President’s Column – Celebrating victories for openness in this year’s Idaho legislative session

By Betsy Russell

It’s been a good year for openness in government in Idaho. There are a lot of reasons for that, but I’d like to focus on four in particular, all four of which came out of – believe it or not – this year’s Idaho legislative session.

The first one didn’t start off like something good. The state Department of Administration proposed legislation to make all surveillance video exempt from the Idaho public records law. This happened just after a shot from a surveillance video at the state Capitol – of an armed man rifling through lawmakers’ desks in the House chamber – had appeared on the front page of the Idaho Statesman newspaper, so it seemed odd timing.

It turned out the same guy had requested extensive surveillance video of himself at the Capitol the previous year, and that’s what prompted the proposed shutdown. Word was, the man may have been trying to determine where the “blind spots” in the state’s surveillance system were. HB 207 would “provide that public records of security systems in place to protect public buildings and their occupants are exempt from disclosure.”

This caused us concern on a number of levels. High among them: The Associated Press broke a big story in the past year about violence at the privately run state prison south of Boise, that included video of a shocking beating of an inmate by other inmates while guards looked on. Were they trying to keep that stuff secret?

Not to mention that Capitol video that provided fodder for some excellent news reporting about how lawmakers were reacting to folks carrying guns in the Statehouse, even as they were promoting laws designed to go the extra mile to protect gun rights. Clearly, these were public records about what was happening in public buildings, and the state was trying to make them secret.

Others had concerns as well, including the ACLU of Idaho, which was particularly concerned about prison videos, and the Idaho Newspaper Association.

The really great ending? After our pro-bono lobbyist, Julie Hart of Shift Public Affairs, and the INA’s lobbyist, Jeremy Pisca, met with the director of the state Department of Administration, Teresa Luna, she withdrew the bill, saying she had no intention of impacting policy at prisons or other agencies. Something more specific could re-emerge next year, but that bill was dead for the session.

The second one involves an issue also related to public records: The live video streams of the proceedings of the Legislature and its committees. Legislative leaders in the past had refused to allow those streams to be archived, for fear courts would interpret the videos as the official record of the proceedings, rather than the journals of the House and Senate, as provided in the state Constitution, and the legislation itself.

They were prompted to reconsider in part because the Idaho Freedom Foundation started capturing its own videos of the streams and posting them in its own online archives. Over the course of the session, legislative leaders, and most notably Senate Majority Leader Bart Davis, worked closely with the press, the Freedom Foundation and others to develop appropriate guidelines for new video archiving rules, and both houses of the Legislature approved them. Now, Idaho Public Television’s live streams won’t vanish after a week – they’ll be available for history and posterity.

The third item was a broad public records exemption included in SB 1133, a bill ostensibly about school safety and security, a high priority nationwide in the wake of the Newtown school shootings this year. The bill added a new section to state law requiring schools to develop and submit security plans to the state, and then added this wording to the Idaho Public Records Law’s list of exemptions: “School security plans, threat assessment results and related annual reports to the state board of education, as provided in section 33-1804,

 Idaho Code.”

The thinking: Bad guys shouldn’t be able to make public records requests for the results of threat assessments showing where schools have security loopholes, which they could then exploit. The problem with this: The public records law already exempts those. It exempts “Records of buildings, facilities, infrastructures and systems held by or in the custody of any public agency only when the disclosure of such information would jeopardize the safety of persons or the public safety,” and adds, “Such records may include emergency evacuation, escape or other emergency response plans, vulnerability assessments, operation and security manuals, plans, blueprints or security codes.”

The new exemption would go beyond that, making secret the entire process of determining whether school districts are complying with new state requirements to protect student safety. There would be no public accountability, no statistical reports on how many districts are in compliance, not even any opportunity for parents to find out if their kids’ school’s safety procedures are up to snuff.

Our pleas to the sponsor went unheeded in the Senate, but when the bill hit the House committee, committee members added their own concerns, as did Julie and lobbyists for the Freedom Foundation and the ACLU. We participated in drafting a slew of amendments to the bill, but when it came up on the House’s amending order, those committee amendments didn’t get considered – instead, the bill became a vehicle for a late-session “radiator capping” procedure, in which its entire contents were stripped out and replaced with the text of two House-passed gun rights laws that never got hearings in the Senate. The amended bill then died.

We shed no tears. When the issue comes back in the future, we’ll be watching to make sure our concerns are addressed and public accountability preserved.

This brings us to the fourth item, one on which we started work last year. At that time, a flurry of public records requests flew around the Senate as all us reporters sought to stay on top of a major scandal that led to the resignation of the Senate’s majority caucus chairman, then-Sen. John McGee, amid charges of sexually harassing a Senate staffer.

The problem: Traditionally, the Legislature hadn’t designated a specific custodian for public records requests for things like emails of individual lawmakers, essentially leaving each lawmaker to deal with them on his or her own. So what happens when that lawmaker has resigned? And are the members themselves really the best ones to be retrieving the emails from the state’s system?

Our lobbyists worked throughout the session, particularly with Senate President Pro-Tem Brent Hill and House Speaker Scott Bedke, and legislative leaders from both parties and both houses enthusiastically signed on. New Senate and House rules designating a single custodian for public records requests in each body passed unanimously; this will make the process of requesting public records easier on both the public and the Legislature.

Throughout the legislative session, our First Amendment Committee, chaired by Idaho Press Club Vice President Todd Dvorak, met weekly for brown-bag lunches with our lobbyists, Julie and her partner Nate Fisher and tracked and stayed on top of legislation that affects our right to know what’s going on in our government. I’d like to thank Todd, Julie, Nate, and all the members of the committee for their good work this year. It’s something to celebrate!

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