A User's Guide to Idaho's Open Meeting and Public Records Law
We invite you to learn more about Idaho's Open Meeting and Public Records Law. Whether you are a public official or a private citizen, you have rights and responsibilities under these important statutes. Find out what they are. Read more about the laws. Check out the links. Play by the rules!
Open Idaho: The Law Has Teeth
Find out more about Idaho's Open Meeting Law.
Open Idaho: When Secrecy is Permitted
There are exceptions to Idaho’s Open Meeting law. Find out what they are.
Here are some tips on what to say if a public meeting is being closed, if you are denied a public document or if you are denied access to a court proceeding.
PUBLIC BODIES OR AGENCIES COVERED BY THE OPEN MEETING LAW
Answer: The Open Meeting Law provides: "[A]ll meetings of a governing body of a public agency shall be open to the public and all persons shall be permitted to attend any meeting except as otherwise provided by this act. . . ."3 "Governing body" is defined to mean the members of any public agency "with the authority to make decisions for or recommendations to a public agency regarding any matter."4 "Public agency" is defined to encompass various categories of governmental entities and subdivisions at all levels of government.5 The governing bodies of public agencies that are created by or pursuant to statute, as well as public agencies that are created by the Idaho Constitution, are subject to the Open Meeting Law.6 The only public agencies that are statutorily exempt from the Open Meeting Law are the courts and their agencies and divisions, the judicial council and the district magistrates commission.7 Deliberations of the Board of Tax Appeals, the Public Utilities Commission and the Industrial Commission, in a fully submitted contested case proceeding, are also exempted from the requirement that they take place in an open public meeting.8
Answer: No. Section 74-202(5) defines a governing body to mean "the members of any public agency that consists of two (2) or more members, with the authority to make decisions for or recommendations to a public agency regarding any matter." (Emphasis added.) By definition, the Open Meeting Law applies only to a governing body which consists of two or more members and thus does not apply to a public agency headed by a single individual.
This also extends to employees of a public agency headed by a single individual; meetings held by employees of a department headed by a single individual (or multiple parties, for that matter) do not have to be open to the public. An illustrative example of this principle arose in the 2008 case of Safe Air For Everyone v. Idaho State Dep't of Agriculture.9 There, the Idaho State Department of Agriculture (ISDA) invited representatives from federal, state, and tribal agencies to a meeting to discuss issues surrounding crop residue burning. The meeting was closed to the public. Several employees of the ISDA attended the meeting, but the director did not.
An environmental group sued the ISDA, arguing that the employees' participation in the meeting constituted a violation of the Open Meeting Law because the director had delegated decision- making authority to the employees, thus making the employees a "governing body." The Supreme Court disagreed, stating that:
By definition, a 'governing body' [under the Act] must have 'the authority to make decisions for or recommendations to a public agency regarding any matter.' The employees do not have 'the authority' to make decisions for or recommendations to the ISDA. Any decision they make can be countermanded by a supervisor, and their supervisor can likewise deny them permission to make recommendations. . . . [T]he authority to make decisions for an agency or recommendations to an agency must be statutorily based.10
Of course, it should be noted that under the Idaho Administrative Procedure Act (IDAPA) various state agencies must hold open public meetings when they adopt rules or when they determine certain contested cases.11 The open public meeting requirements of the IDAPA apply regardless of whether the public agency is headed by a single individual or by a multi-member body.
Answer: A subagency of a public agency is subject to the Open Meeting Law if the subagency itself "is created by or pursuant to statute or executive order of the governor, ordinance or other legislative act."12 In Cathcart v. Anderson, the Washington Supreme Court interpreted a Washington statute similar to section 74- 202(4)(d). The court held that, under the language "created by or pursuant to," it is not necessary that a statute, ordinance or other legislative act expressly create a subagency so long as there is an enabling provision which allows that subagency to come into existence at some future time.
Answer: The Open Meeting Law defines "public agency" to include "any subagency of a public agency which is created by or pursuant to statute or executive order of the governor, ordinance, or other legislative act,"13 and "governing body" to include any body "with the authority to make decisions for or recommendations to a public agency regarding any matter."14 Thus, advisory committees, boards and commissions are subject to the Open Meeting Law if the body is created by or pursuant to statute, ordinance, or other legislative act and if the body has authority to make recommendations to a public agency.
In contrast, an administrative committee, board or commission is not subject to the Open Meeting Law if it is not entrusted with the formation of public policy, but merely carries out the public policy established by a governing body, and if its activities do not constitute the making of "decisions for or recommendations to" a public agency.15 Likewise, the Open Meeting Law does not apply to voluntary, internal staff meetings if the group is not created by or pursuant to statute, ordinance or other legislative act, even though the discussions may lead to recommendations to the governing body.16 Generally, however, if you are ever unsure of whether a meeting should be open, it is this Office's recommendation to err on the side of opening the meeting.
Answer: The Open Meeting Law has no application to the governor when he is acting in his official executive capacity, since the Open Meeting Law does not apply to a public agency headed by a single individual.
CHARITABLE ORGANIZATIONS (501C(3)) AND HOMEOWNER'S ASSOCIATIONS
Answer: The Open Meeting Law applies only to governmental entities. Typically, charitable organizations are private. Generally, nonprofit organizations are governed by their chartering documents and bylaws. Additionally, title 30, chapter 3 of the Idaho Code, provides the legal foundation for Idaho nonprofits. Consult the chartering documents, bylaws and Idaho Code, title 30, chapter 3, to determine the requirements of corporate records and meetings.
Answer: No. The Open Meeting Law applies only to governmental entities. Homeowner's associations are private entities. Homeowner's associations are generally governed by agreements between the members and the association and their bylaws. Members should consult their association documents and bylaws to determine the association rules for meetings.
PUBLIC ACTIONS OR ACTIVITIES COVERED BY THE OPEN MEETING LAW
Answer: The Open Meeting Law defines "meeting" to mean "the convening of a governing body of a public agency to make a decision or to deliberate toward a decision on any matter."17 "Decision" is then defined to include "any determination, action, vote or final disposition upon a motion, proposal, resolution, order, ordinance or measure on which a vote of a governing body is required, at any meeting at which a quorum is present. . . ."18
The term "deliberation" is also a defined term and means "the receipt or exchange of information or opinion relating to a decision, but shall not include informal or impromptu discussions of a general nature that do not specifically relate to a matter then pending before the public agency for decision."19 Note that this does not require any discussion or preliminary decision making. Even the receipt of information relating to a "decision"–i.e., a measure on which the governing body will have to vote–amounts to deliberation, and therefore triggers the definition and requirements of a "meeting" under the Open Meeting Law.
Answer: As noted above, a "meeting" is the convening of a governing body to make a decision or deliberate toward a decision. Additionally, a quorum must be present.20
The California Court of Appeals discussed the dual facets of deliberation and action in Sacramento Newspaper Guild v. Sacramento County Board of Supervisors:
It [California's open meeting law] declares the law's intent that deliberation as well as action occur openly and publicly. Recognition of deliberation and action as dual components of the collective decision-making process brings awareness that the meeting concept cannot be split off and confined to one component only, but rather comprehends both and either. To "deliberate" is to examine, weigh and reflect upon the reasons for or against the choice . . . . Deliberation thus connotes not only collective discussion, but the collective acquisition and exchange of facts preliminary to the ultimate decision.21
The California court then reasoned and ruled:
An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a non-public pre-meeting conference except to conduct some part of the decisional process behind closed doors. Only by embracing the collective inquiry in discussion stages, as well as the ultimate step of official action, can an open meeting regulation frustrate these evasive devices. As operative criteria, formality and informality are alien to the law's design, exposing it to the very evasions it was designed to prevent. Construed in light of the Brown Act's objectives, the term "meeting" extends to informal sessions or conferences of board members designed for the discussion of public business.22
A similar result was reached by the Florida Supreme Court in the case of City of Miami v. Berns wherein the Florida court ruled that public officials violate Florida's open meeting law when they meet privately or secretly and transact or agree to transact public business at a future time in a certain manner.23 The Florida court went on to state that, regardless of whether a meeting or gathering is formal or informal, "[i]t is the law's intent that any meeting, relating to any matter on which foreseeable action will be taken, occur openly and publicly."24
The same considerations must be applied with respect to the Idaho Open Meeting Law. Therefore, it is the opinion of the Attorney General that the provisions of the Open Meeting Law must be complied with whenever a quorum of the members of the governing body of a public agency meets to decide or deliberate on matters which are within the ambit of official business. Those meetings can be formal, informal, or social. So long as a quorum is present and the intent is to deliberate or make a decision, then the meeting must be open.
