Editorial from the Twin Falls Times-News

Idaho’s public records laws are an unenforceable mess. And local governments apparently want to keep it that way.

Costly lawsuits are the only recourse for an aggrieved citizen denied documents under the state’s public records laws. And the Association of Idaho Cities and the Idaho Association of Counties, intent on protecting good-old-boy politics, this month yanked the teeth from a proposal to fix it. A much-needed commission, with the authority to override a local government’s denial of a records request, is officially dead thanks to the organizations’ commitment to a busted status quo.

Local governments and school boards, particularly in small towns, have a terrible track record. And why wouldn’t they? It’s safer to wager against a lawsuit – often avoiding small-town public humiliation – than to do the right thing and throw open the vaults. The Times-News had to file a lawsuit last year before Gooding School District officials would release obviously public documents. Forcing the citizen to enforce the law is backward.

Put simply, the way it’s done now is broken. Public records laws, without providing reasonable recourse, are counterproductive. Idaho touts a system that encourages obfuscation and secrecy, while discouraging the one tenet that makes any government worthy of trust. Small-town politics breed small-town corruption.

A stakeholder committee, convened by Gov. Butch Otter’s administration, offered legitimate reform. A state grievance board, empowered to decide on public records denials, would be assembled. It would offer citizens and media alike an alternative to expensive lawsuits.

More importantly, it would put local governments, too often concerned with covering for themselves, on notice. Public records abuses finally would have consequences, including a smattering of public embarrassment.

But the thought of accountability terrifies the Association of Idaho Cities and the Idaho Association of Counties.

“It is unprecedented for this to happen. I don’t know of any other instance where a state entity would have jurisdiction, essentially almost judicial jurisdiction, over the decision of a local government entity,” said Seth Grigg, director of the cities association. “We are very uncomfortable with this whole process.”

The shrill complaint begs the question: What is Mr. Grigg so afraid of?

Grigg is wrong, and his fears of a “lay commission” flinging half-baked opinions are meant only to hijack the debate. Surely, any commission would include an attorney or two. The state Attorney General’s Office has a few.

States across the country have boards that oversee the ethics, budgets and operations of local government. Applying this basic principle of good government to public records is an obvious fix.

Transparency isn’t an unfunded mandate, Mr. Grigg. It’s the duty of all elected officials and bureaucrats. Unfortunately, that’s obviously not the top priority for some.

Empowering the citizen – the entire purpose of public records laws and an essential for any government by the people – is a goal everyone should support. It’s a move that would have made Idaho a trend-setter in the world of transparency in local government.

But in a win for secrecy and protection of established power, the two organizations have beaten back the original oversight pitch. A compromise plan now would simply let Otter’s public records ombudswoman offer nonbinding advisory opinions on a dispute.

This new idea is common in the U.S. and at least offers the shaming element that so often results in the release of documents. The Legislature should adopt it immediately. But, thanks to local government advocates, it lacks the muscle to actually fix what’s broken.

Editorial from the Twin Falls Times-News

From the Coeur d’Alene Press

From the Coeur d’Alene Press

From the Idaho Statesman

Cities and counties continue to balk at a proposal to create a hearing commission to resolve public records disputes at the state and local level.

“It is unprecedented for this to happen. I don’t know of any other instance where a state entity would have jurisdiction, essentially almost judicial jurisdiction, over the decision of a local government entity,” said Association of Idaho Cities Director Seth Grigg during a meeting Monday to consider drafting public records review legislation. “We are very uncomfortable with this whole process.”

In Idaho, citizens are solely responsible for enforcing the state’s public records laws, which apply to local and state governments. If an agency wrongfully denies access to a public record, a citizen’s lone remedy is a lawsuit, which can be a costly and intimidating process.

Gov. Butch Otter’s recently appointed public records ombudsman, Cally Younger, is heading a committee to find an alternative way to resolve public records disputes, avoid costly lawsuits and help both the public and government employees understand and comply with state law.

The committee comprises representatives from the Idaho Association of Counties, Association of Idaho Cities, Newspaper Association of Idaho, Idaho Press Club, Associated Press and the Attorney General’s Office. The committee’s goal is to introduce legislation this session creating a statewide public records review process.

Under a proposal presented to the committee last month, a citizen could go to the public records ombudsman to challenge an agency’s decision or address other issues. The ombudsman could mediate and issue an advisory, but not binding, opinion. If either party was not satisfied with the ombudsman’s recommendation, it could appeal to a five-member hearing commission, which would make a binding decision. The hearing commission’s decision could be appealed to a judge, who would conduct an independent review.

“Putting ourselves in a position where we are subject to the decision-making authority of either a commission or an ombudsman is problematic for us,” Grigg told the committee.

He said local governments also are concerned about “having a lay commission who may or may not have adequate training in dealing with public record requests essentially overturning the action of a city or county.”

As a compromise, the committee agreed Monday to dial back the proposal by eliminating the commission and instead test-run for one year or two an ombudsman who could mediate and issue an advisory, but not binding, opinion.

