By Brian Kane
Idahoans for Openness in Government recently traveled through the northern part of Idaho. A frequent topic of questions and discussion was investigatory records held by law enforcement. Within the past year, the Idaho Supreme Court and the Idaho Court of Appeals have each weighed in on the analysis of records under Idaho Code § 9-335, more commonly known as the investigatory records exemption.
In Wade v. Taylor, the court evaluated a public records request for the investigation into a police shooting. In its review, the Court looked specifically at whether a record would be considered an active investigatory record under 9-335(1) at the time it is being reviewed by the prosecutor. In this case, police detectives had wrapped up their portion of the investigation and turned their file over to the prosecutor who determines whether to file criminal charges. This is a process that plays out in law enforcement every day in counties across the state.
In its decision, the Court held that records under active prosecutorial review qualify as active investigatory records. However, it is worth noting that Justice Jones wrote a special concurrence opinion warning that active investigatory records have a shelf-life and that records could not languish in a prosecutor’s office, otherwise they may in fact be “inactive.”
The Court also clarified that the agency withholding the records has the burden of demonstrating that the harms spelled out in Idaho Code § 9-335(1)(a-f) would occur if the records were disclosed. Those harms include depriving a person of the right to a fair trial, endangering law enforcement personnel and constituting an unwarranted invasion of personal privacy, among others.
Within this clarification, the court established that the burden of demonstrating the harm is the same for each subdivision of Idaho Code § 9-335(1)(a-f), and that this process must be applied to each document for which harm is claimed.
So what does this mean for journalists across the state? In simplest terms, it means the investigatory exemption cannot be applied with a broad brush and used as a general exemption, declaring an entire file off-limits. Instead, an agency is now required to review each document separately if an exemption is claimed. Moreover, if an exemption is claimed, an agency must also be able to show that the harms outlined in the statute have a likelihood of being realized.
In addition, the Court was clear on this point: The burden of persuasion is on the agency claiming the exemption. Going forward, it’s now incumbent on the agency to show a reasonable probability that disclosure of the records will create one of the harms spelled out in statute.
The Court also found that a reviewing court should not look back with the benefit of hindsight to determine whether the harm resulted. Instead, the court must view the claimed exemption through the lens available to the agency at the time of the request to determine if the harm was reasonably probable.
In case there was any lack of clarity with regard to the Wade decision, the Idaho Court of Appeals, in Hymas v. Meridian Police Department, recognized the specificity required by the Idaho Supreme Court with regard to public records law exemptions.
The Hymas case dealt with an investigation into a death at an apartment building. The records were denied for release due to an active investigation, but were provided later after the investigation was closed. The Police Department was then sued because the requester believed the records had been improperly deemed active investigatory records and withheld.
In its ruling, the Court of Appeals picked up right where the Supreme Court left off, recognizing first that categorical – or blanket – application of the exemptions to investigatory records was impermissible. The Court went one step further, noting that the Public Records Law imposes a clear duty on the withholding entity to examine the documents, separate exempt and nonexempt records, and show that disclosure of each requested but withheld document may result in one of the enumerated harms in Idaho Code § 9-335(1)(a-f). If an agency is unable to prove that one of the harms would occur, the document must then be released.
These two cases provide direction and clarity to one of the trickier exemptions within the public records law. Now, when a request is made for an active investigatory record, a public agency must conduct the following steps:
- Examine each document responsive to the request;
- Separate exempt and non-exempt documents;
- For each claimed exempt document, identify a reasonable probability that one of the enumerated harms will occur; and
- Provide copies of all nonexempt documents, and all documents for which a demonstration of probable harm cannot be made.
Based upon these two cases, categorical exemptions can no longer be made with regard to active investigatory records. Instead, the withholding agency must conduct a more precise document-by-document review before claiming an exemption. The practical result may be that portions of records that have previously been considered exempt will be available to the public more quickly than before.
Journalists who receive what appears to be a categorical denial may want to ask the withholding agency if it has complied with Wade and Hymas by conducting a document-by-document review.
Brian Kane is assistant chief deputy attorney general for the state of Idaho. Along with Idaho Attorney General Lawrence Wasden and Idaho Press Club President Betsy Russell, Kane recently traveled to North Idaho to present four IDOG workshops on Idaho’s open meetings and public records laws to government employees, reporters and the general public; additional sessions are planned next year in the Treasure Valley.
