records Act itself doesn’t specifically exempt the source of lethal injection drugs from being released, but does give the Board of Correction the authority to set the administrative rules regarding executions.

Still, the law says those rules have to be done pursuant to a “balancing test,” a process in which board members must weigh the need for secrecy against the public’s right to know.

That balancing test is at the heart of Cover’s lawsuit against the department.

“What this non-disclosure rule does is circumvent that balancing test,” said Griesmyer. She said her organization would ask lawmakers to reject the rule during the upcoming legislative session.

From the Associated Press