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

From the Idaho Press

By RACHEL SPACEK

MIDDLETON — An Idaho district judge has ordered the Middleton School District to turn over records to a Caldwell man, who sued the district in August over its denial of his public records requests.

The plaintiff, Ray Moore, filed five requests earlier this year under the Idaho Public Records Act with the Middleton School District, which were either denied, heavily redacted or subject to fees exceeding $3,000.

Moore sued the district — the only recourse in Idaho law for a public records denial. Third District Judge Thomas Whitney on Oct. 7 ruled that the school district had to give Moore unredacted copies of the records by Oct. 25.

Middleton School District Superintendent Sherawn Reberry, in a statement to the Idaho Press Monday, said the district is complying with the ruling and “will be working diligently over the coming months” to identify roles and responsibilities in the district office and train on the proper handling of records requests.

“We intend to be fully transparent to the extent of the law in the future,” said Reberry, who joined the district in July.

Whitney’s ruling comes as a separate public records lawsuit, between the Idaho Press Club and Ada County, is ongoing. The Press Club is suing the county over records that were heavily redacted or denied.

Moore, who represented himself in the case against the school district, said the process made him “incredibly concerned,” because even with knowledge of public records law, he found it difficult and time-consuming. If he’d used legal counsel, he estimates the lawsuit would have cost him $5,000 to $6,000.

Moore was part of a recall effort against school board members earlier this year, sparked after the board did not renew the high school principal’s contract. He was requesting documents to learn more about: The district’s decision not to renew the principal’s contract; allegations against trustee Marianne Blackwell; staff correspondence about a school board meeting agenda; and a legal agreement between the district and the law firm Anderson, Julian and Hull.

Whitney established that the records Moore requested “are public records as defined by Idaho law.”

“In this case,” Whitney wrote, “the district has not met its burden of demonstrating that any of the records requested fall under the narrow statutory exemptions” in the public records law.

One of Moore’s requests, made on May 15, asked for any notes sent to or received by the trustees and some district staff supporting Benjamin Merrill, then the Middleton High School principal, over the last six months. The district told him it would take “at least 80 man hours at a cost of $38 per hour” to complete the request. Moore said he was unable to pay that amount.

Whitney ruled there was “no evidence” proving fulfilling the request would take multiple hours of labor.

Another one of Moore’s requests, also made on May 15, initially asked for all correspondence, including text messages, from trustees and district staff regarding the topics on a school board meeting agenda for May 13, 2019.

The district’s response said there were too many people in “district staff” to meet that request. Moore then limited the request to nine board members and district staffers; however, he said he did not hear back from the district about it.

“The actions by the district, were they deliberate?” Whitney said in his ruling. “Yes, in most of these cases, they were deliberate. Particularly as to the failure to respond to the request which Mr. Moore intentionally narrowed.”

Reberry, in her statement, said her administrative team is “new and had very limited involvement with this lawsuit.” She was appointed superintendent in July.

“It is the district’s intent to fully comply with the court’s ruling,” she said, “and our work to supply Mr. Moore with the requested documents is already under way.”

Becky Worley, the district’s custodian of records at the time of Moore’s request, no longer works for the district, Reberry confirmed. She did not provide details of Worley’s departure.

Blackwell and two other trustees survived the recall election in August.

Moore requested the following records:

LAWYER LETTER: Moore requested a March 28 letter from lawyer Kenneth Mallea, containing allegations that Blackwell had shown prejudice against someone in the district. The details of the issue between Blackwell and Mallea’s client are redacted from court documents. The letter also contained an affidavit, which Moore requested.

Worley sent a response denying the request, saying it was “exempt from public records because it is part of personnel file” of a trustee, according to court documents and emails between Worley and Moore. The denial said Moore would have to obtain permission from Blackwell to get the records because they were in her personnel file.

Moore then emailed Blackwell, who gave permission for him to see the letter. Moore sent the authorization to the district.

Worley then told Moore, according to exhibits in court documents, she did not have the records and was requesting them from district counsel Scott Marotz, with Anderson, Julian and Hull.

On May 1, Marotz provided Moore with redacted copies of the affidavit and the letter, saying the redactions came because the letter and attachments are “exempt from disclosure under the Open Records Act.” Marotz told Moore in an email that the information he requested was also included in another employee’s personnel file, and therefore exempt.

