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Idaho

Open Courts Compendium

Author

Debora Kristensen Grasham

dkk@givenspursley.com

GIVENS PURSLEY, LLP
601 W. Bannock Street
Boise, Idaho 83702
Tel: (208) 388-1200
Fax: (208) 388-1300
www.givenspursley.com

Last Updated February 2018

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I. Introduction: Access rights in the jurisdiction

Access to court proceedings and records in Idaho varies depending upon the specific tribunal and proceeding at issue.  Thus, an overview of Idaho’s court system is a good place to start in understanding access rights in Idaho.

At the trial court level, Idaho is divided into seven judicial districts, each with an administrative district judge.  See https://isc.idaho.gov/overview.pdf.  Each county has a District Court, which includes a Magistrate Division.  Currently, there are 42 district judges and 87 magistrate judges within the state.  District judges hear felony criminal cases, civil actions if the amount in controversy exceeds $10,000 and appeals from decisions of the Magistrate Division.  The Magistrate Division handles probate, divorce, juvenile and initial felony proceedings through the preliminary hearing, criminal misdemeanors, infractions, civil cases where the amount in controversy does not exceed $10,000, and cases in Small Claims Court (e.g., where the amount in controversy does not exceed $5,000).

The Idaho Supreme Court, made up of five justices, hears appeals from the District Court and from the Idaho Public Utilities Commission and the Industrial Commission.  The Idaho Court of Appeals, made up of four appellate judges (cases are heard by three judge panels), hears cases assigned to it by the Idaho Supreme Court, except for capital murder convictions and appeals from the Idaho Public Utilities Commission or Industrial Commission.  Thus, all decisions from the District Court are appealed directly to the Idaho Supreme Court who, then, may reassign the appeal to the Idaho Court of Appeals.

Access to court proceedings derives, fundamentally, from the constitutional right of access to courts under Idaho Constitution, art. I, § 18, and cases interpreting that section.  Idahoans also enjoy First Amendment rights of access to court proceedings as described by the United States Supreme Court in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986).  See Cowles Publ’g Co. v. Magistrate Ct., 118 Idaho 753, 761, 800 P.2d 640, 648 (1990).

The right to access court records derives from the Idaho Supreme Court pursuant to Idaho Courts Administrative Rule 32(a), which is grounded in First Amendment principles of openness.  State v. Allen, 156 Idaho 332, 336, 325 P.3d 673, 677 (Ct. App. 2014).  Court records are exempt from Idaho’s Public Records Act.  See I.C. 74-104(2).

The Idaho Supreme Court is currently involved in transitioning its statewide paper-based records system to an electronic system known as iCourt.  See http://icourt.idaho.gov/projfaq.  When it is completed, litigants and members of the public should have access to all court filings electronically over the Internet.

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A. The roots of access rights

In Idaho, access to civil and criminal court proceedings is broadly provided for in the state constitution.  “Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice.”  Idaho Const. art. I, § 18.  In addition, Article I, Section 13 of the Idaho Constitution specifically ensures that criminal trials are to remain open:  “In all criminal prosecutions, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf, and to appear and defend in person and with counsel.”

There are no Idaho cases interpreting the “open court” provision of Article I, Section 18 of the Idaho Constitution other than to say that Idaho Code § 19-811 (which allows a criminal defendant to request that his preliminary hearing be closed) is not unconstitutional under Article I, Section 18 so long as the magistrate court issuing such closure order complies with the requirements of Press-EnterpriseSee Cowles Publ’g, 118 Idaho at 761, 800 P.2d at 648.  Instead, the few cases that do address access to court proceedings rely on the rights of a criminal defendant to a public trial under the Sixth Amendment to the U.S. Constitution or on the qualified right of the media and public to access court proceedings under the First Amendment to the U.S. Constitution.  Id.; see also State v. Overline, 154 Idaho 214, 217 n.2, 296 P.3d 420, 423 n.2 (Id. App. Ct. 2013) (“The press and the public also possess, via the First Amendment, an enforceable right to an open and public trial proceeding, which can be foreclosed over their objection only in limited circumstances.”) (citing Press-Enterprise, 464 U.S. at 509–10).

In contrast, although Idaho courts have not explicitly recognized a constitutional right of access to court records, Idaho Courts Administrative Rule 32, promulgated by the Idaho Supreme Court and grounded in First Amendment principles, provides broad access rights and procedural protections for the public.  State v. Allen, 156 Idaho 332, 336, 325 P.3d 673, 677 (Ct. App. 2014).  That Rule provides: “The public has a right to examine and copy the judicial department’s declarations of law and public policy and to examine and copy the records of all proceedings open to the public.”  I.CA.R. 32(a).  See https://isc.idaho.gov/icar32.

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B. Overcoming a presumption of openness

In Bradbury v. Idaho Judicial Council, 136 Idaho 63, 28 P.3d 1006 (2001), the Idaho Supreme Court adopted the Press-Enterprise “experience and logic” test when evaluating access rights to criminal proceedings.  “First Amendment right of access is fundamental to criminal trials . . . [and] attaches in a criminal proceeding where ‘two complementary considerations’ are met.  First, experience, ‘whether the place and process have historically been open to the press and general public.’ Second, logic, ‘whether public access plays a significant positive role in the functioning of the particular process in question.’”  Bradbury, 136 Idaho at 70–71, 28 P.3d at 1013–14 (internal citations omitted).  When this test is met, a qualified First Amendment right of public access attaches.  Id.

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C. Procedural prerequisites to closure

Following the U.S. Supreme Court’s decision in Press-Enterprise v. Superior Court, 464 U.S. 501 (1984), Idaho courts have held that a judge considering closing a proceeding must follow certain procedures to ensure that closing the proceedings will not infringe upon First Amendment rights.  Specifically, a judge must hold a hearing on the need for closure and allow the media and others to argue against the closure.  A judge considering closure must determine whether: (1) the requested closure would serve a compelling interest (e.g., criminal defendant’s right to a fair trial); (2) there is a substantial probability that, in the absence of such closure, this compelling interest would be harmed, and (3) there are no alternatives to closure that would adequately protect the compelling interest at stake (e.g., change of venue, sequestering the jury, postponing the trial until the effect of publicity have diminished).  Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14 (1986) (“Press-Enterprise II”).  Where the public has a qualified First Amendment right of access, restrictions on that right must be “essential to preserve higher values” and “narrowly tailored to serve that interest.”  Press-Enterprise II, 478 U.S. at 13–14; see, e.g., In the Matter of an Application for A Search Warrant, Memorandum Decision and Order Denying Motion to Unseal Search Warrants and Affidavit Documents at 2–3, Fourth Judicial District, Case No. CV OT 0916109 (Ada Co., Idaho, Sept. 19, 2006).  After completing such analysis, a judge must issue written findings supporting the closure order in order to allow appellate review.

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II. Procedure for asserting right of access to proceedings and records

When faced with a closed court proceeding, the media or any other interested person who would like to attend such proceeding must object and request an opportunity to appear to argue against the closure.  Trial judges must then hold a hearing to go through the Press-Enterprise analysis.  Indeed, judges who are unfamiliar with such requests have various resources at their disposal, including the Idaho Supreme Court’s Media/Courts Committee online “Media Guide to the Idaho Courts” (http://www.isc.idaho.gov/files/Media_Guide-REVISION-DRAFT-10-28-13.pdf), the Media and Courts Conflict Resolution Panel (aka “the Fire Brigade”), id., and the Administrative District Judge located in each district.  In addition, members of the media faced with closure/sealing orders are encouraged to contact members of the Idaho Press Club who have experience in this area and may offer assistance.  See http://www.idahopressclub.org.

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A. Media standing to challenge closure

Idaho courts routinely grant the media standing to appear in cases for the limited purpose of opposing efforts to restrain their First Amendment rights.  See, e.g., State v. Compher, Order on Intervening Non-Parties’ Motion to Quash Subpoena Duces Tecum at 3, Case No. CR-2014-12727-FE, Sixth Judicial District, Magistrate Div. (Bannock Co., Idaho, March 13, 2015); Saint Alphonsus Med. Grp. – Nampa, Inc. v. St. Luke’s Health Sys., Ltd., 2013 WL 5883736 (D. Idaho Oct. 18, 2013); Castillon v. Corrections Corp. of America, 2013 WL 4039478, *1 (D. Idaho Aug. 6, 2013); Riggs v. Valdez, 2011 WL 1598630, *8 (D. Idaho Apr. 27, 2011).

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B. Procedure for requesting access in criminal cases

If access to a closed criminal proceeding is sought, a request to the trial judge for a hearing under Press-Enterprise should be made as soon as possible.  If access to criminal records is sought, a request under Idaho Courts Administrative Rule 32 should be made.  See http://www.isc.idaho.gov/icar32.  Under this rule,

Any person desiring to inspect, examine or copy physical records shall make an oral or written request to the custodian.  If the request is oral, the custodian may require a written request. The custodian may request contact information as provided in I.C. § 74-102.  A request for public records and delivery of the public records may be made by electronic mail. The request must clearly identify each record requested so that the custodian can locate the record without doing extensive research and continuing request for documents not yet in existence will not be considered.  The custodian may provide the requester information to help the requester narrow the scope of the request or to help the requester maker the request more specific when the response to the request is likely to be voluminous.

I.C.A.R. 32(j)(1).

