Judge rules source of lethal injection drug can stay secret for now

From the Associated Press

By Rebecca Boone

BOISE, Idaho (AP) — An Idaho judge has modified a previous decision, and now says state prison officials can hold off on identifying where they obtain the drugs used in executions until a trial is held on the matter.

Fourth District Judge Lynn Norton ruled in May that the state had to turn over nearly all of its execution records, including those identifying the source of the execution drugs, to a University of Idaho professor who sued for access to the documents under the Idaho Public Records Act.

But on Monday, Norton modified her decision, saying the state could redact any information that would identify the source of the lethal drugs for now. A trial will be held in the future to decide whether those redactions are allowable under the public records law.

State prison officials have argued that releasing the name of the drug supplier would subject that entity to such intense public pressure that the state would be unable to obtain the drugs in the future.

The way states find, obtain, pay for and store lethal injection drugs has been a key issue in court cases across the country.

Many state prison officials try to keep such records secret, in part over fears that suppliers will dry up.

Drug companies Alvogen, Hikma Pharmaceuticals USA and Sandoz Inc. have accused Nevada officials in a lawsuit of improperly obtaining their drugs for a use the companies don’t allow — lethal injection — and deceiving the public in the process. Nevada officials had tried to keep the drug companies identities’ secret, but a court order in an American Civil Liberties Union lawsuit in July forced the state to reveal the company names.

Fifteen states, including Idaho, have sided with Nevada in the state court fight against the drug companies.

Pharmaceutical company Pfizer announced in 2016 that it would not provide lethal injection drugs to states, and last year the company asked states to return any previously obtained lethal injection drugs.

With most traditional suppliers gone, some states have turned to compounding pharmacies or foreign countries to purchase the drugs.

University of Idaho Professor Aliza Cover filed a public records request with the Idaho Department of Correction last year seeking purchase orders, receipts, source paperwork and other documents on the drugs the state used in its two most recent executions, along with any documents on the drugs it expects to use in future executions. But the department refused, contending the information was exempt under the public records law.

The state has only executed three people in the last 25 years: Keith Wells in 1994, Paul Ezra Rhodes in 2011 and Richard Leavitt in 2012. Currently nine inmates are awaiting execution.

Idaho Department of Correction spokesman Jeff Ray said the department does not have a comment at this time.

Cover’s attorney, Ritchie Eppink with the American Civil Liberties Union of Idaho, says the new ruling was for technical procedural reasons.

“Secrecy around lethal injection gravely harms democracy and the public interest,” Eppink wrote in an email. “We intend to show that, once again, during the upcoming trial.”

The trial date has not yet been set.

From the Associated Press

Idaho Attorney General rules two ACHD commissioners violated open meeting law through ‘serial meeting’

From the Idaho Press

By Xavier Ward

Following an exchange of emails between Ada County Highway District commissioners, the Idaho Attorney General has ruled that ACHD commissioners Jim Hansen and Kent Goldthorpe violated the open meeting laws by creating a “serial meeting” through the email exchange.

The commission had turned Hansen’s emails over to the prosecutor after Hansen sent an email to commissioners Paul Woods and Kent Goldthorpe regarding his conditions for publicly supporting the November ballot measure to raise registration fees. The Attorney General’s Office also determined that Goldthorpe’s conduct was also a violation of open meetings laws.

After receiving Hansen’s email, Goldthorpe forwarded the email to a personal email address, then forwarded the message to personal email accounts of commissioners Paul Woods, Rebecca Arnold and Commission President Sara Baker, according to a letter sent to ACHD director Bruce Wong from the Attorney General’s Office.

Goldthorpe did not supply the Attorney General with a reason he used a personal account for ACHD business, or why he forwarded the email to other commissioners’ non-ACHD emails. The letter “strongly cautions against” using personal email addresses for ACHD business in the future.

Goldthorpe did not respond to a request for comment prior to deadline.

“I have always been a strong advocate for open meetings,” Hansen wrote in response to the findings. “I always intend and expect to have the issues that the people I represent care about fully aired in open public processes. The AG’s interpretation is very helpful. Better policies happen when the public is invited to fully engage.”

Hansen’s conduct was first criticized in a staff report that was later handed over to the Ada County Prosecuting Attorney’s Office. The prosecutor then passed the matter to the Attorney General’s Office.

The staff report alleged that Hansen emailing multiple commissioners separately constituted a “serial meeting,” meaning a quorum had been established as three commissioners were involved.

Hansen said at the time he did not believe the emails to be a violation because no decision was reached.

The staff report points out that Idaho law states any meeting of elected officials “is public business and shall not be conducted in secret.”