Most personnel information of public employees isn’t subject to disclosure, other than some exceptions such as pay and employment history and status, as outlined in the Public Records Act (section 74-106).

However, another section of Idaho Code, in the Education chapter, applies only to school district employees. This section says a school district employee’s personnel file is confidential, and an employee must be given notice if anything is added to the file, so they have an opportunity to rebut it (section 33-518).

PERSONNEL FILE NOTICES: Moore told the Idaho Press he didn’t believe the information he request was in another personnel file. So, on May 15, he asked for the notice given to the person who had the affidavit in their personnel file and every notice given in 2018 and 2019 to district employees that a complaint was being added to their personnel file.

The district denied that request, saying personnel records were exempt from public records law. Marotz later rephrased the denial, saying the request was “overly broad and burdensome.”

CORRESPONDENCE: Also on May 15, Moore requested all correspondence between trustees and district staff regarding the topics on a meeting agenda. He later limited the request to nine board members and district staff members, understanding his request was “overly broad.”

Whitney ruled that Moore “made it easier for the government to respond, and the district did not respond.”

Moore then requested any notes or writings sent to trustees and district representatives from anyone affiliated with the Middleton School District to support Merrill over the last six months.

Worley sent a response denying these requests, citing that the information was in personnel records.

On May 29, Marotz responded to all three May 15 requests and said they were denied because they were overly broad and would cost a significant amount to fulfill. Marotz also advised Moore could get an estimate of the costs.

LEGAL AGREEMENT: Moore’s last request, on June 25, was for the “most recent legal services agreement” between the district and Anderson, Julian and Hull. The district, through Marotz, told Moore via email that the record did not exist.

However, in the affidavit Moore requested and received with redactions, Marotz sent an email to the Canyon County prosecutor and attached the legal services agreement between the Middleton School District and Anderson, Julian and Hull, proving a legal services agreement existed in 2016-17.

Marotz declined to comment on this story.

From the Idaho Press

From the Idaho Press

By BETSY Z. RUSSELL

The Idaho Public Records Law, in Idaho Code Section 74-102, has a strong presumption of openness.

“Every person has a right to examine and take a copy of any public record of this state,” the law says, “and there is a presumption that all public records in Idaho are open at all reasonable times for inspection except as otherwise expressly provided by statute.”

That’s why when a public agency denies a request for public records, it has to cite the specific statutory exemption from disclosure for that particular record.

In the current lawsuit between the Idaho Press Club and Ada County, we’ve learned that the state’s largest county believes a series of sweeping, blanket privileges — for privacy, attorney-client privilege and a “deliberative process” privilege — outweigh the entire law. Rather than cite any of the 100-plus specific statutory exemptions in the law for refusing to release public records, the county, according to its legal filings and arguments in court, believes it can just cite those broad privileges.

According to a lengthy legal memorandum the county’s attorneys filed in the case, they seem to believe that a 2007 case, Nation v. State Department of Correction, completely turned the presumption of openness in the Public Records Act on its ear, replacing it with a standard that no information that might possibly be private should ever be released, just in case — unless a court orders that it be released. Can you imagine if we all had to go to court every time we wanted to look at our city council’s minutes, a police report on a crime that happened on our street, or how much our local school district is paying a consultant?

Full disclosure here: I’m the president of the Idaho Press Club. That’s why I’ve not been the one writing our news articles about this lawsuit. And the Press Club’s attorneys, in their own legal filings, have strongly disagreed with the county’s argument, which is a new one on me in my 33 years as a reporter in Idaho.

“The county’s position in this case turns the presumption of government transparency and disclosure upside down,” wrote the Press Club’s lead attorney, Deborah Ferguson, in a reply brief filed with the court.

I read the 2007 case, and it wasn’t about the Public Records Act at all.

The lead attorney for the county in the records case, Deputy Prosecutor Jim Dickinson, wrote in arguments filed with the court, “In dissent from the Court’s conclusion in part of the Opinion, Chief Justice Schroeder strongly admonished Idaho governments never to release private information.”

“Idaho governments must proceed cautiously when making records publicly available,” Dickinson wrote. “The Board’s and ACSO’s (Ada County Sheriff’s Office) practices are informed by the Supreme Court’s admonition to treat personal information, or any information that could involve potential for personal or financial harm if released, or information that ‘might and probably would cause mutual distress and injury,’ with great care. As the Court instructed in Nation, should there be any question, entities should protect privacy information until a court orders otherwise.”

