Eye on Boise: A presumption of openness

From the Idaho Press

By BETSY Z. RUSSELL

The Idaho Public Records Law, in Idaho Code Section 74-102, has a strong presumption of openness.

“Every person has a right to examine and take a copy of any public record of this state,” the law says, “and there is a presumption that all public records in Idaho are open at all reasonable times for inspection except as otherwise expressly provided by statute.”

That’s why when a public agency denies a request for public records, it has to cite the specific statutory exemption from disclosure for that particular record.

In the current lawsuit between the Idaho Press Club and Ada County, we’ve learned that the state’s largest county believes a series of sweeping, blanket privileges — for privacy, attorney-client privilege and a “deliberative process” privilege — outweigh the entire law. Rather than cite any of the 100-plus specific statutory exemptions in the law for refusing to release public records, the county, according to its legal filings and arguments in court, believes it can just cite those broad privileges.

According to a lengthy legal memorandum the county’s attorneys filed in the case, they seem to believe that a 2007 case, Nation v. State Department of Correction, completely turned the presumption of openness in the Public Records Act on its ear, replacing it with a standard that no information that might possibly be private should ever be released, just in case — unless a court orders that it be released. Can you imagine if we all had to go to court every time we wanted to look at our city council’s minutes, a police report on a crime that happened on our street, or how much our local school district is paying a consultant?

Full disclosure here: I’m the president of the Idaho Press Club. That’s why I’ve not been the one writing our news articles about this lawsuit. And the Press Club’s attorneys, in their own legal filings, have strongly disagreed with the county’s argument, which is a new one on me in my 33 years as a reporter in Idaho.

“The county’s position in this case turns the presumption of government transparency and disclosure upside down,” wrote the Press Club’s lead attorney, Deborah Ferguson, in a reply brief filed with the court.

I read the 2007 case, and it wasn’t about the Public Records Act at all.

The lead attorney for the county in the records case, Deputy Prosecutor Jim Dickinson, wrote in arguments filed with the court, “In dissent from the Court’s conclusion in part of the Opinion, Chief Justice Schroeder strongly admonished Idaho governments never to release private information.”

“Idaho governments must proceed cautiously when making records publicly available,” Dickinson wrote. “The Board’s and ACSO’s (Ada County Sheriff’s Office) practices are informed by the Supreme Court’s admonition to treat personal information, or any information that could involve potential for personal or financial harm if released, or information that ‘might and probably would cause mutual distress and injury,’ with great care. As the Court instructed in Nation, should there be any question, entities should protect privacy information until a court orders otherwise.”

Really? The Idaho Public Records Act’s presumption of openness in public records was completely overturned in a court decision more than a decade ago, and none of us ever heard about it until now? I think not. And while I’m no lawyer, no other attorney I’ve talked with about public records in Idaho has ever argued anything of the sort.

Even more sweeping than the “privacy” privilege that Ada County has claimed in the case are its claims of attorney-client privilege, which it claims apply even to non-attorneys and to matters having nothing to do with litigation; and its truly bizarre claim of a “deliberative process” privilege — something that doesn’t exist in Idaho law at all.

The closest thing is an exemption in the Idaho Public Records Act, in 74-109(1), for “draft legislation.” But that applies solely to draft bills in the Idaho Legislature, known in the Statehouse as “RS’s,” that haven’t yet been taken up in a public meeting by a legislative committee. It doesn’t have anything to do with county officials deliberating on the public’s business, and it certainly doesn’t make that process secret.

The preamble of the Idaho Open Meeting Law says, “The people of the state of Idaho in creating the instruments of government that serve them, do not yield their sovereignty to the agencies so created. Therefore, the legislature finds and declares that it is the policy of this state that the formation of public policy is public business and shall not be conducted in secret.”

That’s why we have an Open Meeting Law in Idaho. That’s why we have a Public Records Act. In Idaho, we believe that the citizens have a right to see their government in action, including their deliberations on public policy matters. That’s not supposed to be secret until it’s later sprung on all of us as a done deal. It’s supposed to be open.

That’s how we’re all able to be informed participants in our unique form of government. That free, open access to government information is not just critical to allowing me to do my job as a reporter; it’s central to our freedom as Americans.

From the Idaho Press

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