Hansen also said at the time that he considered the registration fee matter closed, as the commission had voted to add the measure to the ballot July 11.

However, the commission still needed to verify the ballot language, so the issue was not technically closed, the staff report alleged.

The measure seeks to raise Ada County’s maximum vehicle registration fee from $40 to $70.

Motorists registering a vehicle in Ada County pay the county fee at the same time as the state fee. With the proposed increase, registration costs for Ada County vehicles would be $139 for vehicles 1-2 years old. Vehicles 3-6 years old would cost $120, and any vehicle 7 years or older would have a registration fee of $87.

Because no action has been taken on registration fees since the emails were sent in early August, the commission must simply acknowledge the violation occurred during a meeting prior to Sept. 14 to cure the open meetings violation.

The AG did not recommend that Hansen or Goldthorpe pay a fine for the open meetings infraction.

Xavier Ward covers Ada County for The Idaho Press. You can follow him on Twitter at @XavierAWard.

From the Idaho Press

Embattled school board under investigation for claims it broke open meeting law

From the Idaho Statesman


The Gem County Sheriff’s Office is investigating possible Idaho Open Meeting Law violations by the New Plymouth School Board, according to Gem County Prosecutor Erick Thomson.

Several employees and school district patrons are concerned that the school board and its superintendent, Kevin Barker, did not follow law when selecting its current law firm, Anderson, Julian and Hull, said Carrie Aguas, the school district’s federal programs coordinator and a member of a group of concerned citizens.

Requests for comment from all five school board members, as well as Barker, were not returned.

But from other interviews, it’s unclear what level of public approval the board had to give in order for the district to work with the law firm.

Scott Marotz, an attorney with Anderson, Julian and Hull, said law firms can be retained and employed by school districts without a formal contract or public discussion in an open meeting.

“Legal services do not have to be bid,” Marotz said. “They just have to be selected (by the board or administrator). The firm wears a number of hats, and we provide services to many districts throughout the state.”

Karen Echeverria, executive director of the Idaho School Boards Association, said how a school district retains or employs legal representation is largely determined by the policies of the district. Those vary from district to district.

New Plymouth School District policy published online appears to give much leeway on spending to the superintendent, “within the limits of the detailed annual budget.”

A public records request filed with the school district shows that it has no formal contract with the law firm. According to the district’s response to that public records request, Anderson, Julian and Hull’s “services do not need to be approved by the Board before the Board employs them, so there are not any minutes or agenda that would have any information about this.”

The Statesman also requested any records of district payments to the law firm. In its response, the district said it has paid about $41,300 to the firm, but denied “any detail of invoices since it is privileged.”

The district did not cite, as required by law, the statutory authority for the denial, and it’s unclear how any part of Idaho public records law would shield a school district’s financial statements or invoices. But the monthly payments to the law firm turned out to be already available in the monthly expenses posted by the district on its website.

District records show the first payment made to Anderson, Julian and Hull came in April 2017, when Barker met with the law firm in what is labeled a “law seminar” for $275. At the school board’s May 2017 meeting, minutes show Barker said the seminar was “very informative.” No other agenda item or meeting minutes from then until now show any mention of employing the firm.

Aguas said that the school board, with the help of the law firm and under the direction of Barker, began revising in late 2017 a new insubordination policy and a new policy for staff grievances. A new policy for staff grievances was passed in a special meeting of the board after an executive session on Sept. 27, 2017, while the new insubordination policy was passed at its regular meeting Nov. 13, 2017, after an executive session.

The new policies made some employees fear for their ability to come forward with concerns regarding the leadership of the district because they thought they would be punished or lose their jobs, Aguas said. About a dozen employees interviewed by the Statesman over the past six months have echoed those concerns.

“All year I’ve been thinking about this since it happened, because I didn’t understand why we had changed from an employee-friendly attorney firm to this firm that was part of changing our policies,” Aguas said. “It just didn’t seem to be in line with our tone of business in the district.”

Controversy regarding Barker’s leadership style divided the town of New Plymouth for months. In April, it led to his taking of a $400,000 buyout of his contract. Idaho Education News reported that an entity associated local businessman Scott Moscrip was the source of the buyout.

Many Idaho school districts use Anderson, Julian and Hull to represent them in various legal matters, Echeverria said. Through a program financially supported by the Idaho School Boards Association, the association provides four hours of legal services per year through the firm to each school district in Idaho.

The concerned residents initially contacted the Payette County Sheriff’s Office and Payette County Prosecutor’s Office, which cited a conflict of interest and asked to be recused from the investigation, Thomson said. The investigation is still in its preliminary stages, and Thomson has not received a report on the claims.