Really? The Idaho Public Records Act’s presumption of openness in public records was completely overturned in a court decision more than a decade ago, and none of us ever heard about it until now? I think not. And while I’m no lawyer, no other attorney I’ve talked with about public records in Idaho has ever argued anything of the sort.

Even more sweeping than the “privacy” privilege that Ada County has claimed in the case are its claims of attorney-client privilege, which it claims apply even to non-attorneys and to matters having nothing to do with litigation; and its truly bizarre claim of a “deliberative process” privilege — something that doesn’t exist in Idaho law at all.

The closest thing is an exemption in the Idaho Public Records Act, in 74-109(1), for “draft legislation.” But that applies solely to draft bills in the Idaho Legislature, known in the Statehouse as “RS’s,” that haven’t yet been taken up in a public meeting by a legislative committee. It doesn’t have anything to do with county officials deliberating on the public’s business, and it certainly doesn’t make that process secret.

The preamble of the Idaho Open Meeting Law says, “The people of the state of Idaho in creating the instruments of government that serve them, do not yield their sovereignty to the agencies so created. Therefore, the legislature finds and declares that it is the policy of this state that the formation of public policy is public business and shall not be conducted in secret.”

That’s why we have an Open Meeting Law in Idaho. That’s why we have a Public Records Act. In Idaho, we believe that the citizens have a right to see their government in action, including their deliberations on public policy matters. That’s not supposed to be secret until it’s later sprung on all of us as a done deal. It’s supposed to be open.

That’s how we’re all able to be informed participants in our unique form of government. That free, open access to government information is not just critical to allowing me to do my job as a reporter; it’s central to our freedom as Americans.

From the Idaho Press

From the Associated Press

By REBECCA BOONE Associated Press

BOISE, Idaho (AP) — An Idaho judge says she agrees that fulfilling public records requests can put a big burden on governmental resources, but she expressed some skepticism about the number of completely redacted pages provided to four Boise-area journalists by Ada County officials this year.

Fourth District Judge Deborah Bail made the comments during a Wednesday afternoon hearing on a lawsuit between the Idaho Press Club and Ada County Commissioners.

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

In court Wednesday, Ada County Deputy Prosecuting Attorney James Dickinson said the judge has all the evidence she needs to rule in favor of the county.

“In this instance, your Honor, we’ve given the court the best evidence: the actual documents,” Dickinson said. “However, there is some concern that some of the documents take a fair amount of context to determine exactly how — to realize how come they are privileged and protected. On those documents it’s very difficult because if anything is filed publicly, or I explain to the court what the basis is, that potentially obviates the protection.”

Dickinson maintained county officials followed the law when responding to the public records requests and only redacted what is necessary to protect individual’s privacy rights or other legally protected information. He said filling the requests was a drain on county resources, but that officials responded well.

The judge noted that Idaho’s “statutory preference is that the records be open.”

“Reading your briefing, there’s no question it puts a big burden on governmental resources — it’s a tight time period and it can require a great deal of effort,” she told Dickinson.

Still, Bail said, the Legislature is the entity that the county should ask to adjust those deadlines and burdens, not the courts.

She also questioned whether some of the redacted documents needed to be redacted in their entirety, or whether the county could have included a basic description or log of the types of things being redacted.

“These utterly blank documents seem to me to be pushing the envelope quite a bit,” Bail said.

Deborah Ferguson, the attorney for the Idaho Press Club, told the judge the county has a “culture of concealment of public records and not one of openness.”

Exemptions to the public records law are narrowly defined, not broad excuses to withhold information, Ferguson said.

“I think it’s useful to just take a minute or two to take a broader look at the county’s responses from 80,000 feet above,” she said. The county believes “that it’s better to be safe and deny, and if a requester sues, it’s better to let a court decide.”

She noted that Idaho’s public record law has hundreds of exemptions carved out by the Legislature, making it legal to withhold things ranging from library records to the location of archaeological digs, and even where seed crops are planted. Why would the Legislature be so specific, if it wanted agencies to just rely on a general notion of privacy, she asked.

The judge said she would consider the briefings before making a ruling sometime in the future.

From the Associated Press