Courtwatch, a Canyon County citizens group, has been named the winner of the 2005 Max Dalton Open Government Award, a $1,000 public service award sponsored by the Idaho Newspaper Foundation.

Courtwatch joined forces with the Angie Leon Citizens Task Force following the murder of Angie Leon of Caldwell in May 2003 by her estranged husband, Able Leon, who was released from jail a few weeks earlier despite a long history of domestic violence against Angie Leon and fears by Angie that she would be harmed by her husband. The group wanted to know how Able Leon was able to “fall through the cracks” of the law-enforcement and judicial system and be set free despite his obvious danger to his wife and family.

Through extensive research, including frequent public records requests under the Idaho Public Records Act, the group found numerous flaws in the system, including poor record-keeping, inadequate procedures by prosecutors and lack of information provided to judges. The group made a series of recommendations to improve the prosecution of domestic violence cases and continues to monitor the court system in Canyon County.

The group earned the Max Dalton Open Government Award because of its persistent use of Idaho’s public records despite roadblocks put up by public agencies, INF Executive Director Tom Grote said. In its report, Courtwatch cited numerous instances in which agencies were unresponsive to public records request, charged inappropriate fees for copies or showed a general lack of understanding of the public records law.

“Courtwatch was not deterred in their legitimate requests for public records, even though the obstacles they faced would have frustrated many citizens,” Grote said. “Because they were dogged in their efforts, the group advanced the public interest by discovering and reporting serious flaws in the legal system.”

The Max Dalton Open Government Award has been given each year since 1999 to a citizen or group judged to be an outspoken advocate of openness in either public records or public meetings on the state or local level.

Max D. Dalton was killed, at age 78, in November 1997 by squatters on his ranch in Costa Rica. Dalton had spent most of his life in Idaho where he operated a Meridian milk-testing business. In 1981, Dalton filed a public records lawsuit that resulted in a 1984 landmark Idaho Supreme Court ruling that reinforced the right of every Idaho citizen to have swift, convenient access to state records.

In the years since the Dalton decision, the state’s public records law has become undermined with dozens of loopholes requested by special interests, state agencies and city and county governments.

“By honoring those who emulate Max Dalton’s example, we hope more citizens will take personal action against needless government secrecy in Idaho,” Grote said.

The Idaho Newspaper Foundation is a non-profit organization founded in 1983.

From the Idaho Newspaper Foundation

Editorial Published June 2, 2005, in The Star-News, McCall

A miracle happened at last Thursday’s meeting of the McCall City Council. Members of the city council made an important decision about their legal representation apparently without discussing it. They must have conferred by telepathy or intuition, because any other method would have been illegal or unethical.

The topic of where the city gets its legal advice was added at the last minute to last week’s agenda at the council’s regular meeting. Mayor Kirk Eimers made the motion to fire the Boise law firm of Moore Smith Buxton & Turcke, which had represented the city for the last five years and which the city has paid nearly $1 million in legal fees over that time.

There was little discussion before the unanimous vote was made to change one of the most important contractors on the city payroll. Afterward, council members were reluctant to talk about the subject, saying only that change was needed.

The agreement among the council members was remarkable if the assumption can be made there was no prior discussion on the law firm. At least that is the way the record shows. There have been no discussions in a public meeting among the council members of the conduct of the firm. The council could have discussed the law firm in executive session, but minutes of the last several executive sessions – which are required by law to be made – show no evidence of any deliberations.

So, how in the world did council members come to their decision? Did they do a round-robin telephone conference? Not likely, as that would have violated the Idaho Open Meeting Law. Did they discuss the matter while they were in an executive session on a different topic? Let’s hope not, because that also would have violated the open meeting law.

So, the only answer is that council members have developed a keen sense for how the others are thinking and can come to immediate agreement without speaking a word to each other. That is an amazing talent, one they should be able to take on the road and charge admission to watch.

Editorial from the Star-News

From the IDAHO PRESS TRIBUNE, June 5, 2005 – “Our View”

If there’s anything that raises the ire of the public and the press it’s when tax funded agencies meet in secret.

Sometimes, closed meetings – also known as executive sessions – are appropriate and legal.

But there are occasions when a public board or comission meets illegally, and unless challenged, will keep doing it.

Depending on what point of view you look from, Thursday’s school board meeting in Homedale was illegal.

Why?

Because the school board chairman said she didn’t want the press there and when asked by the reporter: “Why do I have to leave when they can stay?” she had no choice but to eject everyone.

And even though the press and the majority of the people in the meeting room were excluded, the meeting was not an executive session.

Why?

Because it was a secret meeting of the school board and the school administrators with hand-selected representatives (about five people) from two points of view.

A legal executive session is designed to keep all of the public from hearing what is being discussed – if the topic falls within the defined parameters.

In the case of the Homedale meeting, the supporters heard what the opponents had to say and the opponents heard what the supporters said. But none of the rest of the public got to hear it.

The irony of the whole situation is that the coach – the focus of the meetings – has wanted the while issue aired in an open forum.

It should have been discussed openly in a hearing scheduled and noticed properly.