The requirement that the Open Meeting Law be complied with whenever a quorum of a governing body meets to deliberate or to make a decision should not be evaded by holding smaller meetings with less than a quorum present or by having a go-between contact each of the governing body members to ascertain his/her sentiment.
Answer: While it is the opinion of the Attorney General that the Open Meeting Law must be complied with whenever a quorum of the members of a governing body of a public agency meet to decide or deliberate on matters which are within the ambit of official business, this Office does not believe that the Legislature intended for the Open Meeting Law to act as a bar to all communications between individual county commissioners outside of open meetings.
Answer: Only for those agencies expressly exempted. The Open Meeting Law excludes the deliberations of certain agencies (the Board of Tax Appeals, the Public Utilities Commission and the Industrial Commission), in fully submitted adjudicatory proceedings, from the requirement of open public meeting.25 In creating this exemption for adjudicatory deliberations by only these three agencies, it appears the Legislature intended that non-adjudicatory deliberations at these agencies, and all deliberations at all other agencies–i.e., except for the above-described informal or impromptu discussions of a general nature–must be conducted in a public meeting. Of course, the subject matter under adjudication may be separately identified under the Open Meeting Law as justifying a closed executive session.
Answer: In other words, as representatives, can I still contact members of a governing body with unsolicited "information or opinion relating to a decision" that is pending before the public agency?26 The Idaho Supreme Court has addressed this specific question.
In Idaho Historic Preservation Council v. City Council of Boise, a divided Court overturned a Boise City Council decision that allowed a corporation to demolish a building in Boise.27 In reviewing an appeal from the City's Preservation Commission, members of the City Council stated at the public [open] meeting that they had received numerous telephone calls concerning the issue. Although the Court framed the issue in terms of due process, it may also raise open meeting questions.
In overturning the City's decision, the Court stated:
[W]hen a governing body sits in a quasi-judicial capacity, it must confine its decision to the record produced at the public hearing, and that failing to do so violates procedural due process of law. This Court has also observed that when a governing body deviates from the public record, it essentially conducts a second fact-gathering session without proper notice, a clear violation of due process. Since the substance of the telephone calls received by the members of the City Council was not recorded or disclosed at the public hearing, the Commission had no opportunity to rebut any evidence or arguments the City Council may have received from the callers.
Id. at 654, 8 P.3d at 649 (internal citations omitted). The Court concluded:
This decision does not hold the City Council to a standard of judicial disinterestedness. As explained above, members of the City Council are free to take phone calls from concerned citizens and listen to their opinions and arguments prior to a quasi- judicial proceeding. In order to satisfy due process, however, the identity of the callers must be disclosed, as well as a general description of what each caller said.28
Therefore, in the event that unsolicited information is received and considered by a governing board member, the appropriate action is to disclose the source of the information and the substance of the information so that it may be included within the public record. In sum, any information that you wish to use to form the basis of your decision must be made a part of the public record.
PROCEDURAL REQUIREMENTS OF THE OPEN MEETING LAW
Answer: The Open Meeting Law requires two types of notice: (1) meeting notice and (2) agenda notice. The notice requirements are satisfied by posting meeting notices and agendas in a prominent place at the principal office of the public agency, or, if no such office exists, at the building where the meeting is to be held. The notice for meetings and agendas shall also be posted electronically if the entity maintains an online presence through a website or a social media platform. The Open Meeting Law does not require publication of the notice in a newspaper or advertisement. However, other statutes governing particular entities may require publication of notice.
The Open Meeting Law also requires that notice be posted at specific minimum times prior to the meeting. These times vary, depending on the type of meeting being held. The notice of an executive session must state the authorizing provision of law.
Answer: For "regular meetings," the Open Meeting Law requires no less than a five (5) calendar day meeting notice and a forty-eight (48) hour agenda notice, unless otherwise provided by statute.29 Any public agency that holds meetings at regular intervals at least once per calendar month, which are scheduled in advance over the course of the year, may satisfy this notice requirement by posting meeting notices at least once each year of its regular meeting schedule. Agenda notice must still be posted at least 48 hours before the meeting.
Answer: For "special meetings," or when only an "executive session" will be held, meeting and agenda notice must be posted at least twenty-four (24) hours before the meeting, unless an emergency exists. An emergency is a situation which involves injury or damage to persons or property, or immediate financial loss, or the likelihood of such injury, damage or loss, when the notice requirements of the section would make such notice impractical, or increase the likelihood or severity of such injury, damage or loss, and the reason for the emergency is stated at the outset of the meeting. This notice and an accompanying agenda must be given by the secretary or other designee of each public agency to any representative of the news media who has requested notification of such meetings and the secretary must make a good faith effort to provide such advance notification to them of the time and place of each meeting.30
Answer: What constitutes an "agenda" to satisfy the posting requirement is not set forth in the Open Meeting Law. However, an "agenda" is defined in Black's Law Dictionary (9th ed.) as a "list of things to be done, as items to be considered at a meeting, [usually] arranged in order of consideration." The agenda notice requirement is not satisfied by merely posting a weekly schedule of the governing board which sets forth the time, place of the meetings, and who is participating. Rather, the notice must specifically set forth the purpose of the meeting and "items of business." Agenda items should be listed with specificity and not buried in catchall categories such as "director's report." An agenda item that requires a vote shall be identified on the agenda as an "action item" to provide notice that action may be taken on that item. Identifying an item as an action item on the agenda does not require a vote to be taken on that item.
Answer: Yes. The procedure depends on when the agenda is amended.
More than 48 hours before the start of a meeting (or more than 24 hours before a special meeting), the agenda may be amended simply by posting a new agenda.
Less than 48 hours before the meeting (or less than 24 hours before a special meeting), but before the meeting has started, the agenda may be amended by: (1) posting the new agenda, and (2) making and passing a motion at the meeting to amend the original agenda and stating the good faith reason the new items were not included in the original agenda notice.
After commencement of the meeting, the agenda may be amended to accommodate unforeseen issues, provided that: (1) there is a motion made that states the good faith reason the new item was not on the original agenda, and (2) the motion to amend is adopted by the governing body. Final action may not be taken on an agenda item added after the start of the meeting unless an emergency is declared necessitating action at that meeting. The declaration and justification shall be reflected in the minutes.
To sum up, amending an agenda during a meeting or less than 48 hours before the start of a meeting (24 hours for a special meeting) requires: (1) a motion, (2) a good faith reason why the item was not included in the original agenda, (3) a vote adopting the amended agenda, and (4) a record of the motion and vote in the minutes of the meeting.
Answer: A public agency may adopt reasonable rules and regulations to ensure the orderly conduct of a public meeting and to ensure orderly behavior on the part of those persons attending the meeting. In Nevens v. City of Chino, a California appellate court nullified a city council measure, which prohibited the use of any tape recorders at city council proceedings.31 While acknowledging that the city council had an absolute right to adopt and enforce rules and regulations necessary to protect its public meetings, the court held that the rule prohibiting tape recorders was too arbitrary, capricious, restrictive and unreasonable. A similar holding might be reached if a governing body prohibits the use of cameras if their presence is not in fact disruptive of the conduct of the meeting.
