Guest opinion from the Idaho Statesman

By Gov. Butch Otter

Open, transparent and accessible government is fundamental to a successful free society. That’s why I appointed a public records ombudsman in April 2014 after hearing from constituents that existing law provides only a burdensome remedy for challenging public record request denials.

I tasked the new ombudsman, an attorney named Cally Younger, with looking into the state public records process and whether anything should be changed in our laws or agency rules to advance my goal of increasing transparency in Idaho’s state government.

Cally found that state agencies generally do a good job of responding to public records requests and these agencies receive almost no complaints when issuing a denial. However, all state agencies also have room for improvement. Each of them can take steps towards modernizing their request process in order to keep costs down and respond to requests more quickly.

A primary tool for modernizing such administrative processes is better use of the Internet and individual agency Web sites. Contact information for public information officers should be easy to find and public records request policies and fee schedules should be posted online. These are simple things that agencies can do immediately to increase transparency and accountability.

I also asked Cally to examine Idaho code to see if any changes were needed in our laws. The ombudsman assembled a diverse group of stakeholders to assess the Idaho Public Records Act, including representatives from the news media, cities, counties and the Attorney General’s Office.

The first issue the group found was that statutes relating to transparency in government were dispersed throughout Idaho Code, making it more difficult for citizens to readily identify them. The group crafted legislation to put all transparent and ethical government statutes under a new title called Transparency and Ethics in Government. Those proposals are in House Bill 90 and House Bill 91, both of which were approved by the Idaho House of Representatives and await action in the Senate.

This legislation shows that Idaho is serious about increasing transparency – starting with making its laws as easy to navigate as possible.

Still being considered are proposals to formalize the ombudsman role and give it authority to review public record request denials and issue advisory opinions.

I look forward to the group’s continuing efforts to identify and address the burdens on access to public records, and I appreciate the steps Cally and her colleagues are taking to ensure Idaho citizens are among the best informed in the world.

Guest opinion from the Idaho Statesman

From the Idaho Statesman

When Rhonda and Eric D’Amico decided to exercise their right under Idaho law to see public records, they were surprised when Idaho State University told them to fork over $1,235.

Not easily deterred, the D’Amicos decided to set up an online fundraising campaign to help pay the tab.

Within three days of an Idaho State Journal article about their plight, the D’Amicos had the money, which was used to get ISU to turn over the documents.

“Citizens are truly interested in the public process and even willing to pay for it out of their own pockets,” Rhonda D’Amico said.

The D’Amicos didn’t start out to be public records crusaders.

But when plans for ISU to spend $600,000 on a new home for its president surfaced last fall, the D’Amicos wanted to know more about the plan and why the school wanted to jettison the existing president’s house, the historic Servel House, which the school said was in need of a $795,000 remodel. They submitted a public records request for Servel House receipts, labor costs, inventory and renovation estimates.

Then they got the bill.

“We are prepared to complete the process of locating the documents when a check or checks totaling $1,235, made payable to Idaho State University, are presented to General Counsel’s office,” ISU General Counsel David Alexander wrote in a Jan. 8 email to the D’Amicos.

Under state law, agencies can charge a fee to recover the actual labor and material costs of processing a public records fee. The law says the first two hours and 100 pages of paper records must be provided at no cost.

Alexander told the D’Amicos that gathering the documents would require 58.5 to 80.5 hours of staff time at an hourly rate ranging from $15.26 to $58.85.

“We were very surprised by it. But we also felt it was in the public’s best interest, so it was worth our time to get that information out to the public,” D’Amico told the Statesman.

To do it, they went public.

They posted a plea at the fundraising website GoFundMe.com.

“The price for Idaho State University transparency is $1,235,” the D’Amicos wrote on GoFundMe.com. “Please help us learn about the costs behind the Servel House’s estimated renovation costs ($750,000) and average annual maintenance, care, and operating costs ($31,000) as reported to the Idaho State Board of Education.”

Twenty-seven people donated to the cause via GoFundMe.com. Once the D’Amicos reached their goal, they stopped accepting donations.