“It’s an open-ended complaint, so we’re trying to figure out if it’s a single issue or a widespread thing,” Thomson said.


From the Idaho Statesman

Crowds in Lewiston, Moscow, Coeur d’Alene learn about open meetings, records

By Betsy Z. Russell

This article also appeared in the Idaho Press-Tribune and The Spokesman-Review, June 3, 2019

Idaho Attorney General Lawrence Wasden addresses a crowd of more than 60 in Moscow, Idaho on Tuesday, May 29, 2018, about Idaho’s open meetings and public records laws.

The Idaho Open Meeting Law has no “dirty laundry” exception.

That’s right – government board members who say they want to meet behind closed doors to avoid airing their “dirty laundry,” then come back smiling and agreeing in their public meetings are violating the open meeting law.

And believe it or not, the “dirty laundry” excuse and one other – holding a closed executive session to “collect our thoughts” – are the most common reasons the Idaho Attorney General’s office hears for why public boards wrongly think they’re entitled to conduct the public’s business in secret.

And no, there’s also no open meeting law exception for board members to collect their thoughts.

After informing an audience of more than 50 in Lewiston last week that there is no “dirty laundry” exception in Idaho’s law now, Deputy Idaho Attorney General Brian Kane joked, “But we’ve got a couple of legislators here tonight…”

At that, Idaho Attorney General Lawrence Wasden interjected, “I’m not bringing such legislation, I want you to know.”

And Rep. Mike Kingsley, R-Lewiston, who was in the audience along with Sen. Dan Johnson, R-Lewiston, quickly added, “Neither are we!”

The Lewiston session was one of three North Idaho open government workshops held last week by Wasden and Idahoans for Openness in Government, as part of a continuing series of interactive educational presentations around the state that started back in 2004. It will continue next year with sessions in the Treasure Valley.

Full disclosure here: I’m the president and co-founder of the nonprofit IDOG, and I also help lead these sessions. They’re about how to comply with Idaho’s open meeting and public records laws, and are aimed at reporters, government officials, lawyers and citizens alike. They’re also free, thanks to grant funding and generous local co-sponsors for each session.

Last week, more than 100 people gathered at the Coeur d’Alene Resort, more than 50 at Lewis-Clark State College in Lewiston, and more than 60 at the federal building in Moscow for the workshops. There were people from newspaper and radio stations, cities and counties, school districts and fire districts, TV stations, colleges and universities, airport and port districts, online news outlets, state boards and more. There were city attorneys, local and state officials, lawyers, students and just plain interested folks.

Many found themselves assigned parts in skits to act out the right ways – and the wrong ways – to go about following Idaho’s two key open government laws. There were lots of laughs. And by the end of the three-hour-plus sessions, everyone had learned something – including me.

Highlighted at these sessions were new laws passed by the Legislature this year that will take effect July 1, and each of the changes has the effect of requiring more openness under either the public records law or the open meeting law.

One change means that boards or commissions created by executive order of the governor now will fall under the Idaho Open Meeting Law.

Another requires agencies to designate on their agenda all “action items” to be voted on during their meetings, and not to vote on any other items unless an emergency is declared. “Identifying as an action item does not mean you’re required to take action,” Kane noted.

He said lawmakers were reacting to complaints from citizens that from the agendas, they assumed various items at public meetings were informational – but then votes were taken, before any chance for public input. “Things are in the law the way they are because someone did something,” Kane noted.

Though some officials have expressed concerns about the new requirement, Kane said it shouldn’t be hard to comply with, and noted that entities including the state Board of Examiners already routinely separate their agendas into portions for action items and for information only.

“These are new provisions, and so with any new provision there’s going to be a little bit of growing pain, and there’s going to be a learning curve,” Kane said. “They’re not meant to be onerous.”

Another new law passed this year requires agencies to designate a “custodian” of their public records, so citizens know where to submit public records requests, to avoid what Kane called the “custodian shuffle,” where citizens are shuffled from one official to the next in search of who has the records, when what they want is clearly supposed to be publicly available. That designation also includes all delegates for the designated custodian, he said, “everyone underneath him.”

And another legislative change this year makes certain items in personnel files, including bonuses, severance packages, and vouchered or unvouchered expenses for which reimbursement is paid by a public agency, fully disclosable under the public records law. Social security and driver’s license numbers are exempted.

Sen. Mary Souza, R-Coeur d’Alene, sponsored that new law and the custodian provision, and was recognized for it at the Coeur d’Alene workshop, where she was among the attendees.

The sessions are light-hearted, but the subject matter is serious: The rights of the people to know what their government is doing. There’s more information online at IDOG’s website, www.openidaho.org.


