By Brian Kane
In December, Judge David Nye handed down a decision in a public records case. Based on this analysis, there are several instructive points for the press and public as they engage in governmental oversight. This case is particularly instructive because Judge Nye expressly acknowledges, “Yet, everything about this case smacks of a public agency trying to hide its decision-making from the public.”
First, don’t just rattle your saber. Once Joyce Bingham made her request and it was denied, she hired an attorney. This might have been the most important step Bingham took in securing her rights under the Idaho Public Records Law. Under Idaho Code § 9-343 the sole remedy is to bring a complaint in the district court where the records are located. The best way to claim that remedy is by hiring an attorney. The single best way to insure your rights are protected is to hire an attorney.
Second, be wary. It is exceptionally difficult for a public agency entering into a contract with a public employee requiring the expenditure of public money to then claim that it is exempt from public records disclosure! Within the Blackfoot case, the school district tried to claim that the agreement was a personnel record, which the press appeared willing to accept as a justification. Only after Bingham hired an attorney, filed a complaint, and scheduled a hearing did the press file a petition for public writings.
Third—the test for a public record is simple:
- Any document
- Containing information relating to conduct or administration of public business
- Regardless of form.
Within the Blackfoot case, the school district claimed that the agreement was exempt from disclosure because it was a personnel record. But the court evaluated the agreement to determine whether it was a product of the job, or an evaluation of performance of the job. The former is not a personnel record, while the latter is. As a separation agreement, it clearly did not meet the evaluation test with regard to the personnel record exemption.
This conclusion leads to two final important points. A public entity cannot simply label a document with a title that places it into an exempt category—the content of the document must actually fit the exemption. And, a public entity cannot create an exemption when there is none by creating a confidentiality clause within an agreement. There should be existing authority for the creation of the confidentiality clause in order for a governmental entity to include one in an agreement or otherwise public record.
Don’t be afraid to challenge claims of exemption. Idaho’s Public Records Law is designed to provide transparency and oversight of the government’s business. As reflected in the Blackfoot case, sometimes the best case for Idaho’s Public Records Law is made to a judge—so be prepared to make your case!
Brian Kane is the assistant chief deputy attorney general of the state of Idaho, and an authority on the state’s public records and open meeting laws.