When they got the 910-page document, the D’Amicos made it available at ISU library so any member of the public could see it.

Rhonda D’Amico said she knew gathering the documents would be a tedious task, but she thinks ISU should have compiled the information prior to her request, because the previous fall the school was prepared to ask the State Board of Education to approve spending $600,000 for the new home. D’Amico said the board would have needed the documentation and reports to bolster its argument that the Servel House was too expensive to keep.

D’Amico said she had no opinion one way or another on the proposal.

“My primary goal was getting the information into the hands of the people making the decision,” she said. She said the public should get to review the data behind the university’s estimated costs.

When she reviewed the documents, D’Amico said she did notice one thing: “There does not seem to be a long-term strategic plan for the Servel House as far as maintenance and operations.”

Since paying the tab, D’Amico learned that state law does allow reporters and citizens to request public records fees be waived if their release is in the public’s interest. Additionally, since assembling her request, a committee the school has set up to review the residence question is examining the same documents she requested.

Since ISU would have had to assemble the information anyway, Rhonda D’Amico reasons, ISU should refund the money.

She has twice asked ISU to refund the $1,235, because the pubic records request served a public benefit. She’s gotten no response.

“If we are refunded, we will make every effort to contact donors and give back the money,” she said. If the D’Amicos cannot reach all the donors – some people gave anonymously – any money not returned will be put into a scholarship run by a non-ISU entity, D’Amico said.

From the Idaho Statesman

From Eye on Boise/The Spokesman-Review

The House State Affairs Committee gave a far different reception this morning to Rep. Linden Bateman, R-Idaho Falls, for his new version of legislation to raise the fines for violations of the Idaho Open Meeting Law. Bateman modified his proposal to raise the fines from the current $50 to $250; and from the current $500 to $1,500 for knowing violations, and to $2,500 for repeated knowing violations.

“I think that this is an excellent edit of the last bill,” Rep. Vito Barbieri, R-Dalton Gardens, said. “I hope that the district attorneys and those that are given information about these violations will now find it worth their time to pursue these a little bit more diligently than we’ve seen in the past. Thank you.”

Rep. Melissa Wintrow, D-Boise, told Bateman, “I just wanted to say again, thank you. Informally, many people actually approached me after the last hearing and they were very thankful for you coming forward and raising that.”

The committee was far less receptive last week when Bateman proposed upping the penalties from $50 to $500 and from $500 to $5,000; Barbieri said then that he was “appalled” by the proposal for a ten-fold increase. Bateman retooled the bill to match the increases to inflation since 1974, when the Idaho Open Meeting Law first was enacted. “This is just a matter of concern,” he told the committee. “Public policy should be open. And to keep the 1974 penalties would be to diminish the significance of the legislation.” Today’s unanimous vote clears the way for a full hearing on Bateman’s bill.

From Eye on Boise/The Spokesman-Review

From The Spokesman-Review

When Rep. Linden Bateman, R-Idaho Falls, today proposed sharply increasing fines for violating the Idaho Open Meeting Law, he ran into a buzz saw of opposition from members of the House State Affairs Committee, led by Rep. Vito Barbieri, R-Dalton Gardens.

“Rep. Bateman, I’m appalled at this tenfold increase here,” Barbieri declared. “How does this act as a deterrent? Isn’t the public disclosure that such a thing happened, and being fined whatever it may be, enough to allow the public servant to recognize that they’re in violation of this rule?”

Bateman said he was only proposing increasing the maximum penalties, and he proposed a big increase – from $50 to $500 for violations, and from $500 to $5,000 for knowing or repeated violations – to reflect inflation since the Open Meeting Law first was enacted in 1974. “This is a serious business, I think, violations of open meeting law,” Bateman told the House State Affairs Committee. “It’s a deterrent. You won’t have many prosecutions, I’ll admit, but it’s on the books.”

Rep. Pete Nielsen, R-Mountain Home, said he thought a tenfold increase in a single year was too much, and suggested a smaller increase.

