The Idaho Press Club has won a significant legal ruling in our lawsuit against Ada County, the state’s largest county, over its non-compliance with the Idaho Public Records Act.

We sued, with the support of numerous news organizations in Idaho, and we won. In a sharply worded 31-page ruling, 4th District Judge Deborah Bail found that the county “not only did not follow the Idaho Public Records Act, it acted as though a different Act had been enacted – a reverse image of Idaho law.”

Idaho law states that that all public records are presumed to be open and available to the public unless a specific, statutory exemption exempts them from disclosure. It sets strict timelines for compliance, and strict standards about the charging of fees. Ada County, instead, has had a pattern and practice, the lawsuit showed, of presuming that all records are closed if they could possibly affect an array of broad concerns including “privacy,” “deliberative process,” “attorney-client,” “personnel,” and so forth – without reference to any of the more than 100 specific exemptions in the law. Its approach, in the judge’s words, “emphasized delay, unsupportable interpretations of privilege and secrecy.”

It’s not that the elected Ada County officials, from the commissioners to the sheriff, have necessarily been purposely attempting to evade the public records law. Instead, it’s the county prosecuting attorney’s office, which acts as the in-house counsel for the county and its elected officials, that has been operating under a fundamental misunderstanding of the law, and has been enforcing that misunderstanding in all its legal advice to our elected officials, leading them to violate the law over and over again.

This ruling should mark the end of those practices. County commissioners, in their reactions to the ruling, have emphasized that they want to be open and transparent, and that they plan additional training and review of their practices in regard to the Idaho Public Records Act. That training and review clearly needs to extend to the office of Ada County Prosecutor Jan Bennetts, an elected official who has overseen all of this faulty legal work.

“The Court finds that the evidence is overwhelming that public records were improperly and frivolously withheld,” the judge wrote. “The Idaho Press Club is the prevailing party and is entitled to its attorney fees and costs. … The documents must be supplied forthwith.”

The documents in question, which had been requested by four different reporters with three different news organizations, have now been turned over in their full, unredacted form. And we learned some very interesting things from those documents; please see the article in this issue of the Communicator from IPC Vice President and 1st Amendment Committee Chair Melissa Davlin for more on that.

County commissioners voted 2-1 against appealing the ruling to the Idaho Supreme Court, so this ruling is the final word in this case.

Here are some of the main points from the judge’s ruling:

The law means what it says. “The right of the public to know, in depth, how its public servants handle the public’s business is embodied in the Idaho Public Records Act,” Judge Bail wrote. “It gives the public broad access to the public records of Idaho government at every level, in every form – from state, to county, to city, to every type of commission and board. Public records are presumed to be open at all reasonable times for inspection by the public.” Governmental agencies have the burden of proving that a requested record falls under a specific exemption and therefore shouldn’t be released, and the exemptions in the law are to be narrowly construed.

Requests must be granted or denied within three working days; if the agency needs more time to “locate or retrieve” the record, it must notify the requester in writing that it will provide the record within 10 working days. Under certain circumstances, the agency can work out a mutually agreed upon extension beyond the 10 days, but it can’t legally do so unilaterally.

As far as fees, the first two hours of labor and the first 100 pages must be provided at no charge. Thereafter, fees are limited to actual costs, and may be waived. The only recourse under the law when records have been improperly denied is to go to court, which is what the Idaho Press Club did.

Ada County threw up a number of procedural defenses to the Press Club’s lawsuit, including that the Press Club lacked standing to sue, that we improperly named the county rather than individual officials as the defendants, and that each of the four reporters should have sued separately. All were found entirely without merit by the court.

Then, the county claimed “vague denials for ‘attorney-client privilege,’ ‘personnel information,’ ‘privacy,’ and ‘deliberative process’” that “do not satisfy Ada County’s burden under the Idaho Public Records Act,” the judge wrote.

