FOREWORD

Open records.

In 1990, the Idaho Legislature passed a comprehensive new public records act. See Idaho Code § 9-337 through 9-348 (1990). This act created for the first time in Idaho a definitive procedure for making requests to inspect and copy public records and at the same time placed specific responsibilities on governmental agencies for responding to such requests. In addition, the act defined the universe of public records in a broad, encompassing manner, thus making clear that the records of government at every level in Idaho and in every type of cooperative and "intergovernmental" activity are subject to public view unless specifically exempted by statute.

As in other states, the Idaho Legislature determined that some types of public records should not be available for public inspection and copying because, in the legislature’s view, the type of information contained in the records was inherently personal and private in nature, or involved proprietary business information or was similarly best left confidential. However, rather than follow the federal Freedom of Information Act model in which a small number of exemptions are loosely defined, with the parameters of the exemptions left to agency regulations and judicial interpretation, the Idaho legislature chose to identify the actual types of records exempt from public disclosure with a greater degree of specificity. In addition, in nearly all instances, the legislature specifically refused to give government agencies the power to exempt public records from public view by rule making. In attempting to draw more black and white lines, instead of fewer gray lines, the legislature hoped to reduce the number of disputes over public records. This approach is particularly appropriate in Idaho, which has a small population and thus can only expect infrequent judicial interpretations of the open records statutes.

Revisions have occurred and numerous exemptions have been added or amended since 1990. Those revisions and exemptions are discussed infra. Additionally, the Idaho Supreme Court has addressed the Public Records Act at least four times.

First, in Federated Publications Inc. v. Boise City, 128 Idaho 459, 915 P.2d 21 (1996), the Idaho Supreme Court considered whether names and resumes of applicants for an appointment to a vacancy on the city council were subject to disclosure under the public records law. The court held that the term "applicant" in the provision of the public records law exempting from disclosure certain personnel information refers to an applicant for a position as a public employee, and does not apply to applicants to be a public official. Therefore, resumes and names of applicants for public office were held to be open to the public. The court also addressed whether records of an administrative review of a police shooting incident is exempt from public disclosure. The administrative review consisted of a review of policies and training, completeness of internal discipline procedures, and whether there had been a violation of the law. The court held that the records from such a review were open to the public and not exempt from disclosure as a personnel record. Id.  

Second, in Idaho Conservation League, Inc. v. Idaho State Department of Agriculture, 143 Idaho 366, 146 P.3d 632 (2006), the Idaho Supreme Court rejected arguments that documents previously submitted to a state agency and then returned to their owner were not subject to disclosure under the public records act because the state agency no longer had possession of such records.  The court found that that fact that a state agency no longer had possession of a document was irrelevant to the question of whether such record was a public record and that such an argument was inconsistent with the purpose of the public records act.  To that end, the court awarded ICL its attorneys fees on appeal because it found the state agency’s position on appeal to be “frivolously pursued” pursuant to Idaho Code § 9-344(2). 

Third, in Cowles Publishing Co. v. Kootenai Co. Bd. of Co. Commissioners, 144 Idaho 259, 159 P.3d 896 (2007), the Idaho Supreme Court considered whether a series of e-mail messages of a personal nature exchanged between an elected public official and a public employee were public records subject to disclosure.  The public employee claimed that the e-mail messages were not public records and, if they were, they were exempt from disclosure as a personnel record under Idaho Code § 9-340C(1).  The court rejected each of these arguments. The court began its analysis by noting that “a record may be a public record if it is a writing that (1) contains information relating to the conduct or administration of the public’s business, and (2) was prepared, owned, used or retained by a governmental agency.” Id., 144 Idaho at 263.   The court found that the e-mail messages satisfied each of these prongs. Next, the court considered the personnel records exemption of 9-340C(1) and held that “although the [e-mail messages] may be a form of correspondence, they are not the type of correspondence the legislature meant to exempt in Idaho Code § 9-340C(1).”  Id., 144 Idaho at 264-265.  As such, the e-mail messages were ordered to be released.  The court also considered whether an associated settlement agreement should be released under the Public Records Act. Applying Idaho Code § 9-340D(11), the court held that only the statistical data and actual amounts paid are public records, and any other information contained in the settlement agreement is exempt from disclosure.

The fourth and final decision from the Idaho Supreme Court to address the Public Records Act is Ward v. Portneuf Medical Center, Inc., 2011 WL 310383 (Feb. 2., 2011 Idaho).  In Ward, an individual made a public records request to his local public hospital for copies of all contracts entered into between the hospital and any doctor.  This request was denied. Thereafter, the public hospital was sold to a private entity and the new entity objected to producing the requested documents claiming it was not subject to the Public Records Act.  On appeal, the Idaho Supreme Court held that “[t]he determination of whether a document qualifies as a public record is based on the content of the document and surrounding circumstances as they existed at the time the request was made.” Id., 2011 WL at *3.  Moreover, pursuant to Idaho Code § 9-343(2), a public agency is required to maintain all documents or records requested until an appeal ends and cannot alter the statue of a public record by transferring the record outside the ambit of its control.  Accordingly, the hospital was ordered to produce the requested documents.