Another limitation is that the body cannot make it practically impossible for the public to be present at a meeting. For example, in Noble v. Kootenai County, a board of commissioners conducted a site visit to a proposed subdivision. When arriving at the site, the board intentionally avoided a group that was gathered near the entrance to the site location and conducted its site visit outside the group's hearing. The court held that this was a violation, stating that "Idaho's open meeting laws are designed to allow the public to be present during agency hearings. At the very least this means that the public must be permitted to get close enough to the hearing body to hear what is being said."32
In any event, the governing standard is the reasonableness of the rules and regulations. Use of a timed agenda, "heavy gavel" and/or compliance with Robert's Rules of Order or some other procedural guideline may serve to facilitate the orderly conduct of a public meeting.
Answer: No. While other statutes, such as the Local Planning Act, may require the solicitation of public comments, the Open Meeting Law does not expressly require the opportunity for public comment.33
Answer: No decision at any meeting of a governing body of a public agency may be made by secret ballot.34
Answer: If a voice vote is taken, the minutes of the meeting must reflect the results of all votes, but the minutes need not indicate how each member voted, unless a member of the governing body requests such an indication.35
Answer: A vote may be conducted by written ballot, but written ballots would not comply with the Open Meeting Law unless the ballots are made available to the public on request and unless the members casting the ballots are identifiable by signature or other discernible means.36 The reason identification of the vote of individual members is treated differently between voice votes and votes by written ballot is that, with respect to voice votes, members of the public in attendance can readily ascertain the vote of individual members of the governing body. In contrast, a vote by written ballot is tantamount to a secret vote, unless such ballot is signed or identifies the name of the voting member.
Answer: The Open Meeting Law requires that the governing body of a public agency must provide for the taking of written minutes of all of its meetings, but it is not necessary to make a full transcript or recording of the meeting, except as otherwise provided by law.37 These minutes are public records and must be made available to the general public within a reasonable time after the meeting. The minutes must include, at a minimum, the following information:
(a) All members of the governing body present;
(b) All motions, resolutions, orders, or ordinances proposed and their disposition;
(c) The results of all votes and, upon the request of a member of the governing body, the vote of each member by name.
Other statutes may provide more specific requirements for particular entities.
In addition, section 74-205(2) provides that minutes of executive sessions must be kept, but they need contain only sufficient detail to identify the purpose and topic of the executive session and do not need to include the disclosure of material or matters that compromise the purpose of the executive session. The minutes pertaining to the executive session, however, must include a reference to the specific statutory subsection authorizing the session.
Answer: Yes. Section 74-203(3) specifically provides: "A governing body shall not hold a meeting at any place where discrimination on the basis of race, creed, color, sex, age or national origin is practiced." Thus, for example, a public meeting may not be held at a private club if the private club excludes women from membership, even if women are allowed entrance for the purpose of attending the meeting.
Answer: Yes. The Open Meeting Law specifically authorizes the holding of a meeting by telephone conference call. However, at least one member of the governing body or the director or chief administrative officer must be physically present at the meeting location designated in the meeting notice.38 Additionally, the communications among the members of the governing body must be audible to all persons attending the meeting. Care should also be taken to ensure that votes are not made in such a way to permit an illegal secret ballot or vote.
Answer: As discussed in this manual, the Open Meeting Law applies to the deliberations and discussions between two or more members of a board or commission on some matter which foreseeably will come before that board or commission for action. The use of a telephone to conduct such discussions does not remove the conversation from the requirements of the Open Meeting Law.
Similarly, members of a public board may not use computers or texting to conduct private conversations among themselves about board business. A one-way e-mail or text communication from one city council member to another, when it does not result in the exchange of council members' comments or responses on subjects requiring council action, does not constitute a meeting subject to the Open Meeting Law; however, such e-mail or text communications are public records and must be maintained by the records custodian for public inspection and copying.
SPECIFIC STATUTORY EXEMPTIONS: EXECUTIVE SESSIONS
Answer: A closed meeting–that is, an "executive session"–may be held for the reasons listed in § 74-206(1):
(a) To consider hiring a public officer, employee, staff member or individual agent, wherein the respective qualities of individuals are to be evaluated in order to fill a particular vacancy or need. This paragraph does not apply to filling a vacancy in an elective office or deliberations about staffing needs in general;
(b) To consider the evaluation, dismissal or disciplining of, or to hear complaints or charges brought against, a public officer, employee, staff member or individual agent, or public school student;
(c) To acquire an interest in real property not owned by a public agency;
(d) To consider records that are exempt from disclosure as provided in chapter 1, title 74, Idaho Code;
(e) To consider preliminary negotiations involving matters of trade or commerce in which the governing body is in competition with governing bodies in other states or nations;
(f) To communicate with legal counsel for the public agency to discuss the legal ramifications of and legal options for pending litigation, or controversies not yet being litigated but imminently likely to be litigated. The mere presence of legal counsel at an executive session does not satisfy this requirement;
(g) By the commission of pardons and parole, as provided by law;
(h) By the custody review board of the Idaho department of juvenile corrections, as provided by law; or
(i) To engage in communications with a representative of the public agency's risk manager or insurance provider to discuss the adjustment of a pending claim or prevention of a claim imminently likely to be filed. The mere presence of a representative of the public agency's risk manager or insurance provider at an executive session does not satisfy this requirement.
(j) To consider labor contract matters authorized under section 74-206A(1)(a) and (b), Idaho Code.
This provision enumerates specific and not general statutory exemptions to the requirement of conducting an open meeting. It is the Attorney General's opinion that a public agency cannot conduct an executive session to consider general personnel matters, but can only meet in executive session to consider those specifically enumerated personnel matters found at section 74-206(1)(a) and (b); that is, "to consider hiring a public officer, employee, staff member or individual agent" or "to consider the evaluation, dismissal or disciplining of, or to hear complaints or charges brought against, a public officer, employee, staff member, individual agent or public school student." Additionally, Idaho Code section 74-206(2) specifically directs that the exceptions be construed narrowly. No entity should try to "shoehorn" an issue into an executive session exception.
An executive session may be held to consider acquiring an 17 interest in real property that is not owned by a public agency. However, an executive session cannot be held for the purpose of acquiring an interest in real property owned by a public agency.39
It should be noted that the Open Meeting Law establishes circumstances where executive sessions are permissible. In other words, the act authorizes, but does not require, closed meetings. In addition, even though certain enumerated matters may be "considered" in an executive session, it must be emphasized that: "[N]o executive session may be held for the purpose of taking any final action or making any final decision."40
It is important to remember that section 74-206(1) sets forth specific procedural steps to be followed to have a valid executive session. Failure to do so will invalidate any action taken as a result of the executive session. Additionally, it may subject the board members to liability for those actions. Procedurally, the presiding officer must identify the specific authorization under the Open Meeting Law for the holding of an executive session and at least a two-thirds (2⁄3) vote in favor of the executive session must be recorded in the minutes of the meeting by individual vote.
Answer: It must be noted that executive sessions take place only at meetings. Before any executive session may be held, there must be a valid open meeting and a vote to hold an executive session. Every such "meeting" must satisfy the Open Meeting Law's notice and agenda requirements.41 If the governing body of a public agency then wishes to consider matters which may legally be considered in a closed meeting, an executive session may be held if two-thirds (2⁄3) of the members vote to hold an executive session. Prior to such vote, the presiding officer must identify the authorization under the Open Meeting Law for the holding of an executive session. Then, when the vote is taken, the individual vote of each member of the governing body must be recorded in the minutes.42
Answer: Yes. Section 74-206(f) expressly provides that an executive session may be held "[t]o communicate with legal counsel for the public agency to discuss the legal ramifications of and legal options for pending litigation, or controversies not yet being litigated but imminently likely to be litigated."