Attorney-client privilege. Citing a 1908 Idaho Supreme Court case, the judge found that attorney-client privilege applies to “confidential communications between the public attorney and the public agency client for the purpose of giving or receiving legal advice,” such as entering contracts or assessing the agency’s legal position in litigation. But it “should be narrowly construed in the context of public agencies,” she found. If public agency lawyers are doing something other than providing legal advice – like performing administrative or clerical functions involving responding to public records requests – their work isn’t privileged. Also, the judge noted that public attorney’s names aren’t privileged against public disclosure.

Personnel information. “Ada County’s generic claim of ‘Personnel’ as a basis for non-disclosure without reference to a specific statutory exemption is a violation” of the Idaho Public Records Act, the judge found. The names of public employees and their positions are not exempt from disclosure under the act, she wrote. Exemptions in the law are specific to such matters as birth date, social security number, applications, testing and scoring materials, grievances and performance evaluations. “None of them apply,” the judge found.

“Privacy.” The law does contain an array of specific exemptions regarding privacy concerns, the judge noted, such as making juvenile records largely exempt, protecting the physical address of crime victims or law enforcement officers from release even when they appear in otherwise public documents, and exempting from public release information on which books a patron checked out from a public library. Ada County argued, in this case, that it had to go further to protect privacy or it might get sued. But the judge found that argument “not persuasive” because the Public Records Act specifically grants agencies immunity if they inadvertently disclose something private while attempting in good faith to comply with the Public Records Act. “There is no basis for this Court to adopt the amorphous privacy exemption argued for by Ada County,” Judge Bail wrote; it “has no basis in any specific exemption or anywhere else in Idaho law.”

Plus, the judge noted, “A broad, standard-less interpretation of IC 74-104(1) would negate the entire Act.” She added, “Ada County’s approach to this particular issue where it even deleted the reporter’s own email address and emails asking about the status of their public records request because of ‘Privacy’ is so lacking in good faith that it is striking.”

Deliberative process. “A considerable number of records were withheld because of Ada County’s assertion of a ‘Deliberative Process Privilege,’” Judge Bail wrote. But there is no such privilege in Idaho’s law. The 1988 federal Freedom of Information Act contains such a privilege with regard to certain federal records, and it’s led to “considerable litigation” there, but it’s the Idaho Public Records Act that governs state and local records in Idaho. “Since the deliberative process privilege has been a part of the federal Freedom of Information Act since 1988, the Legislature’s decision not to include it in the Idaho Public Records Act is significant,” the judge found. “Had they wanted to include the privilege, they could have done so. … There is no deliberative process privilege in the Idaho Public Records Act. This court declines the invitation to make one up. Idaho has opted for greater transparency. The decision to narrow the range of public records open to the public belongs to the Legislature.”

This ruling should mark a significant change in how Ada County approaches it compliance with this important open government law, but it doesn’t only apply to them. Other public agencies in the state also have applied their own overly broad interpretations to this law that have led to improper denials, delays, fees and redactions. They all need to pay attention, too.

And what this issue shows at heart is a basic flaw in our public records law: That the only recourse for those improperly denied public records under the law is to get a lawyer and go to court. That’s an expensive proposition, and for that reason, it rarely happens. That allows a public agency to develop patterns and practices that don’t comply with the law, and continue following them until someone hauls them into court.

Many states have intermediate levels of appeal short of going to court, whether it’s an administrative review, a public records review board, an ombudsman’s office or another approach. Our state has looked into these options in recent years, but we haven’t gotten there. It’d be a great addition to this important Idaho law.

Betsy Russell is the Boise bureau chief for the Idaho Press, and is the president of the Idaho Press Club

Judge Deborah Bail’s decision in our lawsuit against Ada County over its illegal public records practices didn’t just admonish the attorneys responsible for breaking Idaho’s public records laws. It also ordered the county to turn over the unredacted documents the Idaho Press Club, Idaho Statesman and Idaho Education News had requested.

And now, because we sued on behalf of Press Club members, we are turning the documents over to you for reporting purposes, along with this summary of our findings and a timeline of key events.

