From the Idaho Press

By TOMMY SIMMONS

A district court judge has ordered the Idaho Department of Correction to release an array of documents it denied in a 2017 records request — and included in those documents is the name of a source for chemicals used in a 2012 execution. The judge’s order also ruled the department’s deputy director acted frivolously and that its public information officer acted in bad faith in denying the public records request.

Aliza Cover, a law professor at University of Idaho, filed that request in September 2017. She wanted information about the Idaho Department of Correction’s source for chemicals it used to concoct the lethal injections used in executions in 2011 and 2012. Many pharmaceutical companies do not allow their drugs to be used in executions, and, in response many state departments of correction have turned to smaller compounding pharmacies and at least one other, overseas source. It creates the potential for the use of poorly regulated chemicals — and thus, torturous, botched executions. For example, the compounding pharmacy the department purchased drugs from for the 2012 execution can no longer supply drugs, because it could not meet the necessary standards.

But Idaho Department of Correction officials largely denied Cover’s request for information about the source of the drugs used in the 2011 and 2012 executions. If the names of their sources became public, officials argued, the public pressure on those sources would be so strong that they would no longer have dealings with the state — and thus the department would no longer be able to carry out executions.

That denial spawned a lawsuit, in which attorneys from the ACLU of Idaho represented Cover. The case went to trial in January and February, and revealed the department’s poor record-keeping practices, as well as the fact that department officials had contacted an India-based salesman for the necessary drugs, then responded inaccurately to a BuzzFeed News reporter’s request about it, saying they had not.

Since attorneys made closing arguments in February, 4th District Court Judge Lynn Norton has considered her ruling in the case, which she handed down Thursday.

While the department must turn over documents that will reveal the source of drugs used in the 2012 execution of Richard Leavitt — as well as information about those chemicals — they do not have to disclose the source of the chemicals used in the 2011 execution of Paul Ezra Rhoades, according to a news release from the ACLU of Idaho.

In addition to that, Norton found Jeff Ray, public information officer for the Idaho Department of Correction, acted in bad faith in withholding the information from Cover. She ordered him to pay a $1,000 fine — the most she could have ordered, according to Ritchie Eppink, attorney for the ACLU of Idaho, who litigated the case.

While Norton did not sanction Jeff Zmuda, the department’s deputy director, she did find he acted frivolously in withholding information as well.

“The court also found that Zmuda had testified disingenuously in an affidavit filed in the case,” according to the news release.

Norton’s order, known as a writ of mandate, is effective immediately, said Eppink. He said the ACLU of Idaho will demand the department turn over the documents previously withheld, and hopes to receive them not long after that.

Ray, the department’s spokesman, told the Idaho Press Thursday officials are “studying the ruling and weighing our options with legal counsel.”

From the Idaho Press

From the Idaho Press

By NICOLE FOY, XAVIER WARD and ALX STEVENS

This weekend marks the end of Sunshine Week, an initiative the American Society of News Editors started in 2005 to start a discussion about openness and transparency in government.

During Sunshine Week (March 10-16), media organizations and reporters across the country highlighted the importance of state and national laws that protect the public’s “right to know” what their public officials are doing.

It’s basically the closest thing to a national holiday for journalists. Except instead of celebrating, we file public records requests.

This year, the Idaho Press tested the openness and transparency of 14 government agencies in the Treasure Valley.

Around noon on Friday, Feb. 8, Idaho Press reporters filed public records requests for the text messages of elected officials from more than a dozen local government agencies. Reporters requested text messages exchanged between these elected officials within specific time frames: before, during and after that agency’s most recent public meeting.

For example, for the Nampa City Council meeting that began at 6 p.m. Feb. 4, Nampa reporter Erin Bamer requested all text messages the mayor, city council members and Nampa police chief sent or received between 4 p.m. and 12 a.m.

Some of these agencies complied with Idaho Press requests quickly and easily. Some complied but needed longer than the three-day response time in Idaho Code to fulfill the request. Others denied them outright, such as the city of Kuna, which said the Idaho Press could appeal that decision within a 180-day time frame.

The Idaho Press didn’t request these text messages to find out if our local elected officials use GIFs and emojis (although they do) or to catch their personal thoughts on public proceedings (although we did). The Idaho Press requested text messages — specifically, text messages before, during and after public meetings — because Idahoans have the right to know what their public officials are saying about public matters in private.

When public or elected officials are discussing public business, at a public meeting — sometimes using phones paid for by taxpayers — then residents have the right to know what those text messages say. Most people rightfully infer that not all decisions or important discussions regarding new laws, city ordinances or public projects happen during the weekly open meetings residents are invited to attend. Often, elected officials have important discussions behind closed doors that affect the decisions they make in open meetings.

The state of Idaho is serious about Idahoans having these rights, too. The Idaho Legislature enacted the Idaho Public Records Law in 1990 in order to ensure a transparent and ethical government. According to Idaho Attorney General Lawrence Wasden, the Idaho Public Records Law — which you can find in Idaho Code 74, chapter 1 — isn’t just about protecting Idaho citizens’ “right to know.” It also protects each citizen’s right to monitor the actions of state and local government entities.

The Open Meetings Law in the following chapter also makes it clear “that the formation of public policy is public business and shall not be conducted in secret.”

There are very few instances in Idaho Code where public officials are allowed to have private discussions — like when they’re dealing with personnel or legal issues or negotiating on behalf of the public agency in matters of trade. But even then, elected officials are not allowed to make decisions in those executive sessions — they’re required to make decisions in the public eye and for the benefit of the public record, so Idahoans can know what the people they selected to represent them are doing on the taxpayer dime.

Public agencies have to respond to requests for public records in a timely manner, too. Idaho Code 74-103 says officials have just three working days to either fulfill or deny a request. However, agencies can request an extension to 10 days if officials need more time to locate the records or respond to the request.

For example, the city of Boise fulfilled the Idaho Press request for text messages quickly, after just one business day. Other agencies like Canyon County requested an extension on the third business day, then told the Idaho Press on the 10th business day that no relevant records could be found. The Kuna School District, on the other hand, denied the request for text messages, claiming text messages on private devices are not public records.

A public record is any writing related to the conducting or administration of public business by any state or local government agency, Deputy Attorney General Brian Kane told the Idaho Press, citing Idaho Code 74-101(13).

Idaho’s records laws are “content-based,” Kane said, meaning when public officials use personal devices to discuss public business, those records can be subject to disclosure. It doesn’t matter if the official or the agency owns the phone; what matters is the message’s content.

The converse is also true. Some messages sent on a government-owned device aren’t subject to disclosure if they don’t pertain to public business.

“It’s always important for the public to understand you can have mixed public and private (records),” Kane said.

Below is a description of how local agencies stacked up in our Feb. 8 request for officials’ text messages, including how quickly each jurisdiction responded, the ease of the request process and what Idaho Press reporters learned from those text messages.

ADA COUNTY

City of Kuna

The Idaho Press requested all text messages received and sent by the Kuna mayor and four City Council members and Kuna police chief between 4-11 p.m., Feb. 5, a meeting day.

The city has a request form on its website, kunacity.id.gov, under the “City Government” tab and the “Transparency” subhead.

