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October 11, 2011

Berns Must Go (And He Shouldn’t Go Alone)!

Well, the Commissioners of Coeur d’Alene, Idaho’s urban renewal agency, the Lake City Development Corporation (LCDC) and its Executive Director Tony Berns (shown left)  are still trying their best to hide public information from the public.

Now the LCDC Commissioners have adopted and enforced a formal policy requiring that all requests for public information must be submitted on a specific form which the LCDC has adopted.

The most recent egregious exercise of this policy was brought to light by reporter Tom Hasslinger’s article in the February 11, 2011, Coeur d’Alene Press headlined online with LCDC director, activist spar over records request.

If you believe Idaho’s Attorney General Lawrence Wasden, the purpose of Idaho’s Public Records Law  is to “…protect[s] each citizen’s right to monitor the actions of state and local government entities by providing access to governmental records.”

As today’s newspaper article notes, Mary Souza tried to use the LCDC’s online request form, but she found that she could not fill it out and submit it online.  So she did the next best thing:  She followed the LCDC’s required format in an email request she composed.  Look again at the specific form the LCDC demanded she use, then look at her message to Berns.  Clearly, she included all the information in her email message that the form requires.  In fact, she included more.  She included her email address and asked that the LCDC’s reply be in a common spreadsheet format.

Berns balked.  Mary persisted.  Mary won.

But why couldn’t the LCDC and Berns demand that their specific form be used?  Because Idaho’s Public Records Law does not allow them to deny an application for public information based on the applicant not using a particular form.  The only justifications for denying Mary Souza’s request was if all or part of the information she wanted was exempted from disclosure by Idaho Code §§ 9-340A through 9-340H.  None of the information she requested was exempt.  In other words, Berns and his cronies on the LCDC can withhold information based only on the content of the information itself, not on the format of the request.  Berns and the LCDC Commissioners are not allowed to amend the Idaho Code by adding their own private exemption which says, “The LCDC can deny releasing public information if the requester doesn’t use our form.”

All the LCDC could require is that a request for public records be submitted to it in a writing (see Idaho Code §9-337(16)) that provides the requester’s name, mailing address, e-mail address and telephone number. And Idaho Code §9-338(4) provides that, “A request for public records and delivery of the public records may be made by electronic mail. ”  So when Mary Souza found that the LCDC’s own online form could not be completed online and transmitted via email without somehow imaging it, she did the next best thing:  She included all the information required by the LCDC’s form in her email.  Here again is her message to Berns, a request Berns rejected because it wasn’t on the proper form.

But Berns and the LCDC Commissioners aren’t any quicker to reply to requests that have been submitted on their form.  Berns deceived the Press and its readers in today’s newspaper article when he said, “No one has had an issue with completing the LCDC public record request form per the LCDC public record policy.”  Well, yes Tony, someone has.  I had an issue with it.

On April 20, 2007, I submitted the original of this public records request via US Certified Mail to the LCDC address specified on its own form .   In early May, here was my reply to that request.

In order to get a timely reply to my request, I needed to hand-deliver a copy of it to the Coeur d’Alene City Hall.  The receptionist on duty at 9:48 a.m. on April 27, 2007, assured me she would “put it in Tony’s mail box” at City Hall.  Berns had a mail box at City Hall?  And here I thought that the Idaho Supreme Court had ruled in Boise Redevelopment Agency v. Yick Kong Corp., 94 Idaho 876, 499 P.2d 575 (Idaho 1972), that “Urban renewal agencies are not the ‘alter egos’ of cities under the Law.”  The Supremes affirmed Yick Kong in Urban Renewal Agency of City of Rexburg v. Hart, 148 Idaho 299, 222 P.3d 467 (Idaho 2009) when they said the city’s urban renewal agency is “…an arm of state government, entirely separate and distinct from the municipality.”  Yet Berns had a mail box at City Hall which he serviced promptly while allowing Certified Mail to lie unclaimed the LCDC’s own mailbox .

The Executive Director and some Commissioners of Coeur d’Alene, Idaho’s urban renewal agency, the Lake City Development Corporation, appear to have enacted and then on more than one occasion followed an official policy which is contrary to the Idaho Code.  They have engaged in a pattern and practice of unlawful conduct.  They all need to be removed.

15 Comments

  1. Berns needs to be called in front of a Grand Jury. Soon.

    Comment by justinian — October 11, 2011 @ 6:05 pm

  2. A word of advice, Justinian. Don’t count on your blog anonymity to protect you against libel.

    Comment by JohnA — October 11, 2011 @ 7:41 pm

  3. This guy is nothing more than a highly paid Toady for the Mayor and City Council. Here’s a low tech solution to the FOIA form they want you to fill out. Do it and fax it to them. Also to protect your wallet put finite dollar amount you are willing to shell out for the records. I generally request an email response to avoid copy costs and I ask they call if the costs are going to be more than $10.00. I also thank them in advance for all their help and if the tell me it is more than $10.00 I ask how to get it at or below that number and can I come down and look over what I am willing to pay for to get it below that figure. You can use your digital camera for a close up photo and then blow it up to a readable size and print it off at home.

    It is a pain but these people have forgotten what “public servant” means. You are their customer and should therefore be treated as such.

