Idaho cities, counties wary of proposed public-records review process

From the Idaho Statesman

In Idaho, citizens are solely responsible for enforcing the state’s public records laws. If an agency wrongfully denies access to a public record, a citizen’s lone remedy is a lawsuit, which can be a costly and intimidating process.

Gov. Butch Otter’s recently appointed public records ombudsman, Cally Younger, is heading a committee considering an alternative: a statewide public record review process. The system would be meant to resolve public record disputes, avoid costly lawsuits, and help both the public and government employees understand and comply with the law.

“We think this could really make a difference in Idaho by remedying the biggest hole we have in our public records law, which is that the only thing you can do when you get a denial – even if it is a clearly wrong denial – is to hire a lawyer and file a lawsuit against your own government,” Betsy Z. Russell, a committee member and president of the Idaho Press Club, said during a meeting Monday.

Under the proposed review process – the committee is drafting legislation – a citizen could go to the public records ombudsman to challenge an agency’s decision, contest fees charged for public records or address other issues. The ombudsman could mediate and issue an advisory, but not binding, opinion.

If either party was not satisfied with the ombudsman’s recommendation, it could appeal to a five-member hearing committee, which would make a binding decision. The hearing committee, appointed by the governor, would comprise two private citizens, an elected city or county official, a member of the media and a representative from the state historical archives.

The hearing committee’s decision could be appealed to a judge, who would conduct an independent review. At any time during the process, a citizen could bypass the review and file a lawsuit – at his or her own expense.

Cities and counties are balking at the plan, according to Association of Idaho Cities and Idaho Association of Counties representatives who sit on Younger’s committee.

“We are not overly enthused about this,” said Seth Grigg, director of the cities’ association.

Grigg suggested creating the review process at the state level first, “so that our folks can see how it plays out, get some level of comfort with it and then roll it out at the local level.”

Idaho’s public record and open meeting laws apply equally to all local and state governments, from cemetery districts to the state police.

City and county concerns include having an ombudsman and hearing committee members who do not deal with local government records “second-guessing” decisions made by city or county prosecutors about which records cannot be released or require redaction. “It is kind of a scary idea,” said Idaho Association of Counties policy analyst Dan Blocksom.

Jeremy Pisca, the director of the Newspaper Association of Idaho who also sits on the committee, thinks the review process should apply to all government entities that must abide by the state’s public records law. “A lot of the abuses are taking place at the local level. That is definitely a concern,” he said.

Over time, the hearing committee could address issues and, if warranted, recommend changes to clarify and strengthen public records law, thereby reducing disputes.

From the Idaho Statesman

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