Wasden: Under Idaho Public Records Law, Clinton emails would be available

Guest opinion from Idaho Attorney General Lawrence Wasden

As we celebrate the 25th anniversary of our state’s Public Records Law, I encourage all Idahoans to take a moment to ask whether a policy decision made a generation ago remains relevant in our state today.

To me, the answer is simple. The statute adopted by Idaho lawmakers in 1990 is as critical now as it was then to fostering public trust, accountability and transparency in our state and local government.

Yet as we honor the steps we’ve made to open government here in Idaho, there is still cause for concern. Currently, we’re engaged in a national debate on public records laws and the risks taken by government officials who, for whatever reason, choose to ignore the spirit of those laws.

The wisdom offered more than 50 years ago by former U.S. Attorney General Ramsey Clark still resonates loud and clear: “Nothing so diminishes democracy as secrecy.”

For the last two weeks, national media have been reporting on the use of a private email account by former U.S. Secretary of State – and leading Democratic presidential nominee – Hillary Rodham Clinton.

Mrs. Clinton has acknowledged using a personal account to send emails while serving as secretary from 2009 to 2013, characterizing it as a matter of convenience. Days after this story was first reported, Mrs. Clinton turned over to government officials more than 55,000 pages of documents covering her time in office. Mrs. Clinton’s lawyers have deemed another 31,000 emails private, meaning they are now shielded from public review.

While I acknowledge Mrs. Clinton for producing those emails and urging their quick release, it’s fair for the public and media to question why a government official – whether elected or appointed – at the very least created the perception of concealing the public’s business.

In so many ways, actions like this do nothing more than erode faith in our republic and its leaders and foster mistrust in our public institutions.

Luckily, however, I can say with confidence that this debate playing out on the federal stage would not occur here thanks to the wisdom and forethought of the authors of Idaho’s Public Records Law.

In 1990, the Idaho Legislature embedded the principles of open, transparent government into law. In their original statement of purpose, lawmakers wrote: “Those who are elected to public office and those who are employed in government are trustees and servants of the people and it is in the public interest to enable any person to review and commend or criticize the operation and actions of government and governmental officials and employees …”

What does that statement mean to me? In simplest terms, lawmakers wanted to send a strong signal that shielding public records – whether it’s a handful of notes written by a clerk or thousands of emails sent by an agency director – will not be tolerated and is against the law.

Those intentions are reinforced in the definition of a public record.

As defined in Idaho Code 9-337 (14), a public record “includes but is 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.”

The law also guards against using a private, third-party contractor to make an end-run around disclosure.

Idaho Code 9-338 (13) states: “A public agency or independent public body corporate and politic shall not prevent the examination or copying of a public record by contracting with a nongovernmental body to perform any of its duties or functions.”

These provisions ensure two things: 1. Idaho’s public records remain public; and 2. Government cannot contract away its obligations under the public records act.

In Idaho, there would be no debate about Mrs. Clinton’s use of a private server; the emails and other documents would be public based on their content.

The state’s public records law demands that the public’s business remain the public’s business. This requirement engenders confidence and trust in government with the use of one of nature’s strongest sanitizers: sunshine.

So, happy birthday to our Public Records Law and let’s hope we can all look forward to many more.

Wasden has been Idaho’s attorney general since 2003.

Guest opinion from Idaho Attorney General Lawrence Wasden

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