Judge orders records released, sets precedent for Idaho Public Records Law

Betsy Russell

By Betsy Russell

An Idaho judge has issued a significant court decision finding that the personnel records of former University of Idaho Professor Ernesto Bustamante – who took his own life after shooting to death graduate student Katy Benoit – must be released under the Idaho Public Records Law.

The Idaho Press Club joined with media organizations across the state, including the Lewiston  Tribune, Moscow-Pullman Daily News, Idaho Statesman, The Spokesman-

Review,  The Associated Press and KXLY-TV, to go to court for access to the Bustamante records, which include tens of thousands of emails, and we won. It was a unique court case, in part because the university, though on the other side of the case, essentially joined with the news media outlets in seeking the court ruling. The university won’t appeal, and the ruling now sets precedent for such cases in Idaho in the future.

“This provides us with what we sought: a clear path forward,” University of Idaho general counsel Kent Nelson said of the ruling. “It has always been the university’s intention to be as open and transparent as the law allows in this matter.”

The legal question was whether the disclosure exemption in the public records law for most personnel records of a public official still applies after the official dies. The media argued that it doesn’t – in part because the law allows the release of those records with the public official’s written consent.

“The definition of ‘public official’ is not inclusive of a deceased person whether or not that person passed away weeks ago or one hundred years ago,” wrote Lewiston attorney Charles Brown in a brief submitted to the court. “For a court to expand the concept of ‘public official’ to all deceased former public officials would have a broad and dramatic impact for generations to come without the consequences having been thought through as to the impact on history, research, and other unintended consequences, and the public’s right to know and understand how public institutions such as the University handle situations which involve the safety and well-being of their students, and not just a concern for the personnel files of a deceased and deadly ex-public official.”

2nd District Judge John Stegner ruled, however, that the law’s reference to personnel records of a “former public official” can include those who are dead, meaning Bustamante is considered a “former public official” under the law. However, he held, “The statute is silent regarding what happens upon the death of a former public official. … This court is therefore called upon to resolve the statute’s ambiguity.”

It would be an “overly restrictive interpretation” to find that all former public officials’ personnel records are secret forever, including after their deaths, Stegner wrote, especially “given the espoused statutory preference that ‘all public records in Idaho are open at all reasonable times for inspection except as otherwise expressly provided by statute.’ … Forever sealing records that could have been disclosed had the official consented, is contrary to the Idaho Public Records Act’s presumption that records be open for inspection.”

Instead, the judge found that a balancing test must be applied, to weigh the public’s need to know against the need to maintain confidentiality of the personnel records. In this case, he held, the balance clearly tipped to the public.

“Here, the public’s need to know clearly outweighs whatever right to privacy exists,” Stegner wrote. “Bustamante engaged in behavior that resulted in Benoit lodging a complaint against him. The public needs to know, in as much detail as possible, how the University responded to that complaint and whether its response was appropriate under the circumstances. Bustamante, by doing what he did, has little, if any, right to maintain the privacy of his personnel records. Accordingly, before personnel records of a deceased public employee may be released, a court must conduct a balancing test to determine whether the public’s interest outweighs the former public official’s right to privacy.”

The law’s exemption for personnel records notes that even within personnel records, certain items must remain open for public inspection, including employment history, classification, pay grade and step, longevity, gross salary and salary history, status, workplace and employing agency. All other personnel records can be released with the employee’s written consent.

The ruling is especially significant because it reinforces the central premise of Idaho’s public records law – that public records are open. The exemption for personnel records doesn’t outweigh that basic premise when the public’s right to know outweighs the interest in privacy.

Betsy Russell is a Boise-based reporter for The Spokesman-Review, and is the president of the Idaho Press Club.