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C. Procedure for requesting access in civil matters

As with criminal proceedings, if access to a closed civil proceeding is sought, a request to the trial judge for a hearing under Press-Enterprise should be made as soon as possible.  Idaho Court Administrative Rule applies to all records of the judiciary, civil and criminal.  Thus, a request for access to records of a civil proceeding should also be made under Rule 32.  Under this rule,

Any person desiring to inspect, examine or copy physical records shall make an oral or written request to the custodian.  If the request is oral, the custodian may require a written request. The custodian may request contact information as provided in I.C. § 74-102.  A request for public records and delivery of the public records may be made by electronic mail. The request must clearly identify each record requested so that the custodian can locate the record without doing extensive research and continuing request for documents not yet in existence will not be considered.  The custodian may provide the requester information to help the requester narrow the scope of the request or to help the requester maker the request more specific when the response to the request is likely to be voluminous.

I.C.A.R. 32(j)(1); see also Saint Alphonsus Med. Grp. – Nampa, Inc. v. St. Luke’s Health Sys., Ltd., 2013 WL 5883736 (D. Idaho Oct. 18, 2013) (granting a media coalition’s motion to intervene to challenge the sealing of trial exhibits in a high-profile civil case) and 2014 WL 3101716 (D. Idaho July 3, 2014) (trial court’s analysis releasing previously sealed civil case trial documents).

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D. Obtaining review of initial court decisions

Once a trial court has ruled on a motion to access civil or criminal proceedings, such order may be appealed.  An appeal of a decision in a criminal matter from the magistrate division of the district court may be taken to the district court under Idaho Criminal Rule 54.1 and/or as an interlocutory order pursuant to Idaho Appellate Rule 12.  An appeal of a decision in a civil matter from the magistrate division of the district court may be taken under Idaho Rules of Civil Procedure 83(a) and/or as an interlocutory order pursuant to Idaho Appellate Rule 12.  Decisions from the district court may be appealed to the Idaho Supreme Court under Idaho Appellate Rule 12.

If a request to access judicial records has been denied under Idaho Court Administrative Rule 32, “the aggrieved party may file a request for a ruling by the custodian judge.  If the custodian judge denies a request for the examination or copying of records, the sole remedy of any aggrieved person shall be to institute proceedings for disclosure in the district court in accordance with I.C. § 74-115.”  I.C.A.R. 32(j)(7).  The petition to the district court must be filed within 180 days of the date of the mailing of the denial.  Idaho Code § 74-115(1).  Responsive pleadings or hearings must be held within 28 days of the filing.  Id.

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III. Access to criminal proceedings

In Bradbury v. Idaho Judicial Council, 136 Idaho 63, 28 P.3d 1006 (2001), the Idaho Supreme Court reaffirmed the long line of United States Supreme Court cases recognizing the constitutional right of access in criminal proceedings, holding that the First Amendment right of access is fundamental to criminal trials.  Bradbury, 126 Idaho at 70 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)).  There are some proceedings, however, that are closed by statute or court rule.  For example, Idaho Juvenile Rule 52 mandates that all Child Protective Act proceedings (Idaho Code §§ 16-1601 through 1643) are closed while Juvenile Correction Act proceedings (Idaho Code §§ 20-501 through 542) are closed until the admit/deny hearing held under Idaho Juvenile Rule 6.  And, Idaho Code § 19-811 provides that a criminal defendant can request that his/her preliminary hearing be closed, but that right is not absolute.   Cowles Publ’g Co. v. Magistrate Ct., 118 Idaho 753, 761, 800 P.2d 640, 648 (1990).

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A. In general

“Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice.”  Idaho Const. art. I, § 18.  “The public has a right to examine and copy the judicial department’s declarations of law and public policy and to examine and copy the records of all proceedings open to the public.”  I.C.A.R. 32(a).

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B. Pretrial proceedings

In Bradbury, the Idaho Supreme Court specifically recognized that the First Amendment right of access applies to criminal pretrial proceedings.  136 Idaho at 70, 28 P.3d at 1013 (citing El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147 (1993)).  More specifically, the Idaho Supreme Court has held that the public has a qualified right to attend preliminary hearings.  A preliminary hearing may be closed at the defendant’s request pursuant to I.C. § 19-811, but the court must first make specific findings that a substantial probability exists that the defendant’s right to a fair trial will be prejudiced and that reasonable alternatives cannot adequately protect the defendant’s right to a fair trial.  Cowles Publ’g, 118 Idaho at 760, 800 P.2d at 647 (citing Press-Enterprise v. Superior Court, 478 U.S. 1 (1986)).  “The clear presumption in nearly all states that preliminary hearings are generally open to the public absent the request of the defendant has also been the recognized and traditional practice in Idaho.” Cowles Publ’g, 118 Idaho at 757, 800 P.2d at 644.

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C. Criminal trials

“The First Amendment right of access is fundamental to criminal trials.”  Bradbury, 136 Idaho at 70, 28 P.3d at 1013 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)).  In State v. Overline, 154 Idaho 214, 296 P.3d 420 (Id. App. Ct. 2013), the Idaho Court of Appeals explicitly recognized that a criminal defendant has a right to a public trial under the Sixth Amendment to the United States Constitution and adopted the procedure set forth in Waller v. Georgia, 467 U.S. 39 (1984), that must be followed before a criminal trial may be closed over a defense objection.  Namely, that “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.”  Overline, 154 Idaho at 217, 296 P.3d at 423 (citing Waller, 467 U.S. at 48).  The court also specifically recognized that “[t]he press and the public also possess, via the First Amendment, an enforceable right to an open and public trial proceeding, which can be foreclosed over their objection only in limited circumstances.”  Overline, 154 Idaho at 217 n. 2, 296 P.3d at 423 n.2 (citing Press-Enterprise, 464 U.S. at 509–10 and Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982)).

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D. Post-trial proceedings

There are no reported Idaho decisions addressing access to post-trial proceedings.  It is presumed that any attempt to close such proceedings must follow the procedural and substantive requirements of Press-Enterprise.

In Associated Press v. Otter, 682 F.3d 821 (9th Cir. 2012), the Ninth Circuit reversed and remanded an Idaho District Court’s denial of a media coalition’s request for a preliminary injunction for access to all phases of the execution process in regards to a fast-approaching execution.  The initial 20 minutes of the execution process occurred behind a pulled curtain preventing all gathered witnesses from viewing the entire execution process.  Relying on Cal. First Amendment Coal. v. Woodford, 299 F.3d 868 (9th Cir. 2012), the media group argued that they had a Fist Amendment right to view the entire execution process.  The Ninth Circuit agreed, finding that First Amendment rights attached to the rights to view the process in its entirety.  Otter, 682 F.3d at 825–26.

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E. Appellate proceedings

Access to appellate oral arguments is generally open.  Indeed, the Idaho Supreme Court has begun live streaming of its arguments on the Internet.  See http://www.isc.idaho.gov/appeals-court/isc-calendar.  Appellate court records are subject to review under the provisions of I.C.A.R. 32.

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IV. Access to criminal court records

Idaho Court Administrative Rule 32 covers “Records of the judicial department” but does not distinguish between civil and criminal.  The Idaho Supreme Court may provide access to these records through terminals at judicial branch facilities or online from any remote location over the Internet.  (The Court has a publically accessible webpage where searches may be conducted to find dockets of criminal and civil cases filed throughout Idaho.  See https://mycourts.idaho.gov.  The actual documents in each case, however, are not currently available, although the Court has plans for instituting this technology in the near future.)  In general, the following court records are available for examination, inspection and copying.

  1. Litigant/party indexes to cases filed with the court;
  2. Listings of new case filings, including the names of the parties;
  3. The chronological case summary of events;
  4. Calendars or dockets of court proceedings, including case numbers and captions, date and time of hearings, and location of hearings;
  5. Minutes, orders, opinions, findings of fact, conclusions of law, and judgments of a court and notices of the clerk of the court;
  6. Transcripts and recordings of all trials and hearings open to the public;
  7. Pleadings, motions, affidavits, responses, memoranda, briefs and other documents filed or lodged in a case file;
  8. Administrative or other records of the clerk, justice, judge, magistrate or staff of the court unless exempt from disclosure by statute, case law, or court rule; and
  9. A court record that has been offered or admitted into evidence in a judicial action or that a court has considered as evidence or relied upon for purposes of deciding a motion; except that, before final disposition by the trial court, access to any exhibit shall be allowed only with the permission of the custodian judge subject to any conditions set by the custodian judge and shall take place under the supervision of the office of the court clerk. The public shall not have access at any time to items of contraband or items that pose a health or safety hazard; for example, drugs, weapons, child pornography, toxic substances, or bodily fluids, without permission of the custodian judge.

I.C.A.R. 32(d).