The Idaho Press emailed the request around noon Feb. 8 and heard back the morning of Feb. 11, just under one business day later. The city clerk’s response said the request had been denied because text messages aren’t city records and no such records exist. The response also said the request for the police chief’s text messages should go through the county, as the police chief is contracted with the Ada County Sheriff’s Office.

The Idaho Press followed up by asking the city to cite the specific section of Idaho code in its denial, which is also a requirement of Idaho Public Records Law. The city clerk attached a response from the city attorney, which said the response was not a denial because the request did not involve a public record as defined by Idaho Code 74-101(13).

That section of code only states: “‘Public record’ includes, but is not limited to, any writing containing information relating to the conduct or administration of the public’s business prepared, owned, used or retained by any state agency, independent public body corporate and politic or local agency regardless of physical form or characteristics.”

After emailing the city clerk and Kuna’s legal counsel asking if they were saying that the records don’t exist because the text messages are on personal devices, not issued by the city, or that no public-related content was in any of the text messages in that time period.

Kuna’s attorney, William “Bill” Gigray, said the city is not responsible for keeping track of personal text messages, therefore they are not a public record.

“I’m aware of situations, in the 40 years I’ve been involved with government entities, there have been rouge officials,” Gigray said, “but to round up (their personal communication), we’re not responsible for that, based on the law, what are we are saying we are responsible for?”

“You’ve gotta be practical,” Gigray said. “I see (tracking text messages) as one adjunct to record retention, control and access … all government employees would have to sign release consenting to searching, reporting Facebook activity, all communication.”

Gigray also said he feels institutions have to have boundaries, “otherwise every written note by a city official is all of a sudden public record.”

“If that’s the position of the AG’s office, every communication by any elected official would be subject to public records law,” he said. “I can’t imagine anyone would want to serve in that position.”

Gigray said if he or the city became aware city officials were conducting city business on their personal devices, that would be another matter. He said if there were a complaint about city business possibly being conducted on personal devices outside of public meetings, the city and the attorney would conduct an investigation.

To appeal, the Idaho Press would have to file a lawsuit with the district court.

Kuna Joint School District

For the Kuna Joint School District, the Idaho Press requested text messages sent and received by school board members between 4-11 p.m. on Jan. 15, a meeting day. The district quickly responded to clarify the scope of the request, then said it would respond in 10 days, as allowed by Idaho law.

The Kuna Joint School District has a link to access a public records request form on its website, www.kunaschools.org, under the “District” tab and the “Board of Trustees” subhead.

The district responded again the morning of Feb. 13, within three business days, saying the text messages were not public record because they were not prepared, owned, used or retained by the school district. The response also cited Idaho Code 74-101(13) and said the district’s legal counsel had weighed in.

After emailing the school district asking if they were denying the request because the records were on personal devices or because there was no public-related content in the texts, the district responded it will seek “greater clarification.”

The response said the decision could be appealed in 180 days.

City of Boise

Requesting records from the city of Boise is typically a smooth process. There’s a form on the city’s website that sends a records request to a paralegal, who processes the request and responds. The city responded to the Idaho Press’ Feb. 8 request within one business day, sending back two text exchanges that fell under the request.

One exchange involved Councilwoman Holli Woodings 22 minutes into the city council meeting, checking on someone she knows who was sick. The other exchange was a group message among Boise Fire Chief Dennis Doan, Councilwomen Lisa Sanchez, Woodings and Councilman Scot Ludwig about a structure fire at Los Mariachis Mexican restaurant.

Boise Independent School District

The district uses the email publicrecordsrequest@boiseschools.org to field records requests. The district’s public information officer responded to the Idaho Press’ Feb. 8 request that same day, pointing out an error that needed to be fixed. By the afternoon of Feb. 11, the district sent a response saying there were no text messages during the time period of the request.

Ada County government

Ada County asks that all records requests go through an online portal available on the website. The Ada County Sheriff has a similar operation on its website.

Following the Feb. 8 request for text messages from Ada County commissioners’ phones sent between 4 and 11 p.m. on Feb. 4, the Idaho Press received a response back within one business day that the county would need more than three days to complete the request. Within five business days, the county said no records were found.

The Ada County Sheriff’s Office asked for an extension on Feb. 13, within three business days of the request. On Feb. 21, the office denied the request, citing Idaho Code 74-104(1). The sheriff’s office said the text messages during that time were protected from disclosure due to attorney-client privilege.

City of Meridian

Records requests for the city of Meridian can be filed and tracked through the city’s website. The Idaho Press requested text messages from Mayor Tammy de Weerd, all Meridian City Council members and the police chief from 4-11 p.m. Feb. 5, when city council met.

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Meridian City Clerk staff took an extension, completing the request on Feb. 19, seven business days after we sent the request.

Cameron Arial, Meridian community development director, sent Councilman Treg Bernt a text thanking him for his participation in a meeting earlier that day. Bernt replied “Any time any place.” Meridian communications manager Kaycee Emery sent Mayor de Weerd some messages about a rehearsal for the Meridian State of the City, scheduled for the following day.

West Ada School District

West Ada records requests can be filed through email with communication officer Eric Exline, exline.eric@westada.org.

The Idaho Press asked for text messages from all West Ada school board members from 4-11 p.m. on Tuesday, Jan. 15, their most recent meeting. Exline sent the text messages within one business day.

Trustee Ed Klopfenstein had taken over as the chairman of the school board during the January meeting. Trustee Rene Ozuna sent him a message congratulating him on his new position and stating he did a nice job during the board meeting.

Philip Neuhoff — the previous board chairman — received a text from Exline stating he was the “best Board Chair I have ever worked with.” Neuhoff replied, “Thanks.”

Klopfenstein sent Neuhoff a text asking if they could get coffee. Neuhoff said they could.

CANYON COUNTY

City of Caldwell

Requesting public records through the city of Caldwell has gotten easier since the city created a new online request portal. There’s an option of receiving electronic files, picking up paper copies, or viewing original documents.

After submitting a records request, the Idaho Press received an email confirmation that it was received and it would take more than three business days to complete. The notice said the response would be back before Feb. 25. The response came through on Feb. 21.

Among nearly all of the city council members, Mayor Garret Nancolas and the fire and police chiefs, the response showed no text messages were sent between 4 and 11 p.m. on Feb. 4, besides Councilman Rob Hopper, whose request came up with “personal text messages exempt due to personal privacy at 4:07 p.m. to and from wife.”

City of Nampa

Nampa’s records requests can be filed through the city’s website. The Idaho Press requested text messages from City Council members, Mayor Debbie Kling and Police Chief Joe Huff the evening of Feb. 4, a meeting day. The request was sent Feb. 8. The city on Feb. 12 said it would need an extension, then emailed a response Feb. 19.

The city’s initial response gave just summaries of the text messages exchanged. When the Idaho Press asked for copies of the texts, the city emailed them.

Huff’s text messages showed he and other police officers had concerns about a no-smoking ordinance the city council was debating for Library Square. Huff and Capt. Curt Shankel shared concerns that Nampa already doesn’t have enough officers to respond to higher priority calls, and likely would not respond to a call about smokers unless it turned into a verbal disturbance.

“It’s amazing we can’t respond to shoplifters but they want us to go to somebody smoking a cigarette,” Shankel said in the texts. That ordinance was later killed at the council’s March 4 meeting.