Answer: Generally, the governing body's attorney need not be present when the governing body meets in executive session. An exception is an executive session authorized under Idaho Code section 74-206(1)(f): "To communicate with legal counsel for the public agency to discuss the legal ramifications of and legal options for pending litigation, or controversies not yet being litigated but imminently likely to be litigated. The mere presence of legal counsel at an executive session does not satisfy this requirement." (Of course, the attorney's "presence" may be facilitated via a telecommunications device.) An executive session under this subsection is solely for the purpose of communicating with legal counsel on pending or probable litigation.
Answer: Yes. The executive session provision takes precedence over other statutes that may apply to a particular entity. Thus, even if a statute requires all meetings of a governing body to be open, executive sessions may still be held.43
PENALTIES FOR NONCOMPLIANCE
Answer: If an action, or any deliberation or decision making that leads to an action, occurs at any meeting that fails to comply with the provisions of the Open Meeting Law, such an action may be declared null and void by a court.44
Any member of the governing body taking such an action, who participates in any such deliberation, decision making, or meeting, is subject to a civil penalty not to exceed two hundred fifty dollars ($250).45 The maximum civil penalty for a subsequent violation is two thousand five hundred dollars ($2,500).46
Any governing body member who knowingly violates a provision of the Open Meeting Law is subject to a civil penalty of not more than one thousand five hundred dollars ($1,500).47
It is the opinion of the Attorney General that the Idaho Legislature intended that such fines be paid by the individual member of the governing body, not the governing body itself.
Answer: The Attorney General enforces the Open Meeting Law in relation to the public agencies of state government. County prosecuting attorneys enforce the Open Meeting Law in relation to the local public agencies within their respective jurisdictions.48
Any person affected by a violation of the Open Meeting Law is entitled to bring a lawsuit in the magistrates' division of the county in which the public agency normally meets for the purpose of requiring compliance with the provisions of the Open Meeting Law. The lawsuit would ask the court to declare any improper actions void and to enjoin the governing body from violating the Open Meeting Law in the future. Such a lawsuit must be commenced within thirty (30) days of the time of the decision or action that results, in whole or in part, from a meeting that failed to comply with the provisions of the Open Meeting Law. Any other lawsuit must be commenced within one hundred eighty (180) days of the time of the violation.49
Answer: Yes. Section 74-208(1) clearly indicates that an action or any deliberation or decision making that leads to an action, which occurs at any meeting not in compliance with the provisions of the Open Meeting Law, will be null and void. The 1992 Legislature added the "deliberation or decision making that leads to an action" language to the provisions of section 74-208(1). This language clarifies the consequences of a violation under the previous requirement.
The Idaho Supreme Court has held that the procedure for voiding actions taken in violation of the Open Meeting Law must be read literally. Thus, any action may not be declared void if it is not challenged within the thirty-day time limit established by section 74- 208(6).50
Answer: The governing body should follow the steps outlined in Idaho Code § 74-208(7) to "cure" the violation. A violation is cured by repealing any action taken at an illegal meeting or disregarding deliberations made in violation of the Open Meeting Law. Should it choose to, a governing body may, in a properly noticed meeting, repeat the deliberation or decision that occurred at the illegal meeting.
Answer: The Open Meeting Law specifically provides civil monetary penalties for violations. The Open Meeting Law does not expressly provide for criminal liability for knowing violations. Nonetheless, it is possible that a member of a governing body may be guilty of a misdemeanor for violations of the Open Meeting Law in which he or she knowingly participates.
Idaho Code Section 18-315 provides:
Every willful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision shall have been made for the punishment of such delinquency, is punishable as a misdemeanor.
Idaho Code Section 18-317 states:
When an act or omission is declared by a statute to be a public offense and no penalty for the offense is prescribed in any statute, the act or omission is punishable as a misdemeanor.
In Alder v. City Council of City of Culver City, the court considered the California Open Meeting Law (the Brown Act), which included no penalty provisions or provisions for enforcement when violations occur.51 Relying on two California statutes identical to Idaho Code sections 18-315 and 18-317, the California court ruled that violations of the Open Meeting Law were punishable as misdemeanors even though the Open Meeting Law did not expressly make violations punishable as misdemeanors.
Answer: Yes. Each school district is governed by a board of trustees or "board"52 and all school districts in Idaho, including specially chartered school districts, are under the supervision and control of the State Board of Education.53 State boards and school districts are defined in the Open Meeting Law as a "public agency,"54 and as such, are subject to the Open Meeting Laws.55
Citations for Open Meetings
- 3 Idaho Code § 74-203(1) (emphasis added).
- 4 Idaho Code § 74-202(5).
- 5 Idaho Code § 74-202(4).
- 6 Attorney General Opinion No. 77-30, 1977 Idaho Att'y Gen. Ann. Rpt. 180.
- 7 Idaho Code § 74-202(4)(a).
- 8 Idaho Code § 74-203.
- 9 145 Idaho 164, 177 P.3d 378 (2008).
- 10 Id. at 168, 177 P.3d at 382.
- 11 Idaho Code § 67-5201 to 67-5292.
- 12 Idaho Code § 74-202(4)(d); Cathcart v. Anderson, 85 Wash. 2d 102, 530 P.2d 313 (1975); Attorney General Opinion No. 7-75, 1975 Idaho Att'y Gen. Ann. Rpt. 22.
- 13 Idaho Code § 74-202(4)(d).
- 14 Idaho Code § 74-202(5) (emphasis added).
- 15 Idaho Water Resources Board v. Kramer, 97 Idaho 535, 572, 548 P.2d 45, 72 (1976).
- 16 See Safe Air For Everyone v. Idaho State Dep't of Agriculture, 145 Idaho 164, 177 P.3d 378 (2008); People v. Carlson, 328 N.E.2d 675 (Ill. App. Ct. 1975); Bennett v. Warden, 333 So.2d 97 (Fla. 1976).
- 17 Idaho Code § 74-202(6) (emphasis added).
- 18 Idaho Code § 74-202(1) (emphasis added).
- 19 Idaho Code § 74-202(2).
- 20 Idaho Water Resources Board v. Kramer, 97 Idaho 535, 571, 548 P.2d 45, 71 (1976).
- 21 Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, 69 Cal. Rptr. 480, 485 (Cal. Ct. App. 1968).
- 22 Id. at 487.
- 23 City of Miami v. Berns, 245 So.2d 38 (Fla. 1971).
- 24 Id. at 41; see also Canney v. Bd. of Pub. Instruction of Alachua Cnty, 278 So.2d 260 (Fla. 1973); Bd. of Pub. Instruction of Broward Cnty v. Doran, 224 So.2d 693 (Fla. 1969).
- 25 Idaho Code § 74-203(2).
- 26 Idaho Code § 74-202(2).
- 27 Idaho Historic Pres. Council v. City Council of Boise, 134 Idaho 651, 8 P.3d 646 (2000).
- 28 Id. at 656, 8 P.3d at 651.
- 29 Idaho Code § 74-204.
- 30 Idaho Code § 74-204(2) and (3).
- 31 Nevens v. City of Chino, 44 Cal. Rptr. 50 (Cal. Ct. App. 1965).
- 32 Noble v. Kootenai County, 148 Idaho 937, 943, 231 P.3d 1034, 1040 (2010) (internal citations omitted).
- 33 See Coalition for Responsible Government v. Bonner County, First Judicial District, Bonner County Case No. CV-97-00107 (May 15, 1997) (on file with the Office of the Attorney General).
- 34 Idaho Code § 74-203(1).
- 35 Idaho Code § 74-205(1)(c).