In addition, Rule 32 designates a number of court documents as “confidential” such that the willful or intentional disclosure of the same may be treated as contempt of court.  I.C.A.R. 32 (g).  Court records exempt from disclosure under this rule include:

  1. Documents and records to which access is otherwise restricted by state or federal law;
  2. Pre-sentence investigation reports, except as provided in Idaho Criminal Rule 32;
  3. Affidavits or sworn testimony and records of proceedings in support of the issuance of search or arrest warrant pending the return of the warrant;
  4. Unreturned search warrants;
  5. Unreturned arrest warrants, except bench warrants, or summonses in a criminal case, provided that the arrest warrants or summonses may be disclosed by law enforcement agencies at their discretion;
    (A) An “arrest warrant” is a warrant issued for the arrest and detention of a defendant at the initiation of a criminal action.
    (B) A “bench warrant” is a warrant issued for the arrest and detention of a defendant who has already appeared in a criminal action, and it would include a warrant issued for failure to appear at a hearing or trial, a warrant issued for violation of the conditions of release or bail, and a warrant issued for a probation violation.
  6. Unless otherwise ordered by the custodian judge, applications made and orders granted for the interception of wire, electronic or oral communications pursuant to Idaho Code § 18-6708, recordings of intercepted communications provided to the court, and reports made to the court regarding such interceptions under Idaho Code § 18-6708(7);
  7. Except as provided by Idaho Criminal Rules or statutes, records of proceedings and the identity of jurors of grand juries;
  8. Except as provided by the Idaho Criminal Rules or Idaho Rules of Civil Procedure, the names of jurors placed in a panel for a trial of an action and the contents of jury qualification forms and jury questionnaires for these jurors, unless ordered to be released by the presiding judge;
  9. Juvenile court records as herein after provided:
    (A) All court records of Child Protective Act proceedings.
    (B) All court records of Juvenile Corrections Act proceedings on a petition filed under I.C. § 20-510 pending an admit/deny hearing held pursuant to Rule 6, I.J.R. to permit the parties to request that the court consider, or permit the court to consider on its own motion, closing the records and files. Thereafter the court records shall be open unless the court enters an order exempting them from disclosure.  At the admit/deny hearing the court shall determine whether the court records shall remain exempt from disclosure as provided in 1. and 2. below:
    1. Court records of Juvenile Corrections Act proceedings brought against a juvenile under the age of fourteen (14), or brought against a juvenile fourteen (14) years or older who is charged with an act that would not be a felony if committed by an adult, shall be exempt from disclosure if the court determines by a written order in each case that the records should be closed to the public.
    2. Court records of Juvenile Corrections Act proceedings brought against a juvenile fourteen (14)years or older who is charged with an act which would be a felony if committed by an adult, shall be exempt from disclosure if the court determines upon a written order made in each case that extraordinary circumstances exist which justify that the records should be confidential.
    (C) In Juvenile Corrections Act cases filed on or after July 1, 2017, all court records of Juvenile Corrections Act proceedings on a petition filed under I.C. § 20-510 except as provided in 1, 2, and 3 below:
    1. The court may release juvenile court records if the court finds, upon motion by the prosecuting attorney, interested party, or other interested persons, that the public’s interest in the right to know outweighs the adverse effect of the release of the records on the juvenile’s rehabilitation and competency development.  In making this decision, the court may consider the following factors:
    a. Age of the juvenile;
    b. Seriousness of the offense;
    c. Whether the offense deals with persons or property;
    d. Prior record of the juvenile;
    e. The juvenile’s risk to reoffend; and
    f. The impact on the victim or victims.
    2. The following individuals or entities may inspect juvenile court records without a court order unless otherwise prohibited by law:
    a. Probation officers;
    b. Law enforcement officers;
    c. The Department of Juvenile Corrections;
    d. The Department of Correction;
    e. The Department of Health and Welfare pursuant to its statutory responsibilities in title 16, chapter 16; title 16, chapter 24; or title 20, chapter 5, Idaho Code.
    3. The victim of misconduct is entitled to receive:
    a. The name, address and telephone number of the juvenile offender involved;
    b. the name of the juvenile offender’s parents or guardians, and their addresses and telephone numbers;
    c. The petition, the decree, and orders of restitution;
    d. Any other information as provided in title 19, chapter 53, Idaho Code.
    (D) Notwithstanding any other provision of paragraph (g)(9) of this rule, reports prepared pursuant to I.C. § 20-520(1), and other records and reports described in paragraph (g)(17) of this rule are exempt from disclosure.
    (E) Notwithstanding any other provision of paragraph (g)(9) of this rule, the court shall make available upon the written request of a superintendent or an employee of the school district authorized by the board of trustees of the school district, the facts contained in any records of a juvenile maintained under Chapter 5, Title 20, Idaho Code.  If a request is made to examine records in courts of multiple districts, it shall be ruled upon by the Chief Justice.
  10. Mental commitment case records; provided, the court may disclose these records when consented to by the person identified or his or her legal guardian, or the parent if the individual is a minor. The court in its discretion may make such records available to the spouse, or the immediate family of the person who is the subject of the proceedings;
  11. Adoption records, except that an adopted person may obtain non-identifying medical information in all cases; the court may also in its discretion make information from the adoption records available, upon such conditions as the court may impose, to the person requesting the record, if the court finds upon written verification of a medical doctor a compelling medical need for disclosure;
  12. Records of proceedings to terminate the parent and child relationship under Chapter 20 of Title 16, Idaho Code, except that the child may obtain non-identifying medical information in all cases, and the court may also in its discretion make information from the records available, upon such conditions as the court may impose, to the person requesting the record, if the court finds upon written verification of a medical doctor a compelling medical need for disclosure;
  13. All records of proceedings relating to the consent required for abortion for minors brought pursuant to I.C. 18-609A(1) or (3);
  14. All records of proceedings relating to the judicial authorization of sterilization procedures pursuant to I.C. 39-3901;
  15. Documents filed or lodged with the court in camera;
  16. Protection order petitions and related records, maintained pursuant to either the domestic violence crime prevention act or chapter 79, title 18 of the Idaho Code, except orders of the court;
  17. Records maintained by a court that are gathered at the request or under the auspices of a court (other than records that have been admitted in evidence);
    (A) to determine an individual’s need for counseling, rehabilitation, treatment or assistance with personal conflicts;
    (B) to assist in assigning an appropriate disposition in the case, including the ADR screening report and screening reports prepared by Family Court Service Coordinators or their designees;
    (C) to provide the court with a recommendation regarding the custody of minor children;
    (D) to provide a court with a psychological evaluation of an individual;
    (E) to provide annual or other accountings by conservators and guardians, except to interested parties as defined by Idaho law;
    (F) to provide personal or identifying information on individuals for internal court use, including case information sheets filed pursuant to Idaho Rule of Civil Procedure 3(d) or Idaho Rule of Family Law Procedure 201, and victim information/restitution sheets.
  18. A reference list of personal data identifiers or an unredacted copy of a document filed pursuant to I.R.C.P. 3(d).
  19. All  court filings, including attachments, in guardianship or conservatorship proceedings whether temporary or permanent, and in proceedings involving a protective arrangement under I.C. § 15-5-409, and whether for an adult, a minor, or a developmentally disabled person, except to interested persons as defined in section 15-1-201, Idaho Code, guardians ad litem, court visitors, or any monitoring entity as defined by Idaho law, or any attorney representing any of the foregoing; provided, however, the following shall not be exempt from disclosure:
    (A) the register of actions for the case;
    (B) letters of guardianship and letters of conservatorship, and any supplemental orders, decrees or judgments describing, limiting, or expanding the rights and duties of the guardian or conservator;
    (C) any order by the court regarding bond by a conservator, and the conservator’s bond ;
    (D) any order, decree, or judgment dismissing, concluding, or otherwise disposing of the case.
  20. The records in cases involving child custody, child support, and paternity, except that officers and employees of the Department of Health and Welfare shall be able to examine and copy such records in the exercise of their official duties.  Other exceptions to this rule are that the register of actions shall be available to the public, and a redacted copy of any order, decree or judgment issued in the case shall be available to the public.  However, no redacted copy of any order, decree or judgment must be prepared until there is a specific request for the document, in which case the document should be redacted in the manner specified in Idaho Rule of Civil Procedure 3(c)(1) (a)-(d). Provided further that any person may request that the court make other records in the case available for examination and copying.  Any individual may make the request by filing a court-provided form.  When the court receives such a request, it shall promptly review the records in the case and shall make the records available except for those records or portions of records that allege abuse, abandonment or neglect of a child, or which the court determines would inflict undue embarrassment to or put at risk a person referenced in the record who was a child at the time of the filing of the record, or which are exempt from disclosure under the other provisions of Supreme Court rules.
    This subsection (g)(20) shall apply only to records in cases filed on or after July 1, 2012, and to records in cases in which a motion to modify an order, decree or judgment was filed on or after July 1, 2012.
  21. Records of judicial work product or drafts, including all notes, e-mail, memoranda or drafts prepared by a judge or a court-employed attorney, law clerk, legal assistant or secretary;
  22. Personnel records, application for employment and records of employment investigations and hearings, including, but not limited to, information regarding sex, race, marital status, birth date, home address, telephone number, applications, testing and scoring materials, grievances or complaints against an employee, correspondence, and performance evaluations; provided the following are not exempt from disclosure: a public official’s public service or employment history, classification, pay grade and step, longevity, gross salary and salary history, status, workplace, employing agency, and any adverse official action taken against an employee as a result of a grievance or complaint (except a private letter of reprimand), and after such action is taken (except when the action is a private letter of reprimand), the record of any investigation and hearing leading to the action;
  23. Applications, testing and scoring to be included on a court maintained roster;
  24. Computer programs and related records, including but not limited to technical and user manuals, which the judicial branch has acquired and agreed to maintain on a confidential basis;
  25. Records maintained by the state law library that link a patron’s name with materials requested or borrowed in the patron’s name with a specific subject about which the patron has requested information or materials;
  26. Allegations of attorney misconduct received by the Idaho State Bar and records of the Idaho State Bar relating to attorney discipline, except where confidentiality is waived under the Idaho Bar Commission Rules;
  27. All records relating to applications for permission to take the Idaho bar examination or for admission to practice as exempted from disclosure in the Idaho Bar Commission Rules;
  28. All records and records of proceedings, except the identity of applicants for appointment to judicial office, of the Idaho Judicial Council or any District Magistrates Commission pertaining to the appointment, performance, removal, disability, retirement or disciplining of judges or justices. Provided, however, that the record of a disciplinary proceeding filed by the Judicial Council in the Supreme Court loses its confidential character upon filing;

I.C.A.R. 32(g).