City of Middleton

The city of Middleton advises residents and media to request public records by using a PDF form on its website, under the “Government” tab. The form can’t be filled out on the computer, so the Idaho Press printed it off and filled it out by hand, then emailed a picture of the form to citmid@middletoncity.com.

Any email or written request, however, on a specialized form or not, is a public records request and starts the three-day response timeline.

The Idaho Press requested the text messages of Middleton Mayor Darin Taylor and City Council members from 3 to 10 p.m. Feb. 6, a meeting day. City administrator Becky Croft fulfilled the request via email on Feb. 13, including more than 30 pages of relevant text messages. No fee was assessed.

In the text messages, Middleton Police Chief Alan Takeuchi, Taylor, city staff and Middleton police officers discussed the pinnings and promotions of Cpl. Nathan Hilkey and Sgt. Michael Barley, scheduled to take place at the meeting. Afterwards, they shared photos of the officers and the celebratory cake in a group message.

Wilder School District

The Wilder School District takes records requests over email to the school district clerk, slincoln@wilderschools.org.

The Idaho Press requested the text messages of Superintendent Jeff Dillon, Principal John Carlisle, Wilder school board members and district clerk Susan Lincoln from 3 to 10 p.m. Jan. 14, the most recent school board meeting.

The district fulfilled the request via email within one business day. The Idaho Press received copies of text conversations from school board member Robert Fogg and Superintendent Dillon. Dillon corresponded with staff members about materials needed to fix shelves at the school, while Fogg texted Dillon at 9:01 a.m., asking if he could miss the board meeting that night.

“No worries,” Dillon texted back at 5:46 p.m. “Sorry it took so long to get back to you. Only big decisions (are) the seniors’ request for grad speakers.”

Lincoln told the Idaho Press in a follow-up email that those were the only text messages sent by any of the named officials during that time.

Canyon County government

Records requests for every Canyon County department can be filed through an online form available at www.canyonco.org/public-records-request. Links to separate record request forms for the Canyon County Courthouse and the Canyon County Sheriff’s Office can also be found on the very top of the same web page.

The Idaho Press requested all text messages sent or received by Canyon County Commissioners Pam White, Tom Dale and Leslie Van Beek between 8 a.m. and 4 p.m. on Jan. 28 — the county’s first monthly elected officials meeting of 2019. It was newly elected commissioner Van Beek’s first elected officials meeting, as well as a rare elected officials meeting when every elected official was in attendance. During the meeting, officials spoke for almost an hour about pending Idaho legislation that would affect the county and recent challenges to the county’s decision to hire consultant Ysabel Bilbao to run an educational campaign about the jail bond.

Canyon County requested an extension on Feb. 13. On Feb. 22, 10 business days after the request, Canyon County told the Idaho Press it was “unable to locate a record that fits the parameters of your request.”

“There were personal text messages sent during that time frame, but those text messages do not meet the definition of a ‘public record’ under 74-101(13),” county spokesman Joe Decker said in a follow-up email on Feb. 22.

The Idaho Press also requested text messages in the same time period from Canyon County Sheriff Kieran Donahue. The Sheriff’s Office requested an extension on Feb. 13 and fulfilled the request on Feb. 22, too. No fee was assessed.

Other than asking Commissioner White if she was attending the elected officials meeting (White did not respond), Donahue did not discuss the topics related to the elected officials meeting over text that day. Among other scattered messages, Donahue did correspond with Jaclyn Roberts from Hayden Homes regarding the company’s planned donation to the Sheriff’s Office.

At 11:55 a.m. Monday, Roberts asked Donahue if she should make out a check to the Canyon County Deputy Sheriff’s Association.

“I think so,” Donahue responded sometime that afternoon. “It basically can go toward the Deputy Sheriff’s Association for assisting officers in times of need or it could feasibly go toward the CCSO Employee Appreciation Group which also assist employees. Let me do some checking so we stay within lawful boundaries. If it is designated to our deputies it can in no way be used or directed to the (K. Donahue) Foundation on domestic violence, which is fine, we just need to make sure it is done correctly.”

Roberts said that was fine with her.

“OK – well let’s have it designated toward that and do a separate check for the domestic violence foundation later this year,” Roberts texted back.

On Jan. 31, Canyon County announced Hayden Homes’ $1,500 donation to the Canyon County Sheriff’s Office Employee Appreciation Association.

Your turn

Idaho residents can also use these same methods to request public records — including text messages pertaining to public matters — from local agencies in their area.

The Idaho Press used several different methods based on what reporters discovered was the easiest way to get quick responses from the agencies. However, residents don’t have to use special online portal or form to request records. Under Idaho Code, citizens can submit a written request for information, even via email.

Public officials have the responsibility to respond to those requests within three business days — or 10 business days, if they request an extension — regardless of how a request was submitted. Idaho Code 74-102(4) states a public records request simply needs a requester’s name, mailing address, email address and telephone number.

Kane, the deputy attorney general, said in his opinion, what’s laid out in the law is all that is required to fulfill a public records request. Ultimately, Kane said, government agencies should expect public information requests and set up the internal infrastructure to ensure those requests are efficiently handled.

“Understand that the public records law is there,” Kane said. “So if you’re in government, you should expect public records requests.”

Idaho Press staff reporters contributed to this story.

From the Idaho Press

From the Associated Press

By Rebecca Boone

BOISE, Idaho (AP) — The Idaho Supreme Court says individuals have the right to sue if they think someone implied — but didn’t outright say — something defamatory.

The ruling was handed down Monday in a lawsuit brought by former teacher James Verity against USA Today, Boise television station KTVB, KGW television in Portland, Oregon, and others in the news industry after the organizations reported on a national investigation that showed teachers who lost teaching licenses in one state were often able to move to another state to be licensed there.

James Verity was included in the story. He lost his Oregon teaching license after he was disciplined for having inappropriate sexual contact with an 18-year-old student. Verity was later able to obtain a teaching license in Idaho.

The unanimous Idaho Supreme Court said neither USA Today nor KTVB actually defamed Verity by implication, and ordered the claims against them be dropped, along with the claims against USA Today reporter Steve Reilly and KTVB reporter Tami Tremblay. But the high court said a jury should decide if KGW or two other networks who broadcast similar but less descriptive versions of the news story committed defamation by implication because they didn’t specifically mention that the student was 18, and they didn’t clarify the nature of the sexual contact Verity had with the student.

In the ruling, Idaho Supreme Court Justice Richard Bevan noted that the news organizations contended that the creation of a “defamation by implication” standard contradicts a long-standing principle of Idaho law: That truth is a complete defense to libel and defamation claims.

“This principle remains good law; however, true statements that by context or as framed lead to a conclusion that the publisher intended or endorsed a defamatory meaning by the information published, are actionable,” Bevan wrote.

So, if someone who wants to sue for defamation or libel can prove that a false implication was made with the intent to defame, the lawsuit can go forward. The court said that’s true even in matters of public concern — such as when a teacher has a sexual relationship with an 18-year-old student.

According to the court ruling, Verity and his wife Sarahna Verity both held teaching positions with the Crook County School District in Prineville, Oregon from 1998 to 2005. James Verity taught middle school and coached several sports, including high school varsity girls’ basketball and softball.

Sometime around 2005, James Verity began an inappropriate relationship with an 18-year-old student that he coached and used as a tutor for his middle school science class. The relationship involved more than 2,600 text messages, more than 500 hours of late-night conversations, and eventually escalated into inappropriate physical contact of a sexual nature. The ruling notes that there is no evidence that Verity actually engaged in intercourse with the student, however.

