Eye On Boise

Public records show how gov's ombudsman order got scaled back at last minute

Idaho Governor C.L. “Butch” Otter introduces Cally Younger, left, as the Open Records Ombudsman for the State of Idaho during a Wednesday, April 23, 2014 news conference at the governor's office. Governor Otter signed an Executive Order creating a public records ombudsman in his office to review disputes over requests for disclosure of state government documents and information. (AP/Idaho Press-Tribune / Greg Kreller)
Idaho Governor C.L. “Butch” Otter introduces Cally Younger, left, as the Open Records Ombudsman for the State of Idaho during a Wednesday, April 23, 2014 news conference at the governor's office. Governor Otter signed an Executive Order creating a public records ombudsman in his office to review disputes over requests for disclosure of state government documents and information. (AP/Idaho Press-Tribune / Greg Kreller)

In a report based on information obtained under the Idaho Public Records Act, AP reporter Rebecca Boone has traced down how Gov. Butch Otter's plans for a new public records ombudsman were scaled back at the last minute - the night before they were announced - after the governor's office belatedly consulted with the Idaho Attorney General and learned of legal questions about its initial approach. Otter named Cally Younger, pictured above, as the new ombudsman on April 23.

Otter's chief of staff, David Hensley, emailed Deputy Attorney General Brian Kane the night before the announcement, along with others, asking about the proposal for the ombudsman to help people who have had public records requests denied, without their having to go to court. The current law says the only remedy for a person aggrieved by the denial of a record request is for that person to go to court.

Kane responded to Hensley's email by saying the draft appeared to create a separate remedy through the executive branch, the AP reports. Kane also noted a few places where it could complicate matters if a public records case goes to court, possibly opening the agencies or ombudsman up to a "bad faith" court claim from a disgruntled record-seeker. The issues could be avoided with a change to the state law, Kane said, adding the ombudsman as a middle or alternate step to the courts.

Just before midnight, Hensley sent a revised version to colleagues in the governor's office and to Jeremy Pisca, lobbyist for the Newspaper Association of Idaho. "I know it is short of where you and your clients wanted to be. I also know this is short notice. If you and your clients are willing to support this direction, I would commit to working with you on legislation for the next session to codify a review process for state agencies and local governments prior to and/or in lieu of litigation," Hensley wrote. Click below for the AP's full report.

Governor's ombudsman order had last minute tweaks 

BOISE, Idaho (AP) — The Idaho governor's executive order creating a public records ombudsman post had to be scaled back at the last minute over concerns that it could step on existing laws, public records from the governor's office show.

Idaho Gov. C.L. "Butch" Otter issued the executive order late last month, naming Cally Younger as state public records ombudsman and calling on her to review state agencies' policies on public records. She's also expected to collect information about the number of denials issued by the state and to compile that and other data into an annual report for the governor.

The move was in response to a request from the Newspaper Association of Idaho, in hopes of creating an option that could resolve public records disputes without the expense of taking it to the court system. While an early draft of the executive order did just that — allowing individuals upset with records denials to ask for a second opinion from the ombudsman — that intermediate step was stripped from the official order issued by Otter on April 23.

"We just wanted to take a few steps back and really look at the whole process before we jumped in and tried to start fixing things," Otter's spokesman Jon Hanian told the Associated Press. "... We thought, you know, this is something that the legislature can look at."

Emails between the governor's staffers, the lobbyist from the Newspaper Association of Idaho and the attorney general's office show that the bulk of the changes to the order were made the night before it was announced. The Associated Press obtained the emails through a public records request to the governor's office.

Younger fulfilled the records request and included some documents that wouldn't normally be released under Idaho's public records law.

"In the interest of transparency, we have included public records that would have been exempt under the attorney-client privilege. The waiver of the attorney-client privilege and inclusion of otherwise exempt documents is specific to this request only and does not constitute a waiver for any future requests," Younger wrote.

The emails indicate there was concern that the first draft of the executive order amounted to creating new law, a task reserved for the Legislature. But those concerns apparently didn't arise until the last minute. A draft sent to state agency directors and administrators on the afternoon of April 22 still included the second-opinion option.

Later that evening, Otter's chief of staff David Hensley asked several stakeholders how the office should respond to questions about whether the executive order creates a remedy in violation of public records law. The current law says the only remedy for a person aggrieved by the denial of a record request is for that person to go to court.

Deputy Chief Attorney General Brian Kane responded to Hensley's email by saying the draft appeared to create a separate remedy through the executive branch. Kane also noted a few places where it could complicate matters if a public records case goes to court, possibly opening the agencies or ombudsman up to a "bad faith" court claim from a disgruntled record-seeker.

The issues could be avoided with a change to the state law, Kane said, adding the ombudsman as a middle or alternate step to the courts.

Just before midnight, Hensley sent a revised version to colleagues in the governor's office and to Jeremy Pisca.

"I know it is short of where you and your clients wanted to be. I also know this is short notice. If you and your clients are willing to support this direction, I would commit to working with you on legislation for the next session to codify a review process for state agencies and local governments prior to and/or in lieu of litigation," Hensley wrote.


 

Copyright 2014 The Associated Press

 




You must be logged in to post comments. Please log in here or click the comment box below for options.

comments powered by Disqus
« Back to Eye On Boise
Betsy Z. Russell
Betsy Russell covers Idaho news from the state capitol in Boise and writes the Eye on Boise blog.

Follow Betsy online:








Close

Sections


Profile

Close

Contact the Spokesman

Main switchboard:
(509) 459-5000
(800) 338-8801
Newsroom:
(509) 459-5400
(800) 789-0029
Customer service:
(800) 338-8801