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Idaho

Open Government Guide

Author

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

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Foreword

In 2015, the Idaho legislature recodified Idaho’s public records act and open meeting law by combining their provisions, and adding others related to government transparency, into a new act called Transparent and Ethical Government, Title 74, Idaho Code.  Within this new act, Chapter 1 is the Public Records Act (Idaho Code §§ 74-101 through 126), Chapter 2 is the Open Meetings Law (Idaho Code §§ 74-201 through 208), Chapter 3 is reserved, Chapter 4 is entitled “Ethics in Government Act of 2015” (Idaho Code §§ 74-401 through 406), and Chapter 5 is Prohibitions Against Contracts with Officers (Idaho Code §§ 501 through 511).  The legislative purpose of the act was to “provide one place for citizens to find laws relating to government transparency.”  This new act became effective July 1, 2015 and was largely the result of coordinated efforts by the Public Records Ombudsman (an executive branch position created by the Governor in 2014), Idaho media representatives, city and county representatives, members of the Attorney General’s office and the public.

Open records.

Idaho’s public records act was originally enacted in 1990.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

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

Revisions to the public records act have occurred and numerous exemptions have been added or amended since 1990.  The most significant of those revisions occurred in 2015, when the Idaho legislature recodified the public records act to include it within a larger act relating to government transparency, Title 74, Idaho Code.  Chapter 1 of this new act contains the Public Records Act and, for the most part, mimics the previous act’s language, including exemptions (which are discussed infra).

Although the public records act is routinely used throughout Idaho and disputes about its application are often brought before trial courts, very few decisions make it to the Idaho Supreme Court.  Indeed, the Idaho Supreme Court has issued only ten reported decisions directly addressing the Public Records Act since 1990.

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

Second, in Bolger v. Lance, 137 Idaho 792, 53 P.3d 1211 (2002), the Idaho Supreme Court held that the Attorney General’s office qualified as a “law enforcement agency” under Idaho Code § 9-335(2) [new provision I.C. § 74-124(3)].  As such, records of the attorney general’s office were “investigatory records” exempt from disclosure pursuant to Idaho Code § 9-340B(1) [new provision I.C. § 74-105(1)], and this general exemption controlled over the provision allowing individuals to obtain copies of public records about themselves pursuant to Idaho Code § 9-342(1) [new provision I.C. § 74-113(1)].

Third, in Magic Valley Newspapers, Inc. v. Magic Valley Regional Medical Center, 138 Idaho 143, 59 P.3d 314 (2002), the Idaho Supreme Court was asked to consider whether the names of public employees are exempt from disclosure as “other personnel information” under Idaho Code § 9-340C(1) [new provision I.C. § 74-106(1)] when those names are connected with information regarding the employees’ gross salary. A public hospital refused to produce the names of its employees when a newspaper requested access to records showing the name, title, and annual salary of every employee earning more than $50,000 annually, relying in part on Idaho Code § 9-340A(1) which exempts records that are specifically made exempt under federal or state law or federal regulation.  Here, the hospital urged the Court to adopted the federal Freedom of Information Act’s personnel file exemption, indicating that such records would be exempt to the extent they “would constitute a clearly unwarranted invasion of personal privacy.” The Court rejected this argument, finding that FOIA does not apply because its provisions are limited to the disclosure of public information from the federal government, not state agencies.  Thus, the Court ordered the hospital to disclose the requested names and salaries.

Fourth, in Idaho Conservation League, Inc. v. Idaho State Dept. of Agriculture, 143 Idaho 366, 146 P.3d 632 (2006), the Idaho Supreme Court rejected arguments that documents previously submitted to a state agency and then returned to their owner were not subject to disclosure under the public records act because the state agency no longer had possession of such records.  The court found that that fact that a state agency no longer had possession of a document was irrelevant to the question of whether such record was a public record and that such an argument was inconsistent with the purpose of the public records act.  To that end, the court awarded ICL its attorneys fees on appeal because it found the state agency’s position on appeal to be “frivolously pursued” pursuant to Idaho Code § 9-344(2) [new provision I.C. § 74-116(2)].

Fifth, in Nation v. State, 144 Idaho 177, 158 P.3d 953 (2006) the Idaho Supreme Court held, in the context of a 42 U.S.C. § 1983 action brought by a former corrections officer, that the Idaho Public Records Act does not create a substantive right to bring a negligence suit.  In this case, the former corrections officer asserted that he was entitled, inter alia, to bring a negligence per se action against the Idaho Department of Corrections because it improperly disclosed his private information under Idaho Code § 9-340C(1) [new provision I.C. § 74-106(1)] when it replied to a public records request by an inmate.

Sixth, in Cowles Publishing Co. v. Kootenai Co. Bd. of Co. Commissioners, 144 Idaho 259, 159 P.3d 896 (2007), the Idaho Supreme Court considered whether a series of e-mail messages of a personal nature exchanged between an elected public official and a public employee were public records subject to disclosure.  The public employee claimed that the e-mail messages were not public records and, if they were, they were exempt from disclosure as a personnel record under Idaho Code § 9-340C(1) [new provision I.C. § 74-106(1)].  The court rejected each of these arguments. The court began its analysis by noting that “a record may be a public record if it is a writing that (1) contains information relating to the conduct or administration of the public’s business, and (2) was prepared, owned, used or retained by a governmental agency.” Id., 144 Idaho at 263.   The court found that the e-mail messages satisfied each of these prongs. Next, the court considered the personnel records exemption of 9-340C(1) and held that “although the [e-mail messages] may be a form of correspondence, they are not the type of correspondence the legislature meant to exempt in Idaho Code § 9-340C(1).”  Id., 144 Idaho at 264-265.  As such, the e-mail messages were ordered to be released.  The court also considered whether an associated settlement agreement should be released under the Public Records Act. Applying Idaho Code § 9-340D(11) [new provision I.C. § 74-107(11), the court held that only the statistical data and actual amounts paid are public records, and any other information contained in the settlement agreement is exempt from disclosure.

Seventh, in Ward v. Portneuf Medical Center, Inc., 150 Idaho 501, 248 P.3d 1236 (2011), an individual made a public records request to his local public hospital for copies of all contracts entered into between the hospital and any doctor.  This request was denied. Thereafter, the public hospital was sold to a private entity and the new entity objected to producing the requested documents claiming it was not subject to the Public Records Act.  On appeal, the Idaho Supreme Court held that “[t]he determination of whether a document qualifies as a public record is based on the content of the document and surrounding circumstances as they existed at the time the request was made.” Id., 150 Idaho at 505, 248 P.3d at 1240.  Moreover, pursuant to Idaho Code § 9-343(2) [new provision I.C. § 74-115(2)], a public agency is required to maintain all documents or records requested until an appeal ends and cannot alter the statue of a public record by transferring the record outside the ambit of its control.  Accordingly, the hospital was ordered to produce the requested documents.

The eighth decision addressing the public records act from the Idaho Supreme Court is Henry v. Taylor, 152 Idaho 155, 267 P.3d 1270 (2011), a case involving access to a county prosecutor’s contract with the county and payments made thereunder. An individual had requested copies of Canyon County’s contract with its prosecutor, John Bujak, and information from the prosecutor’s private bank account where such sums were deposited.  The county provided some information, but responded that it did not have other information, including information about Mr. Bujak’s personal bank account.  The individual filed an action seeking such records, and the trial court held that the prosecutor’s private bank account records were not public records.  On appeal, the Idaho Supreme Court reversed.  It noted that the county prosecutor’s contract with county was a “public contract” and his performance of that contract was the public’s business, and under the definition of a “public record” in Idaho Code § 9-337(13) [new provision I.C. § 74-101(13)], the county prosecutor was “agency of the county.” Accordingly, the Court held that the requested bank account records were public records and must be produced.

Next, in Wade v. Taylor, 156 Idaho 91, 320 P.3d 1250 (2014), Wade was shot twice by a Fruitland police officer after an altercation.  Intending to file a tort claim, Wade requested copies of investigatory records related to his shooting from the Idaho State Police and, later, the Payette County Prosecutor.  His requests were denied under Idaho Code § 9-335(1) [new provision I.C. § 74-124(1)] as subject to an ongoing investigation.  At the completion of its investigation, ISP sent all of its materials to the Canyon County Prosecutor who was serving as a special prosecuting attorney on the matter to determine if charges should be brought against either Wade or the officer.  Wade then requested the “complete investigation” file from the Canyon County Prosecutor.  His request was denied again pursuant to Idaho Code § 9-335, asserting that the investigation was ongoing and disclosure would interfere with enforcement proceedings and could deprive the parties of a fair trial or impartial adjudication.  Wade filed an action in district court and the trial court ordered the documents to be produced, but limited their disclosure to Wade and his counsel.  The prosecutor appealed, and the Supreme Court vacated the decision and remanded the matter to the district court.  The Supreme Court’s decision addresses a number of issues under the public records act, including: (1) that investigative records under prosecutorial review are active, not inactive, investigatory records pursuant to Idaho Code § 9-335; (2) that the party withholding disclosure under Idaho Code § 9-335(1) has the burden to show a reasonable probability that disclosure of the investigatory records would result in one or more the harms identified in I.C. § 9-335(1)(a)-(f); (3) that a district court’s inquiry on a petition for access is whether the exemption from disclosure was justified at the time of the refusal to disclosure rather than at the time of hearing; (4) that in the event a request covers both exempt and non-exempt records, the district court has an obligation to segregate such records; and (5) that whether or not a record is exempt from disclosure is an objective inquiry.  Thus, once a document is a public record a district court cannot limit its disclosure to certain individuals for certain purposes.

Finally, the most recent appellate decision involving the Public Records Act is Hymas v. Meridian Police Dept., 159 Idaho 594, 364 P.3d 295 (Ct.App. 2015).  In this case, parents of a young man who died of carbon monoxide poisoning sought the investigatory file surrounding his death from law enforcement.  Police originally denied the request and the parents filed an action to compel disclosure of the documents.  Two days prior to the show cause hearing, the police provided the parents with the requested records.  At the hearing, the parties agreed the records request was moot and only costs and attorneys fees were still at issue.  The trial court refused to award costs and fees.  After an appeal and remand, the matter was appealed again.  This time, the issue was whether the parents were required to identify specific records that they believed were frivolously withheld in order to be entitled to an award of their costs and fees. The Court of Appeals answered that question in the negative, noting that the agency carries the burden of proof as to why it withheld specific records and that burden did not change, even after the agency disclosed the record.  Id. at 599, 364 P.3d at 300.  The Court also clarified that numerous provisions within the Public Records Act provided a basis for an award of attorney’s fees, not just § 74-116(2).  Id. at 600, 364 P.3d at 301.

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

Meetings.

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

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

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

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

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

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

Fourth, in Leavitt v. Craven, 154 Idaho 661, 302 P.3d 1 (2012), the Idaho Supreme Court held that the Commission on Pardons and Paroles did not violated the Open Meeting Act when it met in executive session to consider a death row inmate’s commutation petition.

And, finally, in Arnold v. City of Stanley, 158 Idaho 218, 345 P.3d 1008 (2015), the Idaho Supreme Court held that citizens who had not been “affected by a violation of the provisions of [the] act” pursuant to Idaho Code § 67-2347(6) [new provision I.C. § 74-208(6)] did not have standing to challenge an alleged violation of the open meeting act.

In 2008, the Idaho Attorney General issued an opinion on the application of the executive session exceptions set forth I.C. § 67-2345 [new provision I.C. § 74-206] indicating that such exceptions “should be interpreted narrowly in order to fulfill the broad public purpose of allowing citizens to observe their governments at work.”  2008 Idaho Op. Atty. Gen 42, Idaho Op. Atty. Gen. No. 08-3, 2008 WL 4360202 (Idaho).  The opinion continues: “Violation of the OMA should be avoided whenever possible.  If an entity is in doubt as to the propriety of an executive session, the doubt should be resolved in favor of openness.  If a violation occurs, the entity should acknowledge the violation as soon as possible and take the appropriate steps to correct the violation, even if that means holding the entire meeting de novo and as if the prior improper meeting never occurred.”  Id. at *5.

As indicated above, the Open Meetings Act went through a significant legislative recodification in 2015, when the Idaho legislature moved the act to include it within a larger act relating to government transparency, Title 74, Idaho Code.  Chapter 2 of this new act contains the Open Meetings Law (Idaho Code §§ 74-201 through 208) and, for the most part, mimics the previous act’s language, including exemptions (which are discussed infra).

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Open Records

Idaho’s Public Records Act (Idaho Code §§ 74-101 through 126) can now be found within the larger Transparent and Ethical Government Act, Title 74, Idaho Code.

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I. Statute

A. Who can request records?

1. Status of requester

Any person can make a request for access to public records. Idaho Code § 74-102(1). A “person” is broadly defined to mean “any natural person, corporation, partnership, firm, association, joint venture, state or local agency or any other recognized legal entity.” Idaho Code § 74-101(9). There is no distinction made between citizens of the State of Idaho and others, nor is there any distinction noted between citizens of the U.S. and other countries. Any person who makes a request for access to a public record is permitted to examine and copy such record. Idaho Code § 74-102(1). The custodian of the records may require written requests and that the requester provide their name, a mailing address, e-mail address and telephone number. Idaho Code § 74-102(4). In practice, larger local and state agencies routinely require written requests on forms provided by the agency.

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2. Purpose of request

A person need not state a purpose for a request for public records. Furthermore, the statute prohibits public agencies from inquiring as to why a person wants to a public record, “except: (a) [t]o verify the identity of the requester . . . (b) [t]o ensure that the requested record or information will not be used for purposes of a mailing or telephone list prohibited by section 74-120, Idaho Code, or as otherwise provided by law; or (c) [a]s required for purposes of protecting personal information from disclosure under chapter 2, title 49, Idaho Code, and federal law.” Idaho Code § 74-102(5)(a)-(c).

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3. Use of records

The Idaho Public Records Act generally prohibits sale or distribution of any list of persons contained in public records for use as a mailing or telephone number list unless permission is obtained from those on the list. Idaho Code § 74-120(1). Accordingly, some agencies will require the requester to state that the records are not being sought for such a purpose. This prohibition does not prevent an individual from compiling a mailing or telephone number list by examining public which are otherwise open to public inspection. Idaho Code § 74-120(2). In addition, certain types of public records are categorically exempt from the general prohibition, such as records compiled by agencies which issue professional licenses and public records dealing with motor vehicle registration. See Idaho Code § 74-120(3)-(9).

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B. Whose records are and are not subject to the act

“Public record” is broadly defined as “any writing containing information relating to the conduct or administration of the public’s business” and includes all such writings “prepared, owned, used or retained by any state agency, independent public body corporate and politic or local agency regardless of physical form or characteristics.” Idaho Code § 74-101(13). Furthermore, the statutory definition of “public record” is expressly “not limited to” that broad language. Id. Thus, other records may qualify even if they fall outside of that definition. A “state agency” includes “every state officer, department, division, bureau, commission and board or any committee of a state agency including those in the legislative or judicial branch, except the state militia and the Idaho state historical society library and archives.” Idaho Code § 74-101(15). A “local agency” includes “a county, city, school district, municipal corporation, district, public health district, political subdivision, or any agency thereof, or any committee of a local agency, or any combination thereof.” Idaho Code § 74-101(8).

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1. Executive branch

The definition of “state agency” includes the executive branch, with the exception of the state militia and the Idaho state historical society library and archives. Idaho Code § 74-101(15). In addition, the act defines “public official” as “any state, county, local district, independent public body corporate and politic or governmental official or employee, whether elected, appointed or hired.” Idaho Code § 74-101(12).

As all officers of the executive branch are included in the definition of state agency and public official, all records maintained by public officers in the executive branch in connection with their official functions are potentially accessible to the public. See, e.g. Cowles Publishing Co. v. Kootenai County Board of County Comm'rs, 144 Idaho 259, 159 P.3d 896 (2007).

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2. Legislative bodies

The definition of “state agency” in the Public Records Act also includes all legislative bodies. Idaho Code § 74-101(15). The records maintained by officers of all legislative bodies, except as expressly provided otherwise by law, are open to the public.

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3. Courts

The judiciary is included within the Idaho Public Records Act. The statute specifically covers “every state officer, department, division, bureau, commission and board or any committee of a state agency including those in the…judicial branch.” Idaho Code § 74-101(15). However, certain records contained in court files of judicial proceedings may be exempt from disclosure. Idaho Code § 74-104. The Act delegates to the Idaho Supreme Court the task of specifying by rule those judicial proceeding records that are exempt from public inspection (except where such information is necessary for a background check on an individual that is required by federal law regulating the sale of firearms, guns or ammunition). Idaho Code § 74-104(2). See Rule 32 of the Idaho Court Administrative Rules (ICAR) for specific exemptions identified by the judicial branch.

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4. Nongovernmental bodies

The Idaho Supreme Court has upheld public records requests under the Act when the record in question was not in the custody of a public entity. Idaho Conservation League, Inc. v. Idaho State Dept. of Agric., 143 Idaho 366, 146 P.3d 632, (2006); Ward v. Portneuf Medical Center, Inc., 150 Idaho 501, 248 P.3d 1236 (2011). In Idaho Conservation League, the Department of Agriculture argued that it was not required to provide the records at issue because the requested documents were returned to feedlot operators after being created. 143 Idaho at 368. Rather than focusing on the definition of public record – which includes any writings prepared or used by a state agency – the court relied on the fact that “[a] state agency is expressly prohibited from preventing examination of a public record ‘by contracting with a nongovernmental body to perform any of its duties or functions.’ ” Id. at 369 (citing Idaho Code § 9–338(9) [now Idaho Code § 74–102(13)]). In Ward, the Idaho Supreme Court held that an agency’s sale of a medical center to a private entity did not affect the obligation to provide public records that were subject to disclosure under the Act at the time of the plaintiff’s request. 150 Idaho at 505-07. The court concluded “so long as a document qualifies as a public record at the time of a request and is not subject to any exemptions, its subsequent transfer to a nongovernmental entity does not affect its status as a public record.” Id. at 507.

