Idaho Public Records Law Manual

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Office of theAttorney GeneralIdahoPublic Records LawManualIdaho Code §§ 74-101 through 74-126JULY 2020LAWRENCE WASDENAttorney General700 West Jefferson StreetBoise, ID 83720-0010www.ag.idaho.gov

State of IdahoOffice of Attorney GeneralLawrence WasdenINTRODUCTIONOpen government is the cornerstone of a free society. The IdahoLegislature affirmed Idaho’s commitment to open government byenacting the Idaho public records law in 1990. The public records lawprotects each citizen’s right to monitor the actions of state and localgovernment entities by providing access to government records. TheLegislature is continually balancing the competing interests of publicaccess and an individual’s right to privacy, through its adoption andamendments to Idaho’s public records law. This balance is achieved byexempting (from the disclosure requirement) certain records, or portionsthereof.In 2015, the Legislature re-codified the public records law to provideone place for citizens to find laws relating to government transparency.Those changes are incorporated in this new edition of the Idaho PublicRecords Law Manual.One of my duties as Attorney General is to encourage compliancewith the Idaho public records law by agencies and officials of stategovernment. The 44 elected county prosecuting attorneys have the sameduty with regard to agencies and officials of local government. I amcommitted to ensuring that public documents are accessible to the public.Toward that end, my office regularly conducts training sessions for stateand local officials throughout Idaho.The Idaho public records law provides for private enforcement.Where an individual or organization is improperly denied access topublic records, it is up to the individual to challenge the governmentagency’s refusal to provide access to the record.Effective private enforcement can occur only when citizensunderstand their rights. My office has prepared this manual to educatecitizens, the news media and government employees about the public

records law. I hope this manual helps in avoiding misunderstandings andprotecting the public’s legitimate access to government records.If you have further questions, feel free to call your city or countyprosecuting attorney.Sincerely,LAWRENCE G. WASDENAttorney General

TABLE OF CONTENTSQUESTIONS AND ANSWERS . 1PURPOSE . 1THE STRUCTURE OF THE IDAHO PUBLIC RECORDS LAW . 1PUBLIC BODIES OR AGENCIES COVERED BY THE PUBLICRECORDS LAW . 1RECORDS COVERED BY THE LAW . 5RECORDS EXEMPT FROM DISCLOSURE . 10PROCEDURE FOR REQUESTING PUBLIC RECORDS . 14DENIAL OF A REQUEST FOR PUBLIC RECORDS . 15PROTEST OF A DENIAL OF A REQUEST FOR PUBLIC RECORDS . 17INSPECTION AND AMENDMENT OF RECORDS PERTAINING TO ANINDIVIDUAL. 18PENALTIES FOR BAD FAITH NONCOMPLIANCE; IMMUNITY . 19THE STATUTE. 21SUMMARY OF DECISIONS INTERPRETING THE IDAHOPUBLIC RECORDS STATUTE. 65REPORTED DECISIONS . 65UNREPORTED DECISIONS . 66ATTORNEY GENERAL’S OFFICE ANALYSES . 68

Idaho Public Records Law ManualIDAHO PUBLIC RECORDS LAWQUESTIONS AND ANSWERSPURPOSEQuestion No. 1: What is the purpose of the Idaho public recordslaw?Answer: The intent of the law is that all records maintained by stateand local government entities be available for public access andcopying. At the same time, the Legislature recognized the need tobalance this policy of openness against the equally important needfor privacy of certain information provided by citizens andbusinesses that is necessary for the conduct of the government’sbusiness. 1 This balance is contained in Idaho Code § 74-102, whichstates that “all public records in Idaho are open at all reasonabletimes for inspection except as otherwise expressly provided bystatute.”THE STRUCTURE OF THE IDAHO PUBLIC RECORDS LAWQuestion No. 2: What does the Idaho public records law provide?Answer: The law includes definitions and a simple, uniformprocedure for inspection and copying of records. Sections 74-104through 74-111 list the records that are exempt from disclosure. 2Finally, more than one hundred sections of existing Idaho Coderelating to confidentiality of records are cross-referenced to the law.PUBLIC BODIES OR AGENCIES COVERED BY THE PUBLICRECORDS LAWQuestion No. 3: What government entities are subject to the publicrecords law?Answer: The law applies to all “public agencies.” Public agency isdefined as any state or local agency. 3“Local agency,” includes “a county, city, school district,municipal corporation, district, public health district, politicalIdaho Code § 74-102.Idaho Code §§ 74-104 to 74-111.3 Idaho Code § 74-101(11).121

