Archives for August 2006

Idaho Conservation League wins suit

From The Spokesman-Review

Betsy Z. Russell
Staff writer

BOISE – The Idaho Supreme Court has ruled that a state agency can’t keep public records secret by handing them over to someone else and saying they’re no longer in the agency’s possession.

“These documents are clearly public records that are not expressly exempted by statute, regardless of whether ISDA (Idaho state Department of Agriculture) retains possession of them,” Justice Linda Copple Trout wrote in the decision filed Monday. The 3-2 decision also said the court was “not persuaded by the ISDA’s attempts to circumvent these statutes.”

The case involved a lawsuit by the Idaho Conservation League against the state Department of Agriculture because the department refused to disclose nutrient management plans – plans showing how large quantities of manure and wastewater would be disposed of – for beef cattle feedlots. The department cited a law that requires its staff to give all copies of the required plans back to the feedlot operators after it has reviewed and approved them.

“The department made a good-faith effort to comply with statute,” department spokesman Wayne Hoffman said Monday. “From time to time, courts hand down decisions that require agencies to re-evaluate how they do business.”

Hoffman said the department still is reviewing the decision.

Justin Hayes, program director for the conservation league, said, “Average citizens just want to know that the waste that’s being generated is being disposed of properly, in a way that’s not going to harm their air quality or their water quality or result in blankets of flies smothering their grandchildren when they come over for a picnic.”

“When ISDA tries to hide these things from people, it makes people very angry at their government,” he said.

A district court had reached the same conclusion, but the state department appealed to the Idaho Supreme Court. The Supreme Court ordered the department to pay the league’s attorney fees for the appeal, concluding that the department’s appeal was “frivolously pursued” because it focused on who had possession of the records – not on whether the records were public or not.

The court wrote, “A state agency is expressly prohibited from preventing examination of a public record ‘by contracting with a non-governmental body to perform any of its duties or functions.’ … This statute indicates a clear policy by the Legislature that the public has a right to view and inspect records relating to the public’s business and this right cannot be denied by having some other entity conduct the public’s business at some other location.”

Chief Justice Gerald Schroeder and Justice Daniel Eismann dissented. Justice Roger Burdick and Justice Pro-Tem Wayne Kidwell concurred in the majority opinion.

Eismann wrote that the majority suggests that public documents remain so forever. “Such reasoning could require agencies to search landfills for public documents they threw away,” he wrote.

The American Civil Liberties Union represented the Idaho Conservation League in the case. Jack Van Valkenburgh, head of the Idaho ACLU, said under current law, “many agencies have records retention policies, and if they call for the destruction at some point of a document … it is no longer a public record.”

But in this case, Van Valkenburgh said, the state conceded in court that the nutrient management plans were public records. “The dispute was whether surrendering custody of a record means it’s no longer accessible to the public. Fortunately, the court said no. You can’t evade the law by simply transferring the custody holder.”

The feedlots in question don’t include dairies, though mega-dairies and the waste they produce have been a hot issue in Southern Idaho. Both Hayes and Hoffman said nutrient management plans for dairies have routinely been released to the public. Only feedlots for beef cattle were affected by the law about returning the plans to the operators.

The court also upheld the district court’s ruling on another issue, affirming that plans submitted as part of the “Idaho OnePlan” online system operated by the Department of Agriculture are exempt from public disclosure. That’s because the Idaho Public Records Law includes an exemption for the OnePlan system, through which operators can confidentially seek guidance on how to improve their practices.

Hayes hailed the court ruling. “A state agency and the Legislature tried to open up a huge hole in the Idaho Open Records Law by basically farming out documents,” he said. “That was a blatant attempt to make it hard for citizens to learn important information to protect their quality of life.”

From The Spokesman-Review

Editorial from the Idaho Statesman

Faced with a defining decision that will reshape Garden Valley, Boise County commissioners made an abject mess of things.

They met behind closed doors without proper notice, without taking minutes — and without justification. Even their attorney, county Prosecutor Theresa Gardunia, says commissioners shouldn’t have met behind closed doors.

Minutes after the closed meeting, the commissioners approved Southfork Landing, a 606-home, 858-acre development that has divided Garden Valley’s 1,800 residents. When commissioners faced the most scrutiny — when the process mattered the most — they botched it.

They succumbed to the notion that closed doors make for good governing.

The commissioners’ July 24 closed executive session on Southfork was riddled with potential Open Meeting Law violations. Commissioners didn’t put the meeting on the agenda. They failed to provide 24 hours’ notice. They failed to have a clerk take minutes.

During the closed meeting, commissioners discussed what information to include in the public record before approving Southfork, said Gardunia, who was summoned from court to sit in on the commissioners’ meeting. Preparing a complete record is a legitimate step, she said, but something that could have been done in the open. “I think the executive session was unauthorized,” she said Thursday.

Commissioners can meet behind closed doors under select circumstances. For instance, they can discuss a probable or pending lawsuit — and given the public concern over Southfork, a lawsuit may be inevitable. But litigation never came up in the closed session, Gardunia said.

Now, each commissioner could face a $150 fine for breaking the Open Meeting Law, which may be the least of their problems. The botched meeting could provide an opening for critics who want to stop Southfork by getting a judge to nullify the vote to approve the project. The tortured process certainly casts a shadow on Southfork — a project that, by size alone, would be controversial under any circumstance.