The People’s Right to Know

From the Coeur d’Alene Press


Staff Writer

COEUR d’ALENE — Government officials, attorneys and journalists went at it for three hours together Wednesday afternoon in Coeur d’Alene.

But in this round of the traditional tug-of-war over public records and open meetings, the players kept their eyes on the prize: The people’s right to know.

They even stepped into each other’s shoes in skits to gain a better understanding of those laws.

About 115 people from throughout North Idaho witnessed and heard how keeping public records in the public eye benefits everyone during an entertaining workshop at The Coeur d’Alene Resort held by the Idaho Office of the Attorney General and the nonprofit Idahoans for Openness in Government.

“Agendas, minutes, budgets, audits should be routinely released and that goes for cities, counties, school and highway districts and mosquito abatement districts,” said Attorney General Lawrence Wasden. “If you’re spending money, the public has the right to see what’s going on. It is important that we recognize that the public has a right to see these and that we respond accordingly.”

Forty-five of these sessions have been held statewide since 2004, and this was the fourth time one was held in Coeur d’Alene.

“We believe they’re making a difference, and that’s why we’re doing them,” said Wasden, adding that there are constantly new journalists interested in reviewing public records and new public employees and officials tasked with maintaining them. “Instead of us trying to train government employees and talk to the press, we believe it’s best to put everyone in the same room so everyone is on the same page of music even if we don’t always sing the same tune.”

The workshops typically draw between 40 to 100 attendees, so Wednesday’s turnout was among the best-attended.

“The strong turnout reinforces the idea that the people’s right to know is just as important to many public officials here as it is to journalists,” said Mike Patrick, managing editor for The Press, a co-sponsor of the workshop with The Resort.

“From the Kellogg school superintendent and the Sandpoint city attorney to members of local urban renewal agency boards and highway districts, we’re all after the same thing: Understanding the law so citizens will have the information they need to make good decisions.”

When journalists and public officials often cross paths, trust can be built, but other times conflicts arise and attorneys are sometimes called upon to settle public records disputes. The Press and the Coeur d’Alene School District, for example, disagreed last year whether the outgoing contract the district’s former superintendent received should be revealed. After two refusals, the district agreed it was information that should be shared with the public.

“What I really appreciate about these workshops is the spirit of cooperation they bring out in people who don’t always see eye to eye,” Patrick said. “Instead of being upset about that, the school board’s leader, Casey Morrisroe, was here today participating in one of the skits.”

Wasden estimates the media and governments are both right about half of the time in public records disputes.

“If you’re batting .500 in the majors, you’re doing a great job, but if you’re batting .500 in public records (disputes) that’s not good so we want to increase that batting average,” he said.

Brian Kane, Wasden’s chief deputy, said he sees Idaho’s open meeting law as the “ticket to the show” and the show is government at work.

“You have the ability and right to observe your government in action,” he said. “It is not necessarily your right to participate. I often hear from citizens that boards did not let them speak, but, unless there’s an open forum you don’t have the right to speak.”

Notices of regular meetings must be posted at least five calendar days in advance and agendas 48 hours in advance. A new provision that takes effect July 1 calls for meeting notices and agendas to be posted electronically if the public agency has a website or maintains a presence on social media.

Another new provision requires that meeting agenda items that may be voted on during a board, council or commission meeting must be identified on the agendas as “action items.”

Executive sessions, which are not open to the general public, need to be authorized by at least a two-thirds vote and there must be specific reasons cited for holding them, including, but not limited to, when hiring a public employee, considering the evaluation, dismissal or disciplining of a public employee, acquiring property and to communicate with an attorney about pending litigation. Decisions can’t be made in executive sessions.

“I’m a little suspicious about some of the stuff that goes on behind closed doors,” said, Betsy Russell, a newspaper reporter, IDOG co-founder and workshop presenter.

Russell said, when it comes to understanding open meeting and public record laws, “We’re all in this together.”

Failure to comply with the open meeting law can result in a civil penalty of up to $250, up to $1,500 for “knowingly” not complying and up to $2,500 for subsequent violations within a year.

Kane said the hardest part of not complying with the law is to admit a mistake was made. If an admission is not made, a complaint may be filed in district court and the matter could then escalate into a story in the newspaper.

“We don’t expect you to be perfect, but we expect you to comply,” he said.

Kane shared a tale of two boards that had violated the open meeting law. In one case, a confession was made and another meeting was held to rectify the mistake. That matter drew a short blurb in the newspaper.