- 36 Attorney General Opinion No. 77-13, 1977 Idaho Att'y Gen. Ann. Rpt. 115. 37 Idaho Code § 74-205(1).
- 38 Idaho Code § 74-203(5).
- 39 Attorney General Opinion No. 81-15, 1981 Idaho Att'y Gen. Ann. Rpt. 161.
- 40 Idaho Code § 74-206(3); Attorney General Opinion No. 77-44, 1977 Idaho Att'y Gen. Ann. Rpt. 226; Attorney General Opinion No. 81-15, 1981 Idaho Att'y Gen. Ann. Rpt. 161.
- 41 Idaho Code § 74-204.
- 42 Idaho Code § 74-206(1).
- 43 Nelson v. Boundary County, 109 Idaho 205, 706 P.2d 94 (Ct. App. 1985).
- 44 Idaho Code § 74-208(1).
- 45 Idaho Code § 74-208(2).
- 46 Idaho Code § 74-208(4).
- 47 Idaho Code § 74-208(3).
- 48 Idaho Code § 74-208(5).
- 49 Idaho Code § 74-208(6).
- 50 Petersen v. Franklin County, 130 Idaho 176, 938 P.2d 1214 (1997).
- 51 Alder v. City Council of City of Culver City, 7 Cal. Rptr. 805 (Cal. Ct. App. 1960).
- 52 Idaho Code § 33-501.
- 53 Idaho Code § 33-101.
- 54 Idaho Code § 74-202(4)(a) and 74-202(4)(c).
- 55 Idaho Code § 74-203(1).
Open Idaho: Mind Your Business
Public records are presumed open and available to the public.
Open Idaho: Know Your Business
It takes teamwork to make public records available to the public.
If you have a question about whether a meeting should be open or if a document is public, a good general rule is to keep things open to the public.
PURPOSE OF THE IDAHO PUBLIC RECORDS LAW
Answer: The intent of the law is that all records maintained by state and local government entities be available for public access and copying. At the same time, the Legislature recognized the need to balance this policy of openness against the equally important need for privacy of certain information provided by citizens and businesses that is necessary for the conduct of the government's business.1 This balance is contained in Idaho Code § 74-102, which states that "all public records in Idaho are open at all reasonable times for inspection except as otherwise expressly provided by statute."
THE STRUCTURE OF THE IDAHO PUBLIC RECORDS LAW
Answer: The law includes definitions and a simple, uniform procedure for inspection and copying of records. Sections 74-104 through 74-111 list the records that are exempt from disclosure.2 Finally, more than one hundred sections of existing Idaho Code relating to confidentiality of records are cross-referenced to the law.
PUBLIC BODIES OR AGENCIES COVERED BY THE PUBLIC RECORDS LAW
Answer: The law applies to all "public agencies." Public agency is defined as any state or local agency.3
"Local agency," includes "a county, city, school district, municipal corporation, district, public health district, political subdivision, or any agency thereof, or any committee of a local agency, or any combination thereof."4
"State agency," includes "every state officer, department, division, bureau, commission and board or any committee of a state agency including those in the legislative or judicial branch, except the state militia and the Idaho state historical society library and archives."5
Thus, essentially every entity of state and local government is expected to comply with the Idaho public records law.
Answer: Yes. The definition of "state agency" includes all of the above. The only state entity omitted from coverage of the law is the military division of the governor's office.6
Answer: Yes, to some extent. Section 74-124, relating to the investigatory records of law enforcement agencies, has been in effect since 1986 and is incorporated into the Public Records Law.7 It contains the standards under which certain information may be released 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 the contrary, nothing in this chapter nor chapter 10, title 59, Idaho Code, shall be construed to require disclosure of investigatory records compiled for law enforcement purposes by a law enforcement agency, but such exemption from disclosure applies only to the extent that the production of such records would:
(a) Interfere with enforcement proceedings;
(b) Deprive a person of a right to a fair trial or an impartial adjudication;
(c) Constitute an unwarranted invasion of personal privacy;
(d) Disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement agency in the course of a criminal investigation, confidential information furnished only by the confidential source;
5. (e) Disclose investigative techniques and procedures;
6. (f) Endanger the life or physical safety of law enforcement
(g) Disclose the identity of a reporting party maintained by any law enforcement entity or the department of health and welfare relating to the investigation of child abuse, neglect or abandonment unless the reporting party consents in writing to the disclosure or the disclosure of the reporting party's identity is required in any administrative or judicial proceeding.
(2) Notwithstanding subsection (1) of this section, any person involved in a motor vehicle collision which is investigated by a law enforcement agency, that person's authorized legal representative and the insurer shall have a right to a complete, unaltered copy of the impact report, or its successors, and the final report prepared by the agency.
(3) An inactive investigatory record shall be disclosed unless the disclosure would violate the provisions of subsection (1)(a) through (g) of this section. Investigatory record as used herein means information with respect to an identifiable person or group of persons compiled by a law enforcement agency in the course of conducting an investigation of a specific act or omission and shall not include the following information:
(a) The time, date, location, and nature and description of a reported crime, accident or incident;
(b) The name, sex, age, and address of a person arrested, except as otherwise provided by law;
(c) The time, date, and location of the incident and of the arrest;
4. (d) The crime charged;
5. (e) Documents given or required by law to be given to the person arrested;
(f) Informations and indictments except as otherwise provided by law; and
(g) Criminal history reports.
As used herein, the term "law enforcement agency" means the office of the attorney general, the office of the state controller, the Idaho state police, the office of any prosecuting attorney, sheriff or municipal police department.
(4) Whenever it is made to appear by verified petition to the district court of the county where the records or some part thereof are situated that certain investigative records are being improperly withheld from a member of the public, the court shall order the officer or person charged with withholding the records to disclose the investigative record or show cause why he should not do so. The court shall decide the case after examining the record in camera, papers filed by the parties, and such oral argument and additional evidence as the court may allow.
If the court finds that the public official's decision to refuse disclosure is not justified, he shall order the public official to make the record public. If the judge determines that the public official was justified in refusing to make the record public, he shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure. Any person who fails to obey the order of the court shall be cited to show cause why he is not in contempt of court. The court may, in its discretion, award costs and fees to the prevailing party.8
Other entities with law enforcement responsibilities, such as the Department of Fish and Game, have the same confidentiality standards.9 "Law enforcement agency" is defined as any state or local agency that is "given law enforcement powers or which has authority to investigate, enforce, prosecute or punish violations of state or federal criminal statutes, ordinances or regulations."10 For further discussion of this topic, see Attorney General Opinion No. 86-7.11
Idaho Code now allows the Department of Health and Welfare to disclose records of investigations associated with actions pursuant to the provisions of title 16, chapter 16. This disclosure may occur if it 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.12
RECORDS COVERED BY THE LAW
Answer: "Public record," as defined by the Idaho Code, is an extremely broad concept.13 It "includes, but is not limited to, any writing containing information relating to the conduct or administration of the public's business prepared, owned, used or retained by any state agency, independent public body corporate and politic or local agency regardless of physical form or characteristics."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.15
In 1990, the Idaho Supreme Court held that the Boundary County clerk's handwritten notes taken during commission meetings were not "a personal notation for random observations or memoranda concerning events undertaken at a meeting," but were part of her statutory duty to record all proceedings of the commissioners.16 "Working papers," "raw notes," "preliminary drafts" and the like are not necessarily exempt from disclosure.17
To date, e-mail (electronic mail) and text messaging have not been separately addressed by the Legislature. E-mail and texts are considered public records and are subject to the same laws as any other public record.