After school officials learned of the relationship in May 2005, they contacted law enforcement, placed Verity on administrative leave, and several weeks later reached a settlement in which Verity agreed that he would resign and the school district would notify the state’s teaching standards commission about the matter.

The Oregon Teaching Standards and Practices Commission investigated and revoked Verity’s teaching license, but said he could apply for reinstatement after one year. Verity did, submitting two psychological evaluations from different doctors as well. One doctor said Verity could return to teaching if he remained in counseling; the other said he should not be alone with any female student over the age of 12 “to avoid any misunderstanding on the part of the female students.”

Oregon officials declined to reinstate his license. The next month Verity applied for a teaching license in Idaho, telling state officials there that his license had been revoked in Oregon.

Idaho gave Verity a license in 2009, and he was hired in the Caldwell School District but left that job amid accusations of inappropriate behavior involving hitting students with rulers and receiving a poor teaching evaluation. He was later hired by the Vallivue School District where he worked at Sage Valley Middle School from 2014 to February 2016, resigning after various news articles and television broadcasts were published describing his conduct in Oregon and his move to Idaho.

In his lawsuit, he claimed in part that the news organizations maliciously and incorrectly implied that the sexual contact he had with the student in Oregon was illegal and that he was a danger to female students.

Several national and local news organizations, including The Associated Press and the Idaho Press Club, filed a friend-of-the-court brief in the lawsuit voicing their support of the media companies named in the case. The news organizations argued that allowing “defamation by implication” lawsuits would erode free speech rights and allow journalists to be held liable for accurately reporting facts.

From the Associated Press

From the Associated Press

SANDPOINT, Idaho (AP) — An Idaho judge says a public records lawsuit against the State Police brought by a woman whose husband was killed in an officer-involved shooting can move forward in court.

The Bonner County Daily Bee reported Wednesday that 1st District Judge Steve Verby has denied a motion from the Idaho State Police to dismiss the lawsuit brought by the widow of Craig Johnson, who was shot to death outside his Coolin cabin in 2017. Robin Andrews is seeking documents related to the shooting and an alleged aggravated assault that police said her husband committed two days before his death.

According to court documents, Andrews asked law enforcement officers to make a welfare check on her husband at the cabin in September of 2017. When a Bonner County Sheriff’s deputy arrived at the residence, Johnson allegedly pointed a pistol at the deputy.

Two days later, sheriff’s deputies returned to the cabin, this time to serve an arrest warrant for aggravated assault on a law enforcement officer. Half a dozen deputies approached the cabin in an armored assault vehicle, and Johnson exited the cabin from a back door. That’s when Johnson was fatally shot in the back by the sharpshooters, who were concealed in the trees behind the dwelling.

According to the court documents, Johnson was carrying a pistol at the time, though he was holding it by the barrel rather than the grip and the muzzle was pointed toward Johnson.

Andrews made a request under Idaho’s public records act for copies of reports and other documents related to the aggravated assault and the shooting, but the Idaho State Police denied the request because agency officials said the investigation was ongoing. Andrews’ lawsuit asks a judge to force the agency to turn over the records.

Attorneys for the ISP asked the judge to toss out the lawsuit, arguing that Andrews failed to set forth the correct facts in her lawsuit.

But the judge denied the request, saying there was a “perverse irony” to the Idaho State Police’s legal argument.

“The defense tries to get the widow Andrews’ case dismissed when she didn’t set forth what ISP considers to be the correct facts in her complaint. The reason she couldn’t allege those facts, however, is because she was precluded from obtaining them by defendant ISP’s denial of the records request,” Verby wrote in the ruling, saying such conduct “would not be viewed favorably.”

From the Associated Press

From the Idaho Press

By MARGARET CARMEL

BOISE — City Council is poised to approve a controversial mountain bike skills park in the Military Reserve, amid resistance to the project.

On Friday, Boise attorney Bruce Bistline delivered a letter on behalf of three groups to the Ada County Prosecutor’s Office requesting an investigation into both the process Boise City Council used to approve the project and an alleged open meetings law violation. According to Ada County spokeswoman Kate McGwire, the office has received the letter and is currently reviewing it.

Bistline is also challenging Idaho Attorney General Lawrence Wasden in the November election.

The proposed park has stirred up a lot of opposition, both from nearby residents who oppose the project itself and those who feel that the city was not transparent enough in the planning process for the multi-acre, $2 million park.

The park was initially proposed in January 2018 and will be fully paid for by the J.A. and Kathryn Albertson Foundation as a donation. Once complete, the park would revert to city management. The park was proposed by the foundation, but the project was kept secret from the public until the Boise City Council voted to approve it on the consent agenda at a March meeting to formally accept the donation and enter into the development agreement.

City officials said the foundation wished to remain anonymous until the the project was approved by council, which meant that it was rolled out to the public once it passed. An open house was held immediately after the announcement, where residents could provide input on the new dog park and restrooms that will be built in the neighboring flood basin as part of the project but not offer input about whether or not the park should be constructed.After two rounds of appeals, City Council voted last week to approve the permits necessary to build the park but required the Parks and Recreation Commission to hold a public hearing on the project on Nov. 15. However, this will only be about the master plan for the park itself and not whether the agreements to build it should be approved. Those agreements were unanimously authorized at Thursday’s Parks and Recreation Commission meeting and are on City Council’s consent agenda for Tuesday.

Bistline, who is representing Hailey-based nonprofit Wildlands Defense, Friends of Military Reserve and Colorado-based nonprofit Great Old Broads for Wilderness, said accepting a gift without allowing the public to weigh in is not appropriate.

“It’s like deciding you’re going on a trip, buying a ticket and then asking your family what they think about you going on a trip,” he said.

In his letter, Bistline cites city code outlining the duties of the Parks and Recreation Commission, which includes reviewing development and licensing agreements of projects over $1,500 as evidence that the process was handled improperly. Parks and Recreation Director Doug Holloway defended the process, saying although that is a duty of the commission, because the Albertson Foundation did not want the public to know about the donation until it was approved by council, going before the commission was not possible.

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This is not the first time the city has followed a similar process with accepting a donation. Several projects, including the rebuild of Rhodes Skatepark and Esther Simplot Park, were paid for with donations that were not publicized until council voted to approve them.

“From a (city) staff standpoint and from a foundation standpoint it appeared as though the bike skills park would have been a great gift from the city,” he said. “I don’t think anybody anticipated that the neighborhood would have the reaction that they had.”

Although council approved the hillside and floodplain development permits to construct the park last week, at the meeting, several council members voiced concerns about the current policy to allow donors to remain anonymous and not share projects until after they are approved. Holloway said that once his office receives guidance from council he will work on a new policy that will allow public input before project approval.

“In the future one of the options is we would say to the donor, ‘Before we accept the gift there is going to be some public process outside of your giving to gauge public reaction to the gift,’ depending on what that gift is,” he said.

Bistline also alleges that council broke Idaho open meetings law by discussing the project in a series of memos instead of talking about the project at a work session or council meeting and instead used memos to alert council of the project. Council President Lauren McLean confirmed in an email provided to the Idaho Press by Bistline that the project was originally planned for an executive session in January but was taken off because it did not meet the requirements for what could be discussed behind closed doors.