Idaho Public Records Law Manualsubdivision, or any agency thereof, or any committee of a localagency, or any combination thereof.” 4“State agency,” includes “every state officer, department,division, bureau, commission and board or any committee of a stateagency including those in the legislative or judicial branch, exceptthe state militia and the Idaho state historical society library andarchives.” 5Thus, essentially every entity of state and local government isexpected to comply with the Idaho public records law.Question No. 4: Does the public records law apply to the Governor,the Legislature, and the Judiciary?Answer: Yes. The definition of “state agency” includes all of theabove. The only state entity omitted from coverage of the law is themilitary division of the governor’s office. 6Question No. 5: Are law enforcement entities treated differently bythe public records law?Answer: Yes, to some extent. Section 74-124, relating to theinvestigatory records of law enforcement agencies, has been in effectsince 1986 and is incorporated into the Public Records Law. 7 Itcontains the standards under which certain information may bereleased to the public. Sections 74-124(1) through 74-124(4)provide:74-124. Exemptions from disclosure – Confidentiality.(1) Notwithstanding any statute or rule of court to thecontrary, nothing in this chapter nor chapter 10, title 59, Idaho Code,shall be construed to require disclosure of investigatory recordscompiled for law enforcement purposes by a law enforcementagency, but such exemption from disclosure applies only to theextent that the production of such records would:(a) Interfere with enforcement proceedings;Idaho Code § 74-101(8).Idaho Code § 74-101(15).6 Id.7 Idaho Code § 74-105(1).452

Idaho Public Records Law Manual(b) Deprive a person of a right to a fair trial or an impartialadjudication;(c) Constitute an unwarranted invasion of personalprivacy;(d) Disclose the identity of a confidential source and, inthe case of a record compiled by a criminal law enforcementagency in the course of a criminal investigation, confidentialinformation furnished only by the confidential source;(e) Disclose investigative techniques and procedures;(f) Endanger the life or physical safety of law enforcementpersonnel; or(g) Disclose the identity of a reporting party maintained byany law enforcement entity or the department of health andwelfare relating to the investigation of child abuse, neglect orabandonment unless the reporting party consents in writing tothe disclosure or the disclosure of the reporting party’s identityis required in any administrative or judicial proceeding.(2) Notwithstanding subsection (1) of this section, any personinvolved in a motor vehicle collision which is investigated by a lawenforcement agency, that person’s authorized legal representativeand the insurer shall have a right to a complete, unaltered copy of theimpact report, or its successors, and the final report prepared by theagency.(3) An inactive investigatory record shall be disclosed unlessthe disclosure would violate the provisions of subsection (1)(a)through (g) of this section. Investigatory record as used herein meansinformation with respect to an identifiable person or group ofpersons compiled by a law enforcement agency in the course ofconducting an investigation of a specific act or omission and shallnot include the following information:(a) The time, date, location, and nature and description ofa reported crime, accident or incident;(b) The name, sex, age, and address of a person arrested,except as otherwise provided by law;3

Idaho Public Records Law Manual(c) The time, date, and location of the incident and of thearrest;(d) The crime charged;(e) Documents given or required by law to be given to theperson arrested;(f) Informations and indictments except as otherwiseprovided by law; and(g) Criminal history reports.As used herein, the term “law enforcement agency” means theoffice of the attorney general, the office of the state controller, theIdaho state police, the office of any prosecuting attorney, sheriff ormunicipal police department.(4) Whenever it is made to appear by verified petition to thedistrict court of the county where the records or some part thereofare situated that certain investigative records are being improperlywithheld from a member of the public, the court shall order theofficer or person charged with withholding the records to disclosethe investigative record or show cause why he should not do so. Thecourt shall decide the case after examining the record in camera,papers filed by the parties, and such oral argument and additionalevidence as the court may allow.If the court finds that the public official’s decision to refusedisclosure is not justified, he shall order the public official to makethe record public. If the judge determines that the public official wasjustified in refusing to make the record public, he shall return theitem to the public official without disclosing its content with anorder supporting the decision refusing disclosure. Any person whofails to obey the order of the court shall be cited to show cause whyhe is not in contempt of court. The court may, in its discretion, awardcosts and fees to the prevailing party. 8Other entities with law enforcement responsibilities, such as theDepartment of Fish and Game, have the same confidentialitystandards. 9 “Law enforcement agency” is defined as any state orlocal agency that is “given law enforcement powers or which has89Idaho Code §§ 74-124(1-4).Idaho Code § 74-105(1).4

