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Spokane, Washington  Est. May 19, 1883

Eye on Boise: Citizens need more openness and transparency from their government

By Betsy Russell Idaho Press

When the Idaho Press Club won its public records lawsuit against Ada County, the judge ruled the county had repeatedly flouted the law by taking the position that all public records are exempt from disclosure if they could possibly affect an array of broad concerns including “privacy,” “deliberative process,” “attorney-client,” “personnel,” and so forth – without reference to any of the more than 100 specific exemptions in the law.

Fourth District Judge Deborah Bail found in December that the county “not only did not follow the Idaho Public Records Act, it acted as though a different Act had been enacted – a reverse image of Idaho law.”

Now we know what that disregard for the law cost the county: $47,310. That was the award for the Press Club’s court costs and attorney fees that Bail approved in a Feb. 26 order.

“The county responded vigorously in briefing and in numerous declarations filed with the Court,” the judge wrote in her order. “The county’s motion to dismiss was lengthy and raised a number of arguments not supported by the Idaho Public Records Act, but which necessitated a substantial amount of effort on the plaintiff’s part of analyze and respond. … This case required considerable effort and commitment on the part of the plaintiff’s attorneys.”

It’s not that the elected Ada County officials, from the commissioners to the sheriff, had necessarily been purposely attempting to evade the public records law. Instead, it was the county prosecuting attorney’s office, under county Prosecutor Jan Bennetts, which acts as the in-house counsel for the county and its elected officials, that operated under a fundamental misunderstanding of the law, and enforced that misunderstanding in all its legal advice to our elected officials, leading them to violate the law over and over again.

This ruling should mark the end of those practices. County commissioners, in their reactions to the ruling, have emphasized that they want to be open and transparent, and that they plan additional training and review of their practices in regard to the Idaho Public Records Act.

There’s not often litigation over government agencies failing to comply with the Idaho Public Records Act. The “sole remedy” under the act for someone who is improperly denied public records is to get a lawyer and go to court, something few generally can afford to do. The Idaho Press Club filed the lawsuit only after a sustained, repeated pattern emerged of the county ignoring the law, regarding public records requests from multiple reporters for multiple news organizations in Idaho.

The judge’s fee order says the lawsuit “revealed an unlawful pattern of response to public records requests.”

“The results obtained were very beneficial to the plaintiff and the general public,” the judge wrote. “The thorough presentation of the issues, particularly, the extensive documentation of hundreds of documents redacted in their entirety, with redactions including the requesting party’s own information, and claims of privileges which did not exist in Idaho law, and the other responses detailed in the Court’s decision revealed a profound disregard for the Idaho Public Records Act’s requirements.

“The decision was crafted to provide a reference for public officials and agencies to respond to Idaho Public Records Act requests in a manner consistent with Idaho law,” she wrote, providing “a hopefully useful guide for anyone wanting to comply with the law.”

Last week was Sunshine Week, a national initiative first launched by the American Society of News Editors in 2005 to educate the public about the importance of open government and the dangers of excessive and unnecessary secrecy. Smack in the middle of Sunshine Week, the Idaho Senate voted 27-6 in favor of HB 601, creating new public records exemptions for legislators and public officials; and the House voted unanimously in favor of SB 1338a, another bill creating new public records exemptions. Both bills headed to the governor’s desk.

On HB 601, Senate Majority Caucus Chair Kelly Anthon, R-Burley, told the Senate, “Legislators have privacy, too. And I think this bill recognizes that some of the things that we do, in our work product and the way that we communicate with one another, and the importance of that process, are protected as well.”

SB 1338a, as originally proposed by Sen. Dan Johnson, R-Lewiston, would have made official state secrets of information so common that it’s published in the phone book – all addresses and phone numbers in all public records, plus email addresses. That would have made basic public records like county assessment records and voter registration unusable, as no record could tie a name to a specific address. Johnson proposed his bill in direct response to the Press Club’s court victory, professing shock at the judge’s ruling that such information “could not be redacted unless there was a specific statute authorizing such exemption.”

That’s exactly how the public records law works, and has always worked. Public records are presumed open, unless a specific law exempts them from disclosure.

To Johnson’s credit, he met with the Idaho Press Club and Idaho’s newspaper publishers, and realized his bill as first proposed was unworkable. As amended, it just requires redaction of social security numbers, birth dates, drivers license numbers and minors’ names.

In these uncertain times, citizens need more openness and transparency from their government – not less. So, a belated Happy Sunshine Week to everyone.