Gardunia acknowledges the process looks bad to outsiders, and concedes the closed meeting was unjustified. She deserves credit for that. By contrast, Ada County officials have spent $17,781.25 in taxpayer money on legal fees fighting an alleged Open Meeting Law violation, dating back to June 2005.

The Boise County situation underscores the need for training. Attorney General Lawrence Wasden has toured the state teaching elected officials about how to operate under the Open Meeting Law; obviously, there is still work to do.

The cautionary tale — for part-time office-holders such as Boise County’s commissioners or full-timers like the Ada commissioners — is to work in public, rather than looking for excuses for secrecy. The excuses won’t fly with skeptical citizens — and sometimes, they violate the law.

If Boise County commissioners don’t believe that, they ought to talk to their lawyer.

Editorial from the Idaho Statesman

From the Idaho Statesman

Boise County commissioners held an invalid closed meeting July 24 to discuss a controversial development in Garden Valley, Boise County Prosecutor Theresa Gardunia said this morning.

But it’s unclear whether commissioners will face any penalties.

Commissioners held the executive session shortly before voting 3-0 to approve Southfork Landing, a 606-home, 868-acre project near the South Fork of the Payette River.

In the closed meeting, commissioners and Gardunia discussed what information needed to be included in the public record before approving the project, Gardunia said.

This discussion could have been held in open session, Gardunia told Statesman editorial page editor Kevin Richert this morning.

“I think the executive session was unauthorized,” she said.

State law allows commissioners to meet behind closed doors to discuss pending or probable litigation. However, a possible lawsuit was not discussed in the closed meeting, Gardunia said.

The executive session was not posted on the commissioners’ agenda and was held without 24 hours’ notice, also in possible violation of Idaho Open Meeting Law.

Elected officials can face fines of up to $150 for violating the Open Meeting Law.

Gardunia says she has not yet received a formal complaint protesting the meeting. If she receives a complaint, Gardunia says she will recuse herself and send the complaint to another prosecutor.

From the Idaho Statesman

From the Star-News

The Star-News in McCall has filed a court action to force the city of McCall to release an investigation into the conduct of former McCall Police Department Chief Ralph Appa and two of his top officers.

The petition was filed July 24 in Fourth District Court in Cascade. In it, The Star-News asks a judge to overturn the city’s rejection of three separate requests made by the newspaper for the report under Idaho public records laws between November 2005 and March.

A hearing on the petition has been scheduled for Aug. 17 before Fourth District Judge George Carey.

“The documents requested contain information that cannot be released, based on the requirements of Idaho Code,” McCall City Manager Lindley Kirkpatrick said in a statement in reaction to The Star-News filing.

“The City looks forward to the resolution of this petition in a way that protects the interests of the individuals involved within the limits of the law,” Kirkpatrick said.

After a three-year tenure marked by controversy, Appa resigned as the head of McCall’s police force in June 2005. Also submitting their resignations were Lt. Chris Moore and Sgt. Lance Rogers.

The three were suspended with pay from their duties earlier in June 2005 by Kirkpatrick.

Kirkpatrick launched an investigation into the officers, hiring James Bensley of Northwest Investigative Solutions of Garden City as investigator.

The report has not been released and no official reason for the investigation or the resignations has been given by the city.

After the suspensions, McCall City Council member Bonnie Bertram said the officers were disciplined because of suspected mishandling of evidence in two high-profile investigations.

Those cases included that of former McCall Area Chamber of Commerce Executive Director Tracey Smith, who is now in prison for stealing money from the chamber.

The other case was that of Russell Antonucci, who has pleaded guilty and is awaiting sentencing in the shooting and wounding of two people outside his McCall apartment in April of 2004. )In responding to the public records requests by The Star-News, Kirkpatrick cited state laws that exempt disclosure of personnel records or if release of the records would be an unwarranted invasion of privacy.

“We believe the disclosure of these records are in the public interest,” said Tom Grote, editor and co-publisher of The Star-News. “The Bensley report investigated the conduct of the police department and apparently found things that were terribly wrong,” Grote said. “This is information that city taxpayers who pay the salaries of police officers have a right to know.”

Appa continues to live in McCall, where he operates a handyman service.

In an interview, he said he received a severance package in return for his resignation, but declined to reveal the amount of that severance.

Appa said he requested and received a copy of the Bensley report from the city but that his copy was heavily censored. The parts of the report that he could read, however, show the investigation was biased against him and his fellow officers, Appa said.

“The report was designed to do what the city wanted to do, which is dig up enough garbage to hand their hat on to terminate us,” he said.

Rogers also continues to live in McCall, where he operates a home inspection service, according to his wife, Cherish. Rogers did not return a telephone message.

Moore lives in Boise, but his occupation was not known. He did not return a telephone message from The Star-News.

The Star-News is represented in the case by Boise attorney Debora Kristenensen, who has frequently represented the Idaho Press Club in court and in the Idaho Legislature on public records and open meeting issues.

The Star-News, an independent weekly newspaper, has a paid circulation of 4,500. The newspapers owners are Tom and Tomi Grote of McCall and A.L. Butch Alford Jr. of Lewiston.

Alford also is the owner of The Lewiston Tribune in Lewiston and the Moscow-Pullman Daily News in Moscow.

From the Star-News