You can find all of the documents here: https://drive.google.com/drive/u/0/folders/1dd_2sBeZRHaYHxSp0cEdIE8s7kGGLwiw

Remember, this fight started because of Ada County’s delay in fulfilling a public records request from Idaho Statesman reporter Cynthia Sewell. Ada County took about 40 business days to fulfill that original request over documents related to the sale or lease of Les Bois Park. In court, the county’s attorney, James Dickinson, repeatedly claimed an IT issue was responsible for the delay.

After carefully reading the documents, two main points stand out: There are a number of discrepancies with Ada County’s claim that a technical glitch caused the delay, and Ada County Prosecuting Attorney Jan Bennetts’ office was directly involved with indefinitely delaying the response.

Some highlights:

-Emails show employees in the Ada County Prosecuting Attorney’s Office didn’t reach out to the county IT department to begin the search until March 4, ten business days after Sewell’s original Feb. 15 request. Idaho Code allows for three days to respond to a request, with a maximum of a 10-day extension.

-Ada County Prosecuting Attorney Jan Bennetts provided the wording used in letters sent by office manager Judy Morris to Sewell to indefinitely delay response to the original request, beginning on March 4. Bennetts’ office continued to insist in those letters that the indefinite delay was within the boundaries of the law — which, as the Idaho Press Club and Judge Bail pointed out, isn’t true.

-There is no mention of a technical glitch in any communications between attorneys and the IT department. Instead, emails discuss whether the record search “slipped through the cracks,” with one employee writing “I am the problem” in reference to the delay a month after Sewell’s original request.

-After a check-in from Sewell in late March, attorneys again instructed Morris to indefinitely delay response. Again, there is no explanation or mention of a technical glitch until Morris sent a final letter with a cost quote on April 5, after Sewell went public with her complaint against Ada County on social media.

-In a September 25 declaration to the court related to the lawsuit, Ada County IT Director Stephen O’Meara claimed a similar request to Sewell’s masked her request in the public records request system, and an IT upgrade delayed searches for a week. There is no mention in these records of any IT issues or upgrades, and the attorneys assigned to Sewell’s request didn’t follow up with O’Meara about the search until late March, after Sewell checked in.

-In the same time period as the supposed technical glitch, Ada County responded to a number of other public records requests. There is no mention of IT-related delays in communications between the county and requesters in these records.

While it is possible there was, in fact, an IT issue that wasn’t mentioned in these records, O’Meara’s statement that it delayed record searches for a week doesn’t account for the entire 40-day delay. It also doesn’t explain why the attorneys in question acknowledged their role in the delay in their own emails, nor why they didn’t notify Sewell of the IT issue until April.

Please feel free to use these documents for your own reporting. This summary and timeline has been compiled by Idaho Press Club vice president and 1st Amendment Committee chairwoman Melissa Davlin, who is available for interviews or to answer questions.

Melissa Davlin is a reporter, producer and host at Idaho Public Television, is the vice president of the Idaho Press Club, and chairs the club’s 1st Amendment Committee. She can be reached at (208) 410-7239.

As winter arrives, we’re looking ahead to some Press Club landmarks on the calendar: Our annual journalism contest, for which entries will open in December; our annual Don Watkins Memorial Scholarship contest, with categories both for students and mid-career journalists, for which entries are due by Feb. 15; and the legislative session that starts in January, when our 1^st Amendment Committee will swing into gear to advocate against legislative proposals that would shut down public access to our government, and in favor of those that would open it up.

And we’re currently enmeshed in a lawsuit against Ada County over public records compliance; see 1^st Amendment Committee Chair Melissa Davlin’s update on that in this issue of the Communicator.

So with that frame of mind, we were taken aback to hear that student journalists at BYU-Idaho were being told not to report on a big controversy on their campus, regarding the Rexburg university’s decision to stop accepting Medicaid as sufficient insurance to waive the requirement of purchasing a student health plan.