Rep. Lynn Luker, R-Boise, said he wants the existing Open Meeting Law changed so that repeat violations within 12 months don’t bring the higher fine unless they’re “willful” violations; Barbieri said he agreed.

Rep. Brent Crane, R-Nampa, posed a hypothetical: What if six city council members, during a long meeting, went in a back room for a snack during a recess in the meeting, and four of them were there eating at the same time? “Would they then be subject to the penalties and it would cost them $5,000 to go back there and have a break?” asked Crane, R-Nampa.

Bateman said no. “No prosecutor in his right mind would ever prosecute under that,” he told Crane. Plus, officials don’t violate the Open Meeting Law just by being in the same place – they violate it by conducting public business outside an open meeting. So snacking wouldn’t count, unless they were debating on council issues while they were at it.

Luker said he’s concerned about low- or unpaid local officials. “They’re just there trying to do their best, and they get sucked into a meeting that maybe they shouldn’t have been sucked into,” he said.

Bateman said a group of his constituents asked him to propose the big increase in the fines. “They want to be tough. I’m representing my constituents,” he said.

“I had the privilege to know the legislator who wrote the Sunshine Law when I came here 30 years ago, Gary Ingram,” Bateman told the committee. “He wrote the act, it was fresh off the press, and I recall just almost every speech he gave in the House he found a way to reference it. He just believed that public business should be conducted in the public and we should have adequate deterrence for violation of the Open Meeting Law.” He added, “I think we need to be perhaps more aggressive in this – our prosecuting attorneys should be more aggressive. That’s the public trust, and public business should be conducted in public.”

Rep. Kathy Sims, R-Coeur d’Alene, backed Bateman’s bill. “This is a maximum,” she noted. “What I’ve found in my district is the prosecuting attorneys are reluctant to even pay attention to this because of the fines being so small, and in my area it has been an issue many, many times. So this will make a prosecuting attorney think more seriously about a complaint that’s been filed. I think this is justified.”

Rep. Gayle Batt, R-Wilder, agreed, saying, “I think this is the people’s business … and they have a right to know, and it should be done openly.” She moved to introduce Bateman’s bill. Rep. Melissa Wintrow, D-Boise, offered a substitute motion to return it to Bateman and ask him to amend it to half the increase, to better match inflation since 1974.

Before the committee could vote on that, Bateman asked unanimous consent to return the bill to him. “We’ll come back with one that’s been adjusted somewhat,” he said.

From The Spokesman-Review

From the Associated Press/Idaho State Journal

An eastern Idaho family has launched an online fundraising effort to help cover the estimated $1,235 cost to get public records about the Idaho State University president’s residence.

ISU emailed the bill to Eric and Rhonda D’Amico and their son, Sam D’Amico, after the family submitted a public-records request for documents detailing how much the school spends on maintenance and improvements at the Servel House, which is used as a residence for ISU President Arthur Vailas.

The Idaho State Journal () reported Monday that the D’Amico family launched a fundraising effort on the crowd-sourcing website Gofundme.com to help pay for the bill. The money will cover the expense of having an ISU staffer collect the documents and other related costs.

Last year, university officials were preparing to ask the State Board of Education to approve a $600,000 expenditure to purchase a new president’s home to replace the Servel House. In November, university officials said the new house would save the school about $195,000 in maintenance costs during the next 10 years and eliminate the need for about $750,000 in needed renovations.

University leaders later dropped the proposal for a new house, however, after hearing negative feedback from the community.

The D’Amicos asked for receipts, work orders and estimates for repairs at Servel House to back up those estimates.

“You would think the university would have collected that information before going to the state board,” Eric D’Amico said.

ISU Vice President for Advancement Kent Tingey said the university sent adequate information for the new house proposal to the State Board. The D’Amicos wanted documentation dating back several years, Tingey said, and the school doesn’t have that information readily available.

Idaho’s public records law allows public entities to recoup some of the costs associated with filling public records requests, although the first 100 pages and first two hours of labor are free.

___

Information from: Idaho State Journal, https://www.journalnet.com

From the Associated Press/Idaho State Journal

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