Today’s Idaho Public Records Act represents a comprehensive statutory treatment of an important tool of public knowledge about the workings of government. The act opens many doors and file drawers which previously had been opened only at the whim and caprice of public officials. However, the omnipresent tension between public inquiry and the inner workings of government has brought efforts to weaken the public records statutes, many of which have unfortunately been successfully pursued.

Meetings.

Idaho's original Open Meeting Law, Idaho Code § 67-2340 through 67-2347 (1974), was weakened by a series of appellate judicial decisions in the late 1970s and early 1980s. Whether it was as a result of those decisions or in continuation of prior practice, the Open Meeting Law was ignored routinely by governmental bodies, mostly local, across Idaho. As a result, media groups made repeated efforts to obtain legislative amendment of the Open Meeting Law.

In 1992, media groups were finally successful in pushing for reform of the Idaho Open Meeting Law. Amendments passed during the 1992 legislative session imposed strict new meeting notice requirements upon public bodies, assigned specific responsibility to county prosecutors and the state attorney general's office for prosecuting violations of the law and provided civil penalties for knowing violations of the law by members of public bodies subject to the law.

The 1992 notice requirements give much more detailed information about agenda topics than was the case under prior law. Deliberations as well as decisions must take place in open meetings. Further amendments were passed in 1998 clarifying the requirements for open public meetings and executive sessions.

The Idaho Supreme Court has considered the application of the Open Meeting Law at least three times in the past few years.  First, in State v. Yzaguirre, 144 Idaho 471, 163 P.3d 1183 (2007), the Idaho Supreme Court considered the contours of the “litigation exception” to the Open Meeting Law in I.C. § 67-2345(1)(f) [which has since been amended].  The court held that the presence of counsel was irrelevant to the application of the litigation exception; what was important was whether a public agency was meeting to discuss “probable litigation.”  The court also held that the law’s requirement that “written minutes” of all meetings be kept under I.C. § 67-2344(1) did not include a requirement that an audio recording of the meeting take place.  Finally, the court held that county commissioners could not be subject to the civil penalties of I.C. § 67-2347(2) for violations of the Open Meeting Law unless they knew they were not in compliance with the law.

Second, in Safe Air for Everyone v. Idaho State Department of Agriculture, et al, 145 Idaho 164, 177 P.3d 378 (2008), the Idaho Supreme Court was asked to consider whether the Open Meetings Act applied when Department of Agriculture employees attended an intergovernmental meeting to discuss issues related to crop residue burning.  After noting that the crop residue disposal program was not a subagency of the Department of Agriculture, the court turned its attention to the definition of “governing body” under I.C. § 67-2341(5).   The court held that a “governing body” must have “the authority to make decisions for or recommendations to a public agency regarding any matter.”  Id.  Since the employees at issue did not have “the authority” to make decisions for or recommendation to the Department of Agriculture, they did not constitute members of a “governing body” subject to the requirements of the Open Meetings Act.  “The legislature has required that various bodies and commission transact business at a meeting where a quorum is present.  It has not imposed that requirement upon groups of public employees.”  Safe Air for Everyone, 145 Idaho at 168 (internal citations omitted).

Third, in Noble v. Kootenai County, 148 Idaho 937, 231 P.3d 1034 (2010), the Idaho Supreme Court held that a site visit by a county commission to a property that was the subject of the landowners’ subdivision application violated I.C. § 67-2342’s requirement that “all meetings of a governing body of a public agency shall be open to the public and persons shall be permitted to attend any meeting except as otherwise provided by this act.”  The court found that the commission made it “practically impossible for the public to be present while the visit was conducted” in that it did not allow the public “to get close enough to the hearing body to hear what is being said” and “precluded the public from even listening to the hearing.”  Id., 148 Idaho at 943. 

In 2008, the Idaho Attorney General issued an opinion on the application of the executive session exceptions set forth I.C. § 67-2345 indicating that such exceptions “should be interpreted narrowly in order to fulfill the broad public purpose of allowing citizens to observe their governments at work.”  2008 Idaho Op. Atty. Gen 42, Idaho Op. Atty. Gen. No. 08-3, 2008 WL 4360202 (Idaho).  The opinion continues: “Violation of the OMA should be avoided whenever possible.  If an entity is in doubt as to the propriety of an executive session, the doubt should be resolved in favor of openness.  If a violation occurs, the entity should acknowledge the violation as soon as possible and take the appropriate steps to correct the violation, even if that means holding the entire meeting de novo and as if the prior improper meeting never occurred.”  Id. at *5.