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A. In general

In State v. Turpen, 147 Idaho 869, 216 P.3d 627 (2009), the Idaho Supreme Court analyzed Idaho Court Administrative Rule 32 and recognized that the public has a “right to examine and copy the judicial department’s declarations of law and public policy and to examine and copy the records of all proceedings open to the public.”  Id. at 871, 216 P.3d at 629.  The Court then went on to provide that sealing orders should only be issued on a case-by-case basis after a hearing and the issuance of specific factual findings (as provided in I.C.A.R. 32(i)) made “as to whether the individual’s interest in privacy or whether the interest in public disclosure predominates.”  Id.  If the court finds that an individual’s privacy interests predominate, “it must fashion the least restrictive exception from disclosure consistent with privacy interests.”  Id.  Finally, “[t]he decision of the trial courts will be subject to review for abuse of discretion.”  Id. at 872, 216 P.3d at 630;  see also State v. Gurney, 152 Idaho 502, 272 P.3d 474 (2012) (district court’s denial of request, pursuant to I.C.A.R. 32, to expunge criminal record because of “economic harm” caused by existence of criminal record to “rehabilitated” felon was affirmed my Idaho Supreme Court); State v. Collins, 157 Idaho 857, 860, 340 P.3d 1173, 1776 (Idaho Ct. App. 2014) (“A party seeking to seal [a court] record [under I.C.A.R. 32(i)] bears the burden of demonstrating that the party’s privacy interest predominates over the public interest in disclosure”); State v. Doe, 155 Idaho 99, 106, 305 P.3d 543, 550 (Idaho Ct. App. 2013) (I.C.A.R. 32 does not allow records to be expunged, it only provides a mechanism to seal records); Doe v. State, 153 Idaho 685, 690, 290 P.3d 1277, 1282 (Idaho Ct. App. 2013) (I.C.A.R. 32(i) “gives the court discretion to consider the many types of economic or financial loss that may be reasonably asserted as a claimed justification for sealing court records, including financial harm asserted by those convicted of crimes. . . .  Because the public interest in access to criminal court records is obviously weighty, we surmise it would be an exceptional circumstance where a custodian judge would find that interest exceeded by a convicted person’s assertion of economic harm flowing from the conviction.”).

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B. Arrest records

Generally, “the name, sex, age, and address of a person arrested” and “the time, date, location of the incident and of the arrest” are public records that are not exempt under Idaho’s Public Records Act.  Idaho Code § 74-124(3)(b) & (c).  Idaho Court Administrative Rule 32 does not specifically address arrest records, therefore, if such records are filed in a judicial proceeding, they should generally be available for public review.

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C. Dockets

Calendars or dockets of court proceedings, including case numbers and captions, date and time of hearings, and location of hearings are available for public review under Idaho Court Administrative Rule 32(d)(4).

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Idaho Court Administrative Rule 32 exempts from disclosure pre-sentence investigation reports; unreturned search warrants; affidavits and sworn testimony or records supporting the issuance of a search or arrest warrant pending the return of the warrant; unreturned arrest warrants; and applications made and orders granted for the interception of wire, electronic or oral communications pursuant to Idaho Code § 18-6708, recordings of intercepted communications provided to the court and reports made to the court regarding such interceptions under Idaho Code §18-6708(7).  I.C.A.R. 32(g)(2)-(6).  Once a search warrant or arrest warrant is returned, however, the rule provides that they should be made available.  Indeed, that is the general practice of law enforcement and prosecutors in Idaho, although there have been some notable exceptions.

For instance, the issue of access to returned search warrant materials arose in the high profile trial of Daniel Ehrlick for the murder of 8-year-old Robert Manwill.  In that case, the Idaho Statesman sought access to the returned search warrant materials related to Manwill.  The state objected, citing concerns with the defendant’s right to a fair trial given the pre-trial publicity associated with the matter.  Magistrate John Hawley denied the Statesman’s motion, finding that continued sealing of such records was appropriate to protect the defendant from the “substantial risk of prejudice created by disclosure” and that “Defendants’ Sixth Amendment right to a fair trial is a compelling interest that outweighs the public’s First Amendment right of access to the documents.”  In the Matter of an Application for A Search Warrant, Memorandum Decision and Order Denying Motion to Unseal Search Warrants and Affidavit Documents at 7, Fourth Judicial District, Case No. CV OT 0916109 (Ada Co., Idaho, Sept. 19, 2009).  Almost two years later (but prior to trial), the same judge unsealed the requested documents holding, “The Defendants’ right to a fair trial is no longer at issue, the documents may now be unsealed.”  In the Matter of an Application for A Search Warrant, Order Unsealing Search Warrant, Affidavit and Findings of Fact at 1, Fourth Judicial District, Case No. CV OT 0916109 (Ada Co., Idaho, July 13, 2011).

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E. Discovery materials

No Idaho court has specifically addressed the issue of whether discovery materials are subject to public disclosure.  Generally, discovery materials are not filed with a court so as to become a “court record.”  Thus, Idaho Court Administrative Rule 32 would not apply.  Once a document is filed with the court, it would fall within the provisions of Rule 32.  The Idaho Public Records Act states that exemptions to the act may not be used to limit the availability of documents and records for discovery in the normal course of adjudicatory or administrative proceedings.  Idaho Code § 74-115(3).

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F. Pretrial motions and records

Pretrial service reports, used by judicial officers to determine bail of a federal criminal defendant who has been charged with an offense, are sealed.  D. Id. L. Crim. Rule 46.2.  In addition, Idaho Court Administrative Rule exempts a number of pretrial documents, including records related to certain juvenile proceedings, mental commitments, adoptions, guardianships, parental terminations, child custody, domestic abuse, minors seeking abortions, sterilization proceedings and records gather under the auspices of the court as listed in I.C.A.R. 32(g)(17).  See generally I.C.A.R. 32(g).

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G. Trial records

Most documents offered or admitted during trial are available for public review, except that, before final disposition by the trial court, access to any exhibit shall be allowed only with the permission of the custodian judge.  Moreover, the public shall not have access to items of contraband or items that pose a health or safety hazard; for example, drugs, weapons, child pornography, toxic substances, or bodily fluids, without the permission of the custodian judge. I.C.A.R. 32(d)(9).   Documents filed for inspection in the judge’s chambers (in camera) are restricted from public viewing.  I.C.A.R. 32(g)(15); D. Id. L. Civ. Rule 5.3.  In addition, certain records—such as mental commitment records (I.C.A.R. 32(g)(10)), those related to certain juvenile justice, adoption and parental termination proceedings (I.C.A.R. 32(g)(9), (11) & (12)), guardianship or conservatorship proceedings (I.C.A.R. 32(g)(19)) and child custody, support and paternity proceedings (I.C.A.R. 32(g)(20)), among others—are exempt from disclosure.

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H. Post-trial records

Pre-sentence investigation reports are exempt from public disclosure.  I.C.A.R. 32(g)(2).  Idaho Courts Administrative Rule 32 does not expressly mention any other post-trial motions or records.

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I. Appellate records

Idaho Appellate Rule 31(b) recognizes that some confidential documents used at the trial court level must be transmitted with the record on appeal.  In such cases, the rule provides that “in any criminal or post-conviction case where a documentary exhibit, including a pre-sentence report, is transmitted to the Supreme Court for use in an appellate proceeding, the district court shall serve a copy of the documentary exhibit on the attorney general and on appellate counsel for the defendant, subject to the confidentiality provisions of I.C.A.R. 32.”  In appeals from proceedings exempt from disclosure, the Idaho Supreme Court or the Court of Appeals may in their rulings use substitute designations such as “John Doe” or “Jane Doe” or further deletions to preserve the anonymity of participants in the proceeding.  I.C.A.R. 32(h).

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J. Other criminal court records issues

None.

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V. Access to civil proceedings

Litigants and members of the public likely have a constitutional and common law right to access civil judicial proceedings.  Closure of such proceedings must be considered under the procedural and substantive requirements of Press-Enterprise.

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A. In general

The Idaho Supreme Court has not directly addressed the issue of whether there is a constitutional right of access to civil proceedings.  But, the language of Article 1, section 18 of the Idaho Constitution (“Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice”) appears broad enough to encompass both civil and criminal proceedings.  Likewise, the U.S. Supreme Court has not directly addressed whether the public has a constitutional right of access to civil cases, although a plurality of the Court found that “historically both civil and criminal trials have been presumptively open.”  Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (plurality opinion).  Given history and experience, it is fair to assume that most civil proceedings will be open to the public.

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B. Pre-trial proceedings

There are no cases or rules on point.  Again, civil court proceedings should presumptively be open.

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C. Trials

“All trials upon the merits of every court of justice shall be conducted in open court and so far as convenient in a regular courtroom.”  Idaho R. Civ. Pro. 77(b); see also Idaho R. Civ. Proc. 43(a) (“In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute or by these rules, the Idaho Rules of Evidence, or other rules adopted by the Supreme Court of Idaho”); Saint Alphonsus v. St. Luke’s Health Sys., Ltd., Case Nos. 1:12-CV-00560-BLW and 1:13-CV-00116-BLW (D. Idaho) (discussing issue of access to civil court proceedings where confidential documents are offered as exhibits and used by testifying witnesses).

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D. Post-trial proceedings

To the extent there are any post-trial proceedings in civil matters—such as hearings on motions for reconsideration or motions for a new trial—they should remain open subject to the same procedural and substantive requirements of Press-Enterprise.

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E. Appellate proceedings

There are no Idaho cases on point.  Generally, appellate proceedings—both civil and criminal—are open to the public.

Idaho Court Administrative Rules 46a and 46b set forth the requirements for media representatives covering appellate proceedings before either the Idaho Supreme Court or the Idaho Court of Appeals.  In general, the media’s coverage must “not interfere with the dignity of the proceedings, or to distract counsel or the Court.”  I.C.A.R. 46a(1) (appellate proceedings in Boise).  See also I.C.A.R. 46b(2) (media representatives must “remain in the area reserved for the general public” and cannot “excessively move around the courtroom, or assume body positions inappropriate to a courtroom proceeding or otherwise distract from the appellate proceedings”) (appellate proceedings outside Boise).