Another case, in which the governing board erred in following the law but would not admit it, resulted in a court complaint being filed against the board. The filing prompted a front-page story, and another story when the district judge declared the board had violated the law, and yet another story when it was appealed to the Idaho Supreme Court. Then, there was a story about how much taxpayer money was spent by the board fruitlessly defending its position.

“Sometimes the learning curve is steep,” Kane said.

Kane equated the public record law as the public’s fishing license.

“It’s your license to find what you’re looking for — and maybe not find what you’re looking for,” he said.

The state defines a public record as “any writing containing information relating to the conduct or administration of the public’s business.”

Public records requests must be granted or denied within three working days, according to Idaho law.

Kane encouraged public employees to keep in mind they are working in the customer service business, so responding before the three days, if possible, is common courtesy.

“If I get a request, my goal is to get that off my desk as fast as humanly possible,” he said. “If I don’t, there’s a chance it could get buried.”

If a public record is not released, the sole remedy is to go to court.

“I understand that’s a hurdle, and maybe the Legislature will consider a non-judicial remedy,” Kane said.

There are more than 100 exemptions under Idaho’s public records law, including personnel records, trade secrets, emergency response plans and library records.

The Idaho Attorney General’s Office publishes manuals with the state’s open meeting and public records laws. They can be found online under “Office Publications” at www.ag.idaho.gov.

From the Coeur d’Alene Press

Open government seminars set in North Idaho


The public is invited to attend an upcoming free seminar on Idaho’s key open government laws – the Idaho Open Meeting Law and the Idaho Public Records Law – on May 29 in Moscow or Lewiston, or May 30 in Coeur d’Alene, led by Idaho Attorney General Lawrence Wasden.

It’s a chance to learn what is covered by these important laws and how to comply, in a fun and accessible format. Presenters in addition to Wasden will include Deputy Attorney General Brian Kane and IDOG President Betsy Russell. Government agency employees, public officials, reporters, editors and photographers from all media, and interested citizens all are invited.

These sessions are recommended by the Office of the Attorney General, the Association of Idaho Cities, the Idaho Association of Counties and the Idaho Press Club. Admission is free; because space is limited, attendees are asked to RSVP:

  • Tues. May 29 – MOSCOW – Co-sponsored by the Moscow-Pullman Daily News
    Moscow City Hall, Council Chambers, 206 E. Third St. ~ 1 pm
    RSVP to Devin Rokyta, (208) 882-5561 ext. 4637 or drokyta@dnews.com
  • Tues. May 29 – LEWISTON – Co-sponsored by the Lewiston Tribune and LCSC
    Lewis-Clark State College, Sacajawea Hall, 4 th St. & 7 th Ave. ~ 6 pm
    RSVP to A.L. “Butch” Alford Jr. (208) 848-2250 or alajr@lmtribune.com
  • Wed. May 30 – COEUR D’ALENE – Co-sponsored by The Coeur d’Alene Press,
    Coeur d’Alene Resort, Bay 4, 115 S. 2 nd St. ~ 1 pm
    RSVP to Holly Paszczynska, (208) 664-8176 ext. 2016 or hollyp@cdapress.com

IDOG and Wasden have been holding these sessions around the state since 2004. They are funded in part by grants from the John S. and James L. Knight Foundation through the National Freedom of Information Coalition, the Best of the West Foundation, and the Idaho Media Project at Boise State University. Next year’s sessions will be in the Treasure Valley.

IDOG is a non-profit coalition for open government whose mission is to promote open government and freedom of information. There’s more information, plus an online “User’s Guide” to Idaho’s open government laws, available at IDOG’s website, www.openidaho.org.


A tax on public records? Idaho agency says yes, for now

From KUER 90.1 NPR Utah

Spurred by questions from KUER News, the Idaho State Tax Commission expects to introduce legislation next year that would prevent public agencies from collecting sales tax on documents and other records released by officials, KUER has learned.

Until a change is introduced, existing state law regarding taxes on copies of public records is open to interpretation, a Tax Commission spokeswoman wrote in an email. As of Friday, the Tax Commission website still notes that a sales tax can be charged.

“The Idaho State Tax Commission wants to thank you for bringing the issue of sales tax and public records request copies to our attention. It prompted us to evaluate the Idaho statutes,” spokeswoman Renee Eymann wrote. “The Tax Commission intends to bring legislation next year to clarify in the code that public records aren’t subject to sales tax in the interest of openness and transparency in government.”

The Idaho governor’s office must approve the proposed legislation before it goes to lawmakers. The state’s next legislative session begins in January 2019.

The Tax Commission’s aim to clarify Idaho public record law follows a request submitted earlier this year by KUER News to the Pocatello Police Department. Claire Jones, a KUER newsroom assistant working on an upcoming podcast, asked for records on calls for service in the southern Idaho city.