Opponents of the bike park have completed extensive public record requests to look at memos and other documents related to the project, but 248 of those were considered exempt because of attorney/client privilege, according to the packet included with Bistline’s letter.

“We believe from this record and the Council’s decision (last week) it is now reasonable to conclude the Council was engaging in a private deliberative process ‘via’ a stunningly large number of internally circulated ‘memos’ for the express purpose of concealing that deliberative process,” Bistline’s letter said.

City spokesman Mike Journee said council stands behind its actions thus far.

“I think that mayor and council, as they made clear Tuesday night, felt comfortable with the process and felt comfortable with their decision,” he said.

From the Idaho Press

From the Moscow-Pullman Daily News

By Scott Jackson

The University of Idaho is likely to charge more for public records than Idaho’s other two major universities, based on a recent public records request filed by the Daily News.

A request sent to Boise State University, Idaho State University and the UI seeking the total number of records requests in 2017 and copies of requests that cost more than $25 would have cost an estimated $191.13 for UI’s Office of General Counsel to furnish.

ISU did not charge a single penny to fulfill the request.

BSU also provided the number of requests at no cost but was unable to say how many of those requests cost more than $25, as the university does not monitor how many requests incur a cost.

“We don’t actually track the amount that any request costs, and that’s because the vast majority of them, we don’t charge for,” said Kirsten Heninger, legal assistant with BSU’s Office of General Counsel.

While BSU received 118 public records requests in 2017, Heninger estimated only two or three were onerous enough to incur a fee. She said she doesn’t recall a request exceeding $100 in several years.

Despite the UI Office of General Counsel sending an initial estimate of $191.13 to begin gathering the records, UI Communication and Media Relations was able to provide the information for free after several days.

According to that information, the UI received 101 records requests in 2017, charging for 16 – 14 of which exceeded $100.

UI Director of Communications Jodi Walker said three requests received an estimate of more than $1,500. The Daily News was unable to obtain details on the requests, but one carried an estimate of $2,667.20.

ISU Associate General Counsel James Francel said his office received between 40 and 50 requests in 2017 and no more than three incurred a cost. He said only one – a request for more than nine months of emails between university higher-ups – exceeded $25. That request cost $50.

The UI has been known to charge for public records for several years, sometimes at seemingly excessive costs.

According to The Spokesman-Review, the UI sent an estimate of $89,717.80 for a request in 2015 seeking 10 years of emails, phone logs and other means of communication regarding a tenured professor. The request was later canceled.

Another requester that year was told it would cost an estimated $18,078.11 for public records regarding controversial murals at the university.

The Daily News was given a $1,080 estimate for records regarding thefts at the UI bookstore involving Vandal football players in 2015, and a request to the UI for records regarding cat euthanizations on campus cost $350.93 for the university to begin gathering the records in 2016.

According to Idaho public records law, public institutions can charge for materials and personnel hours that are needed to furnish requests after a certain amount. The law states that the first 100 pages and two hours of labor must be free, but it is permissible to charge a fee – in advance if necessary – if the cost of labor and materials is expected to exceed that amount.

The UI Office of General Counsel estimated the records request sent for this story would take eight hours to fill – five hours for the gathering of documents ($30.79 per hour) and three hours for redaction ($32.92 per hour). The two free hours allowed by the state reduced the estimated cost of the records by $61.58, reducing the estimate of the request from $252.71.

The Office of General Counsel declined to comment to explain why the office assesses higher fees for records than offices at other universities.

In response to the UI’s higher costs, Walker said she can’t speak to other school processes and couldn’t say why the university charged more and more often for public records.

Walker noted documents sometimes require time-consuming analysis and redaction to remove personal information, such as private student data protected under the Family Educational Rights and Privacy Act.

She said while the UI’s goal is to be as transparent as possible, transparency halts when it comes to private personnel data or protected student records.

“We are a state institution, and we have an obligation to share what we’re doing with not only the media but other stakeholders,” Walker said.

Heninger said as a public entity funded by tax dollars, much of BSU’s activity is arguably the business of the public.

While there are mechanisms built into the Idaho Public Records Act that allow for institutions to charge a reasonable fee for excessive requests, Heninger said there is no requirement to assess fees.

“We aren’t obligated to charge, it’s just that if there’s a huge request that it does take a lot of time and labor and is a big expense to the university, then we have the ability to recoup the cost for that,” Heninger said. “We’re not obligated to, and so I think, in the spirit of the law, we make every effort not to.”

Across the state line, Washington State University does not charge for public records, despite a law change in July 2017 allowing the university to do so. Stephanie Horn, of WSU’s Public Records Office, said the university plans to incorporate the new law once it determines a fair policy to charge for such records.

From the Moscow-Pullman Daily News

Editorial from the Idaho Press

Although the kerfuffle over an open meetings violation at the Ada County Highway District commission has become political theater, we believe the Attorney General’s Office erred in not fining two commissioners who violated the state’s open meetings law.

As the Idaho Press has been reporting, ACHD commissioner Jim Hansen wrote an email to fellow commissioners Paul Woods and Kent Goldthorpe, laying out his conditions for publicly supporting an increase in vehicle registration fees. Goldthorpe then forwarded that email to his own personal email account and then from that account to the personal email accounts of other commission members.

The matter made its way to the Attorney General’s Office, which issued a ruling that Hansen and Goldthorpe had violated open meetings law but there was no need to “cure” the situation, other than to acknowledge the infraction at a future meeting.

The Attorney General’s Office also said Hansen and Goldthorpe did not have to pay a fine, which is laid out in the state’s open meetings law.

According to Idaho 74-208 (2) and (3), “Any member of the governing body governed by the provisions of this chapter, who conducts or participates in a meeting which violates the provisions of this act shall be subject to a civil penalty not to exceed two hundred fifty dollars ($250).

“Any member of a governing body who knowingly violates the provisions of this chapter shall be subject to a civil penalty not to exceed one thousand five hundred dollars ($1,500).”

One could argue whether Hansen and Goldthorpe knowingly violated the law.

Commission chairwoman Sara Baker said Hansen, a lawyer and former state legislator, should know better. In a strongly worded letter back to the Attorney General, she wrote that Hansen should be punished to “the fullest extent of the law.”

It’s clear that Baker has turned this into a political fracas, as evidenced by her position that Goldthorpe didn’t violate the open meetings law while seeking to hold Hansen culpable.

While we disagree with the way Baker has handled the situation, we do agree that when public officials violate the open meetings law, they should be fined.

Looking the other way sends a clear message to other public officials that it’s OK not only to skirt the law here and there, but even if you get caught, nothing’s really going to happen to you.

Instead, the Attorney General’s Office, of all places, should be sending the message that if you violate the open meetings law, you’re going to have to pay the price.

It seems odd to us that the Attorney General’s Office spends so much time holding three-hour sessions on open meetings and public records laws in coordination with Idahoans for Openness in Government all over the state every year trying to explain these laws to public officials only to dismiss a violation so cavalierly without any consequences for the violators.

We suspect the shenanigans that were going on with Hansen and Goldthorpe go on far too often among the various city councils, commissions and school boards across the state. It’s easy to go undetected because of the very secretive nature of the communications. So, for many of these council members and school board members, it’s easy to get away with it.