    Comment by paul — October 11, 2011 @ 8:21 pm

  4. JohnA,

    A word of advice: Don’t you ever threaten anyone on this blog again. Apparently you’re unfamiliar with the grand jury process, but investigators, witnesses, and confidential sources and not just suspects are often called to testify in front of them. I think Berns might be a very credible witness if asked to testify.

    Comment by Bill — October 11, 2011 @ 9:17 pm

  5. Wowza, JohnA’s comment has to rank as the all-time most incredible ‘exposed nerve ending’ comment that I have ever seen on any blog site. Now maybe, and it is just a small maybe, our erstwhile County Prosecutor might stumble across a set and convene a grand jury to investigate LCDC. No I am not going to hold my breath, but I am going to go grab another cold one…(I might even change my on-line name to “Half Rack’) and I suggest that JohnA should seriously consider doing the same…or stop doing it before posting such comments. I aplaud Bill’s restraint in not removing JohnA’s post because I believe, just my personal opinion now, that it reveals a great deal about him and his well rounded expertise in not only URDs, libel law, and…well…pretty much everything.

    Comment by Joe Six-Pack — October 11, 2011 @ 11:12 pm

  6. To its credit, the LCDC displays its 3-1/2 page public records policy on the homepage of its website. It is under Current News, and the link text is LCDC Public Records Policy.

    I’d encourage people to read it if they are interested in asking LCDC for information. Just don’t try to print or copy it, because it is a SECURED .pdf. You can read it on their website or save it to your computer, but even if you open it from a saved file, you will not be able to easily and conveniently print it.

    It is a mystery to me why the LCDC chose to make it difficult for the public to print a copy of a public agency’s public records policy from its publicly-accessible website. Maybe Winston Churchill’s description of Russia also fits the LCDC: “I cannot forecast to you the action of Russia. It is a riddle, wrapped in mystery, inside of an enigma; but perhaps that is the key.”

    At least one other person has requested public records from the LCDC and has received them in a format that required the recipient to use special software to open the file provided by the LCDC. Perhaps the LCDC is overly concerned that the recipient may change or otherwise misrepresent the information. While Idaho’s public records law does wisely permit and encourage the custodian of an original document to take steps ensuring the original document is not altered during an inspection (see Idaho Code, §9-338(7)), that does not extend to copies or reproductions of the original. It would be foolish for a public record requester/recipient to intentionally alter the information he received. The best determination of alteration is comparison of the allegedly altered copy with the original that has always been secured by the document custodian.

    Comment by Bill — October 12, 2011 @ 6:51 am

  7. “A word of advice, Justinian. Don’t count on your blog anonymity to protect you against libel.”

    ROTFLMAO! What a hoot.

    Hey John – what exactly are you trying to do?

    Comment by Pariah — October 12, 2011 @ 10:32 am

  8. Maybe Tony wants to go. Maybe he’s had enough. His behavior is certainly strange because how could he think that this kind of stonewalling would look good on him?

    If anyone missed the strong Editorial on this topic in this morning’s Press, you can read it here.

    Comment by mary — October 12, 2011 @ 12:20 pm

  9. Does Berns at least have a degree in Urban Planning, accounting, public administration or some related subject?

    Comment by justinian — October 12, 2011 @ 6:36 pm

  10. Justinian, I believe his degree is in Forestry Management. Why was he chosen for this position?…your guess is as good as mine.

    Comment by mary — October 12, 2011 @ 6:52 pm

  11. Justinian,

    From the LCDC website:

    Tony Berns joined the LCDC as Executive Director in December, 2001. He was born and raised in the Cincinnati area, graduating from the University of Idaho with BS and MS degrees in Forestry. Prior to joining the LCDC, Tony worked for 20 years in the industrial Forest Products business sector, living in the northwest (Idaho, Oregon and Montana), the southeast (Texas) and the northeast (Connecticut and Maine). His business background includes operations management, corporate planning, organizational leadership and development.

    Comment by Bill — October 12, 2011 @ 6:57 pm

  12. Oh, an unemployed forest products guy. Great resume for an Urban Renewal Agency director. Well, not really, but at least he isn’t being overpaid, right?

    Comment by justinian — October 12, 2011 @ 7:09 pm

  13. Hmm. Degree in Forestry. Isn’t Boise the “City of Trees”? I understand the connection now.

    Comment by Joe Six-Pack — October 12, 2011 @ 8:49 pm

  14. I’ve always wondered why some of this energy is not directed at the LCDC Board of Commissioners. They make the decisions, all of them.

    Comment by Gary Ingram — October 12, 2011 @ 9:04 pm

  15. You’re right, Gary, and they decide on Tony’s pay and benefits. The Press article last Tuesday about the public records fiasco said this:

    Meanwhile, City Council member Deanna Goodlander, a city liaison on the LCDC board, called the decision disappointing. “I’m sorry to see that,” she said. “It’s not my decision, obviously. But I think it’s really important we have an open dialogue with the public.”

    Sounds like Deanna, as a city council person and member of LCDC, feels powerless to do anything about Tony.

    Comment by mary — October 12, 2011 @ 10:14 pm

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