You may have seen 1^st Amendment Chair Davlin’s statement on social media about that; I’m reprinting it here:

“If a university is confident in its decisions, it shouldn’t stifle coverage of them.

The Idaho Press Club unequivocally stands by student reporters at Brigham Young University-Idaho’s Scroll newspaper who are being discouraged from reporting on the university’s recent announcement that it will no longer accept Medicaid in lieu of other health insurance.

Student media exists not only to teach budding reporters, but to also inform the campus community about important issues. BYU-Idaho discouraging coverage of this issue is not only a slap in the face of the First Amendment — it prevents students from accessing information that directly affects their health.

If BYU-Idaho is serious about training student journalists, it is doing them an incredible disservice by preventing them from reporting on the news of the day. The Idaho Press Club encourages the administration to stay out of the way of student coverage.”

We will continue to fight the fight for openness in Idaho, in all the ways that we can.

Among the ways you can support our efforts: Enter our annual journalism contest. Entry fees from the contest are the major source of funding for the Idaho Press Club each year; it’s also an opportunity to have your best work recognized, as hard-working journalists so richly deserve. Check out the categories and rules on our website, www.idahopressclub.org. Entries will be accepted starting Dec. 15.  All entries are due by Jan. 22; don’t wait ‘til the last minute!

We also grant scholarships to Idaho journalism students and mid-career journalists through our endowed Don Watkins Memorial Scholarship program. For students, the scholarship is $1,500 to a graduate of an Idaho high school who has completed at least one year of college and is looking to pursue a career in journalism or communications. Full-time students majoring in journalism or working for a college or professional media outlet are eligible to apply.

The Mid-Career Scholarship awards $500 for any Idaho Press Club member to use for any training or project that will improve the working press in Idaho. See our website for details on both scholarship programs and how to apply.

The scholarships also further our mission of improving journalism in Idaho. Here’s our Idaho Press Club mission: “To promote excellence in journalism, freedom of expression and freedom of information.”

Betsy Russell is the Boise bureau chief for the Idaho Press, and is the president of the Idaho Press Club.

On a late September weekend, Boise State Public Radio hosted a training workshop by IRE, the Investigative Reporters & Editors. Earlier in the week, IRE had provided the radio team with “Total Newsroom Training,” a two-day intensive into data journalism led by Francisco Vara-Orta of Texas. The weekend workshop, however, was open to all Idaho journalists and 65 attended on that Saturday.

Vara-Orta began the day by introducing Mary Hudetz (AP New Mexico), Les Zaitz (Malhuer Enterprise) and Cynthia Sewell (Idaho Statesman), who talked about developing an investigative mindset. Next, the Press Club’s Melissa Davlin (Idaho Public Television) and Deb Grasham (Givens Pursley LLP) were joined by Nicole Foy (Idaho Statesman) for a strategy session on crafting public records requests.

Ken Armstrong (ProPublica), a multiple Pulitzer Prize winner, talked about how his approach to sourcing has changed over the years. He relaxed his early-career cautious view of sources “with axes to grind” and instead is now pushing journalists to feel free to meet with the outspoken activists, but to sharpen a reporter’s own internal filter. He also adapted his earlier narrow view of sharing information with sources before publication, and is now more willing, such as in regard to victims in his stories who may be re-injured upon reading it. His reporting led to the current Netflix series, “Unbelievable.” Afterwards, he was joined by Mary Hudetz for a session called “the art of the investigative interview.” Listening, patience and gaining trust were pillars of their advice.

Vara-Orta concluded Saturday’s workshop with a survey of the changing landscape of social media, which provides both opportunities but also challenges for journalists. He also led the Sunday workshop, which was a deep dive into data journalism. Vara-Orta shared upcoming training opportunities for Idaho journalists and encouraged the transformation of our work to take better advantage of data visualization and to make stronger use of statistics in our stories.

Tom Michael is the general manager at Boise State Public Radio, and is a member of the Idaho Press Club board.