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VI. Access to civil records

As with criminal court records, access to civil court records is governed by Idaho Court Administrative Rule 32, not Idaho’s public records law, Idaho Code §§ 74-101 through 125.

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A. In general

Idaho Court Administrative Rule 32 governs “Records of the judicial department.”  It lists which categories of documents are available for public inspection, as well as those deemed exempt.

In general, the following court records are available for examination, inspection and copying:

  1. Litigant/party indexes to cases filed with the court;
  2. Listings of new case filings, including the names of the parties;
  3. The chronological case summary of events;
  4. Calendars or dockets of court proceedings, including case numbers and captions, date and time of hearings, and location of hearings;
  5. Minutes, orders, opinions, findings of fact, conclusions of law, and judgments of a court and notices of the clerk of the court;
  6. Transcripts and recordings of all trials and hearings open to the public;
  7. Pleadings, motions, affidavits, responses, memoranda, briefs and other documents filed or lodged in a case file;
  8. Administrative or other records of the clerk, justice, judge, magistrate or staff of the court unless exempt from disclosure by statute, case law, or court rule; and
  9. A court record that has been offered or admitted into evidence in a judicial action or that a court has considered as evidence or relied upon for purposes of deciding a motion; except that, before final disposition by the trial court, access to any exhibit shall be allowed only with the permission of the custodian judge subject to any conditions set by the custodian judge and shall take place under the supervision of the office of the court clerk. The public shall not have access at any time to items of contraband or items that pose a health or safety hazard; for example, drugs, weapons, child pornography, toxic substances, or bodily fluids, without permission of the custodian judge.

I.C.A.R. 32(d).

Court records exempt from disclosure under this rule include:

  1. Documents and records to which access is otherwise restricted by state or federal law;
  2. Pre-sentence investigation reports, except as provided in Idaho Criminal Rule 32;
  3. Affidavits or sworn testimony and records of proceedings in support of the issuance of search or arrest warrant pending the return of the warrant;
  4. Unreturned search warrants;
  5. Unreturned arrest warrants, except bench warrants, or summonses in a criminal case, provided that the arrest warrants or summonses may be disclosed by law enforcement agencies at their discretion;
    (A) An “arrest warrant” is a warrant issued for the arrest and detention of a defendant at the initiation of a criminal action.
    (B) A “bench warrant” is a warrant issued for the arrest and detention of a defendant who has already appeared in a criminal action, and it would include a warrant issued for failure to appear at a hearing or trial, a warrant issued for violation of the conditions of release or bail, and a warrant issued for a probation violation.
  6. Unless otherwise ordered by the custodian judge, applications made and orders granted for the interception of wire, electronic or oral communications pursuant to Idaho Code § 18-6708, recordings of intercepted communications provided to the court, and reports made to the court regarding such interceptions under Idaho Code § 18-6708(7);
  7. Except as provided by Idaho Criminal Rules or statutes, records of proceedings and the identity of jurors of grand juries;
  8. Except as provided by the Idaho Criminal Rules or Idaho Rules of Civil Procedure, the names of jurors placed in a panel for a trial of an action and the contents of jury qualification forms and jury questionnaires for these jurors, unless ordered to be released by the presiding judge;
  9. Juvenile court records as herein after provided:
    (A) All court records of Child Protective Act proceedings.
    (B) All court records of Juvenile Corrections Act proceedings on a petition filed under I.C. § 20-510 pending an admit/deny hearing held pursuant to Rule 6, I.J.R. to permit the parties to request that the court consider, or permit the court to consider on its own motion, closing the records and files. Thereafter the court records shall be open unless the court enters an order exempting them from disclosure.  At the admit/deny hearing the court shall determine whether the court records shall remain exempt from disclosure as provided in 1. and 2. below:
    1. Court records of Juvenile Corrections Act proceedings brought against a juvenile under the age of fourteen (14), or brought against a juvenile fourteen (14) years or older who is charged with an act that would not be a felony if committed by an adult, shall be exempt from disclosure if the court determines by a written order in each case that the records should be closed to the public.
    2. Court records of Juvenile Corrections Act proceedings brought against a juvenile fourteen (14)years or older who is charged with an act which would be a felony if committed by an adult, shall be exempt from disclosure if the court determines upon a written order made in each case that extraordinary circumstances exist which justify that the records should be confidential.
    (C) In Juvenile Corrections Act cases filed on or after July 1, 2017, all court records of Juvenile Corrections Act proceedings on a petition filed under I.C. § 20-510 except as provided in 1, 2, and 3 below:
    1. The court may release juvenile court records if the court finds, upon motion by the prosecuting attorney, interested party, or other interested persons, that the public’s interest in the right to know outweighs the adverse effect of the release of the records on the juvenile’s rehabilitation and competency development.  In making this decision, the court may consider the following factors:
    a. Age of the juvenile;
    b. Seriousness of the offense;
    c. Whether the offense deals with persons or property;
    d. Prior record of the juvenile;
    e. The juvenile’s risk to reoffend; and
    f. The impact on the victim or victims.
    2. The following individuals or entities may inspect juvenile court records without a court order unless otherwise prohibited by law:
    a. Probation officers;
    b. Law enforcement officers;
    c. The Department of Juvenile Corrections;
    d. The Department of Correction;
    e. The Department of Health and Welfare pursuant to its statutory responsibilities in title 16, chapter 16; title 16, chapter 24; or title 20, chapter 5, Idaho Code.
    3. The victim of misconduct is entitled to receive:
    a. The name, address and telephone number of the juvenile offender involved;
    b. the name of the juvenile offender’s parents or guardians, and their addresses and telephone numbers;
    c. The petition, the decree, and orders of restitution;
    d. Any other information as provided in title 19, chapter 53, Idaho Code.
    (D) Notwithstanding any other provision of paragraph (g)(9) of this rule, reports prepared pursuant to I.C. § 20-520(1), and other records and reports described in paragraph (g)(17) of this rule are exempt from disclosure.
    (E) Notwithstanding any other provision of paragraph (g)(9) of this rule, the court shall make available upon the written request of a superintendent or an employee of the school district authorized by the board of trustees of the school district, the facts contained in any records of a juvenile maintained under Chapter 5, Title 20, Idaho Code.  If a request is made to examine records in courts of multiple districts, it shall be ruled upon by the Chief Justice.
  10. Mental commitment case records; provided, the court may disclose these records when consented to by the person identified or his or her legal guardian, or the parent if the individual is a minor. The court in its discretion may make such records available to the spouse, or the immediate family of the person who is the subject of the proceedings;
  11. Adoption records, except that an adopted person may obtain non-identifying medical information in all cases; the court may also in its discretion make information from the adoption records available, upon such conditions as the court may impose, to the person requesting the record, if the court finds upon written verification of a medical doctor a compelling medical need for disclosure;
  12. Records of proceedings to terminate the parent and child relationship under Chapter 20 of Title 16, Idaho Code, except that the child may obtain non-identifying medical information in all cases, and the court may also in its discretion make information from the records available, upon such conditions as the court may impose, to the person requesting the record, if the court finds upon written verification of a medical doctor a compelling medical need for disclosure;
  13. All records of proceedings relating to the consent required for abortion for minors brought pursuant to I.C. 18-609A(1) or (3);
  14. All records of proceedings relating to the judicial authorization of sterilization procedures pursuant to I.C. 39-3901;
  15. Documents filed or lodged with the court in camera;
  16. Protection order petitions and related records, maintained pursuant to either the domestic violence crime prevention act or chapter 79, title 18 of the Idaho Code, except orders of the court;
  17. Records maintained by a court that are gathered at the request or under the auspices of a court (other than records that have been admitted in evidence);
    (A) to determine an individual’s need for counseling, rehabilitation, treatment or assistance with personal conflicts;
    (B) to assist in assigning an appropriate disposition in the case, including the ADR screening report and screening reports prepared by Family Court Service Coordinators or their designees;
    (C) to provide the court with a recommendation regarding the custody of minor children;
    (D) to provide a court with a psychological evaluation of an individual;
    (E) to provide annual or other accountings by conservators and guardians, except to interested parties as defined by Idaho law;
    (F) to provide personal or identifying information on individuals for internal court use, including case information sheets filed pursuant to Idaho Rule of Civil Procedure 3(d) or Idaho Rule of Family Law Procedure 201, and victim information/restitution sheets.
  18. A reference list of personal data identifiers or an unredacted copy of a document filed pursuant to I.R.C.P. 3(d).
  19. All  court filings, including attachments, in guardianship or conservatorship proceedings whether temporary or permanent, and in proceedings involving a protective arrangement under I.C. § 15-5-409, and whether for an adult, a minor, or a developmentally disabled person, except to interested persons as defined in section 15-1-201, Idaho Code, guardians ad litem, court visitors, or any monitoring entity as defined by Idaho law, or any attorney representing any of the foregoing; provided, however, the following shall not be exempt from disclosure:
    (A) the register of actions for the case;
    (B) letters of guardianship and letters of conservatorship, and any supplemental orders, decrees or judgments describing, limiting, or expanding the rights and duties of the guardian or conservator;
    (C) any order by the court regarding bond by a conservator, and the conservator’s bond ;
    (D) any order, decree, or judgment dismissing, concluding, or otherwise disposing of the case.
  20. The records in cases involving child custody, child support, and paternity, except that officers and employees of the Department of Health and Welfare shall be able to examine and copy such records in the exercise of their official duties.  Other exceptions to this rule are that the register of actions shall be available to the public, and a redacted copy of any order, decree or judgment issued in the case shall be available to the public.  However, no redacted copy of any order, decree or judgment must be prepared until there is a specific request for the document, in which case the document should be redacted in the manner specified in Idaho Rule of Civil Procedure 3(c)(1) (a)-(d). Provided further that any person may request that the court make other records in the case available for examination and copying.  Any individual may make the request by filing a court-provided form.  When the court receives such a request, it shall promptly review the records in the case and shall make the records available except for those records or portions of records that allege abuse, abandonment or neglect of a child, or which the court determines would inflict undue embarrassment to or put at risk a person referenced in the record who was a child at the time of the filing of the record, or which are exempt from disclosure under the other provisions of Supreme Court rules.
    This subsection (g)(20) shall apply only to records in cases filed on or after July 1, 2012, and to records in cases in which a motion to modify an order, decree or judgment was filed on or after July 1, 2012.
  21. Records of judicial work product or drafts, including all notes, e-mail, memoranda or drafts prepared by a judge or a court-employed attorney, law clerk, legal assistant or secretary;
  22. Personnel records, application for employment and records of employment investigations and hearings, including, but not limited to, information regarding sex, race, marital status, birth date, home address, telephone number, applications, testing and scoring materials, grievances or complaints against an employee, correspondence, and performance evaluations; provided the following are not exempt from disclosure: a public official’s public service or employment history, classification, pay grade and step, longevity, gross salary and salary history, status, workplace, employing agency, and any adverse official action taken against an employee as a result of a grievance or complaint (except a private letter of reprimand), and after such action is taken (except when the action is a private letter of reprimand), the record of any investigation and hearing leading to the action;
  23. Applications, testing and scoring to be included on a court maintained roster;
  24. Computer programs and related records, including but not limited to technical and user manuals, which the judicial branch has acquired and agreed to maintain on a confidential basis;
  25. Records maintained by the state law library that link a patron’s name with materials requested or borrowed in the patron’s name with a specific subject about which the patron has requested information or materials;
  26. Allegations of attorney misconduct received by the Idaho State Bar and records of the Idaho State Bar relating to attorney discipline, except where confidentiality is waived under the Idaho Bar Commission Rules;
  27. All records relating to applications for permission to take the Idaho bar examination or for admission to practice as exempted from disclosure in the Idaho Bar Commission Rules;
  28. All records and records of proceedings, except the identity of applicants for appointment to judicial office, of the Idaho Judicial Council or any District Magistrates Commission pertaining to the appointment, performance, removal, disability, retirement or disciplining of judges or justices. Provided, however, that the record of a disciplinary proceeding filed by the Judicial Council in the Supreme Court loses its confidential character upon filing;