The school board had already made its decision to end the coach’s contract. There was no decision to be made. In fact, the school board chairperson rightfully said no decision would be made. After a public hearing, the school board could have deliberated again – in executive session – and returned to an open session and voted to reverse its decision.

Legally, the school board can’t disclose the reasons for why a person is terminated. That falls under personnel rules.

In Homedale, coach and teacher Randy Potter has become the focus on an ongoing tug-of-war in the small community. Potter hasn’t always been the person under attack. It’s been others in the past four or so years.

His teaching status is protected as long as he meets the standards of being a good teacher. But coaches are not protected in the same way, and if the school board and administration don’t like how a football coach stands on the field, they can drop his contract.

And if patrons aren’t happy with a school board, then the patrons need to find new board members. In Homedale’s case, voters recently elected a new board member and ousted the chairperson.

Maybe that change will be enough for the school board to re-evaluate the situation later this summer. Stranger things have happened.

If nothing else, the board – under it’s new superintendent – needs to understand the laws when it comes to executive sessions and follow them.

Editorial from the Idaho Press Tribune

from THE IDAHO STATESMAN, May 17, 2005 – “Our View”

Higher ed meeting should be open to public

Important people – many of them elected – will meet behind closed doors next month to talk about higher education.

The topic will be two campuses in Idaho Falls. The discussion has clear local implications: It could shape satellite campuses in Boise and perhaps Boise State University’s Nampa community college.

Yet Gov. Dirk Kempthorne, who decided to bring together a who’s who of politicians and educators, is promising them a private venue to talk about a publicly funded higher education system.

That’s inappropriate and unnecessary.

Inappropriate because the topic deserves a public airing. The framework of higher education – which school offers what program, and how the state avoids duplication – is important. The issue is particularly gnarled in Idaho Falls, which has no stand-alone college but two taxpayer-supported facilities located across town from each other. Students can attend Eastern Idaho Technical College or, on a satellite campus, courses from University of Idaho or Idaho State University.

Unnecessary because public officials should feel free to kick public policy ideas around in public settings. If they are afraid to discuss public policy freely before the public, they ought to retire from public service.

It’s a no-brainer to talk about how public institutions in the same city ought to operate without overlap. Idaho needs to expand a community college system that ill-serves students and employers across much of the state. It cannot afford to squander money on duplicative programs at any satellite campus – be they in Idaho Falls, or Boise or Nampa. All taxpayers have a stake in open discussion.

There’s no good reason to allow county commissioners, City Council members, legislators, State Board of Education members and university officials to meet behind closed doors. Kempthorne “wants them to be able to talk freely and get some solid conversation going,” his spokesman, Michael Journee, said Monday.

This kind of argument has never made the case for secrecy at any level of government. The people on Kempthorne’s guest list are powerful, opinionated public officials. They don’t need a cloak of secrecy.

Journee said he unaware of anyone who requested the closed meeting. The ground rule evolved as Kempthorne’s office started to put the meeting together.

The meeting is tentatively scheduled for June 22. Kempthorne has ample time to set a date and open the doors.

Editorial from The Idaho Statesman

From THE SPOKESMAN-REVIEW.

Court yet to rule whether privacy can exempt records from disclosure

Susan Drumheller
Staff writer
April 19, 2005

E-mail exchanges between the Kootenai County prosecutor and an employee are public records and are not exempt from the Idaho open records law, a 2nd District judge said Monday.

But Judge John R. Stegner of Lewiston said he still must decide if the Idaho Constitution grants public employees an overriding right to privacy, which would exempt the records from disclosure.

Cowles Publishing Co., which owns The Spokesman-Review, has sued the Kootenai County Board of Commissioners to gain access to all e-mail between Prosecutor Bill Douglas and former Juvenile Education and Training (JET) Court coordinator Marina Kalani.

If Stegner rules in favor of the newspaper, the 889 e-mail messages at issue won’t be released to the public until any potential appeals are resolved, he said.

The Lewiston judge was assigned to the case to avoid any potential conflict of interest for Kootenai County judges.

The Spokesman-Review’s initial request for the e-mail on March 10 was partially filled when the county provided copies of 461 of 1,060 e-mail messages between Douglas and Kalani, who was hired in the spring of 2004 as JET Court coordinator. Of the e-mail messages released, 290 were heavily edited.

Most of the e-mail made public addressed the day-to-day operations of the JET Court, upcoming conferences and some references to the court’s recent financial troubles and lack of participation by juveniles.

Spokesman-Review reporter Erica Curless made her request after JET Court’s supervising judge, District Judge Benjamin Simpson, quit after expressing in a memo that he had “serious concerns about ongoing personnel problems and legal issues.”

Seeking answers to why the court had dissolved, the Kootenai County commissioners and the newspaper separately sought the e-mail between Kalani and Douglas, who was her supervisor.

According to an affidavit by Kootenai County Commissioner Gus Johnson, the e-mail he reviewed suggested an inappropriate relationship between the prosecutor and Kalani. Both have denied that suggestion.

The county, despite being named a defendant, is taking a neutral position in the lawsuit, said Bentley Stromberg, the attorney representing county commissioners. Instead of advocating for full disclosure or nondisclosure of the e-mail, Stromberg said, the county’s role is to explain, frame and preserve the documents and issues for the sake of judicial review.