Answer: "Custodian" is defined as the "person having personal custody and control of the public records in question."18 "Public agencies shall designate at least one (1) person as custodian to receive public records requests and shall provide an alternate custodian or alternative custodians for contingencies."19
Answer: The right to inspect and to receive a copy of public records at all reasonable times is absolute unless the record is exempt from disclosure by law.20 In addition, public agencies are required to extend reasonable comfort and facility to the individual requesting public records.21
The concept of a "copy" of a public record is comprehensive, including "transcribing by handwriting, photocopying, duplicating machine and reproducing by any other means so long as the public record is not altered or damaged."22 Additionally, a certified copy, if feasible to produce, must be provided upon request.23
A public agency may not refuse access to records "by contracting with a nongovernmental body to perform any of its duties or functions."24 Furthermore, public agencies are required, without exception, to separate exempt information from records when a request is made, and to provide access to the nonexempt material.25 Agencies are prohibited from denying requests because a record contains both exempt and nonexempt information.26
The law does not require the agency to provide copies of records in a format not used by the agency in the normal course of business.27 For example, the agency need not alphabetize information upon request, or engage the services of a computer programmer to provide the information in a format desired by the requesting party.
Answer: Yes. In Adams County Abstract Co. v. Fisk, a title company wanted to set up its own copier in the county offices in order to make its own records of title documents. There was also a dispute about allowing the title company to copy original documents with its own equipment prior to the microfilming of the records. The Idaho Court of Appeals held that the county recorder could not be compelled to allow private photocopying of public records in the courthouse, that he could reasonably restrict the physical handling of original documents, and he could require that the county's copying equipment be used.28
The concepts of the Adams County case were preserved in the public records law.29 The Idaho Code provides the right to examine public records "at all reasonable times," and the right to receive photographs or other copies "using equipment provided by the public agency or independent public body corporate and politic or using equipment designated by the custodian."30 By this language, the Legislature determined that the public agency may decide, for example, what degree of access would be allowed to its computer system. The Idaho Code also provides that, "[n]othing herein contained shall prevent the custodian from maintaining such vigilance as is required to prevent alteration of any public record while it is being examined."31
Answer: Idaho's cities32 and counties33 are governed by statutes that define how records should be classified and retained, as well as the procedure for destruction of public records. State agencies should adopt policies that are consistent with best business practices and generally accepted principles of accounting to classify and retain records. Record retention policies and procedures shall remain consistent with the principles of the Idaho public records law.
Answer: A public agency or independent public body corporate and politic may require that a request for public records be submitted to it in writing. This writing typically must provide the requester's name, mailing address, e-mail address and telephone number. A request for public records and delivery of the public records may be made by electronic mail.34
Answer: The public agency or independent public body corporate and politic may provide the requester information to help the requester narrow the scope of the request or to help the requester make the request more specific when the response to the request is likely to be voluminous or require payment as provided in section 74-102(10), Idaho Code.35
Answer: The concept of the law is that examination and copying of public records is part of the public business, already funded by taxpayers. An agency may establish a copying fee schedule, which "may not exceed the actual cost to the agency of copying the record . . . ."36 The section contains an exception to preserve fees already established by other laws, such as recorders' fees and fees for court records.37
Some state and local agencies provide information in the form of computer tapes and disks. The law permits charging for the "direct cost of copying the information in that form."38 The language of the law regarding the cost of providing computer or similar records is rendered somewhat unclear, however, by language, which also allows the agency to collect "the standard cost, if any, for selling the same information in the form of a publication."39 It is the belief of the attorney general's office that this language permits a public agency to offer the requested information in an already- printed publication, and to charge the standard cost of selling the publication.
Answer: The law requires an agency to provide public records to members of the public; the agency is not required to send the records to the person making the request. The law does not prevent the recovery of actual mailing or telecommunications costs if there is a request to mail or fax information to someone.
Answer: Agencies may establish a fee to recover such labor costs for voluminous or complex requests, or requests that involve locating archival information.40
In addition, if an agency must incur additional expense to provide access to records during other than normal working hours, or requires the services of outside contract copying companies, or overtime on the part of its own employees, the agency may require advance payment to compensate for this additional expense.41
Answer: Agencies are allowed to waive any cost or fee for copies or labor when the requester demonstrates an inability to pay, when the request "[i]s not primarily in the individual interest of the requester including, but not limited to, the requester's interest in litigation in which the requester is or may become a party," and "demonstrates that the requester's examination and/or copying of public records [i]s likely to contribute significantly to the public's understanding of the operations or activities of the government."42
Answer: Agencies are allowed to require advance payment of the costs of copying and labor costs.43
RECORDS EXEMPT FROM DISCLOSURE
Answer: With the exception of section 74-124, relating to law enforcement records, most exemptions from disclosure in the public records law are contained in Idaho Code sections 74-104 through 74- 111. Even if an exemption applies to a record, the law does not prevent the disclosure of statistical information that identifies a particular person, unless such disclosure is otherwise prohibited by law.44
It must be noted that nothing in the law limits the availability of documents and records for discovery in the normal course of judicial or administrative adjudicatory proceedings, subject to the law and rules of evidence and of discovery governing such proceedings.45
Personal information such as property values, personal and business addresses, phone numbers, dates of birth, social security and driver's license numbers, or any other identifying numbers or information maintained by the administrator of the unclaimed property law set forth in title 14, chapter 5 is exempt from disclosure. This, however, does not prevent the release of names, last known city of residence, property value ranges and general property information for the purpose of reuniting unclaimed property with its owner.46
Also, all information exchanged between the Idaho Transportation Department and insurance companies, any database created, all information contained in the verification system and all reports, responses or other information generated for the purposes of the verification system are now exempt from disclosure.47
Answer: There is one standard for disclosure of personnel information for all public employers: required disclosure of a current or former employee's or public official's "employment history, classification, pay grade and step, longevity, gross salary and salary history, including bonuses, severance packages, other compensation or vouchered and unvouchered expenses for which reimbursement was paid, status, workplace and employing agency."48 The Legislature acknowledges that there is some loss of privacy when one accepts a position supported by public money.
All other information in an employee's or applicant's personnel file is not available to the public without the written consent of the individual to whom the file pertains. Thus, information of a more personal nature, including home addresses, phone numbers, social security and driver's license numbers, grievance information and the like is not normally disclosed.
All information in an employee's file is accessible to the employee or a designated representative, except for "material used to screen and test for employment."49 A similar exemption relating to test questions in licensing, employment, academic or other examination situations is in place to protect the integrity of the test results.50
In addition, there is a section of the Idaho Code that pertains only to school district employees.51 This section contradicts, to some extent, the provisions of the public records law on employee records, and provides, in part:
Personnel files are declared to be confidential and excepted from public access under any provision of the Idaho Code, including, but not limited to, sections 74-102 and 59-1009, Idaho Code, provided that each employee or designated representative shall be given access to his own personnel file upon request and shall be provided copies of materials contained therein, with the exception of recommendation letters, in a timely manner upon request.52
Answer: It depends. The exemption covers "[a]ll other personnel information relating to a public employee or applicant . . . ."53 In Federated Publications v. Boise City, the Idaho Supreme Court distinguished the terms "public official" and "public employee," holding that applications and reésumeés submitted by applicants for a vacant city council seat are subject to disclosure.54 However, in Federated Publications, Inc. v. City of Meridian, the Fourth District ruled that the reésumeés of applicants for an appointed public office do not need to be disclosed under the public records law.55 Thus, reésumeés for a vacant elected office are likely subject to disclosure while those for an unelected employee may not be.