I.C.A.R. 32(g).

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B. Dockets

The public has access to “[c]alendars or dockets of court proceedings, including case numbers and captions, date and time of hearings, and location of hearings.”  I.C.A.R. 32(d)(4).

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C. Discovery materials

D. Pre-trial motions and records

Investigative reports stemming from discrimination complaints made to the Idaho Human Rights Commission generally are exempt from public disclosure under the Idaho Public Records Act.  Idaho Code § 74-105(8).  But, such confidentiality “will no longer apply to any record used in any judicial proceeding brought by a named party to the complaint or investigation, or by the Idaho human rights commission, relating to the complaint of discrimination.”  Id.

In general, access is allowed to “[p]leadings, motions, affidavits, responses, memoranda, briefs and other documents filed or lodged in a case file.”  I.C.A.R. 32(d)(7).

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E. Trial records

Generally, all records offered or admitted at trial are available for public inspection.  I.C.A.R. 32(d)(9).  A recent high-profile anti-trust case filed in the federal district court for the district of Idaho highlights the various concerns and tensions of private litigants attempting to seal trial documents and proceedings in an otherwise open judicial proceeding.

In the consolidated cases of Saint Alphonsus v. St. Luke’s Health Sys., Ltd., Case Nos. 1:12-CV-00560-BLW and 1:13-CV-00116-BLW (D. Idaho), antitrust claims were raised by the Federal Trade Commission and a competing hospital concerning St. Luke’s Health System’s purchase of the Saltzer Medical Group.  A discovery stipulation was agreed upon by the parties which became a Protective Order, allowing the parties to designate what would be treated as confidential and “attorneys eyes only” (“AEO”).  As is typically done, there was no involvement of the trial court in the process of designating AEO documents.  Shortly before trial, the discovery order was transformed into a Pretrial Order which allowed the AEO documents to be used at trial as sealed exhibits, redacted depositions and the closure of courtroom proceedings when any reference was made to an AEO document or testimony.  Trial began and it soon became apparent that hundreds and thousands of documents were being introduced under seal and the press and public were being escorted from the courtroom on a repeated basis.  A coalition of news organizations protested.  While the trial judge allowed the media organizations to intervene, he denied their request to unseal the documents already admitted at trial and to open the proceedings.  The media appealed to the Ninth Circuit.  While that appeal was pending, the underlying trial ended and the court made its ruling in the case.  The Ninth Circuit eventually granted the media’s Writ of Mandamus and instructed the trial court judge to make a determination as to whether “compelling reasons exist for the continued sealing of trial materials [both exhibits and testimony] within 120 days.”  Thereafter, the trial judge made a step-by-step determination as to what exhibits and trial testimony should be unsealed and/or redacted.  He noted a “strong presumption” in favor of access and that a party seeking to seal judicial records must identify “compelling reasons” that outweigh the “public interest in understanding the public process.”  Saint Alphonsus, 2014 WL 314472, at *1 (D. Idaho, Jan. 28, 2014) (citing Kamakana v. City & Co. of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006)).  This resulted in approximately 506 exhibits/trial testimony being unsealed and approximately 122 exhibits/trial testimony being unsealed but with redactions.  Id., Dkt. 511 (filed July 3, 2014).

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F. Settlement records

Settlement agreements involving public entities are public record.  Cowles Publ’g Co. v. Kootenai Cty. Bd. of Cty. Comm’rs, 144 Idaho 259, 265, 159 P.3d 896 (2007).  However, “records of any risk retention or self-insurance program prepared in anticipation of litigation or for analysis of or settlement of potential or actual money damage claims against a public entity and its employees or against the industrial special indemnity fund” are not subject to disclosure.  Idaho Code § 74-107(11).  “These records shall include, but are not limited to, claims evaluations, investigatory records, computerized reports of losses, case reserves, internal documents and correspondence relating thereto. At the time any claim is concluded, only statistical data and actual amounts paid in settlement shall be deemed a public record unless otherwise ordered to be sealed by a court of competent jurisdiction.”  Id.

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G. Post-trial records

Idaho Courts Administrative Rule 32 does not expressly mention any civil post-trial motions or records.  Instead, Rule 32(d)(7)’s general provision that access is allowed to “[p]leadings, motions, affidavits, responses, memoranda, briefs and other documents filed or lodged in a case file” should apply.

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H. Appellate records

Idaho Appellate Rule 31(b) recognizes that some confidential documents used at the trial court level must be transmitted with the record on appeal.  In appeals from proceedings exempt from disclosure, the Idaho Supreme Court or the Court of Appeals may in their rulings use substitute designations such as “John Doe” or “Jane Doe” or further deletions to preserve the anonymity of participants in the proceeding.  I.C.A.R. 32(h).

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I. Other civil court records issues

All court records exempt from disclosure are enumerated within Idaho Court Administrative Rule 32(g).

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VII. Jury and grand jury access

“Grand jury proceedings are intended, to the extent possible, to be secret.”  In the Matter of the Petition for Review of Hearing Comm. of the Prof’l Conduct Bd. of the Idaho State Bar, 140 Idaho 800, 805, 102 P.3d 1119, 1124 (2004).

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A. Access to voir dire

The Idaho Supreme Court has not addressed constitutional rights of access to voir dire in civil proceedings, although it has recognized a First Amendment right of access to criminal voir dire proceedings.  See Bradbury v. Idaho Judicial Council, 136 Idaho 63, 70, 28 P.3d 1006, 1013 (citing Press-Enter. Co. v. Super. Ct., 464 U.S. 501 (1984)).  It is likely that a court faced with a motion to close voir dire in a civil proceeding would consider such motion under the same procedural and substantive requirements of Press-Enterprise.

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B. Juror identities, questionnaires and other records

Records of “names of jurors placed in a panel for a trial of an action and the contents of jury qualification forms and jury questionnaires for these jurors” are exempt from disclosure, unless the presiding judge orders otherwise.  I.C.A.R. 32(g)(8).  Only attorneys of a party or a party representing himself may obtain copies of the juror questionnaire responses.  Idaho Crim. R. 23.1.; Idaho R. Civ. Pro. 47(d).  Even then, such disclosure shall be subject to the rule of maintaining juror confidentiality and may include the “deletion of the name, address, phone number or any other information about a prospective juror that should remain confidential.” Idaho R. Civ. Pro. 47(d).

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C. Grand jury proceedings and records

Records of grand jury proceedings and identities of grand jurors are exempt from disclosure. I.C.A.R. 32(g)(7).   This is consistent with the Idaho Supreme Court’s admonition that “[g]rand jury proceedings are intended, to the extent possible, to be secret.”   In re Petition for Review of Hearing Comm. of Prof’l Conduct Bd., 140 Idaho 800, 805, 102 P.3d 1119, 1124 (Idaho 2004):

All grand jurors are required to take an oath that includes the following provision:

You will keep your own counsel, and that of your fellows, and of the government, and will not, except when required in the due course of judicial proceedings, disclose the testimony of any witness examined before you, nor anything which you or any other grand juror may have said nor the manner in which you or any other grand juror may have voted in any matter before you.

I.C. §§ 19–1011 through 1012.  A grand juror who violates that oath commits a misdemeanor. I.C. § 18–4403.  In addition, Idaho Code § 19–1111 limits the persons who can be present during grand jury sessions.  Finally, Idaho Criminal Rule 6.3(b) provides that upon the conclusion of each matter presented to the grand jury, the clerk is to seal the record of the proceedings and that the record is not to be examined by anyone or transcribed except upon order of the district judge.

