President’s column: A significant win for public records in Idaho

By Betsy Russell

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

Christina Lords, editor of the Idaho Statesman; Betsy Russell, president of the Idaho Press Club; and Melissa Davlin, VP and 1st Amendment chair of the Idaho Press Club, pick up unredacted documents from Ada County after a successful court fight.
Idaho Press Club 1st Amendment Chair Melissa Davlin talks about the Press Club’s public records lawsuit with CBS2 after picking up the documents at the Ada County Courthouse.