In addition, to the extent that any nongovernmental bodies meet the broad definition of either a "state agency" or “local agency,” their records would be considered “public records” under the act.

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5. Multi-state or regional bodies

There have been no reported decisions on the applicability of the Idaho Public Records Act to such bodies. To the extent that such bodies meet the broad definition of either a “state agency” or “local agency,” their records would be considered “public records” under the act.

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6. Advisory boards and commissions, quasi-governmental entities

There have been no reported decisions on the applicability of the Idaho Public Records Act to such bodies. To the extent that such bodies meet the broad definition of either a “state agency” or “local agency,” their records would be considered “public records” under the act.

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7. Others

C. What records are and are not subject to the act?

1. What kinds of records are covered?

Public records include but are not limited to “any writing containing information relating to the conduct or administration of the public's business prepared, owned, used or retained by any state agency, independent public body corporate and politic or local agency regardless of physical form or characteristics.” Idaho Code § 74-101(13). A “writing” is defined to include but not be limited to “handwriting, typewriting, printing, photostating, photographing and every means of recording, including letters, words, pictures, sounds or symbols or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums or other documents.” Idaho Code § 74-101(16).

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2. What physical form of records are covered

There is no limitation on the physical form of records covered by the Act. The statutory definition of public record includes “any writing…regardless of physical form or characteristics.” Idaho Code § 74-101(13).

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3. Are certain records available for inspection but not copying?

No, the Act provides that a person can inspect and take a copy of any non-exempt public record. Idaho Code § 74-102(1). Both “inspect” and “copy” are defined terms in the statute. Idaho Code § 74-101(2); (5). A person can copy a record by handwriting, photocopying, duplicating machine or reproducing by any other means so long as the record is not altered or damaged. Idaho Code § 74-101(2). “Inspect” is defined as “the right to listen, view and make notes of public records as long as the public record is not altered or damaged.” Idaho Code § 74-101(5).

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4. Telephone call logs

Although not specifically called out in the act, the public records act broadly defines “public record” such that telephone call logs created and maintained by state or local agencies should fall within its definition.

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5. Electronic records

Idaho Code § 74-102(15) provides that “[n]othing contained herein shall prevent a public agency or independent body corporate and politic from providing a copy of a public record in electronic form if the record is available in electronic form and if the person specifically requests an electronic copy.”

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a. Can the requester choose a format for receiving records?

In addition to the variety of ways that requesters may select to create copies of records under Idaho Code § 74-101(2), a person may specifically request an electronic copy of any public record that is available in electronic form. Idaho Code § 74-102(15).

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b. Can the requester obtain a customized search of computer databases to fit particular needs

There is no provision in the Act or relevant case law relating to custom searches.

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c. Does the existence of information in electronic format affect its openness?

Idaho Code § 74-101(16) defines writing to include “every means of recording, including letters, words, pictures, sounds or symbols or combination thereof, and all…magnetic or punched cards, discs, drums, or other documents.” In Cowles Publishing Co. v. Kootenai Co. Bd. of County Commissioners, 144 Idaho 259, 159 P.3d 896 (2007), the Idaho Supreme Court held that a series of e-mail messages between a county prosecutor and a public employee were public records within Idaho Code § 9-337(13) [now Idaho Code § 74-101(13)].

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d. Online dissemination

There is no provision in the Act or relevant case law relating to online dissemination.

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6. How is email treated?

There is no provision in the Act treating e-mails differently from other public records.  The Idaho Supreme Court in Cowles, supra, held that e-mail messages would be considered public records within the meaning of the Act when: (1) the e-mail message contains information relating to the conduct or administration of the public’s business, and (2) was prepared, owned, used or retained by a governmental agency.  Id., 144 Idaho at 263.

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7. How are text messages and instant messages treated?

The application of the Act with respect to text messages and instant messages has not been addressed by the courts or the Idaho Legislature. According to the Idaho Attorney General, text messages “are considered public records and are subject to the same laws as any other public record.” Idaho Public Records Law Manual, July 2017. (See https://ag.idaho.gov/office-resources/public-records/.)

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8. How are social media postings treated?

There is no provision in the Act or relevant case law relating to social media postings and messages.

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9. Computer software

Idaho Code § 74-107(15) exempts computer programs developed or purchased by or for any public agency for its own use from disclosure under the Act.  The definition of a “computer program” does not include: “(a) The original data including, but not limited to, numbers, text, voice, graphics and images; (b) Analysis, compilation and other manipulated forms of the original data produced by use of the program; or (c) The mathematical or statistical formulas that would be used if the manipulated forms of the original data were to be produced manually.” Id.

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D. Fee provisions or practices

In most instances, the labor and administrative expense of allowing examination and copying of records is considered part of the public business already funded by taxpayers.

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1. Levels or limitations on fees

Idaho Code § 74-102(10)(b) dictates that any fees charged for copying a public record cannot exceed “the actual labor and copying costs associated with locating and copying documents.” The public agency may establish fees to cover these costs if “(i) The request is for more than 100 pages of paper records; or (ii) The request includes records from which nonpublic information must be deleted; or (iii) The actual labor associated with responding to requests for public records…exceeds two (2) person hours.” Idaho Code § 74-102(10)(b)(i)-(iii).

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2. Particular fee specifications or provisions

The public agency may establish fees to cover costs associated with locating and copying records, provided that such fees “shall not exceed reasonable labor costs necessarily incurred in responding to a public records request.” Idaho Code § 74-102(10)(e). Fees for labor costs shall be charged at the per hour pay rate of the lowest paid administrative staff employee or public official of the public entity who is necessary and qualified to process the request. Id. If a request requires redactions to be made by an attorney who is employed by the public entity, the rate charged shall be no more than the per hour rate of the lowest paid attorney within the within the entity who is necessary and qualified to process the public records request. Id. If a request is submitted to a public entity that does not have an attorney on staff, and the requested records require redactions by an attorney, the rate shall be no more than the usual and customary rate of the attorney who is retained by the public entity for that purpose. Id.

The Act provides that any fees charged for copying a public record cannot exceed “the actual cost to the agency of copying the record if another fee is not otherwise provided by law.” Idaho Code § 74-102(10)(c). The public agency or independent public official may charge a fee for providing a duplicate of a computer tape, computer disk, microfilm or similar record system containing public record information. Idaho Code §74-102(10)(d). This fee must be uniform to all persons and cannot exceed the sum of the following: the agency's direct cost of copying the information in that form, the standard cost for selling the same information in the form of a publication, and the agency’s cost of conversion, or the cost of conversion charged by a third party, if the existing electronic record is converted to another electronic form. Idaho Code § 74-102(10)(d)(i)-(iii).

Statements of fees by the public entity responding to the request shall be itemized to show the per page costs for copies, and hourly rates of employees and attorneys involved in responding to the request, and the actual time spent on the public records request. Idaho Code § 74-102(10)(g). No lump sum costs shall be assigned to any public records request. Id.

A requester may not file multiple requests for public records solely to avoid payment of fees. Idaho Code § 74-102(11). When a public entity reasonably believes that one or more requesters is segmenting a request into a series of requests to avoid payment of authorized fees, the entity may aggregate such requests and charge the appropriate fees.

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3. Provisions for fee waivers

The Act provides that a public agency “shall not charge any cost or fee for copies or labor” when the requester has demonstrated that the request “(i) Is likely to contribute significantly to the public's understanding of the operations or activities of the government; (ii) Is not primarily in the individual interest of the requester including, but not limited to, the requester's interest in litigation in which the requester is or may become a party; and (iii) Will not occur if fees are charged because the requester has insufficient financial resources to pay such fees.” Idaho Code § 74-102(10)(f)(i)-(iii).

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4. Requirements or prohibitions regarding advance payment

The custodian of the requested public records may require advance payment of authorized fees.  Idaho Code § 74-102(12). Any portion of an advance payment in excess of the actual costs of labor and copying incurred by the agency in responding to the request shall be returned to the requester. Id.

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5. Have agencies imposed prohibitive fees to discourage requesters?

The public agency is prohibited from imposing fees above the actual cost to the agency of copying the record “if another fee is not otherwise provided by law.” Idaho Code § 74-102(10)(c). Additionally, the public agency is prohibited from imposing a fee for copying computer records above the agency’s direct cost and the standard cost for selling the information in the form of a publication. Idaho Code § 74-102(10)(d) However, as set forth above, agencies may establish fees to cover the actual labor costs under certain circumstances.

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6. How are fees for electronic records determined?

Fees for electronic records are assessed under the provisions of Idaho Code § 74-102(d)(i)-(iii).

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E. Who enforces the act?

The act provides that the "sole remedy for a person aggrieved by the denial of a request for disclosure is to institute proceedings in the district court of the county where the records or some part thereof are located.” Idaho Code § 74-115(1). Thus, the act is enforced through private enforcement.

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1. Attorney General's role

Given that the act only provides for private enforcement, the attorney general’s role is limited to providing information to the public, not enforcement. To that end, the attorney general’s office publishes an “Idaho Public Records Law Manual” to inform the public of their rights under the act. Copies of the manual are available from the Office of the Attorney General in Boise or online at https://ag.idaho.gov/office-resources/public-records/. The attorney general also encourages compliance by state agencies and officials and conducts training on the act throughout the state for such individuals and entities.

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2. Availability of an ombudsman

The Act does not provide for an ombudsman or similar role to assist in the enforcement of it provisions.  However, in 2014, the Governor signed Executive Order 2014-04 creating the position of Public Records Ombudsman with jurisdiction over executive branch agencies, committees, boards and commissions.  It specifically did not include jurisdiction over state and local agencies, which would require legislative action.  The move was seen as a step towards streamlining the often costly and expensive process involved in gaining access to public records.  Today, the ombudsman’s office is available to answer questions and informally mediate disputes about public records sought from the executive branch.

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3. Commission or agency enforcement

Not available.

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F. Are there sanctions for noncompliance?

Idaho Code § 74-116(2) provides that, in any action to enforce the provisions of the Act, a “court shall award reasonable costs and attorney fees to the prevailing party or parties, if it finds that the request or refusal to provide records was frivolously pursued.” In addition, the Act provides that a court may assess a civil penalty of up to $1,000 against any public official who it finds “has deliberately and in bad faith improperly refused a legitimate request for inspection or copying.” Idaho Code § 74-117.

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G. Record-holder obligations

1. Processing records requests

The public agency may, but is not obligated to, provide the requester information to help the requester narrow the scope of the request or to help the requester make the request more specific when the response to the request is likely to be voluminous or require payment of authorized labor or copying fees. Idaho Code § 74-102(9).

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2. Proactive disclosure requirements

Many state and local agencies provide access to their public records on their websites, although this is not required under the Act.

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3. Records retention requirements

The records retention schedule for Idaho government agencies can be viewed at https://history.idaho.gov/records-center/idaho-records-center-retention-schedules/.  In addition, the Act requires retention of all disputed records – i.e. records involved in a request for disclosure that was denied – until the end of the appeal period, until a decision has been rendered on the appeal, or as otherwise statutorily provided, whichever is longer. Idaho Code § 74-115(1)-(2).

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All public records are subject to inspection and copying unless otherwise expressly provided by statute. Idaho Code § 74-102(1). Idaho has listed actual types of records exempt from public disclosure. Idaho Code §§ 74-104 to 74-111. Generally these exemptions are mandatory; however, there are a few which are discretionary or can be waived.

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A. Exemptions in the open records statute

1. Character of exemptions

When considering whether a public record is exempt from disclosure, Idaho courts begin with the presumption that all public records are open to disclosure and that all exemptions are to be narrowly construed. Ward v. Portneuf  Medical Center, Inc., supra, n. 4. See also Idaho Code § 74-102(1).  Therefore, “the agency bears the burden of persuasion and must ‘show cause,’ or prove, that the documents fit within one of the narrowly-construed exemptions.” Hymas v. Meridian Police Dept., 156 Idaho 739, 745, 330 P.3d 1097, 1103 (Ct. App. 2014) (citation omitted).

Importantly, the public records act was crafted to encourage the release of a public record even in those cases in which it may be a close call as to whether the public record is exempt from public disclosure. If the record is released “in good faith in attempting to comply” with the public records act, then the public agency, public official or custodian involved is immune from any claim for loss or damage based upon the release of the record. Idaho Code § 74-118. In practice, however, despite this protection some agencies remain concerned about possible liability for release of their records and make decisions to deny disclosure that appear to be influenced by such a concern.

Only Idaho’s police investigatory record statute, Idaho Code § 74-124, patterned after Exemption 7 of the federal Freedom of Information Act, is specifically based upon a federal statute.

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2. Discussion of each exemption

These are the specific exemptions as detailed in Idaho Code §§ 74-104 through 74-111 and 74-124.

"(1) Investigatory records compiled for law enforcement purposes by a law enforcement agency.
However, this exemption from disclosure applies only to the extent that the production of such records would:

(a) Interfere with enforcement proceedings;

(b) Deprive a person of a right to a fair trial or an impartial adjudication;

(c) Constitute an unwarranted invasion of personal privacy;

(d) Disclose the identity of a confidential source or confidential information furnished only by a confidential source;

(e) Disclose investigative techniques and procedures; or

(f) Endanger the life or physical safety of law enforcement personnel.

In addition, the exemption does not apply to reports prepared by a law enforcement agency in connection with a motor vehicle collision if the report is being requested by any person involved in the collision, their legal representative, or insurer."

Idaho Code § 74-124(1)-(2).

A recent Idaho Court of Appeals decision interpreting this language held that there is no categorical exemption for all records related to ongoing police investigations. Hymas v. Meridian Police Dept., 156 Idaho 739, 330 P.3d 1097 (Ct. App. 2014). The court concluded that the ongoing nature of an investigation into a death from apparent carbon monoxide poisoning was not a sufficient basis for police department to categorically deny the plaintiff’s public records request in its entirety and not provide any documents until the investigation was complete. 156 Idaho at 746. Thus, the law enforcement agency had a duty to examine the documents subject to the request and separate the exempt and nonexempt material and make the nonexempt material available to the requestor, regardless of whether the investigation was active or inactive. Id.

(2) Any public record exempt from disclosure by federal or state law or federal regulations to the extent specifically provided for by such law or regulation. Idaho Code § 74-104(1).

(3) Records contained in Court files of judicial proceedings, the disclosure of which is prohibited by or under rules adopted by the Idaho Supreme Court, but only to the extent that confidentiality is provided under such rules, and any drafts or any working memoranda related to judicial decision making. However, this exemption does not apply to the extent that such records or information are necessary for a background check required by federal law regulating the sale of firearms, guns, or ammunition. Idaho Code § 74-104(2).

(4) Investigatory records of law enforcement agency as defined in Idaho Code § 74-101(7) under the conditions set forth in Idaho Code § 74-124. Idaho Code § 74-105(1).

(5) Juvenile records, except that facts contained in such records shall be furnished upon request in a manner determined by the Court to persons in governmental and private agencies and institutions conducting pertinent research studies having a legitimate interest in protection, welfare and treatment of the juvenile who is 13 years of age or younger. If the juvenile is charged with the offense which would be a criminal offense if committed by an adult, the name, offense of which the juvenile is petitioned or charged and the disposition of the Court shall be subject to disclosure as provided in Idaho Code § 20-525. Additionally, any facts requested by a school district where the juvenile is enrolled or seeking enrollment shall be furnished. Idaho Code § 74-105(2).

(6) Records of the custody review board of the Idaho department of juvenile corrections, including records containing the names, addresses and written statements of victims and family members of juveniles. Idaho Code § 74-105(3).

(7) Any records of the department of corrections which the public interest in confidentiality, public safety, security and habilitation clearly outweighs the public interest in disclosure (74-105(4)(a)(i)), records that contain any identifying information, or any information that would lead to the identification of any victims or witnesses (74-105(4)(a)(ii)), records that reflect future transportation or movement of a prisoner (74-105(4)(a)(iii)), records gathered during the course of the presentence investigation (74-105(4)(a)(iv)), and records of a prisoner or probationer shall not be disclosed to any other prisoner or probationer, and are exempt from disclosure. Idaho Code § 74-105(a)(v). Records of buildings, facilities, infrastructure and systems held by or in the custody of any public agency are exempt if the disclosure of such information would jeopardize the safety or persons or the public safety. Idaho Code § 74-105(4)(b). Records of commissions or pardons and parole, along with names, addresses and written statements of victims are exempt from disclosure. Idaho Code 74-105(4)(c).

(8) Voting records of the sexual offender classification board. The written record of the vote to classify an offender as a violent sexual predator by each board member and each case reviewed by that board member shall be made available upon request only to the Governor, chairman of the Senate Judiciary and Rules Committee, and the chairman of the House of Representatives Judiciary, Rules and Administration Committee, for all lawful purpose. Idaho Code § 74-105(5).

(9) Records of the sheriff or Idaho state police received or maintained pursuant to section 18-3302H and 18-3302K, Idaho Code, relating to an applicant or licensee except that any law enforcement officer and law enforcement agency, whether inside or outside the state of Idaho, may access information maintained in the license record system as set forth in section 18-3302K(16), Idaho Code. Idaho Code § 74-105(6).

(10) Records of investigations prepared by the department of health and welfare dealing with protection of children, rehabilitation of youth, adoptions and commitment of mentally ill persons. However, for reasons of health and safety, best interests of the child or public interest, the department of health and welfare may provide for the disclosure of records of investigations associated with actions pursuant to the provisions of chapter 16, title 16, Idaho Code, prepared by the department of health and welfare pursuant to its statutory responsibilities dealing with the protection of children except any such records regarding adoptions shall remain exempt from disclosure. Idaho Code § 74-105(7).

(11) Records including, but not limited to, investigative reports resulting from investigations into complaints of discrimination conducted by the Idaho human rights commission, unless the public interest in allowing the inspection and copying of such records outweighs the legitimate public or private interests in maintaining confidentiality of such records. However, a person may inspect and copy documents from an investigative file to which he or she is a named party if such documents are not otherwise prohibited from disclosure by federal law or regulation or state law. In addition, the confidentiality of this exemption no longer applies 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. Idaho Code § 74-105(8).