Pocatello police applied redactions to records that tallied more than 200 pages, charging $145.80 for the time spent to complete the effort and copying costs. Idaho and other state and federal laws allow government agencies to assess fees to process and reproduce public records. In an unusual twist, the Pocatello department also charged a 6 percent sales tax of $8.75 on top of the cost to reproduce the records.

“I’ve never heard of that. That sounds extremely odd” to assess a tax on copies of public records, said Adam Marshall, an attorney with the Reporters Committee for Freedom of the Press, a Washington, D.C.-based group that advocates for journalists. “The fact that no one in state government can point to a statute where it gives an agency the authority to charge a sales tax speaks volumes about this issue.”

Pocatello City Attorney Jared Johnson acknowledged that the interpretation of the law can vary. Pocatello has chosen to charge a sales tax on copies of public records, he said.

“It’s not clear in the code whether in fact that can’t be done,” he said.

A screen capture from the Idaho State Tax Commission website shows that state agencies may assess a sales tax on copies of public records. A Tax Commission spokeswoman said that the agency expects to introduce legislation next year to clarify state law that public records are not subject to sales tax. CREDIT KUER NEWS

The state Attorney General’s Office, in contrast, does not collect sales tax on reproduced public records, spokesman Scott Graf said.

How much money Pocatello or other Idaho agencies may have collected from the practice is unknown. It is also unclear how often officials in the state charge a sales tax when releasing public records. The Tax Commission does not track what portion of an agency’s reported sales tax revenue comes from released copies of requested public records, Eymann, the commission’s spokeswoman, said.

“The only way to determine that would be to contact each government entity separately to see if they have the information,” she wrote in a separate email.

After reviewing the assessed fees, Pocatello police decreased the sales tax from $8.75 to 43 cents. But the amount of money isn’t the issue, said Betsy Russell, president of the Idaho Press Club and a veteran journalist.

“The point is to preserve citizen access to government records, not to soak people for extra money,” she said. “It’s just wrong.”

From KUER 90.1 NPR Utah

Let the sun shine in: Idahoans deserve to know all the donors

Editorial from the Idaho Statesman

Updated May 23, 2018 08:01 PM

Editorial from the Idaho Statesman

Is ‘The Idahoan’ a newspaper?

From the Columbia Journalism Review

By Jon Allsop, CJR

THE IDAHOAN IS A NEWSPAPER; at least, that’s what its publisher says. As of this week, the Idaho Attorney General’s office agrees with him. But journalists in the state, as well as the local Democratic Party, see it differently. They say the 48-page, two-section publication—which was printed on newsprint and dropped through the mailboxes of voters statewide early this month—is scarcely concealed campaigning material, designed to drum up support for conservative Republican candidates ahead of closely contested elections like this week’s primaries.

In The Idahoan’s inaugural editorial, longtime political operatives Lou Esposito and Patrick Malloy laid out plans to run editions in advance of future local election cycles, as well as the opening of state legislative sessions. Although Esposito says he wants to print more regularly in the future, this schedule struck many observers as suspicious. On May 4, Idaho Democrats cried foul, asking the state government to investigate whether the publication is attempting to circumvent campaign disclosure laws by disguising a political mailer as a newspaper.

An image of The Idahoan, courtesy of Betsy Russell

On Monday, Deputy Attorney General Brian Kane ruled that while The Idahoan bears striking similarities to campaign literature, it qualifies as a newspaper under an exemption in Idaho’s Sunshine Law, which stipulates that newspapers needn’t disclose their funding as long as they aren’t controlled by a party or candidate. He added that The Idahoan may not qualify for an exemption under broader, federal campaign laws because “it appears that The Idahoan is controlled by political committees.” But as Idaho’s newspaper exemption doesn’t take PAC control into account, The Idahoan—for the time being, at least—is under no obligation to disclose its funders.

Esposito is a veteran Idaho PAC player, and many of The Idahoan’s advertisers are PACs. He denies that he controls any of the PAC money coming into the publication’s coffers. Nonetheless, its appearance on the scene, and the state’s subsequent “newspaper” ruling, has riled up many local journalists and commentators.

The Idahoan invites comparisons to a national wave of pop-up publications which look and feel like traditional news, but are, in fact, run by political operatives or hardline ideologues seeking to give chosen candidates a boost

Lewiston Tribune writer Marty Trillhaase called The Idahoan a “dark money ‘newspaper’” and an “end-run” around the Sunshine Law in a column published last week. In an interview with CJR, Anne Helen Petersen, BuzzFeed’s Western correspondent, adds that “just because it’s printed on newsprint does not make it a newspaper.” And Betsy Russell, Boise bureau chief for the Idaho Press-Tribune and president of the Idaho Press Club, says the publication “points to a need for Idaho to tighten its campaign finance reporting laws, to close loopholes like this one, or our citizens will get oddball stuff like this going out before elections and evading reporting requirements.”