Fining Hansen and Goldthorpe was a missed opportunity to send a message to other elected officials that there are consequences for violating the open meetings law.

Of course, we recognize the argument of ignorance. We’re certain some of these kinds of violations happen simply because council members or school board members, many of whom are just volunteers or are paid a small amount to serve, don’t know any better. But ignorance isn’t a defense. Try telling a State Police officer that you were going 50 in a 35 mph zone because you didn’t know what the speed limit was. “Oh, I see,” says the officer. “Well, in that case, best be on your merry way.”

It would have been much better for the Attorney General’s Office to issue a $250 fine to Jim Hansen and a $250 fine to Kent Goldthorpe and use that money to start a special training fund within the Attorney General’s Office for increased training sessions for public officials on the ins and outs of Idaho’s open meetings and public records laws. They already have the blueprint for these sessions with IDOG; they just need to do more of them. Cities, counties and school districts should make these training sessions mandatory for all of their elected officials and staff members.

The law is the law, and those who violate the law should pay the price.

Editorial from the Idaho Press

From the Idaho Press
By ERIN BAMER

NAMPA — The Nampa Development Corporation, the urban renewal agency, wants to acquire a piece of publicly owned land, but some board members don’t want to share what that land is yet.

The board planned to discuss the property in an executive session at its latest meeting Wednesday, but a typo in the agenda led to discussion and action on the topic being postponed to a special meeting.

The agenda item called for an “Executive session to adjourn into executive session pursuant to Idaho Code 74-206-1(C) to acquire an interest in real property which is not owned by a public agency.”

But the board could not discuss the property in an executive session because the property is owned by a public agency, contrary to what was stated on the agenda. The Nampa Development Corporation cited the incorrect code in their agenda and did not have grounds to hold an executive session to discuss the property, according to the agency’s attorney Bill Nichols.

Nichols said the board could amend the agenda by citing “good faith reasoning,” but no final action could be taken on the matter unless there was an emergency. Agencies cannot make any final decisions during an executive session according to state law, but the board’s agenda called for a possible action based on their discussion following their executive session.

Furthermore, Nichols said the board could only hold an executive session to discuss publicly owned land by citing Idaho Code 74-206-1(D) to consider records that are exempt from disclosure, in the event that the board had a confidential memorandum of some kind. The board did not have a confidential memorandum. Ultimately, Nichols advised the board to not take action on the subject at that meeting.

Commissioner Darl Bruner said he was in favor of discussing the property acquisition in open session. Nichols said board members could discuss the property acquisition publicly but still advised them not to take final action on the subject.

“I am totally, 100 percent in favor of full public disclosure,” Bruner said.

But Chairman Randy Haverfield said discussing the property in public would create problems with acquiring it, particularly between the trust of both parties. He said the executive session was merely meant to help officials get a better understanding on what was going on.

Unlike Bruner, Haverfield and Commissioner David Bills, the other remaining commissioner at the meeting, Grant Miller, did not know what the piece of property in question was. Haverfield said he and Bruner knew about it because the acquisition was discussed during an executive session during a Nampa City Council meeting on Monday, where he and Bruner both serve as council members. Bills was also involved in the executive session, Haverfield said. Bills is a former Nampa City Council member who works in real estate.

Bills pointed out that City Council members cited the same incorrect code Monday to hold their executive session. This means that City Council’s executive session may have violated Idaho open meetings law. Maren Ericson, the city attorney present at Monday’s City Council meeting, could not be reached for comment after several phone calls.

Bills requested a five-minute break in the middle of the urban renewal discussion to “think through” the situation, which was granted. Bills said he needed the break to consider whether waiting a month until the board’s next meeting was worth keeping the property off the public record.

During the break, Bills, Haverfield, Nichols and Samuel Mangeac, who was present at the meeting and works as the director of the Good News Community Church food pantry, all left the room. Nampa Finance Director Vikki Chandler also showed up to the meeting to speak with Bills away from his microphone.

Mangeac confirmed that he was involved in the property acquisition and said the matter did not have anything to do with the church or the food pantry, but did not provide further information. Mangeac is the brother of urban renewal board commissioner Claudia Dina, although Dina was not present at the meeting.

After the break, Bills made a motion to discuss the acquisition in open session, which passed with a 3-1 vote. Haverfield was the sole dissenting vote.

“Tread lightly on the egg shells you’re about to throw on the floor,” Haverfield said to Bills.

But the discussion never took place. Before the board revealed what the property was, Bills said he wanted the board to take action at that meeting, but Nichols continued to advise the board against that. Several commissioners said they did not want to wait another 30 days to take action, so they decided to schedule a special meeting to discuss the subject.

Commissioners hoped the special meeting could be held in the next week or two, but a specific date has not been set yet. It was unclear whether the acquisition would be discussed in open or executive session.

From the Idaho Press

From the Idaho Press

By TOMMY SIMMONS

At the heart of the case attorneys argued Friday before the Idaho Supreme Court is the question of when and why news organizations can face lawsuits for factual reporting, as well as who can file that lawsuit.

The suit involves former Idaho teacher James Verity, who sued news outlets last year for reporting on a sexual relationship he had with a student and the subsequent fallout, even though the teacher did not claim the reporting was inaccurate or ask for a correction.

Attorneys launched into arguments Friday about Idaho’s defamation law, and whether news organizations can libel individuals through the mere implications of a news story. Verity declined through his lawyer to speak with the Idaho Press. His case lists USA Today and Boise’s KTVB as defendants in connection with a Pulitzer Prize finalist story the organizations published, but the lawsuit didn’t begin with a high profile case filing in Idaho — in fact, it stems from events that took place about 13 years ago in another state

“Conduct in Oregon”

It began in 2005 in Prineville, Oregon, when Verity — then a middle school teacher and high school basketball coach — had an “inappropriate physical relationship involving sexual contact” with an 18-year-old student-athlete, a relationship Verity has since admitted to, according to documents filed by attorneys.

That relationship included more than 2,600 text messages and more than 500 hours’ worth of phone calls, as well as “inappropriate physical contact.”

In June 2005, school authorities relieved Verity of his coaching duties, and he resigned from his teaching position two days later; as a result of that resignation, the school district provided him a letter of reference “that did not include any details of Mr. Verity’s inappropriate relationship,” according to briefs filed by attorneys.

Verity tried to regain his teaching license in Oregon, according to court documents.

As part of the process to reapply for his license, he met with a psychologist who wrote he “should not be alone with any female student over the age of 12,” according to court documents. According to documents filed by Verity’s attorney, however, another psychologist found there was “no significant reason to believe that Verity is a risk to ‘cross the line’ with a student of any age.”

At the same time, he also applied for a license in his wife’s native Idaho, according to court documents. He was initially denied in both states, then appealed in both states, according to a brief filed by his attorney. He eventually chose to focus on Idaho, and thus didn’t attend a hearing for his Oregon license “causing a default order to be entered denying reinstatement in Oregon.”

Verity later applied for a teaching license in Idaho, but the state denied him one in September 2008, based on his “conduct in Oregon.”