(12) Records containing information obtained by the manager of the Idaho State Insurance Fund pursuant to chapter 9, title 72, Idaho Code, from or on behalf of employers or employees contained in underwriting in claims for benefit files. Idaho Code § 74-105(9).

(13) Worker's compensation records of the Idaho industrial commission provided that the industrial commission shall make such records available:

(a) To parties in any worker's compensation claim and to the Industrial Special Indemnity Fund of Idaho; or

(b) To employers or prospective employers subject to the provisions of the Americans with disabilities act, 42 U.S.C. 12112, or other statutory limitations, who certify that the information is being requested with respect to a worker to whom the employer has extended an offer of employment and will be used in accordance with the provisions of the Americans with disabilities act, 42 U.S.C. 12112, or other statutory limitations; or

(c) To employers and prospective employers not subject to provisions of the Americans with Disabilities Act, 42 U.S.C. 12111, or other statutory limitations, provided the employer presents written authorization from the person to whom the records pertain; or

(d) To others who demonstrate that the public interest in allowing inspection and copying of such records outweighs the public or private interest in maintaining the confidentiality of such records, determined by a civil court of competent jurisdiction; or

(e) Although a claimant’s records maintained by the industrial commission, including medical and rehabilitation records, are otherwise exempt, the quoting or discussing of medical or rehabilitation records contained within the industrial commission’s records during a hearing for compensation or in a written decision issued by the industrial commission shall be permitted except that that true identities of the parties shall be exempt.

Idaho Code § 74-105(10)(a)-(e).

(14) Records of investigations compiled by the commission on aging involving vulnerable adults, as defined in section 18-1505, Idaho Code, alleged to be abused neglected or exploited. Idaho Code § 74-105(11).

(15) Criminal history records and fingerprints, as defined by section 67-3001, Idaho Code, compiled by the Idaho State Police. Such records shall be released only in accordance with chapter 30, title 67, Idaho Code. Idaho Code § 74-105(12).

(16) Records furnished or obtained pursuant section 41-1019, Idaho Code, regarding termination of an appointment, employment, contract or other insurance business relationship between an insurer and a producer. Idaho Code § 74-105(13).

(17) Records of a prisoner or former prisoner in the custody of any state or local correctional facility, when the request is made by another prisoner in the custody of any state or local correctional facility. Idaho Code § 74-105(14). [Note: this exemption appears to duplicate, in large part, the exemption found in Idaho Code § 74-105(4)(a)(v).]

(18) Except as provided in section 72-1007, Idaho Code, records of the Idaho industrial commission relating to compensation for crime victims under chapter 10, title 72, Idaho Code. Idaho Code § 74-105(15).

(19) Records or information identifying a complainant maintained by the department of health and welfare pursuant to section 39-3556, Idaho Code, relating to certified family homes, unless the complainant consents in writing to the disclosure or disclosure of the complainant’s identity is required in any administrative or judicial proceeding. Idaho Code § 74-105(16).

(20) Records of any certification or notification required by federal law to be made in connection with the acquisition or transfer of a firearm, including a firearm as defined in 26 U.S.C. 5845(a). Idaho Code § 74-105(17).

(21) Records related to the administration of the extraordinary litigation fund by the state public defense commission, pursuant to section 19-850(2)(e), Idaho Code, to the extent that such records contain information protected by, or exempted from disclosure by, or under rules adopted by the Idaho supreme court, attorney work product or as attorney-client privileged communication. This exemption does not include the amount awarded based upon an application for extraordinary litigation funds. Idaho Code § 74-105(18).

(22) All personnel records of a current or former public official other than the public official's public service or employment history, classification, pay grade and step, longevity, gross salary and salary history, status, workplace and employing agency. All other personnel information relating to a public employee or applicant including, but not limited to, information regarding sex, race, marital status, birth date,’ home address and telephone number, applications, testing and scoring materials, grievances, correspondence and performance evaluations, shall not be disclosed to the public without the employee's or applicant's written consent. Names of applicants to classified or merit system positions shall not be disclosed to the public without the applicant's written consent. Disclosure of names as part of a background check is permitted. Names of the five (5) final applicants to all other positions shall be available to the public. If such group is less than five (5) finalists, then the entire list of applicants shall be available to the public. However, a public official or authorized representative may inspect and copy his or her personnel records, except for material used to screen and test for employment. Idaho Code § 74-106(1).

(23) Retired employees and retired public officials’ home addresses, home telephone numbers and other financial and non-financial membership records; active and inactive member, financial and membership records and mortgage portfolio loan documents maintained by the public employee retirement system. Financial statements prepared by the retirement system staff, funding agents and custodians concerning the investment of assets that public employees retirement system of Idaho are not considered confidential under this chapter. Idaho Code § 74-106(2).

(24) Information and records submitted to the Idaho state lottery for the performance of background investigations of employees, lottery retailers and major procurement contractors; validation and security tests of the state lottery for lottery games; business records and information submitted pursuant to section 67-7412(8) and (9), Idaho Code, and such documents and information obtained and held for the purpose of lottery security and investigative action as determined by lottery rules unless the public interest in disclosure substantially outweighs the private need for protection from public disclosure. Idaho Code § 74-106(3).

(25) Records of a personal debt filed with a public agency or independent public body pursuant to law; personal bank records compiled by a public depositor for the purpose of public funds transactions conducted pursuant to law; records of ownership or financial obligations and instruments of a public agency or independent public body, such as bonds, compiled by public agency or independent public body pursuant to law; records, with regard to ownership of, and for security interest in, registered public obligations; vital statistic records; and military records as described in and pursuant to section 65-301, Idaho Code. Idaho Code § 74-106(4)(a)-(f).

(26) Information in an income or other tax return measured by items of income or sales, which is gathered by a public agency for the purpose of administering the tax, except such information to the extent disclosed in a written decision of the tax commission pursuant to a taxpayer protest of a deficiency determination by the tax commission under the provisions of section 63-3045B, Idaho Code. Idaho Code § 74-106(5).

(27) Records of a personal nature related directly or indirectly to the application for and provision of state statutory services rendered to persons applying for public care for the elderly, indigent, or mentally or physically handicapped, or participation in an environmental or a public health study. However, this exemption shall not apply to the extent that such records or information are necessary for a background check required by federal law regulating the sale of firearms, guns or ammunition. Idaho Code § 74-106(6).

(28) Employment security information, except that a person may agree, through written, informed consent, to waive the exemption so that a third party may obtain information pertaining to the person, unless access to the information by the person is restricted by subsection (3)(a), (3)(b) or (3)(d) of section 74-113, Idaho Code. Notwithstanding the provisions of section 74-113, Idaho Code, a person may not review identifying information concerning an informant who reported to the department of labor a suspected violation by the person of the employment security law, chapter 13, title 72, Idaho Code, under an assurance of confidentiality. As used in this section and in chapter 13, title 72, Idaho Code, “employment security information” means any information descriptive of an identifiable person or persons that is received by, recorded by, prepared by, furnished to or collected by the department of labor or the industrial commission in the administration of the employment security law. Idaho Code § 74-106(7).

(29) Any personal records, other than names, business addresses and business phone numbers, such as parentage, race, religion, sex, height, weight, tax identification and Social Security numbers, financial worth or medical conditions submitted to any public agency or independent public body, pursuant to a statutory requirement for licensing, certification, permit or bonding. Idaho Code § 74-106(8).

(30) Unless otherwise provided by agency rule, information obtained as part of an inquiry into a person’s fitness to be granted or retain a license, certificate, permit, privilege, or commission or position, private association or peer review committee records authorized in title 54, Idaho Code, unless provided by agency rule. Any agency which has records exempt from disclosure under the provisions of this subsection shall annually make available a statistical summary of the number and types of matters considered and their disposition. Idaho Code § 74-106(9).

(31) The records, findings, determinations and decisions of any pre-litigation screening panel formed under chapter 10 and 23, title 6, Idaho Code. Idaho Code § 74-106(10).

(32) Complaints received by the Board of Medicine and investigations and informal proceedings, including informal proceedings of any committee of the Board of Medicine, pursuant to chapter 18, title 54, Idaho Code, and rules adopted thereunder. Idaho Code § 74-106(11).

(33) Records of the department of health and welfare or public health district that identify a person infected with a reportable disease. Idaho Code § 74-106(12).

(34) Records of hospital care, medical records, including prescriptions, drug orders, records or any other prescription information that specifically identifies an individual patient, prescription records maintained by the board of pharmacy under sections 37-2726 and 37-2730A, Idaho Code, or records of psychiatric care or treatment and professional counseling records relating to an individual condition, diagnosis, care or treatment, provided the provisions of this subsection making records exempt from disclosure shall not apply to the extent that such records or information contained in those records are necessary for a background check on an individual that is required by federal law regulating the sale of firearms, guns or ammunition. Idaho Code § 74-106(13).

(35) Information collected pursuant to the directory of new hires act, chapter 16, title 72, Idaho Code. Idaho Code § 74-106(14).

(36) Personal information contained in motor vehicle and driver records that is exempt from disclosure under the provisions of chapter 2, title 49, Idaho Code. Idaho Code § 74-106(15).

(37) Records of the financial status of prisoners pursuant to section 20-607(2), Idaho Code. Idaho Code § 74-106(16).

(38) Records of Idaho state police or department of correction received or maintained pursuant to section 19-5514, Idaho Code, relating to DNA databases and databanks. Idaho Code § 74-106(17).

(39) Records of the department of health and welfare relating to a survey, resurvey or complaint investigation of a licensed nursing facility shall be exempt from disclosure. Such records shall, however, be subject to disclosure as public records as soon as the facility in question has received the report, and no later than the fourteenth day following the date that the department of health and welfare representatives officially exit the facility pursuant to federal regulations. Provided, however, that for purposes of confidentiality, no records shall be released under this section which specifically identifies any nursing facility resident. Idaho Code § 74-106(18).

(40) Records and information contained in the registry of immunizations against childhood diseases maintained in the department of health and welfare, including information disseminated to others from the registry by the department of health and welfare. Idaho Code § 74-106(19).

(41) Records of the Idaho Housing and Finance Association ("IHFA") relating to the following:

(a) Records containing personal, financial, family, health or similar personal information submitted to or otherwise obtained by the IHFA;

(b) Records submitted to or otherwise obtained by the IHFA with regard to obtaining and servicing mortgage loans and all records related to the review, approval or rejection by the IHFA of said loans;

(c) Mortgage portfolio loan documents;

(d) Records of a current or former employee other than the employee’s duration of employment with an association, position held and location of employment. This exemption from disclosure does not include the contracts of employment or any remuneration, including reimbursement of expenses, of the executive director, executive officers or commissioners of the association. All other personnel information relating to an association employee or applicant including, but not limited to, information regarding sex, race, marital status, birth date, home address and telephone number, applications, testing and scoring materials, grievances, correspondence, retirement plan information and performance evaluations, shall not be disclosed to the public without the employee’s or applicant’s written consent. An employee or authorized representative may inspect and copy that employee's personnel records, except for material used to screen and test for employment or material not subject to disclosure elsewhere in the Idaho public records act.

Idaho Code § 74-106(20)(a)-(d).

(42) Records of the department of health and welfare related to child support services in cases in which there is reasonable evidence of domestic violence, as defined in chapter 63, title 39, Idaho Code, that can be used to locate any individuals in the child support case except in response to a court order. Idaho Code § 74-106(21).

(43) Records of the Idaho state bar lawyer assistance program pursuant to chapter 49, title 54, Idaho Code, unless a participant in the program authorizes the release pursuant to subsection (4) of section 54-4901, Idaho Code. Idaho Code § 74-106(22).

(44) Records and information contained in the trauma registry created by chapter 20, title 57, Idaho Code, together with any reports, analyses and compilations created from such information and records. Idaho Code § 74-106(23).

(45) Records contained in the court files, or other records prepared as part of the proceedings for judicial authorization of sterilization procedure pursuant to chapter 39, title 39, Idaho Code. Idaho Code § 74-106(24).

(46) The physical voter registration application on file in the county clerk’s office; however, a redacted copy of said application shall be made available consistent with the requirements of this section. Information from the voter registration application maintained in the statewide voter registration database, including age, will be made available except for the voter’s driver’s license number, date of birth and, upon a showing that the voter comes within the provisions of subsection 30 of this section [enumerated exception (51) of this article] or upon showing of good cause by the voter to the county clerk in consultation with the county prosecuting attorney, the physical residence address of the voter. For the purposes of this subsection good cause shall include the protection of life and property and protection of victims of domestic violence and similar crimes. Idaho Code § 74-106(25).

(47) File numbers, passwords and information in the files of the health care directive registry maintained by the secretary of state under section 39-4515, Idaho Code, are confidential and shall not be disclosed to any person other than to the person who executed the health care directive or the revocation thereof and that person's legal representatives, to the person who registered the health care directive or revocation thereof, and to physicians, hospitals, medical personnel, nursing homes, and other persons who have been granted file number and password access to the documents within that specific file. Idaho Code § 74-106(26).

(48) Records in an address confidentiality program participant’s file as provided for in chapter 57, title 19, Idaho Code, other than the address designated by the secretary of state, except under the following circumstances:

(a) If requested by a law enforcement agency, to the law enforcement agency; or

(b) If directed by a Court order, to a person identified in the order.
Idaho Code § 74-106(27).

(49) Except as otherwise provided by law relating to the release of information to a governmental entity or law enforcement agency, any personal information including, but not limited to, names, personal and business addresses and phone numbers, sex, height, weight, date of birth, social security and driver’s license numbers, or any other identifying numbers and/or information related to any Idaho fish and game licenses, permits and tags unless written consent is obtained from the affected person. Idaho Code § 74-106(28).

(50) Documents and records related to alternatives to discipline that are maintained by the Idaho board of veterinary medicine under the provisions of section 54-2118(1)(b), Idaho Code, provided the requirements set forth therein are met. Idaho Code § 74-106 (29).

(51) The Idaho residential street address and telephone number of an eligible law enforcement officer and such officer’s residing household member(s) as provided for in chapter 58, title 19, Idaho Code, except under the following circumstances:

(a) If directed by a court order, to a person identified in the court order;

(b) If requested by a law enforcement agency, to the law enforcement agency;

(c) If requested by a financial institution or title company for business purposes, to the requesting financial institution or title company; or

(d) If the law enforcement officer provides written permission for disclosure of such information.

Idaho Code § 74-106(30).

(52) All information exchanged between the Idaho transportation department and insurance companies, any database created, all information contained in the verification system and all reports, responses or other information generated for the purposes of the verification system, pursuant to section 49-1234, Idaho Code. Idaho Code § 74-106(31).

(53) Personal information including, but not limited to, property values, personal and business addresses, phone numbers, dates of birth, social security and driver’s license numbers or any other identifying numbers or information maintained by the administrator of the unclaimed property law set forth in chapter 5, title 14, Idaho Code. Nothing in this subsection shall prohibit the release of names, last know city of residence, property value ranges and general property information by the administrator for the purpose of reuniting unclaimed property with its owner. Idaho Code Ann. § 74-106(33).

(54) Trade secrets including those contained in response to public agency or independent public body corporate and politic requests for proposal, requests for clarification, requests for information and similar requests. “Trade secrets” as used in this section means information, including a formula, pattern, compilation, program, computer program, device, method, technique, process or unpublished or in-progress research that:

(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and

(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Idaho Code § 74-107(1).

(55) Production records, housing production, rental and financing records, sale or purchase records, catch records, mortgage portfolio loan documents, or similar business records of a private concern or enterprise required by law to be submitted to or inspected by a public agency or submitted to or otherwise obtained by an independent public body corporate and politic. Nothing in this subsection shall limit the use which can be made of such information for regulatory purposes or its admissibility in any enforcement proceeding. Idaho Code § 74-107(2).

(56) Records relating to the appraisal of real property, timber or mineral rights prior to its acquisition, sale, or lease by a public agency or independent public body corporate and politic. Idaho Code § 74-107(3).

(57) Any estimate prepared by a public agency or independent public body corporate and politic that details the cost of a public project until such time as disclosed or bids are opened, or upon award of the contract for construction of the public project. Idaho Code § 74-107(4).

(58) Examination, operating or condition reports and all documents relating thereto, prepared by or supplied to any public agency or independent public body corporate and politic responsible for the regulation or supervision of financial institutions including, but not limited to, banks, savings and loan associations, regulated lenders, business and industrial development corporations, credit unions, and insurance companies, or for the regulation or supervision of the issuance of securities. Idaho Code § 74-107(5).

(59) Records gathered by a local agency or the Idaho department of commerce, as described in chapter 47, title 67, Idaho Code, for the specific purpose of assisting a person to locate, maintain, invest in, or expand business operations in the state of Idaho. Idaho Code § 74-107(6).

(60) Shipping and marketing records of commodity commissions used to evaluate marketing and advertising strategies and the names and addresses of growers and shippers maintained by commodity commissions. Idaho Code § 74-107(7).

(61) Financial statements and business information and reports submitted by a legal entity to a port district organized under title 70, Idaho Code, in connection with a business agreement, or with a development proposal or with a financing application for any industrial, manufacturing, or other business activity within a port district. Idaho Code § 74-107(8).

(62) Names and addresses of seed companies, seed crop growers, seed crop consignees, locations of seed crop fields, variety name and acreage by variety. Upon the request of the owner of the proprietary variety, this information shall be released to the owner. Provided however, that if a seed crop has been identified as diseased or has been otherwise identified by the Idaho department of agriculture, other state departments of agriculture, or the United States department of agriculture to represent a threat to that particular seed or commercial crop industry or to individual growers, information as to test results, location, acreage involved and disease symptoms of that particular seed crop, for that growing season, shall be available for public inspection and copying. This exemption does not supersede the provisions of section 22-436, Idaho Code, nor shall this exemption apply to information regarding specific property locations subject to an open burning of crop residue pursuant to section 39-114, Idaho Code, names of persons responsible for the open burn, acreage and crop type to be burned, and time frames for burning. Idaho Code § 74-107(9).

