August 29, 2006 in Idaho

Court clarifies public records

Betsy Z. Russell Staff writer
 

BOISE – The Idaho Supreme Court has ruled that a state agency can’t keep public records secret by handing them over to someone else and saying they’re no longer in the agency’s possession.

“These documents are clearly public records that are not expressly exempted by statute, regardless of whether ISDA (Idaho state Department of Agriculture) retains possession of them,” Justice Linda Copple Trout wrote in the decision filed Monday. The 3-2 decision also said the court was “not persuaded by the ISDA’s attempts to circumvent these statutes.”

The case involved a lawsuit by the Idaho Conservation League against the state Department of Agriculture because the department refused to disclose nutrient management plans – plans showing how large quantities of manure and wastewater would be disposed of – for beef cattle feedlots. The department cited a law that requires its staff to give all copies of the required plans back to the feedlot operators after it has reviewed and approved them.

“The department made a good-faith effort to comply with statute,” department spokesman Wayne Hoffman said Monday. “From time to time, courts hand down decisions that require agencies to re-evaluate how they do business.”

Hoffman said the department still is reviewing the decision.

Justin Hayes, program director for the conservation league, said, “Average citizens just want to know that the waste that’s being generated is being disposed of properly, in a way that’s not going to harm their air quality or their water quality or result in blankets of flies smothering their grandchildren when they come over for a picnic.”

“When ISDA tries to hide these things from people, it makes people very angry at their government,” he said.

A district court had reached the same conclusion, but the state department appealed to the Idaho Supreme Court. The Supreme Court ordered the department to pay the league’s attorney fees for the appeal, concluding that the department’s appeal was “frivolously pursued” because it focused on who had possession of the records – not on whether the records were public or not.

The court wrote, “A state agency is expressly prohibited from preventing examination of a public record ‘by contracting with a non-governmental body to perform any of its duties or functions.’ … This statute indicates a clear policy by the Legislature that the public has a right to view and inspect records relating to the public’s business and this right cannot be denied by having some other entity conduct the public’s business at some other location.”

Chief Justice Gerald Schroeder and Justice Daniel Eismann dissented. Justice Roger Burdick and Justice Pro-Tem Wayne Kidwell concurred in the majority opinion.

Eismann wrote that the majority suggests that public documents remain so forever. “Such reasoning could require agencies to search landfills for public documents they threw away,” he wrote.

The American Civil Liberties Union represented the Idaho Conservation League in the case. Jack Van Valkenburgh, head of the Idaho ACLU, said under current law, “many agencies have records retention policies, and if they call for the destruction at some point of a document … it is no longer a public record.”

But in this case, Van Valkenburgh said, the state conceded in court that the nutrient management plans were public records. “The dispute was whether surrendering custody of a record means it’s no longer accessible to the public. Fortunately, the court said no. You can’t evade the law by simply transferring the custody holder.”

The feedlots in question don’t include dairies, though mega-dairies and the waste they produce have been a hot issue in Southern Idaho. Both Hayes and Hoffman said nutrient management plans for dairies have routinely been released to the public. Only feedlots for beef cattle were affected by the law about returning the plans to the operators.

The court also upheld the district court’s ruling on another issue, affirming that plans submitted as part of the “Idaho OnePlan” online system operated by the Department of Agriculture are exempt from public disclosure. That’s because the Idaho Public Records Law includes an exemption for the OnePlan system, through which operators can confidentially seek guidance on how to improve their practices.

Hayes hailed the court ruling. “A state agency and the Legislature tried to open up a huge hole in the Idaho Open Records Law by basically farming out documents,” he said. “That was a blatant attempt to make it hard for citizens to learn important information to protect their quality of life.”

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