Idaho Public Records Law Manualauthority to investigate, enforce, prosecute or punish violations ofstate or federal criminal statutes, ordinances or regulations.” 10 Forfurther discussion of this topic, see Attorney General Opinion No.86-7. 11Idaho Code now allows the Department of Health and Welfareto disclose records of investigations associated with actions pursuantto the provisions of title 16, chapter 16. This disclosure may occur ifit is for reasons of health and safety, in the best interests of the child,or in the public interest. Records dealing with adoptions, however,remain exempt from disclosure. 12RECORDS COVERED BY THE LAWQuestion No. 6: What are public records?Answer: “Public record,” as defined by the Idaho Code, is anextremely broad concept. 13 It “includes, but is not limited to, anywriting containing information relating to the conduct oradministration of the public’s business prepared, owned, used orretained by any state agency, independent public body corporate andpolitic or local agency regardless of physical form or characteristics.Provided, however, that personal notes created by a public officialsolely for his own use shall not be a public record as long as suchpersonal notes are not shared with any other person or entity.” 14“Writing” means information maintained in many forms,including typewritten or hand written documents as well as pictures,maps, tapes, magnetic or punched cards, and computer media. 15In 1990, the Idaho Supreme Court held that the BoundaryCounty clerk’s handwritten notes taken during commission meetingswere not “a personal notation for random observations ormemoranda concerning events undertaken at a meeting,” but werepart of her statutory duty to record all proceedings of thecommissioners. 16 “Working papers,” “raw notes,” “preliminaryIdaho Code § 74-101(7).1986 Idaho Att’y Gen. Ann. Rpt. 40.12 Idaho Code § 74-105(7).13 Idaho Code § 74-101(13).14 Id.15 Idaho Code § 74-101(16).16 Fox v. Estep, 118 Idaho 454 (1990).10115

Idaho Public Records Law Manualdrafts” and the like are not necessarily exempt from disclosure. 17To date, e-mail (electronic mail) and text messaging have notbeen separately addressed by the Legislature. E-mail and texts areconsidered public records and are subject to the same laws as anyother public record.Question No. 7: Who are the custodians of public records?Answer: “Custodian” is defined as the “person having personalcustody and control of the public records in question.” 18 “Publicagencies shall designate at least one (1) person as custodian toreceive public records requests and shall provide an alternatecustodian or alternative custodians for contingencies.” 19Question No. 8: What responsibility does the public agency have forproviding access to records?Answer: The right to inspect and to receive a copy of public recordsat all reasonable times is absolute unless the record is exempt fromdisclosure by law. 20 In addition, public agencies are required toextend reasonable comfort and facility to the individual requestingpublic records. 21The concept of a “copy” of a public record is comprehensive,including “transcribing by handwriting, photocopying, duplicatingmachine and reproducing by any other means so long as the publicrecord is not altered or damaged.” 22 Additionally, a certified copy, iffeasible to produce, must be provided upon request. 23A public agency may not refuse access to records “bycontracting with a nongovernmental body to perform any of itsduties or functions.” 24 Furthermore, public agencies are required,without exception, to separate exempt information from recordswhen a request is made, and to provide access to the nonexemptId. at 456.Idaho Code § 74-101(3).19 Idaho Code §74-119.20 Idaho Code § 74-102(1).21 Idaho Code § 74-102(6).22 Idaho Code § 74-101(2).23 Idaho Code § 74-102(3).24 Idaho Code § 74-102(13).17186