Making the position temporary would give the committee time to collect information on the type of and frequency of public records disputes and then decide if the review process needs to be modified.

“I think there will be a higher level of comfort with this,” Grigg told the committee.

“I would rather have the whole hog,” said committee member and Idaho Press Club President Betsy Z. Russell. “But this is a really good first step. The biggest problem we have with this current hole in our public records law is that people have absolutely no place to turn if they can’t afford to hire an attorney and go to court. Having some place to turn would be a really good first step.”

The committee will resume discussing drafting legislation later this month.

From the Idaho Statesman

From the Idaho Statesman

In Idaho, citizens are solely responsible for enforcing the state’s public records laws. If an agency wrongfully denies access to a public record, a citizen’s lone remedy is a lawsuit, which can be a costly and intimidating process.

Gov. Butch Otter’s recently appointed public records ombudsman, Cally Younger, is heading a committee considering an alternative: a statewide public record review process. The system would be meant to resolve public record disputes, avoid costly lawsuits, and help both the public and government employees understand and comply with the law.

“We think this could really make a difference in Idaho by remedying the biggest hole we have in our public records law, which is that the only thing you can do when you get a denial – even if it is a clearly wrong denial – is to hire a lawyer and file a lawsuit against your own government,” Betsy Z. Russell, a committee member and president of the Idaho Press Club, said during a meeting Monday.

Under the proposed review process – the committee is drafting legislation – a citizen could go to the public records ombudsman to challenge an agency’s decision, contest fees charged for public records or address other issues. The ombudsman could mediate and issue an advisory, but not binding, opinion.

If either party was not satisfied with the ombudsman’s recommendation, it could appeal to a five-member hearing committee, which would make a binding decision. The hearing committee, appointed by the governor, would comprise two private citizens, an elected city or county official, a member of the media and a representative from the state historical archives.

The hearing committee’s decision could be appealed to a judge, who would conduct an independent review. At any time during the process, a citizen could bypass the review and file a lawsuit – at his or her own expense.

Cities and counties are balking at the plan, according to Association of Idaho Cities and Idaho Association of Counties representatives who sit on Younger’s committee.

“We are not overly enthused about this,” said Seth Grigg, director of the cities’ association.

Grigg suggested creating the review process at the state level first, “so that our folks can see how it plays out, get some level of comfort with it and then roll it out at the local level.”

Idaho’s public record and open meeting laws apply equally to all local and state governments, from cemetery districts to the state police.

City and county concerns include having an ombudsman and hearing committee members who do not deal with local government records “second-guessing” decisions made by city or county prosecutors about which records cannot be released or require redaction. “It is kind of a scary idea,” said Idaho Association of Counties policy analyst Dan Blocksom.

Jeremy Pisca, the director of the Newspaper Association of Idaho who also sits on the committee, thinks the review process should apply to all government entities that must abide by the state’s public records law. “A lot of the abuses are taking place at the local level. That is definitely a concern,” he said.

Over time, the hearing committee could address issues and, if warranted, recommend changes to clarify and strengthen public records law, thereby reducing disputes.

From the Idaho Statesman

From The Spokesman-Review

It was standing-room only in Sandpoint late last week as 75-plus people filled the Sandpoint Library’s community room for a three-hour workshop on Idaho’s open meeting and public records laws. There were four such sessions in North Idaho in as many days, all sponsored by Idahoans for Openness in Government and featuring Idaho Attorney General Lawrence Wasden.

Those attending ranged from the county sheriff to local elected officials to government employees, reporters, a newly elected state lawmaker and lots of interested citizens. However, the Bonner County Daily Bee, which co-sponsored the session, pointed out the next day that Sandpoint city officials skipped the workshop – and held a controversial, closed-to-the-public meeting about oil and coal train traffic in the region the same afternoon.

Mayor Carrie Logan said, “We had meetings scheduled. Nobody was prevented from attending.”

She said she never heard about the open meetings workshop until the day before, though IDOG had mailed a letter and flier to the city three weeks in advance and followed up with emails to the mayor and council the week before. “It got buried in my onslaught of emails,” Logan said.

City Attorney Scot Campbell said in an email, “I, along with other council members have attended your previous open meeting/public record seminars.” (Disclosure: I’m the president of IDOG, Idaho’s nonprofit open government coalition, and helped conduct all four sessions.)

At the Sandpoint open meetings and public records workshop, Deputy Attorney General Brian Kane told the crowd, “When in doubt, open it up.” He said, “In the simplest terms, the Open Meeting Law is your ticket to the show, and the show is government.”

The coal train meeting was an informational session, Logan said, designed to allow a presentation on the latest information about the risks of the train traffic to an invited group including the mayors of Dover, Ponderay and Bonners Ferry, state Sen. Shawn Keough, two staffers from the Idaho Department of Environmental Quality, one county commissioner, the mayor and one city council member.

“It was just informational on behalf of people that are interested in spreading the word about the oil and coal issues,” Logan said. The PowerPoint presentation from the meeting may be presented later to the other cities’ councils, she said.

During the meeting, a member of the public knocked on the door, entered and asked if it was an open meeting; he was told no and turned away.