IDAHO BUSINESS REVIEW

Catie Clark has joined the Idaho Business Review as a staff writer covering development and health care. Catie holds a Ph.D. in geology and had a successful career in that field before moving over to journalism a few years ago. She most recently worked in Eastern Idaho at the Blackfoot Morning News and Bingham County Chronicle. Catie replaces Steve Sinovic, who moved to Tucson, Ariz. to work for Wick Communications.

CBS 2 BOISE

Trevor Fay joins CBS 2 from Sinclair sister station KRCR in Redding. Departing staffers include Lauren Clark, who is now a reporter at Sinclair station KSNV in Las Vegas; and Alexis Goree, who is now a reporter at Sinclair station KSNV in Las Vegas.

BOISE STATE PUBLIC RADIO

Madelyn Beck joined Boise State Public Radio as the Regional Reporter for the Mountain West News Bureau, the five-state collaboration based here. Beck is no stranger to these collaborations, having reported for Inside Energy, Harvest Public Media and Illinois Newsroom. She is also a former reporter for the Idaho Mountain Express. Amanda Peacher, who previously held the position, has moved with her family to San Diego, where she is freelancing.

Troy Oppie has become the local host of NPR’s Weekend Edition, after George Prentice left the Saturday post to host Morning Edition on weekdays.

TWIN FALLS TIMES-NEWS

Ryan Blake is the new state government and reporter. He replaces Gretel Kauffman, who left in the spring for the Deseret News in Salt Lake City. Blake graduated in May from Washington State University, where he wrote for the school paper and interned at Northwest Public Broadcasting on campus. He also interned for The Spokesman-Review as an Olympia correspondent, covering the 2019 Washington state legislative session.

Kauffman covered crime and courts as well as politics. Also departing the Times-News last spring was Julie Wootton-Greener, who covered education for the paper for nearly eight years. She moved to Las Vegas with her husband, who is a pilot based there.

Other new staffers since spring include sports reporter Ben Jones, who graduated from the University of Nebraska in Lincoln and worked as a sports clerk at the Lincoln Star Journal for two years; and Julie Ferraro, who joins the Times-News from Dalhart, Texas, where she had a long career as a community journalist, and also worked as a correctional officer. Ferraro is covering crime and courts.

Reporter Colin Tiernan covers agribusiness and environmental issues; he came from the Douglas Budget in Douglas, Wyo. Reporter Megan Taros covers Latino issues in the Magic Valley, along with local governments in Jerome, Lincoln and Gooding counties. Taros joins the Times-News through the Report for America program; she graduated from Columbia University last spring with a master’s of science in journalism.

 It’s not every day that journalists from Angola, Costa Rica, Portugal, Serbia, Singapore and Tanzania are checking out Idaho’s state Capitol, meeting with student journalists at Boise State, stopping by Idaho Public Television and meeting with various Idahoans. But it happened in June, as the State Department’s International Visitor Leadership Program brought the group to Boise, after trips to Washington, D.C. and Tampa, Fla., and before a visit to Boston.

 They were part of a group of nearly two dozen international journalists from around the world on an Edward R. Murrow Program for Journalists tour entitled, “Media Responsibility in an Age of Disinformation.” The group was together for most of its tour, but split into three parts to visit a “small city,” and Boise was their small city destination.

 That’s why Rep. Melissa Wintrow, D-Boise, was quizzing the journalists at the state Capitol about whether they have public records laws in their home countries that allow them to request and receive copies of public documents, like we have in Idaho. Wintrow noted that all her written records, including emails and texts, are public records.

 “That is America,” Alpha Abdalah Wawa said to laughter from the rest of the group. He’s a reporter, newscaster and producer for the Tanzania Broadcasting Corp., an independent media outlet that focuses on promoting government accountability.

 “In my country, politicians would give you stories that they want you to talk about,” he said. “It’s sometimes hard to access the information.”