Yet, after his attorney submitted “supplemental materials” to the Idaho Professional Standards Commission of the Department of Education, and a day of deliberations, the board ruled he would be granted a teaching license. He and his family moved to Idaho — where he’d attended college with his wife — in June 2009. By mid-July 2009, according to court documents, he had not received a license, so his attorney wrote a letter to the Idaho Attorney General’s Office. In that letter, his attorney wrote the state would only issue a license to Verity if he agreed to tell his new employers he’d had his license revoked in Oregon.

“The obvious intent of such a condition is to effectively render Mr. Verity’s license useless. … This condition serves no purpose except to make it extremely difficult for Mr. Verity to get a job,” his attorney wrote.

After that, Idaho’s Chief Certification Officer Christina Linder did issue Verity a teaching license, although, she later wrote, she did so “against my will.”

Caldwell and Nampa

Verity started applying to Idaho schools after that, and “although Mr. Verity disclosed the circumstances surrounding his license revocation in Oregon to Idaho state licensing officials, he did not provide the same information in his application materials to local schools.”

According to Deb Kristensen, one of the attorneys defending the media organizations, Verity did not dispute that fact — or any other — during his deposition by attorneys during the subsequent lawsuit.

Briefs filed recently by Verity’s attorney, though, paint a slightly different picture, because they read, “Just as he had done with his application for teaching credentials in the state of Idaho, Verity fully disclosed his Oregon revocation and the circumstances that led to such revocation” to the Caldwell School District, where he applied. Those briefs also state Randy Schrader, then assistant superintendent of the Caldwell School District, spoke with Melanie Hensman, a member of the board that awarded Verity his Idaho teaching license. Hensman told the assistant superintendent, according to the briefs, that “she would be comfortable with her own daughter being in Verity’s classroom.”

Still, as Jodie Mills, then superintendent of the Caldwell School District would later tell reporters in 2015-16, when her school district hired Verity to work at Caldwell High School beginning in fall 2010, authorities knew nothing about his history in Oregon. He worked as a physical science teacher there and coached boys’ basketball, according to court documents.

But in February 2013, district officials placed him on leave after receiving reports he’d “made inappropriate contact with female students in his classroom,” according to briefs filed by attorneys.

Also according to court briefs, that contact included “tickling, slapping girls on the butt, and comments made about punching and hitting when students need to go to the restroom.”

Students would also later confirm Verity hit them on the “behind, back of the legs, arms and/or head with a ruler during class time.”

As a result, officials delivered a formal letter of reprimand to Verity in February 2013.

Verity left his position in Caldwell and accepted another at Nampa’s Sage Valley Middle School in 2014. In November of that year, he also began coaching basketball at Eagle High School.

USA Today’s investigation

In late 2014, as Verity settled into his new position as an Eagle High School basketball coach, Stephen Reilly, an investigative reporter and data analyst for USA Today, took an interest in media reports of teacher misconduct across the country.

Reilly and his editors “wanted to do a national analysis of teacher misconduct to identify any issues in the systems that are meant to protect students from teacher misconduct.”

Thus, in 2015 Reilly began the lengthy process of submitting records requests across the country, looking for information about teacher misconduct. His piece — later nominated for a Pulitzer Prize — ultimately included data from school districts nationwide. Within that data was information about Verity, and his revoked Oregon teaching license.

According to court documents, Reilly spoke with Idaho school district employees about Verity. It was only because of his investigation that Mills, the Caldwell superintendent, learned about Verity’s past, she told Reilly over the phone. Had district officials known about the Oregon incident, she told the reporter, “it would ‘absolutely’ have been a concern.”

In February 2016, Reilly tried to reach Verity by email and phone, eventually speaking with the teacher by his classroom phone. The conversation was brief, according to court documents.

That was about the same time KTVB reporter Tami Tremblay began working on the story as well; she spoke with Mills and tried to reach Verity, much as Reilly did.

Ultimately, when the USA Today story appeared in print on Feb. 15, 2016, it included no information about Verity. But USA Today distributed the data from Reilly’s investigation to its partner news outlets in other states, and that included KGW-TV in Portland, Oregon. On the same day as the USA Today story, a story appeared on KGW-TV’s website containing information about Verity.

“The article indicates Verity lost his Oregon teaching license and then obtained a license in Idaho ‘simply by crossing state lines,’” according to recent briefs filed by Verity’s attorney. “The article further states that, in obtaining his license in Idaho, Verity ‘slipped through the cracks.’”

Reilly kept reporting on the topic, and since USA Today had partnered with KTVB, the broadcast group did as well.

“All the defendants were working collaboratively and jointly on the story about Verity,” according to a brief filed by Verity’s attorney.

Still, according to court briefs, Verity confirmed all of the details reported by KGW-TV and USA Today, “but he took issue with the fact that ‘more information’ could have been provided in some cases.”

Public reaction to the KGW story on Feb. 15 was immediate, according to court documents — people “inundated” the Vallivue School District with calls laying out their concerns about Verity teaching and coaching in the district.

When Reilly spoke with the principal of Sage Valley Middle School later that month, he said he “did not become aware of documents regarding the revocation of Mr. Verity’s teaching license during the hiring process.”

Days after Reilly’s piece appeared in USA Today, Verity resigned from his job at the middle school. USA Today reported his resignation.

The lawsuit

Less than a month after that, on March 28, 2016, Verity and his wife, Sarahna Verity, filed a complaint in Ada County’s 4th District Court of Idaho against USA Today, KTVB, KGW-TV Reilly and Tremblay.

The Veritys alleged defamation, invasion of privacy, and negligent and intentional infliction of emotional distress. Verity did not, however, claim the piece was inaccurate, nor did he ask the news organizations to retract it, according to court documents. Kristensen said during deposition, Verity confirmed the details in Reilly’s reporting.

Still, in briefs filed before the Idaho Supreme Court date, Verity’s attorney wrote there were “factual and implied falsehoods” in the stories. Among them were the claims the Caldwell School District was unaware of his conduct in Oregon, and the claim he’d been denied a teaching license in Idaho. A third error, according to briefs from both sides, had to do with a claim in a KTVB story that Verity was not included in a national database of teachers who had been disciplined for misconduct — when in fact he was. According to court documents, KTVB quickly corrected the error when it became known.

During deposition though, Verity confirmed the details in the reporting, Kristensen said. Verity’s attorney didn’t make mention of the falsehoods until recent documents.

The fact that Verity didn’t dispute the claims in the stories made the case unusual, because, as Kristensen pointed out Friday, “truth is an absolute defense.”

“You cannot have a defamation lawsuit if you have truth,” she said.

Kristensen and her team asked 4th Judicial District Court Judge Melissa Moody for a “summary judgment” — in effect, asking her to rule on the case without it going to trial, because they felt, since the reporting was accurate, the defamation claim was moot.

Yet an October ruling from Moody seemed to fly in the face of that axiom. Moody wrote if Verity could prove the reporting “though literally true, could create false inference” and if he could prove the reporters were “negligent in publishing a false statement,” Verity might have a case for “defamation by implication” — meaning the implications, not the facts, of the USA Today piece had damaged his reputation.

That decision could be far-reaching, Kristensen said Friday, even for journalists who report the truth.

“If someone could infer you meant to say something else, and that something else was defamatory, they could sue you,” she said.

That ruling seemed inaccurate to Kristensen, which was why she asked for a “permissive appeal” from the Idaho Supreme Court. The Supreme Court usually only hears cases after they have reached some sort of a conclusion in district court. They made an exception in the Verity case, Kristensen said Friday. To her, it seemed to indicate the justices were interested in the issues at stake.