(63) Information obtained from books, records and accounts required in chapter 47, title 22, Idaho Code, to be maintained by the Idaho oilseed commission and pertaining to the individual production records of oil seed growers. Idaho Code § 74-107(10).

(64) Records of any risk retention or self insurance programs prepared in anticipation of litigation or for analysis or settlement of potential or actual money damage claims against a public entity and its employees or against the industrial special indemnity fund except as otherwise discoverable under the Idaho or federal rules of civil procedure. 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 public records unless otherwise ordered to be sealed by a court of competent jurisdiction. Provided, however, nothing in this subsection is intended to limit the attorney client privilege or attorney work produce privilege otherwise available to public agency or independent public body corporate and politic. Idaho Code § 74-107(11).

(65) Records of laboratory test results provided by or retained by the Idaho food quality assurance laboratory. Nothing in this subsection shall limit the use which caan be made, or availability of such information if used, for regulatory purposes or its admissibility in any enforcement proceeding. Idaho Code § 74-107(12).

(66) Reports required to be filed under chapter 13, title 62, Idaho Code, identifying electrical or natural or manufactured gas consumption data for the individual customer or account. Idaho Code § 74-107(13).

(67) Voluntarily prepared environmental audits, and voluntary disclosures of information submitted on or before December 31, 1997, to an environmental agency which are claimed to be confidential business information. Idaho Code § 74-107(14).

(68) Computer programs developed or purchased by or for any public agency or independent public body corporate and politic for its own use. As used in this subsection, “computer program” means a series of instructions or statements which permit the functioning of a computer system in a manner designed to provide storage, retrieval and manipulation of data from the computer system, and any associated documentation and source material that explain how to operate the computer program. Computer program does not include:

(a) The original data including, but not limited to, numbers, text, voice, graphics and images;

(b) Analysis, compilation and other manipulated forms of the original data produced by use of the program; or

(c) The mathematical or statistical formulas that would be used if the manipulated forms of the original data were to be produced manually.
Idaho Code § 74-107(15).

(69) Active investigative records and trademark usage audits of the Idaho potato commission specifically related to the enforcement of chapter 12, title 22, Idaho Code, until the commencement of formal proceedings as provided by the rules of the commission; purchase and sales information submitted to the Idaho potato commission during a trademark usage audit, and investigation or enforcement proceedings. Inactive investigatory records shall be disclosed unless the disclosure would violate the standards set forth in subsection (1)(a) through (f) of section 74-124, Idaho Code. Nothing in this subsection shall limit the use which can be made, or availability of such information if used, for regulatory purposes or its admissibility in any enforcement proceeding. Idaho Code § 74-107(16).

(70) All records copied or obtained by the director of the department of agriculture of his designee as a result of an inspection pursuant to section 25-3806, Idaho Code, except:

(a) Records otherwise deemed to be public records not exempt from disclosure pursuant to this chapter; and

(b) Inspection reports, determinations of compliance or noncompliance and all other records created by the director of his designee pursuant to section 25-3806, Idaho Code.
Idaho Code § 74-107(17).

(71) All data and information collected by the division of animal industries or the state brand board pursuant to the provisions of section 25-207B, Idaho Codes, or rules promulgated thereunder. Idaho Code § 74-107(18).

(72) Records disclosed to a county official by the state tax commission pursuant to subsection (4)(c) of section 63-3029B, Idaho Code. Idaho Code § 74-107(19).

(73) Records, data, information and materials collected, developed, generated, ascertained or discovered during the course of academic research at public institutions of higher education if the disclosure of such could reasonably affect the conduct or outcome of the research, or the ability of the public institution of higher education to patent or copyright the research or protect intellectual property. Idaho Code § 74-107(20).

(74) Records, data, information and materials collected or utilized during the course of academic research at public institutions of higher education provided by any person or entity other than the public institution of higher education or a public agency. Idaho Code § 74-107(21).

(75) The exemptions from disclosure provided in subsections (20) and (21) of this section [referred to as exemptions 73 and 74 above] shall apply only until the academic research is publicly released, copyrighted or patented, or until the academic research is completed or terminated. At such time, the records, data, information, and materials shall be subject to public disclosure unless: (a) another exemption in this chapter applies; (b) such information was provided to the institution subject to a written agreement of confidentiality; or (c) public disclosure would pose a danger to persons or property. Idaho Code § 74-107(22).

(76) The exemptions from disclosure provided in subsections (20) and (21) of this section [referred to as exemptions 73 and 74 above] do not include basic information about a particular research project that is otherwise subject to public disclosure, such as the nature of the academic research, the name of the researcher, and the amount and source of the funding provided for the project. Idaho Code § 74-107(23).

(77) Records of a county assessor, the state tax commission, a county board of equalization or the state board of tax appeals containing the following information: (i) lists of personal property required to be filed pursuant to section 63-302, Idaho Code, and operating statements required to be filed pursuant to section 63-404, Idaho Code, and (ii) confidential commercial or financial information including trade secrets. Except with respect to lists of personal property required to be filed pursuant to section 63-302, Idaho Code, and the operator statements required to be filed pursuant to section 63-404, Idaho Code, it shall be the responsibility of the taxpayer to give notice of its claim to exemption by stamping or marking each page or the first page of each portion of documents so claimed. No records that are exempt pursuant to this subsection shall be disclosed without the consent of the taxpayer except as follows:

(a) To any officer, employee or authorized representative of the state or the United States, under a continuing claim of confidentiality, as necessary to carry out the provisions of state or federal law or when relevant to any proceeding thereunder.

(b) In the publication of statistics or reports as long as the statistics or reports do not reasonably lead to the identification of the specific taxpayer or information submitted by taxpayers exempt pursuant to this subsection.

(c) To the board of tax appeals or the district court as evidence or otherwise in connection with an appeal of the taxpayer's property tax assessment, but only if the board or the court, as applicable, has entered a protective order specifying that the taxpayer information may not be disclosed by any person conducting or participating in the action or proceeding, except as authorized by the board or the court in accordance with applicable law.

(d) Nothing in this subsection shall prevent disclosure of the following information:
(i) Name and mailing address of the property owner;

(ii) A parcel number;

(iii) A legal description of real property;

(iv) The square footage and acreage of real property;

(v) The assessed value of taxable property;

(vi) The tax district and the tax rate; and

(vii) The total property tax assessed.
Idaho Code § 74-107(24).

(78) Results of laboratory tests which have no known adverse impacts to human health conducted by the Idaho state department of agriculture animal health laboratory, related to diagnosis of animal diseases of individual animals or herds, on samples submitted by veterinarians or animal owners unless:

(a) The laboratory test results indicate the presence of a state or federally reportable or regulated disease in animals;

(b) The release of the test results is required by state or federal law; or

(c) The test result is identified as representing a threat to animal or human health or to the livestock industry by the Idaho state department of agriculture or the United States department of agriculture. Nothing in this subsection shall limit the use which can be made, or availability of such information if used, for regulatory purposes or its admissibility in any enforcement proceeding, or the duty of any person to report contagious or infectious diseases as required by state or federal law. Idaho Code § 74-107(25).

(79) Results of laboratory tests conducted by the Idaho state department of agriculture seed laboratory on samples submitted by seed producers or seed companies. Nothing in this subsection shall limit the use which can be made, or availability of such information pursuant to the provisions of subsections (9) and (10) of section 22-418, Idaho Code. Idaho Code § 74-107(26).

(80) For policies that are owned by private persons, and not by a public agency of the state of Idaho, records of policies, endorsements, affidavits and any records that discuss policies, endorsements and affidavits that may be required to be filed with or by a surplus line association pursuant to chapter 12, title 41, Idaho Code. Idaho Code § 74-107(27).

(81) Individual financial statements of a postsecondary educational institution or a proprietary school submitted to the state board of education, its director or a representative thereof, for the purpose of registering the postsecondary educational institution or proprietary school pursuant to section 33-2402 or 33-2403, Idaho Code, or provided pursuant to an administrative rule of the board adopted pursuant to such sections. Idaho Code § 74-107(28).

(82) Information submitted by insurance companies pursuant to section 41-612(17), Idaho Code. Idaho Code § 74-107(29).

(83) Documents, materials or other information submitted to the director of the department of insurance as provided in chapter 64, title 41, Idaho Code. Idaho Code § 74-107(30).

(84) Reports, information and other materials exempted by chapter 63, title 41, Idaho Code. Idaho Code § 74-107(31).

(85) Records, maps or other records identifying the location of archeological or geophysical sites or endangered species, if not already known to the general public. Idaho Code § 74-108(1).

(86) Archeological and geological records concerning exploratory drilling, logging, mining, and other excavation, when such records are required to be filed by statute for the time provided by statute. Idaho Code § 74-108(2).

(87) Documents and data related to oil and gas production submitted to the department of lands or the oil and gas conservation commission under the provisions of chapter 3, title 47, Idaho Code, provided that the records qualify for confidential status under section 47-327, Idaho Code, under the conditions and for the time provided by statute. Idaho Code § 74-108(3).

(87) The records of a library, which when examined alone, or when examined with other public records, would reveal the identity of the library patron checking out, requesting, or using an item from a library. Idaho Code § 74-108(4).

(88) The material of a library, museum or archive that has been contributed to by a private person, to the extent of any limitation that is a condition on the contribution. Idaho Code § 74-108(5).

(89) Test questions, scoring keys and other data used to administer a licensing examination, employment, academic or other examination or testing procedure before the examination is given if the examination is to be used again. Records establishing procedures for and instructing persons administering, grading or evaluating examination or testing procedures are included in this exemption, to the extent the disclosure would create a risk that the result might be affected. Idaho Code § 74-108(6).

(90) Land management plans required for voluntary stewardship agreements entered into pursuant to law and written agreements relating to the conservation of all species of sage grouse entered into voluntarily by owners or occupiers of land with a soil conservation district. Idaho Code § 74-108(7).

(91) Records consisting of draft legislation and documents specifically related to such draft legislation or research requests submitted to the legislative services office by a member of the Idaho legislature for the purpose of placing such draft legislation into a form suitable for introduction as official proposed legislation, unless the individual legislator having submitted or requested such records or research agrees to waive the provisions of confidentiality provided by this subsection. Idaho Code § 74-109(1).

(92) All papers, physical and electronic records and correspondence or other supporting materials comprising the work papers in the possession of the legislative services office or the director of the legislative performance evaluations prior to the release of the related final audit, and all other records or material in possession of the legislative services office or the director of the legislative performance evaluations that would otherwise be confidential or exempt from disclosure. Idaho Code § 74-109(2).

(93) Records consisting of draft congressional legislative redistricting plans and documents specifically related to such draft redistricting plans or research requests submitted to the commission staff by a member of the commission for reapportionment for the purpose of placing such draft redistricting plan in a form suitable for presentation to the full membership of the commission, unless the individual commission member having submitted or requested such plans or research agrees to waive the provisions of confidentiality provided by this subsection. Idaho Code § 74-109(3).

(94) Records that identify the method by which the Idaho state tax commission selects tax returns for audit review. Idaho Code § 74-109(4).

(95) Records that identify the method by which the administrator of the unclaimed property law set forth in chapter 5, title 14, Idaho Code, selects reports for audit review or conducts audit review of such reports and the identity of individuals or entities under audit. Idaho Code § 74-109(5).

(96) Underwriting and claims records of the Idaho petroleum clean water trust fund obtained pursuant to section 41-4905, 41-4909, 41-4911A, 41-4912A, Idaho Code. Provided however, that this subsection shall not prevent the Idaho petroleum clean water trust fund’s submittal to the Idaho department of environmental quality, or other regulatory agencies of information necessary to satisfy an insured’s correction action requirement under applicable federal or state standards in the event of a release in to the environment from a petroleum storage tank; and provided further that nothing in this subsection shall prevent the Idaho petroleum clean water trust fund from providing auditing, reporting, or actuarial information as otherwise required of it pursuant to section 41-4919, 41-4925A, 41-4928, 41-4930, 41-4932, 41-4937 or 41-4938, Idaho Code. Idaho Code § 74-109(6).

(97) In accordance with section 18-609A, the following records are exempt from public disclosure: all records contained in court files of judicial proceedings arising under section 18-609A, Idaho Code, are exempt from disclosure. Idaho Code § 74-110.

(98) A record obtained or created by the director of the department of finance or a representative of the director in connection with an audit or inspection under section 30-14-411(d), Idaho Code, or an investigation under section 30-14-602, Idaho Code. Idaho Code § 74-111(1).

(99) A part of a record filed in connection with a registration statement under section 30-14-301, Idaho Code, and sections 30-14-303 through 30-14-305, Idaho Code, or a record under section 30-13-411(d), Idaho Code, that contains trade secrets or confidential information if the person filling the registration statement or report has asserted a claim of confidentiality or privilege that is authorized by law. Idaho Code § 74-111(2).

(100) A record that is not required to be provided to the director of the department of finance or filed under chapter 14, title 30, Idaho Code, and is provided to the director only on the condition that the records will not be subject to public examination or disclosure. Idaho Code § 74-111(3).

(101) A nonpublic record received from a person specified in section 30-14-608(a), Idaho Code. Idaho Code § 74-111(4).

(102) Any social security number, residential address unless used as a business address, and residential telephone number unless used as a business telephone number, contained in a record that is filed pursuant to chapter 14, title 30, Idaho Code. Idaho Code § 74-111(5).

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B. Other statutory exclusions

Idaho law also exempts certain tax documents from public disclosure. See, e.g., Idaho Code §§ 63-3076, 63-3077.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

Idaho Code § 74-113(1) provides “a person may inspect and copy the records of a public agency or independent public body corporate and politic pertaining to that person, even if the record is otherwise exempt from public disclosure.” However, the right to inspect and amend records pertaining to oneself does not include the right to review:

(a) Otherwise exempt investigatory records of a public agency or independent public body corporate and politic if the investigation is ongoing;

(b) Information that is compiled in reasonable anticipation of a civil action or proceeding which is not otherwise discoverable;

(c) The information relates to adoption records;

(d) Information which is otherwise exempt from disclosure by statute or court rule;

(e) Records of a prisoner maintained by the state or local agency having custody of the prisoner or formerly having custody of the prisoner or by the commission of pardons and parole.

Idaho Code § 74-113(3)

In Bolger v. Lance, 137 Idaho 792, 53 P.3d 1211 (2002), the Idaho Supreme Court held that the Office of the Attorney General is a law enforcement agency under the public records act and an individual does not have the right to examine investigatory records about himself during an ongoing investigation.

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D. Are segregable portions of records containing exempt material available?

If a public record contains “mixed” information – that is, some information that is exempted from public disclosure and other information that is not – the act requires that the exempt information be separated from the non-exempt information and the non-exempt material be provided to the requesting person. Idaho Code § 74-112.

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III. Record categories - open or closed

A. Autopsy and coroners reports

Autopsy reports are not specifically exempted under the public records act. Generally, most county coroners treat them as available to the public. However, at least one law enforcement agency has taken the position that an autopsy record is a police investigatory record not available for public inspection.

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

The worker’s compensation records of the Idaho industrial commission are generally exempt, except that the industrial commission shall make such records available:

(a) To the parties in any worker’s compensation claim and to the industrial special indemnity fund of the state of Idaho; or

(b) To employers and prospective employers subject to the provisions of the Americans with disabilities act, 42 U.S.C. 12112, or other statutory limitations, who certify that the information is being requested with respect to a worker to whom the employer has extended an offer of employment and will be used in accordance with the provisions of the Americans with disabilities act, 42 U.S.C. 12112, or other statutory limitations; or

(c) To employers and prospective employers not subject to the provisions of the Americans with disabilities act, 42 U.S.C. 12112, or other statutory limitations, provided the employer presents a written authorization from the person to whom the records pertain; or

(d) To others who demonstrate that the public interest in allowing inspection and copying of such records outweighs the public or private interest in maintaining the confidentiality of such records, as determined by a civil court of competent jurisdiction; or

(e) Although a claimant’s records maintained by the industrial commission, including medical and rehabilitation records, are otherwise exempt from public disclosure, the quoting or discussing of medical or rehabilitation records contained in the industrial commission’s records during a hearing for compensation or in a written decision issued by the industrial commission shall be permitted; provided further, the true identification of the parties shall not be exempt from public disclosure in any written decision issued and released to the public by the industrial commission.

Idaho Code § 74-105(10)

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C. Bank records

An individual’s personal bank records, by definition, do not fall within the provisions of Idaho’s public records act. The provisions of Idaho Code § 74-107(5) exempt certain financial reports prepared by or supplied to any public agency or independent public body corporate and politic responsible for the regulation or supervision of financial institutions.

One exception to this rule is found under the unique circumstances presented in Henry v. Taylor, 152 Idaho 155, 267 P.3d 1270 (2012). There, the Idaho Supreme Court held that private bank records of a county prosecuting attorney were public records under the Public Records Act because the performance of the prosecuting attorney’s contract with the county was one of prosecuting attorney’s statutory duties, entering into the contract required unanimous consent of county commissioners and, significantly, payments under the contract were made directly to the prosecuting attorney’s private bank account, rather than county auditor.

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D. Budgets

There is no provision in the Act relating to public records requests for budgets, thus they are presumed to be open to disclosure.

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E. Business records, financial data, trade secrets

Most proprietary business records and trade secret information are exempt from inspection and copying. Idaho Code §§ 74-107(1)-(3), (5), (6), (8).

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F. Contracts, proposals and bids

Contracts, proposals and bids are subject to public inspection and copying after bids are opened or after the contract is awarded. Idaho Code 74-107(4).

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G. Collective bargaining records

Collective bargaining records are not specifically exempt under Idaho law. However, deliberations concerning labor negotiations may be held in executive session, and the records of such proceedings would likely be viewed as nonpublic. Idaho Code § 74-206(1)(j).

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H. Economic development records

Idaho Code § 74-107(6) specifically exempts records gathered by a local agency or the Idaho Department of Commerce for the specific purpose of assisting a person to locate, maintain, invest in or expand business operations in Idaho.