 The Rwandan genocide in 1994 aroused grave concerns throughout the region about lack of access to government information, he said, as residents weren’t notified of what was happening. As a result, his country and others in the region have passed some laws, but it’s still “not easy” to access government information.

 “The  military chief has to see what you are writing about, if you can broadcast or not,” he said.

 Zoran Strika, a reporter with Radio 021 in Serbia, said, “We don’t have that open public records, and the biggest struggle is to get the real information that you need.”

 Jing Chen, a correspondent for Liahne Zaobao, a Chinese newspaper publishing in Singapore, said she requests records, but,  “They just keep you waiting there forever,” even if all she’s waiting for is confirmation about her story — a yes or no. If journalists publish without government confirmation of a story, they risk being sued by the government for disseminating false information, she said. “That’s how our government deals with journalists, is by suing.”

 Alex Guimaraes Martins, a journalist with Publico in Portugal, noted that he doesn’t have those problems with politicians in his country; the rest of the group agreed ruefully, calling Portugal’s system among the “top 10.”

 It isn’t uncommon for International delegations to visit Boise under the auspices of the State Department; just last week, a delegation from Cameroon, including the Attorney General for the nation’s Special Criminal Court, several non-governmental organization representatives and an official with the National Anti-Corruption Commission of Cameroon, came through Boise. Their objectives included examining measures that the public sector, civil society and business groups take to prevent corruption, encourage ethical leadership and transparency, and ensure government accountability to the public.

 It’s less common for journalists to visit. And most delegations require translators; all the journalists were fluent in English, so they didn’t need translators.

 Among the objectives of their program are to examine the rights and responsibilities of a free press in a democracy; observe operational practices, standards and institutions of the media in the United States; and explore the impact of digital and social media on the availability and accuracy of news.

 All agreed that “fake news” is becoming an increasing problem around the world. Said Guimaraes Martins, “‘Fake news’ mainly is propaganda. It’s more widely disseminated because of technology, but it’s propaganda, pure and simple.”

 Bill Manny, writer and producer for Idaho Public Television, met with the group during their visit to IdahoPTV. “I was impressed that we had a whole lot more in common than I expected,” he said. Their discussion focused on “the challenges facing both print and broadcast, including public media, in those other countries,” he said. “I was just struck by the parallels rather than the differences.”

 But he added, “When we fight with politicians, it’s over documents. In places like that sometimes, when journalists fight with the government, it’s for their very lives.”

 Betsy Z. Russell is the Boise bureau chief for the Idaho Press, and is the president of the Idaho Press Club. A version of this article first appeared in the Idaho Press.

As part of its work with the Mountain West News Bureau, Boise State Public Radio has launched LOCKED, a limited-series podcast about a transgender inmate who is suing the state of Idaho for sex reassignment surgery. 

It looks at the case of Adree Edmo, which is now being weighed before the 9th Circuit Court of Appeals. If Edmo wins, she’ll be the first inmate to receive surgery through court order, and that could create ripple effects in prisons across the west and potentially the nation. 

The investigative podcast explores the complicated backstory of Edmo, a member of the Shoshone-Bannock Tribes who was sent to prison for up to ten years for sexual assault of a 15-year-old boy when she was 22. It also explains gender dysphoria — distress from a person’s outward appearance not aligning with their own gender identity.  

The story describes the experience of transgender inmates and how they’re treated in prisons, and explains the science and procedure of gender confirmation surgery. And finally, the podcast explains Edmo’s legal case and the public controversy surrounding it. Edmo argues that denying her the surgery is cruel and unusual punishment, but the state and its health provider say she doesn’t need it. 

The podcast is hosted by Amanda Peacher, who this summer won a national Edward R. Murrow award for her work with the regional bureau.

“We’re at a critical moment both for our criminal justice system and for transgender rights,” Peacher said. “This case is at the crux of both those issues. That’s why we thought this was an important and timely story to tell.” 

The podcast is available wherever you get your podcasts.

Tom Michael is the general manager of Boise State Public Radio, and is a board member of the Idaho Press Club.