Consistent with the secrecy of grand jury proceedings, Idaho Criminal Rule 6.3(c) provides, “The district judge may place conditions upon the use, dissemination or publication of the proceedings of the grand jury, and any violation of any such condition by a party granted access to the record shall constitute contempt of the order of the district judge.” The rule refers to a violation of the conditions by “a party granted access to the record.”  The reference to “a party granted access” is consistent with the requirement that each person seeking access must obtain court permission.

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D. Interviewing jurors

Generally, at the end of all jury trials in Idaho, judges instruct jurors “that whether you talk to the attorneys or to anyone else is entirely your own decision.  It is proper for you to discuss this case if you wish to but you are not required to do so and you may choose not to discuss the case with anyone at all.  If you choose to talk to someone about this case you may tell them as much or as little as you like about your deliberations or the facts that influenced your decisions.”  IDJI2d 1.17.  The court also instructs jurors to contact it if “anyone persists in discussing the case over your objection or becomes critical of your service.”  Id.  In contrast, grand jurors are not permitted to discuss “whatever was said or done in grand jury proceedings and which manner each grand juror may have voted on a matter before them.”  Idaho Crim. R. 6.4(c).

The issue of post-verdict contact between defense attorneys and jurors in a capital murder case came before the Idaho Supreme Court in Hall v. State, 151 Idaho 42, 253 P.3d 716 (2011).  There, attorneys for a criminal defendant who had been found guilty of first-degree murder, first-degree kidnapping and rape and sentenced to death sought permission to interview jurors post-trial.  The trial court denied such motion, and the attorneys appealed arguing that in the absence of a statute or rule prohibiting such contact, the trial court’s order violated their First Amendment rights.  The Idaho Supreme Court disagreed and affirmed the trial court’s order prohibiting such contact with jurors, finding that trial courts have “inherent authority to enter an order restricting contact with the jury, including post-verdict contact.”  Id. at 46, 253 P.3d at 720.  The Court recognized that the attorneys had limited First Amendment rights, but such rights were outweighed by the public policy interests in preserving a full and fair trial, protecting juror privacy and protecting the finality of verdicts.  Id. at 48, 253 P.3d at 722.

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VIII. Proceedings involving minors

Certain proceedings involving minors are closed by statute or rule.  For instance, all proceedings under the Child Protective Act—those involving allegations of abuse, abandonment, neglect or homelessness of a child (I.C. § 16-1610(1)(b))—are closed and all records are sealed to protect the minor children at issue.

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A. Delinquency

Idaho rules approach juvenile criminal records differently depending on the defendant’s age and nature of the criminal charge.  The court determines this at an “admit/deny hearing,” which is similar to an arraignment in an adult criminal proceeding and which often is combined with the initial detention hearing.  See Idaho Juvenile Rule 6(a), et seq.  For juveniles under 14 years of age, or for those charged with a crime that would not be considered a felony if committed by an adult, records are exempt from public disclosure if the court says so in writing.  I.C.A.R. 32(g)(9)(B).  For juveniles 14 years or older who are charged with a crime that would be considered a felony if committed by an adult, the court must determine that “extraordinary circumstances” exist that justify closing the records.  Id.

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B. Dependency

All court records of Child Protective Act proceedings are exempt from disclosure.  I.C.A.R. 32(g)(9)(A); see also I.C. § 16-1626 (court records of Child Protective Act proceedings “shall be available only to parties to the proceeding, persons having full or partial custody of the subject child and authorized agencies providing protective supervision or having legal custody of the child. Any other person may have access to the records only upon permission by the court and then only if it is shown that such access is in the best interests of the child; or for the purpose of legitimate research. If the records are released for research purposes, the person receiving them must agree not to disclose any information which could lead to the identification of the child.”).  In addition, all proceedings under the Child Protective Act are closed to the public.  I.C. § 16-1613(1) (“Proceedings under this chapter shall be dealt with by the court at hearings separate from those for adults and without a jury. The hearings shall be conducted in an informal manner and may be adjourned from time to time. The general public shall be excluded, and only such persons shall be admitted as are found by the court to have a direct interest in the case. The child may be excluded from hearings at any time at the discretion of the court. If the parent or guardian is without counsel, the court shall inform them of their right to be represented by counsel and to appeal from any disposition or order of the court.”).

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C. Other proceedings involving minors

The court may exclude the public from actions for divorce, annulment, civil protection orders, seduction, criminal conversation (adultery), or breach of promise of marriage.  Idaho R. Civ. Pro. 77(b).

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D. Prohibitions on photographing or identifying juveniles

Idaho courts, statutes, and rules do not address access to juveniles’ identifying information.  However, “the following juvenile courtroom proceedings and records shall be open to the public: all proceedings against a juvenile of the age of fourteen (14) years or older and who is petitioned or charged with an offense which would be a felony if committed by an adult including the court docket, petitions, complaints, information, arraignments, trials, sentencings, probation violation hearings and dispositions, motions and other papers filed in any case in any district; transcripts of testimony taken by the court; and findings, verdicts, judgments, orders, decrees and other papers filed in proceedings before the court of any district.  Idaho Code § 20-525(1) (2010).  But “[j]uvenile courtroom proceedings and records shall remain confidential when the court and the prosecutor agree extraordinary circumstances exist that justify records of a juvenile of the age of fourteen (14) years or older and who is petitioned or charged with an offense which would be a felony if committed by an adult should remain confidential because it is in the best interest of the juvenile.”  Idaho Code §20-525(2).

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E. Minor testimony in non-juvenile courts

Idaho courts have not addressed this.

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IX. Special proceedings

Certain special proceedings are closed by statue or rule.

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A. Tribal Courts in the jurisdiction

There are five independent tribal courts within Idaho: (1) Coeur d’Alene; (2) Nez Perce; (3) Shoshone-Bannock; (4) Kootenai; and (5) Shoshone-Paiute.  See https://www.isc.idaho.gov/tribal-state/tribalcourt.  These courts have federally prescribed jurisdiction over custody and adoption cases involving tribal children, criminal jurisdiction over offenses committed on tribal lands by members of the tribe, and broader civil jurisdiction over claims between tribe members and nonmembers.  Each trial court has adopted its own Tribal Law and Order code.  Generally, most proceedings are open unless a tribal judge orders them closed.

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B. Probate

Probate matters are handled under the Uniform Probate Code, Idaho Code § 15-1-101 et seq.  No cases, rules, or statutes on point.

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C. Competency and commitment proceedings

Mental commitment case records (I.C.A.R. 32(g)(10)), records maintained by the court generated to provide a court with a psychological evaluation of an individual or to determine an individual’s need for counseling, rehabilitation, treatment or assistance with personal conflicts (I.C.A.R. 32(g)(17)) and all court filings in guardianship or conservatorship proceedings (I.C.A.R. 32(g)(19)) are exempt from disclosure.  In contrast, the Idaho Supreme Court has held that records regarding sex offenders and their commitment are considered public.  “Public access assists the community in being observant of convicted sexual offenders in order to prevent them from recommitting sexual crimes.”  Smith v. State, 146 Idaho 822, 839, 203 P.3d 1221 (2009).

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D. Attorney and judicial discipline

Under Idaho Court Administrative Rule 32(g)(28), all records and records of proceedings before the Idaho Judicial Council are exempt from disclosure until such time as the record of a disciplinary proceeding is filed by the Judicial Council in the Idaho Supreme Court.  Idaho Code § 1-2103 provides the statutory authority for exempting such records and proceedings.

All papers filed with and the proceedings before the judicial council or masters appointed by the Supreme Court, pursuant to this section, shall be subject to disclosure according to chapter 3, title 9, Idaho Code, provided, however, that if allegations against a judge are made public by the complainant, judge or third persons, the judicial council may, in its discretion, comment on the existence, nature, and status of any investigation. The filing of papers with and the giving of testimony before the council or the masters shall be privileged; but no other publication of such papers or proceedings shall be privileged in any action for defamation except that (a) the record filed by the council in the Supreme Court continues privileged and upon such filing loses its confidential character and (b) a writing which was privileged prior to its filing with the council or the masters does not lose such privilege by such filing. The judicial council shall by rule provide for procedures under this section, including the exercise of requisite process and subpoena powers. A justice or judge who is a member of the council or Supreme Court shall not participate in any proceedings involving his own removal, discipline or retirement.

I.C. § 1-2103.  The Idaho Supreme Court upheld the constitutionality of both of these provisions in Bradbury v. Idaho Judicial Council, 136 Idaho 63, 28 P.3d 1006 (2001).

Attorney discipline proceedings and records before the Idaho State Bar are similarly exempt from public disclosure under Idaho Court Administrative Rule 32(g)(26).

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E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

Idaho trial judges have inherent authority to issue orders to control proceedings in their courtrooms.  To that end, trial courts have issued gag orders prohibiting all parties involved in high-profile criminal proceedings from discussing the case with members of the press.  See, e.g., State v. Gray, 129 Idaho 784, 801, 932 P.2d 907, 924 (Idaho App. Ct. 1997).

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A. Media standing to challenge third-party gag orders

Media organizations are permitted to intervene in court proceedings for the limited purpose of opposing efforts to restrain their exercise of First Amendment rights.  See, e.g., Riggs v. Valdez, 2011 WL 1598630, at *8 (D. Idaho Apr. 27, 2011) (granting media organization’s motion to intervene for purpose of opposing gag order).  When faced with this issue, Idaho courts look to Ninth Circuit precedent for guidance.  Id.