Answer: Agencies are prohibited from distributing or selling, for use as a mailing or telephone number list, any list of persons without first securing the permission of those on the list.56 Moreover, no list of persons prepared by an agency can be used as a mailing or telephone number list except by the agency or another agency, without first securing permission of those on the list.57
Individuals, however, are not prevented from compiling a mailing or telephone number list through their own research by copying public records, original documents or applications, which are otherwise open to public inspection.58
Certain agencies and types of records do not fall within the general prohibition: (1) lists of registered electors and lists of names of employees who are within the state of Idaho personnel systems; (2) agencies that issue occupational or professional licenses; (3) public records dealing with motor vehicle registration; (4) certain corporate information lists developed by the secretary of state, business information lists developed by the department of agriculture used to promote food and agricultural products produced in Idaho; (5) lists used for ordinary utility purposes which are requested by a supplier of utility services in the state; (6) lists to be used to give notice required by any statute, ordinance, rule, law or by any governing agency; (7) student directory information used for military recruiting purposes.59
There are civil penalties in an amount not in excess of one thousand dollars ($1,000) to be awarded against a person or public official who has deliberately and in bad faith violated the provisions of section 74-120(1)(a) or 74-120(1)(b).60
Answer: Yes.61 The Idaho Supreme Court, however, recognized that if the report is merely summarized information that is available in other disclosed public records, it may not be protected from disclosure. If, on the other hand, the record contains information regarding personnel information exempt under Idaho law, or is compiled at the direction of the agency's attorney in anticipation of litigation, the entire record may be exempt from disclosure.
PROCEDURE FOR REQUESTING PUBLIC RECORDS
Answer: Agencies are permitted to require requests for access to public documents be made in writing.62 If a written request is required by the public agency, the individual may be required to provide a mailing address and telephone number.63 This information may assist the public agency to clarify a request and provide a document as soon as possible.
Answer: Public agencies generally are not allowed to ask why a person wants public records.64 Moreover, "[t]he custodian shall not review, examine or scrutinize any copy, photograph or memoranda in the possession of any such person. . . ."65
Nevertheless, legislators did expect that requests for documents could be discussed. For example, without inquiring why an individual is making a request, a custodian could explain exactly what information is available and allow the person to examine nonexempt documents, so that the person would be better able to describe the requested records.66 Further, an inquiry by the agency is allowed in order to make sure its information is not to be used as a mailing or phone list.67
Answer: The intent of the law is that documents be provided upon request whenever possible. A public agency has three (3) working days from the date of the receipt of the request to grant or deny the information.68 However, public agencies should not delay three days to provide information that is readily available.
Employees of the public agency are allowed to determine that a longer period of time is needed to locate or retrieve information, notify the individual in writing that more time is needed, and then grant or deny the request in whole or in part within ten (10) working days following the request.69 The Legislature believed that these time periods would be adequate in the vast majority of cases, and that individuals would understand that agencies might occasionally need additional time to respond.
Answer: If there is no response to the request, it shall be deemed to be denied within ten (10) working days following the request.70 The 180-day period to seek court relief begins at that point.71
DENIAL OF A REQUEST FOR PUBLIC RECORDS
Answer: "[T]he person legally responsible for administering the public agency or independent public body corporate and politic or that person's designee" will determine if a request is to be denied in whole or in part.72 The public agency is also encouraged to have an attorney review the request if the information appears to be exempt from disclosure.73
Answer: Yes. It is required that a written denial be provided to the individual requesting the information.74 However, failure to respond in writing does not extend the time period for response. It is deemed denied after 10 days.75
Answer: The written denial for all or part of a request for information must state the statutory authority for the denial, and include a clear statement of the right to appeal and the time for doing so.76
In addition, it is also required that the public agency state "that the attorney for the public agency or independent public body corporate and politic has reviewed the request or shall state that the public agency or independent public body corporate and politic has had an opportunity to consult with an attorney regarding the request for examination or copying of a record and has chosen not to do so."77
It is the opinion of the attorney general's office that the only legitimate reason for the agency not to consult with an attorney is that the exemption from disclosure is clear. If that is the case, the letter of denial should so state. Above all, if there is any doubt about whether the information is exempt from disclosure, it is imperative that the public agency seek legal advice.
Answer: The public agency must retain the documents in question until the end of the 180-day period, until a decision has been issued by the court on an appeal, or for a longer period if required by any other law.78
Answer: No. The public records law is not "available to supplement, augment, substitute or supplant discovery procedures" in any criminal appeal, post-conviction civil action, federal or state civil action, or other administrative process governed by the rules of discovery.79
PROTEST OF A DENIAL OF A REQUEST FOR PUBLIC RECORDS
Answer: A person aggrieved by the denial of a request for records is authorized to file a petition in the district court of the county where the records or some part of them are located. The petition to compel disclosure of the records must be filed within 180 days from the date of mailing of the denial notice.80
Answer: No. Some public agencies have internal administrative appeal processes that must normally be followed before an appeal can be taken to court. However, the Legislature determined that there should be one uniform appeal procedure regarding public records. The "sole remedy" for denial of a request is the court process described in the public records law.81
Answer: The court must set a time for the public agency to file a response and for a hearing at the earliest possible time, not later than twenty-eight (28) calendar days after the petition is filed.82
The court then has the discretion to examine the documents in chambers, and shall consider the written and oral presentations from the individual requesting the record, as well as those from the public agency.
If the court finds that the records are not exempt from disclosure, the public agency will be required to make them available. If the court finds in favor of the public agency, the records will be returned to the public agency without being disclosed to the individual requesting them.
Answer: Yes, under certain circumstances. The award of reasonable costs and attorney fees is provided to whichever party prevails, if the court "finds that the request or refusal to provide records was frivolously pursued."83
INSPECTION AND AMENDMENT OF RECORDS PERTAINING TO AN INDIVIDUAL
Answer: Yes, with some exceptions. Inspection and copying of records pertaining to oneself is permitted, "even if the record is otherwise exempt from public disclosure." However, there exist some limitations on that access: otherwise exempt investigatory records of a public agency or independent public body corporate and politic if the investigation is ongoing; information that is compiled in reasonable anticipation of a civil action or proceeding, which is not otherwise discoverable; the information relates to adoption records; information which is otherwise exempt from disclosure by statute or court rule; and records of a prisoner maintained by the state or local agency having custody of the prisoner or formerly having custody of the prisoner or by the commission of pardons and parole.84
Answer: Individuals involved, as well as their attorney, or insurance company, have the right to a complete, unaltered copy of the impact report and any subsequent final report prepared.85
Answer: Yes. An individual can make a written request to correct or amend any record maintained by a public agency about that person. Within ten (10) days of the request, the public agency must make the correction, or explain in writing why the request is not granted.86
Answer: An individual has the right to protest the denial by using the same appeal procedure as for denial of access to a record, which is to file a petition in district court as described in Questions 30-33.87
PENALTIES FOR BAD FAITH NONCOMPLIANCE; IMMUNITY
Answer: A civil penalty of up to $1,000 can be assessed against a public official who the court finds has deliberately and in bad faith improperly refused a legitimate request for inspection or copying of a public record.88
Answer: Yes. The statute provides immunity for any public agency, public official or custodian from liability for any loss or damage based upon the release of a public record if the individual acted in good faith in attempting to comply with the law. Good faith compliance is best demonstrated by consulting with an attorney whenever there is any doubt whether the information can be disclosed.89
Citations for Public Records
- 1 Idaho Code § 74-102.
- 2 Idaho Code §§ 74-104 to 74-111.
- 3 Idaho Code § 74-101(11).
- 4 Idaho Code § 74-101(8).
- 5 Idaho Code § 74-101(15).
- 6 Id.
- 7 Idaho Code § 74-105(1).
- 8 Idaho Code §§ 74-124(1-4).
- 9 Idaho Code § 74-105(1).
- 10 Idaho Code § 74-101(7).
- 11 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).
- 17 Id. at 456.
- 18 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).
- 25 Idaho Code § 74-112.
- 26 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).
- 32 Idaho Code § 50-907.
- 33 Idaho Code § 31-871.
- 34 Idaho Code § 74-102(4).
- 35 Idaho Code § 74-102(9).
- 36 Idaho Code § 74-102(10)(c).
- 37 Idaho Code § 74-102(10)(e).