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I. Election Records

Election records are generally open to the public. Idaho Code § 74-106(25) specifically exempts the release of “the physical voter registration application on file in the county clerk’s office,” but allows the release of a redacted form. Information from voter registration applications maintained in the statewide voter registration database, including age, will be made available except for the voter’s driver’s license number, date of birth and, upon a showing of good cause, the physical residence address of the voter. Id.

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J. Emergency Medical Services records

Records of hospital care and other medical records are generally exempt from disclosure, except to the extent that such records or information contained in those records are necessary for a background check on an individual that is required by federal law regulating the sale of firearms, guns or ammunition. Idaho Code § 74-106(13).

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K. Gun permits

Idaho Code § 74-104(2) provides that material in Court files that may otherwise be exempt from disclosure is not exempt “to the extent that such records or information contained in those records are necessary for a background check on an individual that is required by federal law regulating the sale of firearms, guns or ammunition.” Once a permit is issued, however, it is open to the public.

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L. Homeland security and anti-terrorism measures

There are no new homeland security measures that have been enacted under the Public Records Act.

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M. Hospital reports

Hospital reports, if they concern an individual’s medical condition, are exempt from disclosure except as they are necessary for a background check on an individual required by federal law regulating the sale of firearms, guns or ammunition. Idaho Code § 74-106(13). If the reports are non-medical and relate to the management or financial condition of a public hospital, they are generally open to the public.   See, e.g., Magic Valley Newspapers, Inc. v. Magic Valley Regional Medical Center, 138 Idaho 143, 59 P.3d 314 (2002).

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N. Personnel records

Personnel records are only partially open to the public, as provided in Idaho Code § 74-106(1). In Federated Publications Inc. v. Boise City, 128 Idaho 459, 915 P.2d 21 (1996) the Idaho Supreme Court held that the term “applicant” in the provision of public records laws exempting from disclosure certain personnel information refers to an applicant for a position as a public employee. The Court noted that the exemption does not apply to applicants for appointment to vacancies in the city council. Id. The Court also found that administrative review of a police shooting incident, which reviewed policies and training and determined completeness of internal discipline procedures was not exempt from disclosure under the public records laws under Idaho Code § 9-340C(1) [now Idaho Code § 74-106(1)]. Id. In Cowles Publishing Co v. Kootenai Co. Bd. of Commissioners, 144 Idaho 259, 159 P.3d 896 (2007), the Idaho Supreme Court rejected an argument that e-mail messages, of a personal nature, sent between an elected public official and a public employee were exempt personnel records. The Court held “although the e-mails may be a form of correspondence, they are not the type of communication the legislature meant to exempt in Idaho Code § 9-340C(1) [now Idaho Code § 74-106(1)]. . . . The legislature meant to exempt only those types of correspondence typically found in a personnel file – for instance, a letter of recommendation, formal correspondence between a superior and employee, or a letter commenting favorably or disfavorably on an employee’s professional conduct.”  Id., 144 Idaho at 264-265. Personnel records have been a frequent point of conflict between public agencies and persons requesting such information.

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1. Salary

The gross salary and salary history of all current or former public officials contained within their personnel record is specifically made open under Idaho Code § 74-106(1).

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2. Disciplinary records

All information relating to grievances and performance evaluations of a public employee or applicant are exempt from disclosure under Idaho Code § 74-106(1).

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3. Applications

Public employee applicants are specifically addressed, and have the same rights as public employees, within the personnel records exemption contained in Idaho Code § 74-106.

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4. Personally identifying information

Information relating to a public employee or applicant’s sex, race, marital status, birth date, home address and telephone number may not be disclosed without the employee’s or applicant’s written consent.  Idaho Code § 74-106(1).  Vital statistic records are specifically exempt.  Idaho Code § 74-106(4)(e).

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5. Expense reports

Not specifically addressed by the Act.

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6. Other

Retired employees and retired public officials’ home addresses, home telephone numbers and other financial and nonfinancial membership records are exempt from disclosure.  Idaho Code § 74-106(2).

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O. Police records

Police records are subject to disclosure pursuant to Idaho Code § 74-124, which generally exempts active and inactive investigatory records to the extent that disclosure would interfere with enforcement proceedings, deprive a person of a right to a fair trial, constitute an unwarranted invasion of privacy, disclose the identity of a confidential source, disclose investigative techniques and procedures, or endanger the life or safety of law enforcement personnel. This exemption was originally grandfathered into the Idaho Public Records Act, but was included in the 2015 passage of the Transparent and Ethical Government Act. This section has generated substantial disagreement between law enforcement authorities and members of the media.

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1. Accident reports

Idaho Code § 74-124(2) provides that when any person involved in a motor vehicle accident which is investigated by a law enforcement agency, that person, that person’s authorized legal representative and the insurer shall have a right to a complete, unaltered copy of the impact report, or its successors, and the final report prepared by the agency.

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2. Police blotter

These records are routinely made available to the public.

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3. 911 tapes

There is no express exemption that applies to 911 tapes, thus they are presumed to be open.

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4. Investigatory records

Idaho Code § 74-105(1) provides that investigatory records of a law enforcement agency, as defined in section 74-101(7), Idaho Code, under the conditions set forth in section 74-124, Idaho Code, are exempt from disclosure under the Public Records Act.
Idaho Code § 74-124(1) provides that active investigatory records compiled for law enforcement are exempt from disclosure when the production of such records would: (a) interference with enforcement proceedings; (b) deprive a person of a right to a fair trial or an impartial adjudication; (c) constitute an unwarranted invasion of personal privacy; (d) disclose 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; (e) disclose investigative techniques and procedures; or (f) endanger the life or physical safety of law enforcement personnel. In practice, law enforcement agencies nearly always claim that one or more of the categories described above prevents disclosure.

“Investigatory record” shall not include: (a) the time, date, location, and nature and description of a reported crime, accident or incident; (b) the name, sex, age, and address of a person arrested, except as otherwise provided by law; (c) the time, date, and location of the incident and of the arrest; (d) the crime charged; (e) documents given or required by law to be given to the person arrested; (f) information and indictments except as otherwise provided by law; and (g) criminal history reports. Idaho Code § 74-124(3).

Idaho Code § 74-124(3) provides that “an inactive investigatory record shall be disclosed unless the disclosure would violate the provisions of subsection (1)(a) through (f) of this section.”

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5. Arrest records

Arrest records are not exempt from disclosure under the Public Records Act. Idaho Code § 74-124(3)(b).

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6. Compilations of criminal histories

Criminal histories are not categorically exempt from disclosure under the Public Records Act.  Idaho Code § 74-124(3)(g). But see Idaho Code § 74-105(12) (“criminal history records and fingerprints, as defined by section 67-3001, Idaho Code, and compiled by Idaho state police are exempt. Such records shall be released only in accordance with chapter 30, title 67, Idaho Code”).

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7. Victims

Department of Corrections records related to the identity of victims are exempt from disclosure. Idaho Code § 74-105(4)(a)(ii).

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8. Confessions

Confessions are not specifically addressed in the Idaho open records statutes. In practice, most law enforcement agencies and prosecutors consider confessions to be “investigative records” and therefore exempt from disclosure, unless and until the confession is filed with the court or introduced in open court. Whether that interpretation would withstand a court challenge is an open question.

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9. Confidential informants

Information in an investigatory record compiled for law enforcement that would disclose the identity of a confidential source is exempt from disclosure. Idaho Code § 72-124(1)(d).

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10. Police techniques

Information in an investigatory record compiled for law enforcement that would disclose investigative techniques and procedures is exempt from disclosure. Idaho Code § 74-124(1)(e).

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11. Mugshots

Mug shots are routinely made available to the public and are often available on law enforcement websites.

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12. Sex offender records

Information contained within the sexual offender registry is available to the public pursuant to Idaho Code § 18-8323. But, voting records of the Sexual Offenders Classification Board are not subject to disclosure. Idaho Code § 74-105(5).

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13. Emergency medical services records

Records and information contained in the trauma registry created by chapter 20, title 57, Idaho Code, together with any reports, analyses and compilations created from such information and records is exempt from disclosure under the Act.  Idaho Code § 74-106(23).   Moreover, records of hospital care and medical care records of individuals are specifically exempt.  Idaho Code § 74-106(13).

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14. Police video (i.e., “body camera footage”)

P. Prison, parole and probation reports

Idaho Code § 74-105(4)(v) provides that Department of Correction records of a prisoner shall not be disclosed to any other prisoner or probationer. In addition, Idaho Code § 74-105(14) provides that records of a prisoner or former prisoner in the custody of any state or local correctional facility are exempt from disclosure when the request is made by another prisoner in the custody of any state or local correctional facility. Finally, Idaho Code § 74-105(4)(iii) provides that Department of Correction records that reflect future transportation or movement of a prisoner are exempt from disclosure.

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Q. Professional licensing records

Any personal records, other than names, business addresses and business phone numbers, submitted to any public agency or independent public body pursuant to a statutory requirement for licensing, certification, permit or bonding are exempt from disclosure. Idaho Code § 74-106(8).

In addition, unless otherwise provided by agency rule, information obtained as part of an inquiry into a person’s fitness to be granted or retain a license or certificate is exempt from disclosure. However, any agency which has records exempt from disclosure under the provisions of this subsection shall annually make available a statistical summary of the number and types of matters considered and their disposition. Idaho Code § 74-106(9).

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R. Public utility records

Public utility records are confidential under general exemptions provided to business entities, unless such records become part of the public record in a utility proceeding before the Idaho Public Utilities Commission. Furthermore, reports identifying the electrical or natural or manufactured gas consumption data for the individual customer or account are exempt from disclosure. Idaho Code § 74-107(13).

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S. Real estate appraisals, negotiations

1. Appraisals

Idaho Code § 74-107(3) exempts records relating to the appraisal of real property, timber or mineral rights prior to its acquisition, sale or lease by a public agency or independent public body corporate and politic.

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2. Negotiations

Since all documents related to the appraisal of real estate are exempt, presumably any documents created in the negotiation of a real estate appraisal or sale are also exempt.

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3. Transactions

Idaho Code § 74-107(4) exempts any estimate prepared by a public agency or independent public body corporate and politic that details the cost of a public project until such time as disclosed or bids are opened, or upon award of the contract for construction of the public project.

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4. Deeds, liens, foreclosures, title history

Certain records of the Idaho Housing and Finance Association are exempt from disclosure under Idaho Code § 74-106(20).  In addition, certain sale or purchase records and mortgage portfolio loan documents required to be submitted to or inspected by a public agency are exempt from disclosure under Idaho Code § 74-107(2).

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5. Zoning records

T. School and university records

The Idaho Public Records Act exempts certain records related to academic research at public institutions of higher education.  See Idaho Code § 74-107(20)-(23).

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1. Athletic records

The financial records of the athletic programs of a public school or university are subject to public inspection.

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2. Trustee records

The trustee records of a public school or university are generally open, subject to exemptions for personnel and similar records.

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3. Student records

The Idaho Public records act incorporates federal law under Idaho Code section 74-104(1), which generally ensures privacy for student records under FERPA.

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4. Other

U. State guard records

Military records as described in and pursuant to section 65-301, Idaho Code (related to services for veterans) are exempt from disclosure under Idaho Code § 74-106(4)(f).

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V. Tax records

Information in an income or other tax return measured by items of income or sales, which is gathered by a public agency for the purpose of administering the tax, is generally exempt.  Idaho Code § 74-106(5).

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W. Vital Statistics

All records of vital statistics are exempt from disclosure pursuant to Idaho Code § 74-106(4)(e).

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1. Birth certificates

Birth certificates are records of vital statistics and exempt from disclosure under Idaho Code § 74-106(4)(e) and are considered legally “confidential” for 100 years. Idaho Code § 39-270(e).

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2. Marriage and divorce

Marriage and divorce are records of vital statistics and exempt from disclosure under Idaho Code § 74-106(4)(e) and are considered legally “confidential” in Idaho for 50 years. Idaho Code § 39-270(e). Further, information within court files of judicial proceedings is exempt to the extent the disclosure of which is prohibited by rules adopted by the Idaho Supreme Court.  Idaho Code § 74-104(2). See Rule 32 of the Idaho Court Administrative Rules for specific exemptions identified by the judicial branch.

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3. Death certificates

Death certificates are records of vital statistics and exempt from disclosure under Idaho Code § 74-106(4)(e) and are considered legally “confidential” in Idaho for 50 years. Idaho Code § 39-270(e).

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4. Infectious disease and health epidemics

Idaho Code § 74-106(19) exempts records and information contained in the registry of immunizations against childhood diseases maintained by the Department of Health and Welfare. Idaho Code § 74-106(12) exempts records of the Department of Health and Welfare that identify a person infected with a reportable disease.

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IV. Procedure for obtaining records

A. How to start

A request to review or obtain a copy of a public record begins with a request for such record to the records custodian.

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1. Who receives a request?

Often, the individual seeking access to public records will already know the specific record or document sought. Idaho’s Public Records Act does not require local agencies to specifically detail the types of records maintained by the agencies. However, the act requires every state agency to adopt guidelines that identify the general subject matter of all public records kept or maintained by the agency and to further identify the custodian and physical location of such documents. Idaho Code § 74-119. Thus, if a person is unsure what records might exist in the specific area of interest, a threshold step could be to request a copy of the agency record guidelines.

Each state agency generally maintains records dealing with matter indigenous to its mission. Examples would include:

  • Records of the state Board of Corrections concerning number of inmates in prison facilities, number of escapes, etc.
  • Records of regulatory agencies such as an air pollution control agency (e.g., DEQ) that keeps track of pollution control program compliance, etc.
  • Records of the State Agriculture Department regarding crop production reports, pesticide testing, bee kills, etc.
  • Reports of the State Department of Health and Welfare regarding conditions in the state hospitals, conditions in state-funded shelter homes and totals of infectious diseases, etc.
  • Records of complaints made to the State Insurance Commission and action taken on such complaints.

The best reference work for reviewing the organization of state government and the numerous state boards and commissions is the Idaho Blue Book.  See https://sos.idaho.gov/elect/BLUEBOOK.HTM. This book, compiled and published by the office of the Secretary of State, has in the past been updated every two years. There are no comparable publications that list governmental organizations in the various Idaho municipalities and counties, but such information can be obtained from county or city clerk offices.

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2. Does the law cover oral requests?

Idaho Code § 74-102(4) provides that the person requesting a public record "may be required to make a written request and provide their name, mailing address and telephone number" (emphasis added). Routine requests are often handled based on oral requests; however, many agencies often insist upon written requests on their own forms.

The examination of public records under the Act must be conducted during regular office or working hours unless the custodian of the records authorizes the examination of records in other than regular office or working hours. Idaho Code § 74-102(8). However, if the examination of the records occurs in other than regular office or working hours, the person designated to represent the custodian during such an examination is entitled to a reasonable compensation to be paid to them out of funds provided in advance by the person examining such records. Id. Additionally, the custodian of the records is entitled to maintain “such vigilance as is required to prevent alteration of any public record while it is being examined.” Idaho Code § 74-102(7).

It is not specified what happens when an oral request is denied. However, a requester should proceed in the same manner as if a written request were denied if they intend to challenge the denial of access.

Idaho Code § 74-103(3) provides that agency denials, even in part, must be done in writing. Idaho Code § 74-103(4) sets forth what the contents of a written agency denial must include. The notice of denial or partial denial shall state that the attorney for the public agency or independent public body corporate and politic has reviewed the request or shall state that the public agency or independent public body corporate and politic has had an opportunity to consult with an attorney regarding the request for examination or copying of a record and has chosen not to do so. The notice of denial or partial denial also shall indicate the statutory authority for the denial and indicate clearly the person's right to appeal the denial or partial denial and the time periods for doing so.

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3. Contents of a written request

A request should describe, as completely as possible, the records sought. Generally, the request will be directed to the custodian of the records, although in some circumstances the request may need to be sent to the agency head. The actual request may be informal or formal.

The Act does not specify whether the request must address fee issues. In practice, many media requesters indicate that they are willing to pay some amount in copying fees for their public records request and ask the responding agency to let them know if such amount is likely to cover the actual cost of copying.

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B. How long to wait

1. Statutory, regulatory or court-set time limits for agency response

The Idaho Public Records Act sets out specific time limits for an agency response to a request for inspection. An agency has three (3) working days to either grant or deny the request for information. Idaho Code § 74-103(1). Although agencies legally have up to three (3) working days to respond, agencies should not delay three (3) days to provide any information that is readily accessible. If you feel that the agency is able to provide you with access to a public record in a shorter period than three (3) working days and is refusing to provide you with more timely access for some improper reason, you should complain to a superior in the agency and to an Idaho legislator. At the time the Act was passed into law, the legislature indicated that groundless delays in providing access to records would lead to a shortening of the allowable response period.
If more than three (3) working days is needed to either locate the requested records or to retrieve the information, the agency must notify the requester in writing that more time is necessary and then grant or deny the request in full or in part within ten (10) working days from the date of request. Idaho Code § 74-103(1).
If a request for examination of public records is denied, the agency making the denial is to notify the requesting party in writing of the denial, identify the specific statutory basis for the denial and indicate that the agency has consulted with its attorney or chosen not to do so. The written denial is also required to clearly advise the requesting party of the right to appeal the denial and the time period allowed for doing so. Idaho Code § 74-103(3)-(4). A 180-day appeal period begins from the date of mailing of the notice of denial. Idaho Code § 74-115 (1)-(4).

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2. Informal telephone inquiry as to status

Informal telephone inquiry as to status is allowed. It may be useful to follow a written request with a telephone inquiry to the agency, but there is no requirement that such an inquiry be initiated.

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3. Is delay recognized as a denial for appeal purposes?

In the event that there is no response from the agency, the request will be deemed denied within ten (10) working days following the request. Idaho Code § 74-103(2).

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4. Any other recourse to encourage a response

None.