In Radio & Television News Ass’n of S. Cal. v. U.S. Dist. Ct., 781 F.2d 1443 (9th Cir. 1986), the Ninth Circuit considered a challenge to a trial court’s issuance of a gag order on its participants from discussing a high-profile criminal case with members of the media.  The media filed a writ of mandamus challenging the order as infringing upon its First Amendment right to seek and report the news.  The Ninth Circuit began by noting that there are two elements to standing.  “First, the plaintiff must allege an ‘injury in fact’ sufficient to show a ‘personal stake’ in the outcome of the legal action. . . . Second, the plaintiff must show that ‘the interest sought to be protected by the complainant is arguable within the zone of interests to be protected or regulated by the statue or constitutional guarantee in question.”  Id. at 1445–46.  The Court found that the media satisfied both elements of standing here because “[a]s the district court’s order impairs the media’s ability to gather news by effectively denying the media access to trial counsel, a concrete personal interest is affected,” id. at 1445, and “the RTNA asserts an interest that is at least ‘arguably’ protected by the first amendment.”  Id. at 1446.  Accordingly, the Ninth Circuit held that the media had standing to challenge the trial court’s gag order.

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B. Gag orders on the press

There are no reported Idaho decisions on this issue, although an order prohibiting the press from publishing information which it lawfully obtained is likely to be held an unconstitutional prior restraint.  See Neb. Press Ass’n v. Stuart, 427 U.S. 539, 558–59 (1976) (prior restraints are “presumptively unconstitutional”).

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C. Gag orders on participants

In Riggs v. Valdez, 2011 WL 1598630 (D. Idaho Apr. 27, 2011), United States District Judge Edward Lodge denied a request by defendants in a prisoner civil rights case to enter an order prohibiting the parties and counsel from making extrajudicial statements to the media.  Judge Lodge held “[t]he Court is not persuaded that a restraining order is necessary or advisable at this time.  A sweeping order of the type that Defendants have proposed would be a prior restraint on free speech, see Levine v. U.S. District Court for the Central District of California, 764 F.2d 590, 595 (9th Cir. 1985), and Defendants have not justified the infringement that such an order would have on the First Amendment rights of the parties, counsel, the media, and the public.  It is true that this case has garnered some media attention, but Defendants have not established that the coverage has been so pervasive or hostile to this point that their right to a fair trial is threatened absent a gag order.”  Id. at *3.

As noted above, Idaho courts faced with the issue of gag orders often turn to the Ninth Circuit for guidance.  To that end, Radio & Television News Ass’n is instructive.  In that case, the Ninth Circuit upheld a district court’s gag order of its participants in a high-profile criminal matter after the media, not the participants, challenged the order.  In upholding the order, the Ninth Circuit made it clear that the order before it was “significantly different from situations where the media is denied access to a criminal trial or is restricted in disseminating any information it obtains.  We have invalidated as unconstitutional prior restraints on the reporting of events relating to a criminal proceeding.  E.g., CBS, Inc. v. United States District Court, 729 F.2d 1174, 1178–78 (9th Cir. 1984); see Nebraska Press Association v. Stuart, 427 U.S. 539 (1976) . . . .  In contrast, the district court’s order in this case is not directed towards the press at all.  On the contrary, the media is free to attend all of the trial proceedings before the district court and to report anything that happens.”  Id. at 1446.  Thus, the Ninth Circuit held, “[t]he district court having determined that the free speech rights of the trial counsel must be restrained, the media has no greater right than the public to hear that speech.”  Id. at 1447.  Because none of the participants restrained by the trial court’s order joined in the writ of mandamus, the Ninth Circuit held that the media group lacked standing to assert the trial participants’ First Amendment rights.  Consequently, the court did not reach the issue of whether the gag order was constitutional under Levine v. United States District Court, 764 F.2d 590 (9th Cir. 1985).

In Levine, the Ninth Circuit upheld a trial court’s conclusion that a restraining order for trial participants was necessary to reduce prejudicial pretrial publicity impairing the fairness of a trial and threatening the integrity of the judicial system.  But, the appeals court concluded that the district court’s order restraining counsel from making any public statement about “any aspect of the case that bears upon the merits to be resolved by the jury” was overbroad.  Levine, 764 F.2d at 599.  As such, the Ninth Circuit ordered the trial court to fashion an order specifying the proscribed types of extrajudicial statements which “pose a serious and imminent threat to the administration of justice” in the case.  Id.   By way of example, the Ninth Circuit noted that it would be appropriate to proscribe statements relating to six subjects:

  1. The character, credibility, or reputation of a party;
  2. The identity of a witness or the expected testimony of a party of a witness;
  3. The contents of any pretrial confession, admission, or statement given by a defendant or that person’s refusal or failure to make a statement;
  4. The identity or nature of physical evidence expected to be presented or the absence of such physical evidence;
  5. The strengths or weaknesses of the case of either party; and
  6. Any other information the lawyer knows or reasonably should know is likely to be inadmissible as evidence and would create a substantial risk of prejudice if disclosed.

Id.

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D. Interviewing judges

Judges are required to abstain from making public comments regarding a pending or impending proceeding.  But, the Code of Judicial Conduct does not generally prohibit a judge from making a public statement in the course of her official duties “or from explaining for public information the procedures of the court.”  Idaho Code of Jud. Conduct, Canon 3(B)(9).  Additionally, a judge may comment on proceedings in which she is a litigant in a personal capacity but may not comment if she is a litigant in an official capacity, such as in a mandamus action.  Id. Commentary.

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XI. Other issues

A. Interests often cited in opposing a presumption of access

Idaho courts, rules, and statutes do not specifically address undercover agents or witnesses, but Idaho statutes exempt from disclosure “investigatory records compiled for law enforcement purposes by a law enforcement agency” as long as disclosure would not “interfere with enforcement proceedings.”  I.C. § 74-124(a).  Additionally, the statute exempts from disclosure the “identity of a confidential source and, in the case of a record compiled by a criminal law enforcement agency in the course of a criminal investigation, confidential information furnished only by the confidential source.”  I.C. § 74-124(d).  Trade secrets are also exempt from disclosure.  I.C. § 73-107(1).  No Idaho cases, statutes, or rules address the closing of proceedings because of national security interests.

Idaho statutes “enable state and local agencies to respond to requests for public records without disclosing the location of a victim of domestic violence, sexual assault or stalking, to enable interagency cooperation with the secretary of state in providing address confidentiality for victims of domestic violence, sexual assault or stalking.”  I.C. § 19-5701.

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B. Cameras and other technology in the courtroom

Idaho Court Administrative Rule 45 governs cameras in trial courtrooms throughout Idaho, Rule 46a governs cameras in appellate proceedings held at the Idaho Supreme Court building in Boise, and Rule 46b governs cameras in appellate proceedings held outside of Boise.

Trial Courts

Idaho court rules do not specify what proceedings may be photographed, leaving the decision largely to the presiding judge.  The rules do identify which proceedings may not be photographed.  Those include proceedings that are closed to the public, including grand jury proceedings, issuance of arrest and search warrant proceedings, adoptions, mental health proceedings, child protective proceedings, and termination of parent-child relations (I.C.A.R. 45(c)(3)), conferences between judges, attorneys and clients in the courtroom, notes on counsel table or exhibits before they are admitted into evidence (I.C.A.R. 45(c)(1)) and in-camera sessions or judicial deliberations (I.C.A.R. 45(c)(2)).

Photographing or videotaping of jurors is prohibited, including during jury selection.  I.C.A.R. 45(h)(1).  Unless the presiding judge allows otherwise, only one still photographer and one video camera may be allowed in the courtroom.  I.C.A.R. 45(h)(9).

The presiding judge must give prior approval to all audio/visual coverage of courtroom proceedings, including the transmission of sounds and images via the Internet I.C.A.R. 45(g).  Sample request forms are included within Idaho Court Administrative Rule 45 (I.C.A.R. 45(l)) and on the internet via The Media Guide to the Idaho Courts, http://www.isc.idaho.gov/resources/ISC_MediaGuide.pdf.  The judge may, at his or her discretion, limit, restrict or prohibit without notice the use of motion and still cameras in the courtroom when the administration of justice requires.  And, importantly, the judge’s decision is not subject to appellate review.  I.C.A.R. 45(b).

Appellate Courts

Idaho Court Administrative Rules 46a and 46b provide for cameras in Idaho’s appellate courts— the Idaho Supreme Court and the Idaho Court of Appeals.  Rule 46a governs all proceedings held at the Idaho Supreme Court building in Boise, while Rule 46b governs cameras in appellate proceedings held around the state as the Supreme Court travels around the state to hold hearings.  Under either rule, prior approval must be obtained from the Chief Justice of the Supreme Court or the Chief Judge of the Court of Appeals and “will be limited to working media representatives and others approved by the Court.”  For further guidance, see The Media Guide to the Idaho Courts, http://www.isc.idaho.gov/resources/ISC_MediaGuide.pdf, or the Idaho Press Club’s website, which includes a page entitled “Cameras in the Idaho Courtroom,” http://www.idahopressclub.org.

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C. Tips for covering courts in the jurisdiction

Idaho has an active Idaho Press Club, which offers many insights and helpful hints on its website to members of the media and public.  See http://www.idahopressclub.org.  In addition, the judiciary has been proactive in dealing with the media through the Idaho Supreme Court’s Media and Courts Committee (http://www.isc.idaho.gov/main/judicial-committees), the Media and Court Conflicts Resolution Panel (aka “Fire-Brigade”) (http://www.isc.idaho.gov/files/Media_Guide-REVISION-DRAFT-10-28-13.pdf at 25) and by publishing a Media Guide to the Idaho Courts.  Id.   All of these are good resources to turn to when questions about covering Idaho’s courts arise.

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