The Idahoan invites comparisons to a national wave of pop-up publications which look and feel like traditional news, but are, in fact, run by political operatives or hardline ideologues seeking to give chosen candidates a boost. Last September, the AP outed the Republican Governors Association as clandestine funders of The Free Telegraph, while earlier this year, Politico reported on a mysterious endorsement for Arizona GOP Senate candidate Kelli Ward in the Arizona Monitor—a website of still-unknown origin which featured little else besides its Ward endorsement, and which shut down after Politico published its report. While Ward’s campaign denied setting up the Monitor, the story’s coauthor, Shawn Musgrave, says it “used [the site’s endorsement], on the level of other publications that covered her,” and that “it was very easy, especially if you’re not digging around the site, to consider the site to be like any other. It had the feeling of a small-town…news website.”

More recently, Politico’s Jason Schwartz reported on the emergence of yet more opaque right-wing outlets across the country, dubbing them “baby Breitbarts.” In a phone interview with CJR, Esposito says he doesn’t recall hearing about this wave of sites, and that the idea to launch a publication like The Idahoanwas first bandied around among his associates several years ago. (The name was registered by Wayne Hoffman, currently the head of the influential Idaho Freedom Foundation, in 2007, with ownership switching to Malloy in April. Hoffman did not respond to an inquiry from CJR.)

Esposito says The Idahoan has been transparent, marking clearly on the masthead that it has a conservative bent, and prominently listing him and Malloy as its publishers. “The long and the short of it is there’s really no place for conservatives in Idaho to get information on issues, and/or candidates, and so we felt it was time to correct that,” he says. “There’s nothing nefarious about it. There was a major gap in information and we endeavored to fill that.”

Local reporters like Russell say conservatives do get plenty of coverage in state media. That said, The Idahoan is undoubtedly more upfront about its leanings than many of the publications identified by Politico. It contains straight-up information on candidates from both parties—as well as on how to vote—and Esposito says he intends to open up advertising to candidates—including Democrats—in future editions. Meanwhile, current advertisers and partners—which include PACs with pro-gun, pro-market, and pro-life positions—are clearly marked. Indeed, Esposito says he wants to give these advertisers increased exposure.

Still, The Idahoan has not been fully forthcoming about who is paying for it. While compulsory PAC filings released last weeknamed two local businessmen who part-funded it, much of the rest of the cost was stumped up by investors who remain anonymous. And given that The Idahoan delivered print copies statewide, that cost was likely substantial.

I was just in Idaho this past weekend, and my mom saved all the political mailings that arrive, just so I can see the array that land in her mailbox. The Idahoan is just a slightly less glossy version of the other stuff.

Esposito says it’s hypocritical for others in the media to say he should name his backers. “We are a private enterprise, so we don’t feel any obligation to disclose our business or business practices any more than any other business,” he says. “If people have a problem with us then I guess it’s time for The New York Times, and The Washington Post, and the Idaho Statesman, and the Idaho Press-Tribune to start fully releasing all of their financial information.” Esposito feels his publication is being singled out because critics don’t like the speech it contains. “People know the intent, they know, when this hits their mailbox, they’re gonna get conservative information, conservative endorsements, conservative viewpoints. If they don’t like it they can decide to shred it, or throw it in recycling, or do whatever they want to do with it. That’s their right.”

But many mainstream publications do disclose where their money comes from. And as critics of The Idahoan point out, most newspapers don’t exist to boost specific candidates and issues at election time.

The effectiveness of the publication is uncertain. “I was just in Idaho this past weekend, and my mom saved all the political mailings that arrive, just so I can see the array that land in her mailbox,” says Petersen. “The Idahoan is just a slightly less glossy version of the other stuff that has been coming.” Russell adds that its print edition was riddled with typos and other errors, inviting the scorn of some locals.

Colin Nash@colinmnash

One of my opponents is Barb Vanderpool, but the Idahoan says otherwise…

Tuesday’s primaries were at best a mixed bag for the candidates endorsed by The Idahoan—its pick for a House seat, Russ Fulcher, won his race, but firebrand gubernatorial candidate Raul Labrador lost out to relative moderate Brad Little, and further down the ballot, conservative state legislators and candidates suffered setbacks. “If it was [an ad masquerading as a paper], it was a huge financial investment in a campaign tactic that isn’t typically effective,” writes Justin Vaughn, a professor at Boise State University, in an email. “So whether it was legal or ethical is one thing, but whether it was strategically sound seems unlikely, particularly in light of the underperformance of the ultra-conservative wing in last night’s primary.”