- 38 Idaho Code § 74-102(10)(d)(i).
- 39 Idaho Code § 74-102(10)(d)(ii).
- 40 Idaho Code § 74-102(10).
- 41 Idaho Code § 74-102(8).
- 42 Idaho Code § 74-102(10)(f).
- 43 Idaho Code § 74-102(8).
- 44 Idaho Code § 74-102(14).
- 45 Idaho Code § 74-115(3).
- 46 Idaho Code § 74-106(33).
- 47 Idaho Code § 74-106(31).
- 48 Idaho Code § 74-106(1).
- 49 Id.
- 50 Idaho Code § 74-108(6).
- 51 Idaho Code § 33-518.
- 52 Id.
- 53 Idaho Code § 74-106(1).
- 54 Federated Publications v. Boise City, 128 Idaho 459 (1996).
- 55 Federated Publications v. City of Meridian, Case No. CV OC 97 06708D.
- 56 Idaho Code § 74-120(1)(a).
- 57 Idaho Code § 74-120(1)(b).
- 58 Idaho Code § 74-120(2).
- 59 Idaho Code §§ 74-120(3-9).
- 60 Idaho Code § 74-120(11).
- 61 Idaho Code § 74-105(8).
- 62 Idaho Code § 74-102(4).
- 63 Id.
- 64 Idaho Code § 74-102(5).
- 65 Idaho Code § 74-102(6).
- 66 Idaho Code § 74-102(9).
- 67 Idaho Code § 74-102(5)(b).
- 68 Idaho Code § 74-103(1).
- 69 Id.
- 70 Idaho Code § 74-103(2).
- 71 Idaho Code § 74-115(1).
- 72 Idaho Code § 74-103(3).
- 73 Idaho Code § 74-103(4).
- 74 Idaho Code § 74-103(3).
- 75 Idaho Code § 74-103(2).
- 76 Idaho Code § 74-103(4).
- 77 Id.
- 78 Idaho Code § 74-115(2).
- 79 Idaho Code § 74-115(3).
- 80 Idaho Code § 74-115(1).
- 81 Id.
- 82 Id.
- 83 Idaho Code § 74-116(2).
- 84 Idaho Code §§ 74-113(3)(a-e).
- 85 Idaho Code § 74-124(2).
- 86 Idaho Code §§ 74-113(2)(a-b).
- 87 Idaho Code § 74-113(2)(b).
- 88 Idaho Code § 74-117.
- 89 Idaho Code § 74-118.
If a meeting is being closed, ask:
Under what provision of the Idaho Open Meeting Law do you intend to close this meeting? Has a two-thirds majority voted to close the meeting, and has that vote been recorded in the minutes?
If you object to the closure, say: I object to the closure of this meeting, and I note for the record that any action taken in an illegally closed meeting is null and void. Furthermore, each member of the governing body who knowingly participates in an illegally closed meeting can face fines of up to $500 apiece. I also remind the board that even in a valid executive session, no final action or decision can be made. The Idaho Open Meeting Law requires all decisions to be made in public. I ask that my objection be noted in the minutes.
Be sure to first read through the FAQs of the public records section of this Web site so you are familiar with the law. If you know your rights and are polite, you can quite often get past an initial rejection.
If you are denied a record, ask to speak to the custodian of the records in question. Ask the custodian to cite the exemption under which you are being denied the document. Be sure to note their answer. Next ask for written denial and request information about the appeals process for the agency holding the document. Follow their procedures. You have the right to formally appeal the denial of your public record in the local district court. Contact the Idaho Press Club or Idahoans for Openness in Government for more information.
The U.S. Supreme Court has held that a judge considering closing a judicial proceeding must follow certain procedures to ensure that closing the proceeding will not infringe upon First Amendment rights. (Press-Enterprise v. Superior Ct., 464 U.S. 501, 1984)
The judge must hold a hearing on the need for closure, and allow the media and others to argue against closure. A presumption of disclosure under the First Amendment right of access requires courts to grant access unless confidentiality is “necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.” Thus, if a compelling interest is at stake (e.g., criminal defendant’s fair trial right) the judge must consider alternatives to court closure (e.g., change of venue, sequestering the jury, postponing the trial until the effects of publicity have diminished). A judge who determines that no alternative will work must also determine that closure will protect the party’s interest and must tailor the closure order to protect that interest without unduly restricting public access. Finally, the judge must present written findings supporting the closure decision in order to allow appellate review.
- If you know you are prepared to send a lawyer to argue against closure, politely ask the judge if you may speak for a moment.
- If allowed, tell the judge that you object to the closure and would like an opportunity to argue against it. Ask for a brief recess so that your lawyer may come to court to argue your case and ask that your objection be made part of the court record.
- If not allowed to address the court, do not refuse to leave or shout your objection. Leave the courtroom; write a brief note to the judge explaining that you oppose the closure and that you will contact your lawyer immediately. Ask a court officer to give the note to the judge.
- Who sought closure and on what grounds
- The nature of the proceeding (i.e., criminal, civil, pre-trial, trial, etc.)
- Whether a hearing was held on the closure order and, if so, what findings the judge made justifying the closed proceeding
- Whether the proceeding is still going on
- Consult your lawyer about challenging the order; challenge may be as simple as requesting a meeting with the judge to point out the procedural requirements mandated by the Supreme Court. Be sure to ask for access to future proceedings and transcripts of past proceedings (note: be prepared to pay for past transcripts). If the judge does not agree to “informally” resolve the issue, you can file a motion to intervene in the matter for purposes of formally challenging the closure order (including a possible appeal).
A blue-ribbon Media and the Courts Conflict Resolution Panel can be called upon by any member of the media or any judge at any time to resolve significant conflict that might arise on a case-by-case basis among the media and the Idaho courts.
- Give proper notice. It is important to let people know the reasons why you want to close a public meeting.
- Cite the exemption. When you make the motion to close the meeting, cite the exact section under Idaho Code why you wish to go into executive session.
- Make sure you have a two thirds vote on the record. An exact vote needs to be recorded in the minutes.
- Keep minutes. Even if you have gone into executive session, you must keep minutes and those minutes must be available to the public. You only have to provide the subject matter and provide sufficient detail in the minutes to explain the general purpose of the session.
- Don't stray. Do not discuss any topic other than the one for which you closed the meeting.
- Don't take final action. No executive session may be held for the purpose of taking any final action or making any final decision.
- If you have any questions, check with your agency's legal representative.
Most public documents are just that, public. Be sure to read the FAQs of the Public Records section of this Web site.
- Learn what documents in your care are exempt and why. It will save everybody time.
- Find out who the custodian of the public documents for your agency or government body is. If you are not that person, be sure to have contact information available in case you have questions.
- Do not ask a citizen why he or she wants a document. You may ask questions to narrow a broad request or suggest additional or alternative documents the citizen might find helpful.
- You may ask for a written request, but it is not required.
- You are responsible for the safety of the public document. If there is a question, find a reasonable compromise that provides the copy and yet protects the document.
A blue-ribbon Media and the Courts Conflict Resolution Panel can be called upon by any member of the media or any judge at any time to resolve significant conflict that might arise on a case-by-case basis among the media and the Idaho courts.
Joan Cartan-Hansen, Boise, 208-373-7220
Hon. Jeff Brudie, Lewiston, 208-799-3191
Jeremy Pisca, Boise, 208-345-9929
Deb Kristensen, Boise, 208-388-1200
Hon. Ron Schilling, Meridian, 208-898-0338
Sara Thomas, Idaho Supreme Court, 208-334-2246, or Betsy Russell, Idaho Press Club, 208-336-2854
"Transparency in Government: Exploring Idaho’s Open Meeting and Public Records Laws," a lesson plan for twelfth-graders.
Funded by the John S. and James L. Knight Foundation