Defamation by implication?

In court documents and in person Friday, Kristensen pointed out Idaho doesn’t have much history with recognizing “defamation by implication.” The issue arose in a 1990 court case, also involving a news story, but has been largely absent from Idaho case law since then.

She added she didn’t think the Idaho Supreme Court needed to adopt any new torts related to defamation by implication either.

“There is no need based on the facts of this case to go there — to adopt a claim many courts have called a slippery slope,” she said. “It’s bringing an action based on what was not said.”

In addition to that, she pointed out, the Idaho Supreme Court has always held that even if a news outlet makes a slight error in reporting, they are protected from lawsuit if the spirit of their reporting accurately represents what happened.

“No one I represent … seeks to do anything but get at the truth, particularly in matters of public concern,” Kristensen told the justices.

Ron Shepherd, Verity’s attorney, saw the case differently. For him, it was about Verity’s right to protect his reputation. He pointed out Verity effectively lost his job after the USA Today piece came out, and said Verity was no longer able to coach his children’s sports teams.

“If this is not a defamation case, I don’t know what is,” Shepherd said Friday. “(Kristensen) never mentioned once the importance of protecting one’s independent right to protect one’s reputation.”

Verity, Shepherd said, “fell prey to one Washington, D.C. journalist’s quest to receive the Pulitzer Prize.”

“(Reilly) learned Verity did not fit the gist of his storyline,” Shepherd told the justices. “This was learned late in the investigation.”

The USA Today story implies, Shepherd said, that Verity “fled Oregon” and “went beneath the radar,” to Idaho. That wasn’t the case, Shepherd pointed out — Verity tried first to get another teaching license in Oregon, then, when he applied for one in Idaho, he told Idaho officials about his past relationship with a student. Reilly’s story did not reflect that, Shepherd said.

“It makes it sound like he slid under the radar screen and now he’s back in the classroom,” Shepherd said.

Additionally, Shepherd claimed, the story seems to imply Verity is a danger to female students.

“This article suggests he is a predator,” Shepherd said. “I think that’s a fair statement.”

He pointed out while Idaho courts haven’t, in the past, referred to certain cases as “defamation by implication,” the precedent still exists, although it goes by other names.

“This is an egregious case of defamation,” he said.

Are public school teachers public figures?

Shepherd also argued Verity is a private individual, and not a public figure. The distinction is important, because private individuals have more leeway to sue a news organization for defamation than public figures do. Public figures must prove a news organization acted with “actual malice,” meaning reporters either knew their words were false or displayed “reckless disregard for the truth.” Private individuals receive more protection.

“Individuals that aren’t public officials are unique and vulnerable … and so based on that, private individuals are treated differently,” Shepherd told the justices. “I certainly disagree Mr. Verity, or any public school teacher, is a public official just by virtue of being a public school teacher.”

He pointed out private individuals can’t protect themselves from defamation in the media the same way public officials can, and while he lauded the media, he told justices reporting is a means to an end to protect private individuals, not prey on them.

“The media is extremely important … but the reality is the media is really a means to an ultimate end, which is to protect individuals from oppression,” Shepherd said. “Without those individuals, the media is pointless.”

Justices also probed the issue, asking Kristensen if a person becomes a public official anytime they appear in a news report. Kristensen replied that since a public school teacher is a government employee, when a story is written about how a teacher conducts themselves on the job, they become a public official, and thus have less room to claim defamation against a news organization.

“Anytime a teacher has an inappropriate sexual relationship with a student, that would elevate a teacher to public figure status,” Kristensen responded to the justices.

She wasn’t alone in this opinion, she pointed out — the late U.S. Supreme Court Justice William J. Brennan, Jr. had penned a dissenting opinion making a “vehement case” teachers were, in fact, public officials.

“There is plenty of precedent for this court to come to the same conclusion,” she said. “People have looked at that, and found that reasoning to be sound.”

“You’re going to have to meet a hard burden”

Shepherd, after the hourlong hearing, said he and Verity hope the justices rule he is not a public official, and also rule there is precedent for him to sue for defamation by implication. The justices are, in effect, he said, asked to decide what defamation by implication looks like in Idaho.

He said “nothing too surprising” happened Friday morning. He indicated Verity did not want to speak with the Idaho Press.

The case, Kristensen said, is bigger than just one instance of a person claiming defamation against news outlets. It strikes at the core of what news outlets do every day, and whether reporters can stand on the truth they report. She pointed out the justices agreed to hear the case, even though it had an unusual path to the Idaho Supreme Court. That would seem to indicate they were interested in the issue.

“If you’re going to hold someone responsible for something they didn’t say, you’re going to have to meet a hard burden,” she told the justices. “That’s what free speech is all about.”

From the Idaho Press

From the Associated Press

By Rebecca Boone

BOISE, Idaho (AP) — An Idaho judge has modified a previous decision, and now says state prison officials can hold off on identifying where they obtain the drugs used in executions until a trial is held on the matter.

Fourth District Judge Lynn Norton ruled in May that the state had to turn over nearly all of its execution records, including those identifying the source of the execution drugs, to a University of Idaho professor who sued for access to the documents under the Idaho Public Records Act.

But on Monday, Norton modified her decision, saying the state could redact any information that would identify the source of the lethal drugs for now. A trial will be held in the future to decide whether those redactions are allowable under the public records law.

State prison officials have argued that releasing the name of the drug supplier would subject that entity to such intense public pressure that the state would be unable to obtain the drugs in the future.

The way states find, obtain, pay for and store lethal injection drugs has been a key issue in court cases across the country.

Many state prison officials try to keep such records secret, in part over fears that suppliers will dry up.

Drug companies Alvogen, Hikma Pharmaceuticals USA and Sandoz Inc. have accused Nevada officials in a lawsuit of improperly obtaining their drugs for a use the companies don’t allow — lethal injection — and deceiving the public in the process. Nevada officials had tried to keep the drug companies identities’ secret, but a court order in an American Civil Liberties Union lawsuit in July forced the state to reveal the company names.

Fifteen states, including Idaho, have sided with Nevada in the state court fight against the drug companies.

Pharmaceutical company Pfizer announced in 2016 that it would not provide lethal injection drugs to states, and last year the company asked states to return any previously obtained lethal injection drugs.

With most traditional suppliers gone, some states have turned to compounding pharmacies or foreign countries to purchase the drugs.

University of Idaho Professor Aliza Cover filed a public records request with the Idaho Department of Correction last year seeking purchase orders, receipts, source paperwork and other documents on the drugs the state used in its two most recent executions, along with any documents on the drugs it expects to use in future executions. But the department refused, contending the information was exempt under the public records law.

The state has only executed three people in the last 25 years: Keith Wells in 1994, Paul Ezra Rhodes in 2011 and Richard Leavitt in 2012. Currently nine inmates are awaiting execution.

Idaho Department of Correction spokesman Jeff Ray said the department does not have a comment at this time.

Cover’s attorney, Ritchie Eppink with the American Civil Liberties Union of Idaho, says the new ruling was for technical procedural reasons.

“Secrecy around lethal injection gravely harms democracy and the public interest,” Eppink wrote in an email. “We intend to show that, once again, during the upcoming trial.”

The trial date has not yet been set.

From the Associated Press