Idaho Public Records Law Manualmaterial. 25 Agencies are prohibited from denying requests because arecord contains both exempt and nonexempt information. 26The law does not require the agency to provide copies of recordsin a format not used by the agency in the normal course ofFor example, the agency need not alphabetizebusiness. 27information upon request, or engage the services of a computerprogrammer to provide the information in a format desired by therequesting party.Question No. 9: Does the public agency have a responsibility toprotect the integrity of records?Answer: Yes. In Adams County Abstract Co. v. Fisk, a titlecompany wanted to set up its own copier in the county offices inorder to make its own records of title documents. There was also adispute about allowing the title company to copy original documentswith its own equipment prior to the microfilming of the records. TheIdaho Court of Appeals held that the county recorder could not becompelled to allow private photocopying of public records in thecourthouse, that he could reasonably restrict the physical handling oforiginal documents, and he could require that the county’s copyingequipment be used. 28The concepts of the Adams County case were preserved in thepublic records law. 29 The Idaho Code provides the right to examinepublic records “at all reasonable times,” and the right to receivephotographs or other copies “using equipment provided by thepublic agency or independent public body corporate and politic orusing equipment designated by the custodian.” 30 By this language,the Legislature determined that the public agency may decide, forexample, what degree of access would be allowed to its computersystem. The Idaho Code also provides that, “[n]othing hereincontained shall prevent the custodian from maintaining suchvigilance as is required to prevent alteration of any public recordwhile it is being examined.” 31Idaho Code § 74-112.Id.27 Idaho Code § 74-103(1).28 Adams County Abstract Co. v. Fisk, 117 Idaho 513 (Ct.App. 1990).29 Idaho Code §§ 74-102(1-2).30 Id.31 Idaho Code § 74-102(7).25267

Idaho Public Records Law ManualQuestion No. 10: For how long must a public record be retained?Answer: Idaho’s cities 32 and counties 33 are governed by statutesthat define how records should be classified and retained, as well asthe procedure for destruction of public records. State agenciesshould adopt policies that are consistent with best business practicesand generally accepted principles of accounting to classify and retainrecords. Record retention policies and procedures shall remainconsistent with the principles of the Idaho public records law.Question No. 11: How do I make a public records request?Answer: A public agency or independent public body corporate andpolitic may require that a request for public records be submitted toit in writing that specifically describes the subject matter and recordssought, including a specific date range for when the records soughtwere created. The requesting party shall be as specific as possibleand provide sufficient detail when requesting records to enable thepublic body to locate such records with reasonable effort. Thiswriting typically must provide the requester’s name, mailing address,e-mail address and telephone number. A request for public recordsand delivery of the public records may be made by electronic mail. 34Question No. 12: When I make a public records request, what typeof response should I expect?Answer: The public agency or independent public body corporateand politic may provide the requester information to help therequester narrow the scope of the request or to help the requestermake the request more specific when the response to the request islikely to be voluminous or require payment as provided in section74-102(10), Idaho Code. 35Question No. 13: What fees may be charged for the cost of copyingpublic records?Answer: The concept of the law is that examination and copying ofpublic records is part of the public business, already funded bytaxpayers. An agency may establish a copying fee schedule, which“may not exceed the actual cost to the agency of copying the record .Idaho Code § 50-907.Idaho Code § 31-871.34 Idaho Code § 74-102(4).35 Idaho Code § 74-102(9).32338

Idaho Public Records Law Manual. . .” 36 The section contains an exception to preserve fees alreadyestablished by other laws, such as recorders’ fees and fees for courtrecords. 37Some state and local agencies provide information in the formof computer tapes and disks. The law permits charging for the“direct cost of copying the information in that form.” 38 Thelanguage of the law regarding the cost of providing computer orsimilar records is rendered somewhat unclear, however, by language,which also allows the agency to collect “the standard cost, if any, forselling the same information in the form of a publication.” 39 It is thebelief of the attorney general’s office that this language permits apublic agency to offer the requested information in an alreadyprinted publication, and to charge the standard cost of selling thep

municipal corporation, district, public health district, political . 1 Idaho Code § 74-102. 2 Idaho Code §§ 74-104 to 74-111. 3. Idaho Code § 74-101(11). Idaho Public Records Law Manual . 2 subdivision, or any agency thereof, any committee of a local or . Idaho Public Records Law Manual “Public . . . . . .

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