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Ombudsman: Idaho’s public records process needs strengthening, and a venue short of court for appeals

Four months into her new job, Idaho’s public records ombudsman, Cally Younger, says more work needs to be done to clarify and strengthen Idaho's public records process. She's surveying state agencies and meeting with stakeholders in advance of the 2015 Legislature, and recommending potential changes to her boss, Gov. Butch Otter, reports Idaho Statesman reporter Cynthia Sewell.

Under Idaho’s current public records law, a citizen or journalist who is denied access to a public record has to sue in court to challenge the denial. Younger told the Statesman that’s a problem and one she’s working to fix with new legislation to be proposed next year. “I think the biggest shortcoming is that litigation is the only remedy for a requester, which in many cases can be cost-prohibitive to pursuing withheld records,” Younger said. “That is one of the biggest issues that I am going to look into. I think it is important.” She added, “We actually had our first meeting last month to talk about our goals for this session. I am hopeful that we can add that review process and also clear up some ambiguities in the law.”

Younger also said she's working to improve response to public records requests by state agencies. Sewell’s full article and a Q-and-A with Younger ran Sunday; they’re online here.

A public records request about a public records order…

Gov. Butch Otter seemed a bit surprised this morning that he’d already received a public records request for documents related to his move to create a public records ombudsman position in his office. “Did you hear about that?” he asked reporters before his press conference, referring to the request from AP reporter Rebecca Boone. “She asked for a public records on the executive order I’m signing about public records today!” When a reporter – OK, it was me – responded, “What a great idea!” a laughing Otter said, “You guys – get outta here.”

Boone’s request seeks “all documents, correspondence, notes, phone messages, emails, text messages and other records regarding the creation of a public records ombudsman position by the Governor’s office,” along with policy or procedure documents on how to respond to public records requests both before and after the creation of the office, and all drafts and previous versions of the executive order creating the ombudsman position.

That final item may be of special note, considering that Otter spokesman Jon Hanian told the Idaho Statesman, in an article printed today, that the new ombudsman would take requests from those who've had a public records request denied, in whole or in part, within 90 days of the denial, and issue an opinion within 10 business days. “We think it will add another check and balance in the process of transparency,” Hanian told Statesman reporter Cynthia Sewell. But the order Otter signed today doesn’t include that process.

The governor said that’s his vision for what his new ombudsman would do, but first the attorney, Cally Younger, will gather information about how agencies handle requests now and help formulate proposals for improvements, some of which might require legislation. Hanian said today that the 90-day time frame “was in the earlier working draft; it was not in the executive order he signed today.” He said Otter left that out of today’s order because “he wants all of the particulars that deal with the process … as well as the time frame … to be part of the dialogue that he spoke about this morning. So it may end up being 90 days, it may be shorter than that or longer than that. … This will get the ball rolling on it and we can start fine-tuning it.”

Otter signs executive order to create public records ombudsman

Idaho Gov. Butch Otter today signed an executive order creating an Idaho public records ombudsman’s office under his office, charged with collecting information and compiling concerns and complaints about state agencies’ compliance with Idaho laws requiring disclosure of public records, and working with the governor, stakeholders and the public to come up with improvements to Idaho’s system.

“What we’re announcing today is the beginning of a process for the establishment of a consistent program for either denying or accepting public records requests,” Otter said. “Before now, the only remedy for somebody being denied a public records request was going to court.”

Otter’s executive order doesn’t change that – that’s still the law. But the governor said his new ombudsman’s office, which he can create on his own by executive order, will lay the groundwork for making a case to the Legislature next year – with all stakeholders involved – on how to make the process better.

“In the next six or seven months, we’re going to amass this information,” Otter said. “I’m going to have to go to the Legislature and say we’ve got stuff in the statute that we can take out, or we’ve got additional stuff that we should put into the statute.”

Otter named Cally Younger, associate counsel in his office, as the new public records ombudsman. “What I envision is Cally saying to an agency, ‘You are without statutory or legal grounds to deny this.’ That’s what I envision,” he said.

Establishing such an office under the Idaho Attorney General’s office, which already advises state agencies on public records law issues, has been discussed for years, but hasn’t happened due to lack of funding. Otter said he’s not seeking any additional funding at this point. “Cally’s already on staff and she’s a very industrious employee, works very hard,” he said.

Mark Warbis, Otter’s communications director, said the attorney general’s office doesn’t have the power to create such an office by executive order, and the governor’s office does. Otter thanked the Newspaper Association of Idaho, an association of Idaho newspaper publishers, and the group’s lobbyist, Jeremy Pisca, for spurring the move. “I want to build a process that gives some relief ahead of going to court,” Otter said. “That’s what this is all about.”

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Betsy Z. Russell covers Idaho news from The Spokesman-Review's bureau in Boise.

Named best state-based political blog in Idaho for 2013 by The Fix

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