With many midterm races set to be tight, however, it seems likely that at least one of the growing number of conservative news sources might have an impact somewhere in the US. As Politico reported, a site called the Maine Examiner, which appeared to have ties to the Maine GOP, levied potent attacks against a Democratic candidate for mayor of Lewiston ahead of an election which he lost by just 145 votes in December. These partisan publications are, of course, allowed to operate and brand themselves as they wish, within the boundaries of campaign laws. But even where they’re judged to have satisfied those rules, the directly political nature of their work means they should offer up full transparency, articulating not just their worldview and top staff, but where their money has come from.

“Anyone can send out anything they want. We have freedom of speech in this country,” says Russell. “But the Sunshine Law ensures transparency, so that when electioneering communications are going out, the people who receive them also know who they’re getting them from, who’s paying for them, who’s behind this, so that they can make their own decisions about the credibility of those publications.”

From the Columbia Journalism Review

Senate committee chairman apologizes after improper closed meeting

From The Spokesman-Review

An Idaho Senate committee chairman apologized Tuesday for violating Senate rules a day earlier by convening an impromptu – and likely illegal – closed meeting of his committee, over a move to force a hearing on House-passed legislation to legalize medical use of CBD oil, which is extracted from cannabis, in Idaho.

Sen. Lee Heider, R-Twin Falls, also informed his committee that a vote taken Monday to kill the bill wasn’t valid – because the bill wasn’t on the committee’s agenda.

“That was not an appropriate thing to do,” he said of his actions a day earlier. “I apologize to the committee for any of us getting into trouble.”

The CBD oil bill remains pending in the Senate Health and Welfare Committee, Heider said.

“I don’t know if I’ll bring it out at some point,” he said. “The status is right now it’s in my drawer. Believe me, I’m getting lots of emails about that.”

In the Idaho Legislature, a committee chair can unilaterally kill a bill by not scheduling a hearing on it. But that can be overridden by moves like calling the bill from the floor of the Senate or House, a parliamentary move that is rare, but does occur.

On Monday, Sen. Tony Potts, R-Idaho Falls, made an unexpected motion to hold a hearing on the bill on the spot, though the measure wasn’t on the committee’s agenda. An angry Heider led his committee behind closed doors in his office, where shouting could be heard. Reporters were kept outside. Melissa Davlin of Idaho Public Television, knocked on the door and informed Heider he was violating the Idaho Open Meeting Law.

After six minutes, the committee reconvened in its regular hearing room and approved a substitute motion to hold the CBD oil bill in committee. Potts’ motion “kinda threw us off,” Heider said, “because he was not on the agenda. That’s also a violation. So it kinda threw me off a bit.”

Heider said he’s holding the bill because lots of people want him to, including prosecutors, law enforcement, the governor’s office and the state Office of Drug Policy.

Gov. Butch Otter’s office had no comment Tuesday, but last week, Otter hinted at a “Capitol for a Day” session in eastern Idaho that if the bill passes, he might veto it again, as he did an earlier measure in 2015.

“I feel like it really is opening the door to marijuana in our state,” Heider said. “We are the bastion of freedom from marijuana in our state, and I like living here.”

CBD oil has only trace amounts of THC, the intoxicating ingredient in marijuana. Idaho is involved in a drug trial in which more than 30 Idaho children with intractable epilepsy are being treated with a commercial version of CBD oil called Epidiolex. Success has been reported in reducing the children’s seizures.

The issue prompted comments from all three leading GOP candidates for governor of Idaho, with 1st District Congressman Raul Labrador blasting the “Otter-Little administration” for trying to “manipulate the Legislature, usurp the legislative process, and deny our citizens a voice in this important debate.”

Little, who had been in Idaho Falls but arrived in Boise in time to preside over a late-afternoon Senate floor session on Tuesday, said he hadn’t read the bill or heard the details of the dustup. Little said he hopes CBD oil can become available commercially through programs like Idaho’s current drug trial.

“It’s got to be quality-controlled, that’s the issue,” he said.

The third leading GOP candidate in the race, physician and businessman Tommy Ahlquist, said, “Since day one of this campaign, I have supported the legalization of CBD oil that helps sick people as long as the THC is removed and it’s prescribed by a doctor.” He said he’d “work with the Legislature to build a legislative agenda that prevents situations like this.”

From The Spokesman-Review