“No decisions were made – it was a conversation,” Logan said. “It never occurred to me to notice it up as a public meeting. … It just didn’t rise to that.”

Campbell noted that no quorum was present of any government board that could make a decision on the issue, so technically there was no violation of the Idaho Open Meeting Law. “Based on the time constraints, a public meeting would not have been as effective as a small meeting of local leaders talking to Senator Keough,” he said.

Asked if it would have hurt to let the public in, Logan said it wouldn’t, but added, “We were in a small, cramped room.”

Wasden, the lead presenter at the open meetings and public records workshop, told the Sandpoint crowd, “It’s important that we have an understanding about how to access information in our government. It’s really important, and the reason for that is the greatest strength in our system is public involvement. … Our system works because people can have access to information.”

The sessions featured interactive skits, with audience members playing the roles, to demonstrate how the Open Meeting Law and Public Records Act are supposed to work – or in some cases, how they’re not. Attendees gave the sessions high marks in evaluations; all left with multiple handouts including copies of the attorney general’s manuals on the Open Meeting Law and Public Records Act.

The Sandpoint session was the 33rd open government seminar IDOG and Wasden have conducted in Idaho since 2004. The project is funded in part by a grant from the John S. and James L. Knight Foundation through the National Freedom of Information Coalition.

Eighty people attended the Wednesday evening session in Coeur d’Alene; close to 30 on Tuesday night in Moscow; and close to 50 on Monday night in Lewiston. The sessions reached more than 230 people in North Idaho all told. All were free and open to the public.

In each case, the local newspapers co-sponsored the workshops; the Coeur d’Alene session was co-sponsored by the Coeur d’Alene Press and The Spokesman-Review.

Welcoming the crowd in Coeur d’Alene, Press managing editor Mike Patrick said if the two competing newspapers can work together to promote better knowledge of the state’s open government laws, everyone can.

From The Spokesman-Review

From the Coeur d’Alene Press

From the Coeur d’Alene Press

Idaho Attorney General Lawrence Wasden said there is one sheet of music used by every individual in the public sector as it relates to providing Idahoans with information.

At the Best Western Plus Coeur d’Alene Inn on Wednesday night, Wasden led a workshop intended to provide insight and clarity into that sheet of music – commonly known as state statute.

Wadsen and Idahoans for Openness in Government, a nonprofit coalition which promotes freedom of information, have held 32 of the seminars throughout the state since 2004. At the center of the sessions are two state laws – Idaho Open Meeting Law and Idaho Public Records Law – which directly affect information both the media and the general public can obtain from public entities.

“The great strength of our American system is public participation. The great weakness of our American system is public participation, or actually a lack thereof,” Wasden said. “So in order for us to enhance that experience of participation in government, it’s important that you understand the rules by which you access information and watch government in operation.”

Members of the public, local media and public officials composed the more than 80 people in attendance at the event, which was co-sponsored by the Coeur d’Alene Press and the Spokesman-Review.

The workshop centered around a series of skits performed by members of the media and public officials, used to illustrate various components of the two state laws. Actors in the skits played roles opposite of the ones they find themselves in professionally.

One skit, which dealt with the quorum component of open meeting law, featured three journalists playing county commissioners eating breakfast at a coffee shop. Kootenai County Commissioner Dan Green played a newspaper reporter who just happened to sit next to the group.

During the skit, the three county commissioners begin talking about implementing decisions on everything from a pesky county prosecutor to the construction of a nuclear plant next to a wildlife preserve. Green, in his role as a reporter, was noticeably excited about his good fortune while rapidly taking notes.

“Hold it! I’m blowing the whistle and throwing the flag,” Wasden finally said, bringing the skit to a close. “There’s no question about it that there was indeed illegal procedure in this one. If a governing body meets outside of a posted public meeting and conducts its business, they can each face a penalty that they have to pay out of their own pocket.”

After the skit, Idaho Deputy Attorney General Brian Kane gave an overview of the state’s open meeting laws. He called the statute one of the most important laws in the state and said it applies to the majority of governing bodies at every level.

“Government is a trusteeship,” Kane said. “We trust the government to make decisions with our best interests in mind. Open meeting law is your (the public’s) ticket to watch the show. The whole point of it is for citizens to be able to watch their government in action.”

In the first of three skits on public records law, Spokesman-Review reporter Scott Maben played the role of a county commissioner trying to get a county prosecutor, played by Coeur d’Alene Press reporter Devin Heilman, to limit the release of inter-office emails to a local newspaper.

During the skit, Maben argued that the emails, which contained threats to public employees if they spoke to the local paper, were personnel matters and shouldn’t be released. Heilman patiently tried to explain why those emails were in fact public record and had to be released under state law.

“Just calling a record a personnel record doesn’t make it one,” Wasden said after the skit concluded. “A personnel record is only information you would find in an employee’s file.”

For more information on Idaho’s Public Records and Open Meeting Laws, visit the Attorney General’s Office website at www.ag.idaho.gov.

From the Coeur d’Alene Press