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C. Administrative appeal

Not applicable. “The sole remedy for a person aggrieved by the denial of a request for disclosure is to institute proceedings in the district court of the county where the records or some part thereof are located, to compel the public agency or independent public body corporate and politic to make the information available for public inspection in accordance with the provisions of this chapter.”  Idaho Code § 74-115(1).  The Governor created the position of Public Records Ombudsman, at least in part, to address the concern that average citizens often would not pursue a denial of their public records request given the cost of litigation.  While the Ombudsman position is limited to reviewing, and assisting, with executive branch records, the hope is that future legislation will address expanding the authority and/or jurisdiction of the Ombudsman over all public records in Idaho.

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1. Time limit

Not applicable.

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2. To whom is an appeal directed?

Not applicable.

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3. Fee issues

Not applicable.

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4. Contents of appeal letter

Not applicable.

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5. Waiting for a response

Not applicable.

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6. Subsequent remedies

Not applicable.

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D. Court action

The only mechanism to appeal a denial of a public records request is to institute an action in the district court where that record is located.  Idaho Code § 74-115(1).

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1. Who may sue?

The “sole remedy” for a “person aggrieved” by the denial of a request for inspection is to institute proceedings in the district court of the county where the records are located. Idaho Code § 74-115(1). The statute is not specific as to who is considered aggrieved by such a denial but unquestionably the person requesting the record may initiate a Court action to protest the denial. It is not clear whether a person who did not actually make the request but was aggrieved as a result of the denial requested by another person, would be able to seek redress.

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2. Priority

To begin proceedings, a petition must be filed (with the district court) protesting the denial of access within 180 days from the date of mailing of the notice of denial by the public agency. Idaho Code § 74-115(1). After a petition is filed, the court sets a time for the public agency to file a response and for a hearing at the "earliest possible time," and in no event later than 28 calendar days after the protest petition is filed. Idaho Code § 74-115(1). At that time, the court has the discretion to examine the documents at issue in camera and shall consider both written and oral presentations from the person filing the petition and the agency. Idaho Code § 74-116(1). If the court finds the records are not exempt from public disclosure, the agency will be required to make them available. If the court finds in favor of the public agency, the records will remain with the agency without being disclosed. Idaho Code § 74-116(2).

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3. Pro se

There are no prohibitions against a pro se proceeding. A pro se applicant should have a reasonable opportunity to prevail, unless he or she has a complicated statutory argument. Because Idaho law allows access to all public records, unless a statute expressly provides otherwise, and because public records are broadly defined, the legal issues confronting a court reviewing a denial are not necessarily complex.

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4. Issues the court will address

The court will consider whether the denial was proper and also whether the actions of the respective parties were legitimately pursued. If the court finds that the “request or refusal to provide records was frivolously pursued,” the court shall award reasonable costs and attorney fees to the prevailing party. Idaho Code § 74-116(2).  See Idaho Conservation League, Inc. v. Idaho State Department of Agriculture, 143 Idaho 366, 146 P.3d 632 (2006) (Idaho Supreme Court awarded fees to requestor when agency’s appeal “was frivolously pursued”).

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a. Denial

If the Court determines that the public official was justified in refusing to make the requested record available, he shall return the item to the public official without disclosing its content and shall enter an order supporting the decision refusing disclosure. Idaho Code § 74-116(2).

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b. Fees for records

Although not specifically set for in the act, one of the issues a court may review is whether the fees charged by the public agency are appropriate under Idaho Code § 74-102.

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c. Delays

None specified.

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d. Patterns for future access (declaratory judgment)

None specified.

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5. Pleading format

The only particular pleading format requirement is that the action be styled as a “petition.” Idaho Code § 74-115(1). Otherwise, the pleading should mirror a complaint and contain the basic facts of the request, the denial, the agency involved and other facts underlying the claim.

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6. Time limit for filing suit

A person aggrieved by the denial of a request for a public record must file a petition within 180 days of the date of mailing of the denial. Idaho Code § 74-115(1).

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7. What court

The petition must be filed in the state district court of the county in which the records are physically located. Idaho Code § 74-115(1).

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8. Judicial remedies available

The court may order that the records be released and may order that court costs and reasonable attorney fees be assessed. Although the Act does not specifically address the subject, the court should also be able to render declaratory or injunctive relief in appropriate circumstances. Idaho Code § 74-116.

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9. Litigation expenses

The court shall award reasonable costs and attorney fees to the prevailing party if it finds the request or refusal to provide records was frivolously pursued. Idaho Code § 74-116(2).  See, e.g., Idaho Conservation League, Inc. v. Idaho State Department of Agriculture, 143 Idaho 366, 146 P.3d 632 (2006).

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a. Attorney fees

The court shall award reasonable costs and attorney fees to the prevailing party if it finds the request or refusal to provide records was frivolously pursued. Idaho Code § 74-116(2).

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b. Court and litigation costs

The court shall award reasonable costs and attorney fees to the prevailing party if it finds the request or refusal to provide records was frivolously pursued. Idaho Code § 74-116(2).

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10. Fines

The Court may impose a civil penalty not to exceed $1,000 upon a public official who deliberately and in bad faith improperly refuses a legitimate request for inspection and copying. Idaho Code § 74-117.

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11. Other penalties

None specified.

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12. Settlement, pros and cons

There are no particular pros or cons to settlement of actions to enforce a right to inspect and copy a public record, other than would be present in any other type of litigation.

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E. Appealing initial court decisions

The decision to appeal a trial court decision to the Idaho Supreme Court is governed by many factors, such as precedent, cost, timing, and significant of record to the requestor.  Each appeal must be considered on its own merits.

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1. Appeal routes

The appeal of a district court decision is governed by the Idaho Appellate Rules, and thus is treated like any ordinary appeal.

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2. Time limits for filing appeals

Appeals must be filed within 42 days after the entry of the appealable judgment. Idaho Appellate Rule 14.

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3. Contact of interested amici

The Idaho Supreme Court is generally quite liberal in its allowance of the filing of amicus briefs. The filing of such briefs is governed by the provisions of Idaho Appellate Rule 8. Respective amicus participants must file an application for leave of Court to file a brief, to participate in oral argument or both.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest Court.

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F. Addressing government suits against disclosure

There are no cases in Idaho on this point.

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Open Meetings

As noted above, Idaho’s Open Meeting Law was recodified in 2015 and is now part of a larger Transparent and Ethical Government Act, designated as Title 74, Idaho Code.

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I. Statute - basic application

Idaho’s Open Meeting Law is set forth in Idaho Code §§ 74-201 through 74-208. The Open Meeting Law was originally enacted in 1974 and has been amended on several occasions since that time. The legislature’s statement of purpose included with the 1974 enactment of the Law contains broad language saying that it is the “policy of this state that the formation of public policy is public business and shall not be conducted in secret.” Idaho Code § 74-201.

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A. Who may attend?

In Idaho, meetings of a governing body of a public agency are open to the public unless closure of such meetings is expressly permitted under the Open Meeting Law. Idaho Code § 74-203(1). The meetings are expressly “open to the public and all persons shall be permitted to attend any meeting.” Idaho Code § 74-203(1). Although “public” and “persons” are not defined terms under the Law, there is nothing in the law to suggest that any distinction is to be made between different members of the public, whether they are citizens, residents, journalists or otherwise.

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B. What governments are subject to the law?

The Open Meeting Law covers various state, county, local and municipal bodies, as described in the definitions of “governing body” and “public agency.” Idaho Code §§ 74-202(4)-(5).

“Public agency” means:

(a) any state board, commission, department, authority, educational institution or other state agency which is created by or pursuant to statute, other than courts and their agencies and divisions, and the judicial council, and the district magistrates commission;

(b) any regional board, commission, department or authority created by or pursuant to statute;

(c) any county, city, school district, special district, or other municipal corporation or political subdivision of the state of Idaho;

(d) any subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act.

Idaho Code § 74-202(4)

“Governing body” means the members of any public agency which consists of two (2) or more members, with the authority to make decisions for or recommendations to a public agency regarding any matter. Idaho Code § 74-202(5)

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1. State

In Safe Air for Everyone v. Idaho State Dept. of Agriculture, et al, 145 Idaho 164, 177 P.3d 378 (2008), the Idaho Supreme Court was asked to consider whether the Open Meetings Act applied when Department of Agriculture employees attended an intergovernmental meeting to discuss issues related to crop residue burning.  After noting that the crop residue disposal program was not a sub-agency of the Department of Agriculture, the court turned its attention to the definition of “governing body” under Idaho Code § 67-2341(5) [now Idaho Code § 74-202(5)].   The court held that since a “governing body” must have “the authority to make decisions for or recommendations to a public agency regarding any matter and because the employees at issue did not have “the authority” to make decisions for or recommendation to the Department of Agriculture, they did not constitute members of a “governing body” subject to the requirements of the Open Meetings Act.  “The legislature has required that various bodies and commissions transact business at a meeting where a quorum is present.  It has not imposed that requirement upon groups of public employees.”  Safe Air for Everyone, 145 Idaho at 168 (internal citations omitted).

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2. County

County Boards of Commissioners are subject to the Open Meeting Law.  See Noble v. Kootenai County, 148 Idaho 937, 942, 231 P.3d 1034, 1039 (2010).

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3. Local or municipal

In Arnold v. City of Stanley, 158 Idaho 218, 345 P.3d 1008 (2015), the Idaho Supreme Court reaffirmed that Open Meeting Law applied to city council meeting. See also Idaho Code § 74-202(4)(c).

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C. What bodies are covered by the law?

1. Executive branch agencies

“Governing body” means the members of any public agency that consists of two or more members, with the authority to make decisions for, or recommendations to, a public agency regarding any matter. Idaho Code § 74-202(5).

“Public agency” is defined in Idaho Code § 74-202(4) as:

(a) any state board, commission, department, authority, educational institution or other state agency which is created by or pursuant to statute, other than courts and their agencies and divisions, and the judicial council, and the district magistrates commission;

(b) any regional board, commission, department or authority created by or pursuant to statute;

(c) any county, city, school district, special district, or other municipal corporation or political subdivision of the State of Idaho;

(d) any subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act.

Those reported decisions which have construed the Idaho Open Meeting Law have generally not addressed any issues concerning whether a particular governmental body is subject to the provisions of the law. The cases have assumed the governmental body involved was subject to the Open Meeting Law and have considered actions of a city council, a school district board, the state commission for the blind, a county commission and a public hospital board. However, the Idaho Supreme Court has held that an administrative committee of the State Water Resources Board (which did not include a full quorum of the entire Water Resources Board) was not a “governing body” entrusted with the formation of public policy and therefore was not subject to the Open Meeting Law. Idaho Water Resources Board v. Kramer, 97 Idaho 535, 548 P.2d 35 (1976).  Moreover, in Safe Air for Everyone v. Idaho State Dept. of Agriculture, et al, 145 Idaho 164, 177 P.3d 378 (2008), the Idaho Supreme Court held that employees of a state agency did not constitute a “governing body.” Id., 145 Idaho at 168.

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a. What officials are covered?

Idaho’s Open Meeting Law excludes elected officials such as the governor, lieutenant governor, state treasurer, mayors, and so on, when they are acting in an official, executive capacity. Deliberations of the board of tax appeals, the public utilities commission and the industrial commission in which “a fully submitted adjudicatory proceeding in which hearings, if any are required” have been held, are specifically excepted from the open meeting requirements of the Open Meeting Law. Idaho Code § 74-203(2). However, those bodies have the discretion to conduct such deliberations in a public meeting. Idaho Code § 74-203(2).

Meetings of the Idaho life and health insurance guaranty association, the Idaho insurance guaranty association and the surplus line association are not required to take place in a meeting open to the public. Idaho Code § 74-203(3).

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b. Are certain executive functions covered?

Although elected officials are excluded when acting in their official individual capacities, many officials are statutory members of other public bodies. For instance, the governor, attorney general, secretary of state, superintendent of public instruction, and state auditor are all members of the State Board of Land Commissioners (“Land Board”), which makes policy decisions concerning the use and/or transfer of state owned lands. See Idaho Code § 58-101 et seq. The Land Board acting as a governing body of a public agency is subject to the Idaho Open Meeting Law.

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c. Are only certain agencies subject to the act?

All “public agencies” as defined in the Open Meeting Law are subject to the law’s requirements. Executive branch agencies are therefore covered by the law to the extent they fall within the definition of “public agency.”

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2. Legislative bodies

The legislative branches are not expressly included in the definition of “public agency” found at Idaho Code § 74-202(4). However, the law specifically provides that all “standing, special or select committees” meetings of either house “shall be open to the public at all times, except in extraordinary circumstances as provided specifically in the rules of procedure in either house.” Idaho Code § 74-207. This statutory provision is in direct conflict with internal rules of the respective bodies of the legislature that allow such meetings to be closed in the discretion of the committee members. In practice, such meetings (with the exception of political party caucus meetings) are nearly always open. In 2004, the Idaho Press Club brought a constitutional challenge to the legislature's use of closed committee meetings, relying on Article III, § 12 of the Idaho Constitution.  In Idaho Press Club, Inc. v. State Legislature of the State of Idaho, 142 Idaho 640, 132 P.3d 397 (2006), the Idaho Supreme Court held that the legislature’s use of closed committee meetings did not violate the Idaho Constitution.

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3. Courts

Courts and related bodies, including court agencies and divisions, the judicial council and the district magistrates commission, are all expressly excluded from the operation of the Idaho Open Meeting Law. Idaho Code § 74-202(4)(a).

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4. Nongovernmental bodies receiving public funds or benefits

The question of whether nongovernmental bodies that receive public funds or benefits are subject to the provisions of the Idaho Open Meeting Law has not been addressed by any appellate court in Idaho. The application of the Open Meeting Law to such bodies probably turns upon whether the body was created by some public act (such as a statute, ordinance or other legislative act), rather than upon whether governmental officials who might otherwise be subject to the act are included in its membership or upon whether public funds are received by the body. Hence, a meeting of State Department of Health and Welfare officials that results in state grant monies being provided to a privately operated shelter home would probably be subject to the Open Meeting Law. However, a meeting of the board of the privately run shelter home (even if the board included one or more of those same officials which had helped make the decision to send public grant monies to the shelter home) would probably not be subject to the law since the shelter home does not exist or was not created by the virtue of any statute, ordinance or other public act.

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5. Nongovernmental groups whose members include governmental officials

The question of whether nongovernmental bodies whose members include governmental officials are subject to the provisions of the Idaho Open Meeting Law has not been addressed by any appellate court in Idaho.

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6. Multi-state or regional bodies

Regional bodies within the State of Idaho, such as planning authorities, are subject to the Open Meeting Law if they are created by or pursuant to statute. Idaho Code § 74-202(4)(b). The law does not expressly encompass multistate bodies, although its language is broad enough to arguably include them within its scope so long as they are created by or pursuant to statute. The law does not address any jurisdictional disputes that might be raised in attempting to impose the law's requirements upon a multistate body.

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7. Advisory boards and commissions, quasi-governmental entities

The Idaho Open Meeting Law draws no distinctions as to appointed boards, advisory boards or quasi-governmental entities. If the agency or entity falls under the law's definition of a public agency, then it is subject to the law's other requirements.

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8. Other bodies to which governmental or public functions are delegated

All meetings of any “standing, special, or select committee of either house of the legislature” are open to the public pursuant to a particular reference in the Open Meeting Law. See Idaho Code § 74-207. However, to the extent that a committee, board or commission which otherwise falls within the definition of a “public agency” under the Open Meeting Law does not have the authority to make decisions for or recommendations to a public agency regarding any matter, then that particular entity is not subject to the Open Meeting Law because the definition of “governing body” is expressly limited to entities with such authority. Idaho Code § 74-202(5).

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9. Appointed as well as elected bodies

Idaho has myriad commissions and boards that are primarily composed of members appointed by the governor. See, e.g., Title 67, Idaho Code; Idaho Blue Book (published biennially by Idaho Secretary of State). These entities, which exist by statute, are subject to the Open Meeting Law.

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D. What constitutes a meeting subject to the law

1. Number that must be present

The Idaho Open Meeting Law defines “meeting” as the “convening of a governing body of a public agency to make a decision or deliberate toward a decision on any matter.” Idaho Code § 74-202(6). Meetings are also broken down into two types – “regular” and “special” – each of which has its own meeting and agenda notice requirements. Idaho Code § 74-202(6)(a)-(b). “Decision” and “deliberations” are also defined terms under the law. Idaho Code § 74-202(1)-(2).

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a. Must a minimum number be present to constitute a "meeting"?

By definition, a governing body must consist of two or more members. Idaho Code § 74-202(5). The definition, therefore, squares with a common sense understanding that at least two members of the governing body must be present or participating to constitute a meeting.

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b. What effect does absence of a quorum have?

The absence of a quorum may negate the possibility of a “decision” (Idaho Code § 64-202(1)) being made by the governing body but does not necessarily mean that a meeting of less than a quorum is not subject to the Open Meeting Law. If the meeting involves “deliberation,” (Idaho Code § 74-202(2)) the meeting is still subject to the law. “Deliberation” means the receipt or exchange of information or opinion relating to a decision, but shall not include informal or impromptu discussions of a general nature which do not specifically relate to a matter then pending before the public agency for decision. Idaho Code § 74-202(2).

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2. Nature of business subject to the law

There is no attempt in the Open Meeting Law to distinguish between various types of meetings such as “information gathering” or “fact-finding” sessions. The litmus test is simply whether the meeting has been convened “to make a decision or to deliberate toward a decision on any matter.” Idaho Code § 74-202(6). However, the definition of “deliberate” should bring “information gathering” or “fact-finding” sessions under the ambit of the law. Idaho Code § 74-202(2).

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a. "Information gathering" and "fact-finding" sessions

See above.

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b. Deliberation toward decisions

See above.

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3. Electronic meetings

Idaho Code § 74-203(5) provides that meeting may be conducted using telecommunication devices that would enable all members of a governing body participating in the meeting to communicate with each other. Participation by a member of the governing body through telecommunication devices constitutes presence in person by such member at the meeting; provided, however, that at least one (1) member of the governing body, or the director of the public agency, or the chief administrative officer of the public agency shall be physically present at the location designated in the meeting notice.

