President’s Column: What the email actually said…

By Betsy Z. Russell

When Idaho Lt. Gov. Janice McGeachin called a “press conference” at an eastern Idaho elementary school on Oct. 14, she promised in her announcement to “set the record straight regarding the litigation in which the Lt. Governor’s office has recently been engaged.”

That would be the Idaho Press Club’s public records lawsuit against her, on behalf of four different Idaho reporters from three different news outlets, which McGeachin not only lost, but for which she was fined $750 for “bad faith” violations of the Idaho Public Records Act and ordered to pay the Press Club’s attorney fees and costs.

At the eastern Idaho event, McGeachin took no questions from the press. Instead, she railed against media coverage of her unsuccessful fight against releasing public records regarding her education task force. She was joined by Coeur d’Alene attorney Art Macomber, who has announced he’s running for Idaho Attorney General; Macomber assailed the current Idaho Attorney General for “bad lawyering” in the records case, though McGeachin hired outside attorney Colton Boyles of Sandpoint to represent her.

McGeachin also blamed the Attorney General’s office for her court loss, and held up a printout of a June 7 email between the AG’s office and her office, claiming the email was proof that the whole thing was the Attorney General’s fault, as she had consulted with his office prior to hiring her outside counsel.

“The Attorney General’s office notified us that they would no longer defend their position because of the composition of the task force, which had been publicly known for more than one month,” McGeachin said. “And I have the email right here in my hand to indicate that. The Attorney General’s office welcomed us to seek a second opinion from outside counsel. Subsequent legal counsel followed the previous arguments laid out by the Attorney General’s office. If you have questions on this advice, I’ll refer them to the Attorney General’s office.”

So I filed a public records request for that email. And that’s not exactly what the email says. Instead, it shows that a deputy attorney general suggested the only public records exemption under Idaho law that might apply to the records requested by Idaho Capital Sun reporter Audrey Dutton was one regarding substituting initials for a minor’s full name. Aside from that, the office advised McGeachin to “produce the full spreadsheet to Ms. Dutton as soon as possible and no later than the end of the business day tomorrow. If you disagree with our advice, you may wish to seek a second opinion from other counsel.”

McGeachin subsequently obtained her private counsel, and argued that the records were exempt from disclosure under a slew of unrelated public records exemptions. 4th District Judge Steven Hippler wrote in his Aug. 26 ruling in the case that McGeachin’s attempts at withholding the documents from public view were baseless and frivolous and that some of the exemptions she cited — including one specific to hunting and fishing licenses — were so irrelevant that it appeared the lieutenant governor “may have blindly selected them at random.”

Jordan Watters, chief of staff for the lieutenant governor, wrote in his response to my request that emails between the two offices were “protected by attorney-client privilege and are therefore exempt from disclosure,” but did release the one email that McGeachin specifically cited and held up at her public event, which would typically waive that privilege. “Other than the single email referenced above, no other emails between the office of the Lt. Governor and that of the Attorney General have been or will be released by this office,” he wrote.

Here is the email that was released:

From: Kolts, Rachel
Sent: Monday, June 7, 2021 1:12 PM
To: Jordan Watters
Cc: Snook, Andrew; Julie Weaver
Subject: Ms. Dutton’s public record request –
Attachments: 2021-06-07_Ltr from Olson re public records request.pdf

Follow Up Flag: Follow up

Flag Status: Completed

Hi Jordan, I received your voicemail but have not had the opportunity to return your call. I also received the attached letter this morning.

As it currently stands, the only exemption within the Public Records Act that would likely survive a challenge would be the one provided for in Idaho Code section 74-106(4)(h), allowing for a minor’s name to be redacted to show only the minor’s initials and not the minor’s full name. It is unlikely that the legislative exemption we previously discussed with you could survive a challenge if relied upon. The factors indicating that it could be available are no longer applicable. Specifically, the analysis we provided earlier was prior to the Task Force being named and convened. Based on what we now understand to be the construction and makeup of the Task Force, it does not appear to meet the criteria of the legislative exemption.

We recommend that your office review the full spreadsheet for any redactions pursuant to 74-106(4)(h) and produce the full spreadsheet to Ms. Dutton as soon as possible and no later than the end of the business day tomorrow. If you disagree with our advice, you may wish to seek a second opinion from other counsel.

Rachel L. Kolts
Deputy Attorney General Contracts & Administrative Law Division
Office of the Attorney General”

That email, by the way, was sent six weeks before the Press Club filed its lawsuit.

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