Journalists in Idaho have obtained databases to do a variety of stories. In 1999, the Spokesman Review did a series of stories showing how a land broker was secretly planning to trade 2 million acres of public land in Idaho — national forests and BLM land — to logging, mining and ranching interests. Some journalists report that they have been asked for high fees for public records. Although the Idaho law exempts software, one thing this state’s law does that few others do is specify that data contained within the software is public record.

The law. The Open Records Act defines a public writing to include “every means of recording, including . . . all . . . magnetic or paper tapes, . . . magnetic or punched cards, discs, drums, or other documents.” The definition of copying encompasses duplication “by . . . any means so long as the public record is not altered or damaged.” Idaho Code § 9-337. “Computer programs developed or purchased” by an agency are generally exempt from disclosure. However, a program does not include “original data . . . , analysis, compilation and other manipulated forms of the original data produced by use of the program . . . , or mathematical or statistical formulas that would be used if the manipulated forms of the original data were to be produced manually.” § 9- 340(16). Another section exempts computer programs entirely if they qualify as “trade secrets.” § 9-340(2).

Cases & opinions. The law does not require an agency “to create a computer program to present data in a more convenient or more easily retrievable format.” However, if the information cannot be retrieved at all without a computer program, then an agency must write a program. If the programming requires “many hours of sophisticated programming by highly trained professionals,” the agency may demand that the requester pay the programming costs. Letter from John McMahon, Chief Deputy, Office of the Attorney General, to J.D. Williams, State Auditor, Office of the State Auditor (June 25, 1993).

Fees. The law limits the copying fee to “the actual cost to the agency,” excluding “administrative or labor costs resulting from locating and providing a copy of the public record.” But it permits a higher fee for a copy of “a computer tape, computer disc, microfilm or similar or analogous record system.” That fee may equal the “direct cost of copying” plus “the standard cost, if any, for selling the same information in the form of a publication.” §9-338(8). An agency may charge the cost of computer programming when records are requested in a form that does not yet exist. Letter from John McMahon, Chief Deputy, Office of the Attorney General, to J.D. Williams, State Auditor, Office of the State Auditor (June 25, 1993).

Idaho Code § 9-338(8)(b) provides for fees to be assessed for the duplication of computer tape, computer disk, microfilm or similar or analogous record system containing public information. The fee shall not exceed the sum of the agency’s direct cost of copying the information in that form, and standard cost, if any, for selling the same information in the form of a publication.

A special provision prohibits government agencies from distributing or selling mailing or telephone number lists without first obtaining the permission of the persons on the list. Idaho Code § 9-348. Civil penalties up to $1,000 may be assessed for bad faith violations of this provision.