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a. Conference calls and video/Internet conferencing

If the participants in the conference call constitute a quorum of the governing body and the facts otherwise indicate that a meeting as defined by the law is occurring, then the conference call constitutes a meeting and is subject to the requirements of the Open Meeting Law. Idaho Code § 74-203(5).

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b. E-mail

E-mail is not addressed in the Open Meeting Law. Such communications are, however, public records and should be available for inspection unless exempted under the open record statutes.

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c. Text messages

Text messages, instant messaging, and online message boards are not addressed in the statute or in case law. However, according to the Idaho Attorney General:

"members of a public board may not use computers or texting to conduct private conversations among themselves about board business. A one-way e-mail or text communication from one city council member to another, when it does not result in the exchange of council members’ comments or responses on subjects requiring council action, does not constitute a meeting subject to the Open Meeting Law; however, such e-mail or text communications are public records and must be maintained by the records custodian for public inspection and copying."

Office of the Attorney General, Idaho Open Meeting Law Manual, pg. 16 https://ag.idaho.gov/office-resources/manuals/.

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d. Instant messaging

See above.

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e. Social media and online discussion boards

See above.

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E. Categories of meetings subject to the law

“Meeting” has a general definition under Idaho's Open Meeting Law (Idaho Code § 74-202(6)) but it is also further defined to identify various types of meetings that are subject to different public notice requirements such as “special meetings” (Idaho Code § 74-202(6)(b)) or “executive sessions.” Idaho Code § 74-206.

The Open Meeting Law makes no distinction between informal or formal types of meetings, except that the definition of “deliberation” does not include “informal or impromptu discussions of a general nature which do not specifically relate to a matter then pending before the public agency for decision.” Idaho Code § 74-202(2). The Idaho Attorney General has concluded that the Open Meeting Law requirements must be followed in any meeting otherwise subject to the law, whether “formal, informal or social.” Office of the Attorney General, Idaho Open Meeting Law Manual, pg. 8 (https://ag.idaho.gov/office-resources/manuals/).  In the past, the Idaho Supreme Court had cast doubt upon that conclusion in decisions that have construed the Open Meeting Law. See, e.g., Baker v. Independent School District of Emmett, 107 Idaho 608, 691 P.2d 1223 (1984); State ex rel. Roark v. City of Hailey, 102 Idaho 511, 633 P.2d 576 (1981). However, the definition and notice provisions of the Idaho Open Meeting were substantially revised in 1992 in amendments that substantially remedied the difficulties caused by these court decisions.

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1. Regular meetings

a. Definition

A “regular meeting” means the convening of a governing body of a public agency on the date fixed by law or rule, to conduct the business of the agency. Idaho Code § 74-202(6)(a).

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b. Notice

Notice of a regular meeting must be given no fewer than five calendar days prior to the meeting unless specifically provided otherwise by statute. Idaho Code § 74-204(1). If a public agency holds regular meetings at intervals of at least once a month, and those meetings are scheduled in advance for the year, then a notice at least once a year which provides the schedule will suffice. Id. In addition to the notice of the meetings to be held, a 48-hour agenda notice is required in advance of every meeting. Id. Additional agenda items may be included after completion of the 48-hour notice up to and including the hour of the actual meeting, provided that there is a good faith effort to incorporate all probable topics of discussion in the 48-hour notice so the public is well informed and has the opportunity to prepare for discussion at the meeting. Idaho Code § 74-204(4). Public agencies may satisfy these requirements by posting adequate notices in a prominent place at the principal office of the agency or in the building where the meeting shall be held. Idaho Code § 74-202(1).

Notice of a special meeting shall be given at least twenty-four (24) hours in advance, and the agenda notice shall also be provided at least twenty-four (24) hours in advance unless an emergency exists. Idaho Code § 74-204(2). The notice required under this section shall include at a minimum the meeting date, time, place and name of the public agency calling for the meeting. Idaho Code § 74-204(2).

Notice of an executive session shall be given at least twenty-four (24) hours prior to the meeting, and an agenda shall also be provided at that time. Idaho Code 74-204(3). The notice shall provide the reason and specific provision of law authorizing the executive session. Id.

There are no penalties or remedies for failure to give adequate notice apart from the general penalties provided for any violation of the law, which include nullification of the action taken and civil penalties against members of a governing body who knowingly participate in a meeting that violates the law. Idaho Code § 74-208.

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c. Minutes

Under Idaho Code § 74-205(1), a governing body of a public agency is required to provide written minutes to the public within a reasonable time after a meeting, including at least the following information:

(1) All members of the governing body present;

(2) All motions, resolutions, orders or ordinances proposed and their disposition;

(3) The results of all votes, and upon the request of a member, the vote of each member, by name.

The law does not require that a full transcript, nor a recording of the meeting, be prepared, unless otherwise provided by law. Idaho Code § 74-205(1).  See also State v. Yzaguirre, 144 Idaho 471, 478, 163 P.3d 1183, 1190 (2007). In addition, minutes pertaining to an executive session shall include a reference to the specific statutory subsection authorizing the executive session and shall also provide sufficient detail to identify the purpose and topic of the executive session but shall not contain information sufficient to compromise the purpose of going into executive session. Idaho Code § 74-205(2).

Minutes are also considered public records. Even the “raw notes” taken by the county clerk during a Board of County Commissioners meeting may be deemed to be a public writing. See Fox v. Estep, 118 Idaho 454, 797 P.2d 854 (1990).

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2. Special or emergency meetings

a. Definition

A “special meeting” is the “convening of the governing body pursuant to a special call for the conduct of business as specified in the call.” Idaho Code § 74-202(6)(b).

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b. Notice requirements

The notice required for a special meeting shall include, at a minimum, the meeting date, time, place and name of the public agency calling for the meeting. Idaho Code § 74-204(2).

“Special Meetings” require at least a 24-hour meeting and agenda notice. Idaho Code § 74-204(2).  Notice of a special meeting may not be necessary in certain emergency circumstances. Id. An emergency is a situation involving injury or damages to persons or property, or immediate financial loss, of the likelihood of such injury, damage or loss, when the notice requirements of this section would make such notice impracticable, or increase the likelihood or severity of such injury, damage or loss, and the reason for the emergency is stated at the outset of the meeting. Id.

In addition to providing for general notice to the public, the law provides that the public agencies maintain a list of news media requesting notification of meetings and shall make a good faith effort to provide advance notice of the time and place of each meeting to them. Idaho Code § 74-204(2).

The notice requirement for meetings and agendas is satisfied by posting any required notices and agendas in a prominent place at the principal office of the public agency, or if no such office exists, at the building where the meeting is to be held. Idaho Code § 74-204(1).

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c. Minutes

The minutes required for special meetings are apparently the same as those required for regular meetings. Idaho Code § 74-205(1) makes no distinction between the two types of meetings and the minutes required. See also I.E.1.c., supra. Minutes must be available to the public within a reasonable time after the meeting. Idaho Code § 74-205(1).

The following information must be included in the minutes:

(a) All members of the governing body present;

(b) All motions, resolutions, orders, or ordinances proposed and their disposition;

(c) The results of all votes, and upon the request of a member, the vote of each member, by name.

Idaho Code § 74-205(1).

Minutes are also considered public records. Even the “raw notes” taken by the county clerk during a Board of County Commissioners meeting may be deemed to be a public writing. See Fox v. Estep, 118 Idaho 454, 797 P.2d 854 (1990).

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3. Closed meetings or executive sessions

a. Definition

An “executive session” is defined as “any meeting or part of a meeting of a governing body which is closed to any persons for deliberation on certain matters.” Idaho Code § 74-202(3).

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b. Notice requirements

Executive sessions carry the same particular notice requirements in the Open Meeting Law as provided for regular or special meetings, if the executive session is part of such a meeting. If an executive session only will be held, a 24-hour meeting and agenda notice is required, otherwise consistent with special meeting notice requirements. Idaho Code § 74-204(3). The executive session notice must also state the reason and the specific provision of law authorizing the executive session. Id. The general penalties under the law also apply to violations of the notice requirements concerning executive sessions. Idaho Code § 74-208.

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c. Minutes

Minutes of executive sessions are required and must include reference to the specific statutory authority for holding the executive session. Idaho Code § 74-205(2).

In addition to including the specific statutory authority for holding an executive session, the minutes of an executive session must “provide sufficient detail to identify the purpose and topic of the executive session but shall not contain information sufficient to compromise the purpose of going into executive session.” Idaho Code § 74-205(2).

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d. Requirement to meet in public before closing meeting

Idaho Code § 74-206(1) provides that a governing body must meet in a public session prior to closing a meeting.   Such governing body shall identify the specific subsections of the Open Meeting Law that authorize the executive session and there must be a roll call vote on the motion recorded in the minutes. Id. An executive session shall be authorized by a two-thirds (2/3) vote of the governing body. Id. Idaho Code § 74-206(2) further provides that “[t]he exceptions to the general policy in favor of open meetings stated in this section shall be narrowly construed. It shall be a violation of this act to change the subject within the executive session to one not identified within the motion to enter the executive session or to any topic for which an executive session is not provided.”

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e. Requirement to state statutory authority for closing meetings before closure

Prior to beginning any executive session, the governing body’s presiding officer must identify the authorization under Idaho Code § 74-206(1)-(2) for holding an executive session.

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f. Tape recording requirements

In State v. Yzaguirre, 144 Idaho 471, 163 P.3d 1183 (2007), the Idaho Supreme Court held that Idaho Code § 67-2344(1)’s [now 74-205(1)’s] requirement that written minutes of all meetings be taken does not include an audio recording of a meeting.  Id., 144 Idaho at 477-478.

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F. Recording/broadcast of meetings

There is no specific reference in the Idaho Open Meeting Law to recording or broadcasting meetings subject to the law's requirements. It is reasonable to argue that the freedom to record or broadcast such meetings is implied in the law, particularly since most of the public is ultimately informed of such meetings, as with so many other governmental activities, through journalists who report upon such proceedings. Obviously it would be impossible and impractical for a citizen to attend every governmental meeting, judicial trial, session of the legislature and so on.

In practice, recording and broadcasting meetings of governmental bodies is permitted, although broadcasting and recording generally only occurs in regard to statewide bodies or local bodies in larger cities and counties in Idaho. However, the Idaho Legislature has either by rule or by custom required that legislative committee chairpersons give permission before any recording or broadcasting of legislative committee proceedings can occur. This practice has not been challenged as possibly violating the Idaho Open Meeting Law.

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1. Sound recordings allowed

See above.

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2. Photographic recordings allowed

See above.

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G. Access to meeting materials, reports and agendas

An agenda is required for each meeting. Idaho Code § 74-204(4). The agenda is required to be posted in the same manner as the notice of the meeting. Id. An agenda may be amended, provided that a good faith effort is made to include, in the original agenda notice, all items known to be probable items of discussion. Id.

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H. Are there sanctions for noncompliance?

Idaho Code § 74-208 provides for sanctions in the event a governing body fails to comply with Idaho's Open Meeting Law. Under Idaho Code § 74-208(1) any actions taken at a meeting held in violation of the Open Meeting Law will be “null and void.” Under Idaho Code § 74-208(2) a member of a governing body who “conducts or participates in a meeting which violates the provisions of this act” shall be subject to a civil penalty not to exceed $250. Under Idaho Code § 74-208(3), a member of a governing body who “knowingly violates the provisions of this act” shall be subject to a civil penalty not to exceed $1,500. Finally, Idaho Code § 74-208(4) provides that a member of any governing body who violates any provision of the Open Meeting Law and who has previously been determined (or admitted) to violating the law within twelve (12) months preceding this subsequent violation shall be a subject to a civil penalty not to exceed $2,500.

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A. Exemptions in the open meetings statute

1. Character of exemptions

The Idaho Open Meeting Law expressly permits governing bodies of public agencies to conduct meetings closed to the public, but only under certain enumerated circumstances. Such closed meetings, referred to as executive sessions, may be held if, after proper notice, (1) the presiding officer has identified the authorization under the Open Meeting Law for the holding of an executive session, and (2) the members of the governing body agree by at least a two-thirds vote, recorded in the minutes of the meeting by individual vote, to hold such an executive session. Idaho Code § 74-206(1).

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2. Description of each exemption

No executive session may be held for the purpose of taking any final action or making any final decision. Idaho Code § 74-206(3). Under Idaho Code § 74-206(1), executive sessions may only be held for the following purposes:

(a) To consider hiring a public officer, employee, staff member or individual agent, wherein the respective qualities of individuals are to be evaluated in order to fill a particular vacancy or need. This provision does not apply to filling a vacancy in an elective office or deliberations about staffing needs in general;

(b) To consider the evaluation, dismissal or disciplining of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual agent, or public school student;

(c) To acquire an interest in real property which is not owned by a public agency;

(d) To consider records that are exempt from disclosure as provided in chapter 1, title 74, Idaho Code;

(e) To consider preliminary negotiations involving matters of trade or commerce in which the governing body is in competition with governing bodies in other states or nations;

(f) To communicate with legal counsel for the public agency to discuss the legal ramifications of and legal options for pending litigation, or controversies not yet being litigated but imminently likely to be litigated.  The mere presence of legal counsel at an executive session does not satisfy this requirement;

(g) By the commission of pardons and parole, as provided by law;

(h) By the custody review board of the Idaho department of juvenile corrections, as provided by law;

(i) To engage in communications with a representative of the public agency’s risk manager or insurance provider to discuss the adjustment of a pending claim or prevention of a claim imminently likely to be filed.  The mere presence of a representative of the public agency’s risk manager or insurance provider at an executive session does not satisfy this requirement;

(j) To consider labor contract matters authorized under section 67-2345A [74-206A](1)(a) and (b), Idaho Code.

Labor negotiations receive special treatment under the Idaho Open Meeting Law. Until July of 2015, either side in labor negotiations could request meetings to be conducted in executive session and, notwithstanding other provisions of the Open Meeting Law dealing with public notice of executive session, any subsequent session of the negotiations could continue to be closed without further public notice. Now, all negotiations between a governing body and a labor organization must be in open session and shall be available for the public to attend. Idaho Code § [74-206A] 67-2345A(1). This requirement also applies to negotiations between the governing body's designated representatives and representatives of the labor organization. Id. This requirement also applies to meetings with any labor negotiation arbitrators, mediators or similar labor dispute meeting facilitators. Id. However, a governing body or its designated representatives may hold an executive session for the specific purpose of:

(a) Considering a labor contract offer or to formulate a counteroffer; or

(b) Receiving information about a specific employee, when the information has a direct bearing on the issues being negotiated and a reasonable person would conclude that the release of that information would violate that employee's right to privacy.

Id.

In addition, all documentation exchanged between the parties during labor negotiations, including all offers, counteroffers and meeting minutes shall be subject to public writings disclosure laws. Idaho Code § [74-206A] 67-2345A(2).

Idaho Code § 74-206(2) reaffirms the overall policy of the Open Meetings Law when applying the executive session provisions: “The exceptions to the general policy in favor of open meetings stated in this section shall be narrowly construed.  It shall be a violation of this act to change the subject within the executive session to one not identified within the motion to enter the executive session or to any topic for which an executive session is not provided.”

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B. Any other statutory requirements for closed or open meetings

Although it may be questionable as a practical matter how many minds remain open after deliberations during an executive session, no final decisions can be made in executive session. Idaho Code 74-206(3) states flatly that “no executive session may be held for the purpose of taking any final action or making any final decision.”

The Idaho Commission of Pardons and Parole is accorded limited exemption from this provision of the Open Meeting Law. Idaho Code § 20-213A. While their meetings are generally open, deliberations and decisions concerning paroles can be made in executive session and the votes of individual parole board members on such decisions shall not be made public. Idaho Code § 20-213A(1)(a). But the public may obtain overall vote tallies of Commission’s decisions. Idaho Code § 20-213A(2).  See Leavitt v. Craven, 154 Idaho 661, 302 P.1 (2012) (commission’s consideration of death row inmate’s petition for commutation not required to be public).

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C. Court mandated opening, closing

There are no known reported Idaho judicial decisions either closing public meetings otherwise subject to the Open Meeting Law or ordering that executive sessions be opened to the public.  At least two appellate decisions have found that governing bodies violated the provisions of the Open Meeting Act by not allowing the public to meaningful observe such meeting (Noble v. Kootenai County, 148 Idaho 937, 231 P.3d 1034 (2010)) and violating the executive session provisions (State v. Yzaguirre, 144 Idaho 471, 163 P.3d 1183 (2007).

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III. Meeting categories - open or closed

Only those meetings which concern topics described in the ten categories contained in Idaho Code §§ 74-206(1)(a)-(j) are properly conducted in executive session. All other meetings must be conducted in open session.

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A. Adjudications by administrative bodies

Adjudication by administrative bodies are open to the public if they fall within the definitions of the Open Meeting Law and constitute meetings taken to make a decision or to deliberate toward a decision on any matter. Idaho Code §§ 74-202, 74-203(1).

The Idaho Commission of Pardons and Parole is accorded limited exemption from this provision of the Open Meeting Law. Idaho Code § 20-213A. While their meetings are generally open, deliberations and decisions concerning paroles can be made in executive session and the votes of individual parole board members on such decisions shall not be made public. Idaho Code § 20-213A(1)(a). But the public may obtain overall vote tallies of Commission’s decisions. Idaho Code § 20-213A(2). Only the Public Utilities Commission, Industrial Commission Board of Tax Appeals, Idaho Life and Health Insurance Guaranty Association, Idaho Insurance Guaranty Association, and Surplus Line Association are granted a limited exception from the law for specific meetings in fully submitted adjudicatory proceedings. Idaho Code § 74-203(2)-(3).

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1. Deliberations closed, but not fact-finding

See above.

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2. Only certain adjudications closed, i.e. under certain statutes

See above.

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B. Budget sessions

The Open Meeting Law does not reference particular types of meetings, other than those identified as properly subject to executive session. Idaho Code § 74-206. Budget sessions and federal programs generally are not proper subjects of an executive session.

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C. Business and industry relations

Meetings involving “preliminary negotiations involving matters of trade or commerce in which the governing body is in competition with governing bodies in other states and nations” are properly subject to executive session discussions. Idaho Code § 74-206(1)(e).