In response to The Spokesman-Review’s records request, the county did not supply e-mail or portions of e-mail messages that the county deemed unrelated to conducting the public’s business or anything that contained juvenile, personnel, health or investigatory records.

Both Kalani and Douglas intervened in the lawsuit, and their attorneys argued for keeping their e-mail private. Their attorneys argued against the presumption that they are open to public purview.

Kirtlan Naylor, representing Douglas, also pointed out that the number of e-mail messages – more than 1,000 exchanged in about a year’s time – is misleading because many were replies to replies.

Contacted after the hearing, Kalani said she appreciated Naylor bringing up that point: “When an e-mail consists of ‘OK’ or ‘thanks,’ is that substantive? No.”

When asked why she had declined to release the e-mail herself, Kalani said, “For the same reason I don’t let a police officer search my apartment at random without a search warrant.

“Is it because I have something to hide? No,” she said. “We have a right to personal privacy.”

Kalani’s attorney argued that public employees have a constitutional right to privacy that overrides the state open records statute. Stegner agreed to study that point in more detail.

Duane Swinton, attorney for Cowles Publishing, argued that e-mail messages retained by the county government are, by definition, public documents under Idaho law. But what pushed these particular e-mail messages further into the public domain was the fact that they had been used by commissioners to review the reasons for the demise of the county’s JET Court.

“We are dealing with a review not of excessive e-mails, although that certainly is an issue here, but of the content of those e-mails,” Swinton said.

Swinton also pointed out that the county’s own policy regarding employee e-mail makes it clear that when employees use the county e-mail system, they waive their right of privacy and those e-mail messages will be treated as public record.

• Anne Abrams
  Idaho State Library
  325 W. State St.
  Boise, ID 83702
• A.L. “Butch” Alford
  Lewiston Morning Tribune, Idaho Allied Dailies
  505 C St.
  Lewiston, ID 83501
• Bill Manny
  Idaho Statesman
  1200 N. Curtis Rd.
  Boise, ID 83706
• Elizabeth Brandt
  University of Idaho College of Law
  6th and Rayburn Streets
  Moscow, ID 83844-2321
• Elinor Chehey
  League of Women Voters
  2705 N. 32nd St.
  Boise, ID 83703
• Allen Derr
  Attorney at Law
  200 N. 3rd St.
  Boise, ID 83702
• Tom Grote
  Star-News, Idaho Newspaper Foundation
  1000 1st St.
  McCall, ID 83638
• Dean Miller
  The Post Register
  333 Northgate Mile
  Idaho Falls, ID 83402
• Betsy Russell
  Idaho Press Club, The Spokesman-Review
  2601 Hillway Dr.
  Boise, ID 83702
• Bob Rosenthal
  Idaho State Broadcasters Association
  270 N. 27th St.
  Boise, ID 83702
• Ben Ysursa
  Idaho Secretary of State
  700 W. Jefferson St.
  Boise, ID 83720

The collection of links below will take you to web sites with information about open records and meetings.

• Open Meetings
• Open Records
• Cameras in the Courtroom
• Federal Freedom of Information Act (FOIA)
• Idaho Press Club
• National Freedom of Information Coalition

• IDOG and Idaho Attorney General Lawrence Wasden will present a mini-IDOG seminar to highway district clerks from throughout Idaho at the annual meeting of the Idaho Association of Highway Districts on Nov. 14, 2007, at 1:30 p.m., in Boise.
• IDOG open meetings and records seminars are now being planned for Idaho Falls this coming spring and other locations around the state over the next two years.

What is IDOG?

Idahoans for Openness in Government, or IDOG, is a broad-based, non-profit coalition for open government. Like similar coalitions in more than 40 other states, IDOG’s mission is to promote open government and freedom of information. IDOG’s board includes people from inside and outside of government, the media, civic organizations and more.

IDOG’s initial project is to put on open-government seminars in communities across the state of Idaho, in partnership with the Idaho Attorney General, the Idaho Press Club, the Idaho Association of Counties and the Association of Idaho Cities. We expect to reach all parts of the state with these workshops, focusing on Idaho’s public records and open meetings laws. IDOG received funding for this project from the National Freedom of Information Coalition through a grant from the John S. and James L. Knight Foundation. We also received a grant from the Best of the West Foundation, a group dedicated to openness and freedom of information and funded by an annual journalism contest.

IDOG’s mission is to foster open government, supervised by an informed and engaged citizenry. We believe that we all benefit when the public, the media and government officials are fully aware of the public’s rights to access government information and observe the conduct of the public’s business.

Coming soon

IDOG is developing a multimedia DVD version of our open-government seminars, working on public service announcements on citizen access to government, looking into a future statewide public records audit to determine how our state is doing as far as compliance with public records laws, and operating a website, www.openidaho.org, featuring information about IDOG and its activities along with news clips on open records and open meetings developments around the state.

Join us!

You can support IDOG by becoming a member, for just $10 annually for an individual or $100 for an organization. Just send us your check and a note about your interest in these issues. We’d love to have your help!

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