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D. Federal programs

Federal programs generally are not proper subjects of an executive session.

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E. Financial data of public bodies

Generally, a meeting to discuss financial data of public bodies must be open if the meeting otherwise falls within the Open Meeting Law. However, there are various types of information held by governmental bodies in Idaho that are exempt from the general statutes dealing with the public's right to inspect governmental records. The Open Meeting Law expressly permits a governing body to hold an executive session to discuss such records that are otherwise exempt from public inspection. Idaho Code § 74-206(1)(d).

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

Most proprietary business records and trade secret information are exempt from inspection and copying. The Open Meeting Law expressly permits a governing body to hold an executive session to discuss records that are otherwise exempt from public inspection. Idaho Code § 74-206(1)(d). Thus, this may be the proper subject of an executive session.

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G. Gifts, trusts and honorary degrees

Not specified.

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H. Grand jury testimony by public employees

Not specified.

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I. Licensing examinations

Not specified.

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J. Litigation, pending litigation or other attorney-client privileges

The Open Meeting Law contains an exemption for a governing body to “communicate with legal counsel for the public agency to discuss the legal ramifications of and legal options for pending litigation, or controversies not yet being litigated but imminently likely to be litigated.  The mere presence of counsel at an executive session does not satisfy this requirement.” Idaho Code § 74-206(1)(f).  Similarly, Idaho Code § 74-206(1)(i) provides that an executive session may be held “to engage in communications with a representative of the public agency’s risk manager or insurance provider to discuss the adjustment of a pending claim or prevention of a claim imminently likely to be filed.  The mere presence of a representative of the public agency’s risk manager or insurance provider at an executive session does not satisfy this requirement.”

In Farrell v. Bd. of Comm'rs, Lemhi Cnty., 138 Idaho 378, 389, 64 P.3d 304, 315 (2002) overruled on other grounds by City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012), the Idaho Supreme Court held that a county's entry of a stipulation for judgment was void because it was required to be accepted and voted upon during a public meeting.

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K. Negotiations and collective bargaining of public employees

Labor negotiations receive special treatment under the Idaho Open Meeting Law. Until July of 2015, either side in labor negotiations could request meetings to be conducted in executive session and, notwithstanding other provisions of the Open Meeting Law dealing with public notice of executive session, any subsequent session of the negotiations could continue to be closed without further public notice. Now, all negotiations between a governing body and a labor organization must be in open session and shall be available for the public to attend. Idaho Code § [74-206A] 67-2345A(1). This requirement also applies to negotiations between the governing body's designated representatives and representatives of the labor organization. Id. This requirement also applies to meetings with any labor negotiation arbitrators, mediators or similar labor dispute meeting facilitators. Id. However, a governing body or its designated representatives may hold an executive session for the specific purpose of:

(a) Considering a labor contract offer or to formulate a counteroffer; or

(b) Receiving information about a specific employee, when the information has a direct bearing on the issues being negotiated and a reasonable person would conclude that the release of that information would violate that employee's right to privacy.

Id.

In addition, all documentation exchanged between the parties during labor negotiations, including all offers, counteroffers and meeting minutes shall be subject to public writings disclosure laws. Idaho Code § [74-206A] 67-2345A(2).

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1. Any sessions regarding collective bargaining

See above.

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2. Only those between the public employees and the public body

L. Parole board meetings, or meetings involving parole board decisions

The Idaho Commission of Pardons and Parole is accorded limited exemption from this provision of the Open Meeting Law. Idaho Code § 74-206(1)(g). While their meetings are generally open, deliberations and decisions concerning paroles can be made in executive session and the votes of individual parole board members on such decisions shall not be made public. Idaho Code § 20-213A(1)(a). But the public may obtain overall vote tallies of Commission decisions. Idaho Code § 20-213A(2).

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M. Patients, discussions on individual patients

There are various types of information held by governmental bodies in Idaho that are exempt from the general statutes dealing with the public’s right to inspect governmental records. The Open Meeting Law expressly permits a governing body to hold an executive session to discuss such records that are otherwise exempt from public inspection. Idaho Code § 74-206(1)(d). Patient information may fall within this category.

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N. Personnel matters

1. Interviews for public employment

Executive sessions may be held to consider hiring a public officer, employee, staff member or individual agent, wherein the respective qualities of individuals are to be evaluated in order to fill a particular vacancy or need. Idaho Code § 74-206(1)(a). However, this paragraph does not apply to filling a vacancy in an elective office or deliberations about staffing needs in general.  Id.

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2. Disciplinary matters, performance or ethics of public employees

An executive session may be held to consider the evaluation, disciplining of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual agent, or public school student. Idaho Code § 74-206(1)(b).

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3. Dismissal, considering dismissal of public employees

An executive session may be held to consider the dismissal of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual agent, or public school student. Idaho Code § 74-206(1)(b).

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O. Real estate negotiations

Deliberations concerning acquisition of an interest in real property that is not owned by a public agency can properly take place in executive session. Idaho Code § 74-206(1)(c).

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P. Security, national and/or state, of buildings, personnel or other

There are various types of information held by governmental bodies in Idaho that are exempt from the general statutes dealing with the public’s right to inspect governmental records. The Open Meeting Law expressly permits a governing body to hold an executive session to discuss such records that are otherwise exempt from public inspection under the Public Records Act. Idaho Code § 74-206(1)(d).

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Q. Students, discussions on individual students

An executive session may be held to consider the evaluation, dismissal or disciplining of a public school student. Idaho Code § 74-206(1)(b).

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IV. Procedure for asserting right of access

A. When to challenge

Although the law does not specifically require it, a challenge should be initiated informally as soon as the violation of the law is known or suspected. In some instances, a governing body (particularly in some smaller local agencies) may simply be unaware or ill informed as to the law's requirements. If the governing body learns of its potential error in advance of the violation, the problem may be corrected.
The Idaho Open Meeting Law does not contain specific provision for reviewing requests to attend upcoming meetings. However, if it is apparent that the proposed meeting will violate the law, a person may draw upon general declaratory and injunctive judicial remedies to prevent the violation from occurring.
The only “bar” to challenging an Open Meeting Law violation is the statutory period for bringing a claim under the law, found at Idaho Code § 74-208(6). In some instances, permanent injunctive relief may be sought to prevent future violations of the law. A suit brought to have an action declared null and void because it happened at a meeting in violation of the Open Meeting Law needs to be commenced within 30 days of the time of the decision or action that results. Any other suit brought needs to be brought within 180 days of the time of the alleged violation.

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

No expedited procedures are set forth for any particular violation of the Open Meetings Act.  Those who feel like the Act has been violated, should diligently pursue notifying the agency of such violation pursuant to Idaho Code §74-208(7)(a)(i) and, if necessary, contacting either the Attorney General’s office to enforce the Act pursuant to Idaho Code § 74-208(5) or pursue an action in magistrate court pursuant to Idaho Code § 74-208(6).

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2. When barred from attending

See above.

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3. To set aside decision

See above.

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4. For ruling on future meetings

See above.

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5. Other

B. How to start

The initial protest of an informal nature should be directed at the governing body and/or the head of the public agency (e.g., the city council and the mayor), if the violation is apparent before it occurs or during its occurrence. However, there is no specific requirement in the law that a protest be filed with the agency or governing board prior to a court action. Nonetheless, and as a practical matter, anyone who believes that a violation of the Open Meetings Act has occurred may submit a written notice of such alleged violation to the public agency at issue.  Idaho Code § 74-208(7)(a)(ii).  This submission triggers a fourteen (14) day response period by that agency during which it must either acknowledge the open meeting violation and state an intent to cure or state that the agency has determined that no violation has occurred.  Failure to respond within the fourteen (14) day period “shall be treated as a denial of any violation for purposes of proceeding with any enforcement action.”  Id.  Any agency acknowledging a violation of the open meeting act shall have fourteen (14) days to cure such violation.  Idaho Code § 74-208(7)(b).  All enforcement actions shall be stayed during the response and cure period but may recommence at the discretion of the complainant after the cure period has expired.  Idaho Code § 74-208(7)(c). 

The state attorney general has specific responsibility for enforcing the Open Meeting Law in relation to state agencies. Idaho Code 74-208(5). In addition, an informal or formal opinion from the attorney general’s office as to the propriety of agency action in relation to the Open Meeting Law is often a sound alternative to litigation.

Court rulings may be obtained by proceeding under Idaho Code § 74-208(6).

A person affected by a violation of the law may commence a civil action in the magistrate division of the district court of the county where the public agency ordinarily meets. Idaho Code § 74-208(6).

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1. Where to ask for ruling

a. Administrative forum

Perhaps the easiest and cheapest way to bring an alleged violation of the open meeting act to the attention of the governing body at issue, is to submit a written notice of an alleged violation to such body pursuant to Idaho Code § 74-208(7)(a)(ii).  Upon receipt of such notice, the governing body shall have 14 days to respond publicly and either acknowledge the open meeting violation and state an intent to cure the violation or state that the public agency has determined that no violation has occurred and that no cure is necessary. Idaho Code § 74-208(7)(a)(ii).  Failure to respond shall be treated as a denial of any violation for purposes of proceeding with any enforcement action. Id.

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b. State attorney general

The state attorney general has specific responsibility for enforcing the Open Meeting Law in relation to state agencies. Idaho Code § 74-208(5). The prosecuting attorneys of the various counties have the duty to enforce the Open Meeting Law in relation to local public agencies within their respective jurisdictions. Idaho Code § 74-208(5). In the event that there is reason to believe that a violation of the provisions of the law has been committed by members of a board of county commissioners or, for any other reason a county prosecuting attorney is deemed disqualified from proceeding to enforce the law, the prosecuting attorney or board of county commissioners shall seek to have a special prosecutor appointed for that purpose as provided in section 31-2603, Idaho Code. Idaho Code § 74-208(5).

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1. Applicable time limits

2. Contents of request

3. How long should you wait for a response?

c. Court

Any person affected by a violation of the provisions of the Open Meetings Law may commence a civil action in the magistrate division of the district court of the county in which the public agency ordinarily meets, for the purpose of requiring compliance with provisions of the Open Meetings Law. Idaho Code § 74-208(6).

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2. Applicable time limits

Upon receipt of written notice of an alleged open meeting violation, a governing body shall have 14 days to respond publicly and either acknowledge the open meeting violation and state an intent to cure the violation or state that the public agency has determined that no violation has occurred and that no cure is necessary. Idaho Code § 74-208(7)(a)(ii). Failure to respond shall be treated as a denial of any violation for purposes of proceeding with any enforcement action. Id.

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3. Contents of request for ruling

Any request for a ruling must, necessarily, include all facts to support the contention that a violation of the Open Meeting Act has occurred.

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4. How long should you wait for a response

Once a written notice is submitted to a governing body pursuant to Idaho Code § 74-208(7)(a)(ii), the complainant must wait for the statutory response and cure period to expire before commencing enforcement proceedings in court.  Idaho Code § 74-208(7)(c).

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5. Are subsequent or concurrent measures (formal or informal) available?

None.

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C. Court review of administrative decision

1. Who may sue?

“Any person affected by a violation” of the Open Meeting Law may bring an action for the purpose of requiring compliance with the law or to have an action declared null and void. Idaho Code § 74-208(6). There is no specific definition of “affected” provided in the Open Meetings Law. Although representatives of local agencies argued during the 1992 amendment process that such actions should be limited only to those directly damaged by a violation, the language of the statute could allow a person who feels “shut out” of the decision process to also bring an action under the law.

In Arnold v. City of Stanley, 158 Idaho 218, 345 P.3d 1008 (2015),  the Idaho Supreme Court held that the plaintiffs were not affected by the alleged violation of the Open Meeting Law and therefore did not have standing to bring their challenge. The court held that the plaintiffs were not affected, as required by the statute, where citizens had made no attempt to attend the meeting, and had their comments read into the record at the meeting, and the only alleged violation was an early start to the meeting and failure to amend the meeting notice to account for that change.

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2. Will the court give priority to the pleading?

Unlike Idaho’s Public Records Act, there is no requirement that a Court give priority to a lawsuit involving the Open Meeting Law. If immediate injunctive relief is also sought, however, at least that portion of the action should receive priority attention from the Court.

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3. Pro se possibility, advisability

There is no prohibition against bringing a pro se action under the Open Meeting Law. However, one can expect some difficulty in mustering the evidentiary proof necessary to establish that a decision or deliberation occurred in a closed meeting, and experienced counsel can make that task easier.

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4. What issues will the court address?

The court will consider any issue raised by the pleadings that deal with compliance with the Open Meeting Law or for the purpose of having an action declared or determined to be null and void for having resulted in violations of the law. However, there is no private right to seek assessment of a civil penalty against a member of the public agency, nor is there any private right of action for damages arising out of violations of the law. Idaho Code § 74-208(6). Although not specifically defined, the reference to “damages” in Idaho Code § 74-208(6) is thought to refer only to money damages.

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a. Open the meeting

See above.

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b. Invalidate the decision

See above.

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c. Order future meetings open

See above.

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5. Pleading format

The statute requires no specific pleading format. The complaint should describe the violation and relief sought with sufficient specificity to meet the notice pleading requirements of the Idaho Rules of Civil Procedure and otherwise comply with those rules.

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6. Time limit for filing suit

Severe time constraints are placed upon actions filed under the Open Meeting Law. Any suit seeking to declare an action null and void must be brought within 30 days of the time of violation or alleged violation of the law. Idaho Code § 74-208(6). Any other suit must be commenced within 180 days of the time of the violation or alleged violation of the law. Idaho Code § 74-208(6).

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7. What court

Suits are filed in the magistrate division of the district court of the county in which the public agency ordinarily meets. Idaho Code § 74-208(6).

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8. Judicial remedies available

The full range of judicial remedies under Idaho law is available to require compliance with the law or declare action taken in violation of the law null and void, including injunctive and declaratory relief. However, private suits may not be brought for damages or to impose the civil penalty described in Idaho Code §§ 74-208(2)-(4). Idaho Code § 74-208(6).

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9. Availability of court costs and attorney's fees

There is no specific provision for court costs and attorney fees in the law. Thus, fees and costs issues will be determined by other applicable provisions of the Idaho Code and Idaho Rules of Civil Procedure. Plaintiffs should review all such statutes and rules.

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10. Fines

The Open Meeting Law provides for three levels of civil penalties. Idaho Code § 74-208(2) imposes a civil penalty not to exceed $250 for any member of the governing body who “conducts or participates in a meeting” which violates the Open Meeting Law. Idaho Code § 74-208(3) imposes a civil penalty not to exceed $1,500 upon any member of a governing body who “knowingly violates” the Open Meeting Act. And, Idaho Code § 74-208(4) provides that any member of a governing body who has violated the Open Meeting Act (knowingly or unintentionally) more than once in a twelve (12) month period shall be subject to a civil penalty not to exceed $2,500.
Idaho Code § 74-208(7) was added to encourage and allow governing bodies to “cure” any violations of the Open Meeting Law. Under section 74-208(7)(a), a violation of the law may be cured by a public agency upon: (a) the agency’s self-recognition of a violation; or (b) the service of a complaint alleging a violation of the Law. Once the agency is put on notice of such a violation, it has 14 days to respond by either acknowledging a violation and an intent to cure it or determining that no violation has occurred. Failure to respond shall be treated as a denial for purposes of proceeding with any enforcement action. I.C. § 74-208(7)(a)(i)-(ii). If the agency acknowledges a violation, it has 14 days to cure the violation “by declaring that all actions taken at or resulting from the meeting in violation of this act void.” Idaho Code § 74-208(7)(b). All enforcement actions are stayed during the “response and cure” periods but may recommence at the discretion of the complainant after the cure period has expired. I.C. § 74-208(7)(c). An agency’s cure of an alleged violation “shall act as a bar to the imposition of the civil penalties” provided in the law. I.C. § 74-208(7)(d).

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11. Other penalties

Any action taken in a meeting which violates the Open Meeting Law, or which stems from deliberations or decision making in a meeting that violates the law, "shall be null and void." Idaho Code § 74-208(1).

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D. Appealing initial court decisions

1. Appeal routes

Because actions filed under the Open Meeting Law begin in magistrate court, the first level of appeal is to the district court. Appeals from magistrate court to district court are governed by Rule 83 of the Idaho Rules of Civil Procedure and a party undertaking such an appeal should review the current rules for guidance. Appeals from the district court are handled as other appeals and are governed by the Idaho Appellate Rules. Appeals are assigned to either the intermediate Court of Appeals or directly to the Idaho Supreme Court. If decided by the intermediate Court of Appeals, a party may seek further review before the Idaho Supreme Court.

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2. Time limits for filing appeals

See above.

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3. Contact of interested amici

Amicus appearances are generally liberally allowed by the Idaho appellate courts. Provisions for seeking leave to make such an appearance and procedures for amicus briefing and argument are also found in the Idaho Appellate Rules.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest Court.

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V. Asserting a right to comment

A. Is there a right to participate in public meetings?

The Open Meeting Law does not specifically provide for public participation. However, by uniform and local practice, public participation is universally allowed, subject to the governing body's particular practice.

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B. Must a commenter give notice of intentions to comment?

Generally the governing body will ask for persons to sign a list of persons seeking to comment upon particular agenda items. The Open Meeting Law does not address such an issue, however.

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C. Can a public body limit comment?

The Open Meeting Law does not specifically address this question. Idaho governing bodies generally try to impose time limits on comments, however.

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D. How can a participant assert rights to comment?

The Open Meeting Law does not provide for any particular method for asserting a right to comment. Individuals should be able to assert a right to comment by providing written notice prior to the meeting or by standing and asking for the opportunity to give public comment. It would also be prudent to ask that the request for comment be included in the meeting minutes.

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E. Are there sanctions for unapproved comment?

There are no sanctions for unapproved comments in the Open Meeting Law. Disruptive or disorderly conduct would subject the person involved in such conduct to removal from the meeting, however, and possible arrest under general criminal statutes dealing with such conduct.

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Appendix