Respected Kootenai County businessman Frank Davis has filed a Petition for Relief Under Idaho Public Records Act in the First District Court of Idaho.
In his petition Davis asks the Court to compel the Kootenai County Sheriff’s Office to release certain information Davis believes is being withheld contrary to Idaho law.
The Idaho Public Records Act provides “Every person has a right to examine and take a copy of any public record of this state and there is a presumption that all public records in Idaho are open at all reasonable times for inspection except as otherwise expressly provided by statute.”
In writing the Act, the Legislature recognized that in rare circumstances, certain material included in public records might lawfully be exempt from disclosure. The Act identifies the material which an agency can lawfully withhold from disclosure.
It is clear from reading the Act that the Legislature never intended an entire and complete “record” to be withheld simply because one item of material in it might be exempt. Idaho Code § 74-112 expressly provides that “If any public record contains material which is not exempt from disclosure as well as material which is exempt from disclosure, the public agency or independent public body corporate and politic shall, upon receipt of a request for disclosure, separate the exempt and nonexempt material and make the nonexempt material available for examination, provided that a denial of a request to copy nonexempt material in a public record shall not be based upon the fact that such nonexempt material is contained in the same public record as the exempt material.”
The “separate exempt from nonexempt” provision of I.C. § 74-112 makes sense. If it was not present, then official misconduct or other official misbehavior revealed in a public record could be hidden from the public by a dishonest official who merely declares the entire record to be exempt because of its title rather than its content.
OpenCdA hopes Idaho’s legislators would not write a law intended to encourage or allow public officials to use the “exempt” provisions of the Idaho Public Records Act to hide official misconduct or criminal conduct from the public.
With his petition to the District Court, businessman Frank Davis is scrupulously following the procedure which our distinguished legislators prescribed the Act. It provides “The sole remedy for a person aggrieved by the denial of a request for disclosure is to institute proceedings in the district court of the county where the records or some part thereof are located, to compel the public agency or independent public body corporate and politic to make the information available for public inspection in accordance with the provisions of this chapter.”
Far from bringing what some will undoubtedly try to dismiss as a frivolous action, Frank Davis is simply following the law. When the Legislature used “sole” in the law, it is presumed that the Legislature knew the plain language meaning of the word. Given one and only one remedy by law, we hope Idaho judges allow petitioners considerable latitude when petitioning the Court to do its job: Adjudicate the petition based on the facts and applicable law.
Legislators need to go back and clarify that statute 74-113(3)(e) .. it lumps everything into “records” they need to add wording such as “exempt” to (e), reads like nothing is subject to review and can be denied, however, definitely not a frivolous petition and a good catch. It will be interesting to see how a Judge interprets the denial. Maybe, that is how they want it, no review or access at all, akin to Clinton’s “Top Secret” emails. LOL
Comment by Stebbijo — January 31, 2016 @ 1:39 pm
Stebbijo,
It seems to me that while the custodian of a public record is forbidden to ask why a requester wants a particular record (I.C. §74-102(5), it would be permissible for the Court to inquire, in camera if necessary to protect the integrity of the protected information until such time as the Court determines it is, in fact, public information not legitimately exempt from disclosure.
Comment by Bill — January 31, 2016 @ 3:16 pm
I think they are always doing the CYA thing. Any judge can review their own rules without a hearing and decide what to do with any record request. Ridiculous mess, essentialy the Judges are the custodians, the County Clerks are just a road block. Now, that there is a public request, they need to deal with it. But, from experience, Judges make the public go to Court for record management, unless of course, it might
have to do with their own personal cases. No Court required, then .. they are it.
Comment by Stebbijo — January 31, 2016 @ 4:34 pm
Stebbijo,
In this case the Sheriff’s Office has its own records custodian who is responsible for responding to public records requests. The sole remedy, petition the Court, was prescribed by the Legislature in the statute.
Comment by Bill — January 31, 2016 @ 4:47 pm
That sounds messed up .. I thought all record requests were in the hands of the County Clerk but it makes sense that each agency has their own records specialist that can really do nothing. I would scrap the route of the Sheriff’s department and ask directly to the County Clerk. That is why the Sheriff’s Department they denied it, they don’t know what they are doing. The County Clerk can go directly to a Judge. The “sole” remedy makes sense if you have exhausted all avenues … in this case, I don’t think the Sheriff’s department wants to work or they are scared they will make a mistake. Just like trying to get any records from the ‘ole LCDC’ … the records reside in the County but who is really in charge? I would cut to the chase and go directly to the front, even write a letter to a judge citing their own rules, make them say you have to back peddle. Nonetheless, it always appears to be some sort of Court hearing which is really unnecessary. Idiocy and a waste of time. The County has a Trial Court Administrator, nothing but a paper pusher … send those requests to her. 🙂
Comment by Stebbijo — January 31, 2016 @ 5:07 pm
All good ideas – but. The last records request that I sent to the Trial Court Administrator she blew it off and never formally replied with any exempting statute and just an email well after the 10 working days putting it off further. For records out at the Sheriff’s office no doubt the County Clerk will deny it and respond that they are not the custodian.
http://www.kcgov.us/departments/clerk/ClerksPublicRecordsRequestForm.pdf Notice the middle of the form where they can and would just check the box that they are not the custodian of the records.
Comment by Appalled — January 31, 2016 @ 5:42 pm
Stebbijo,
Here is a link to the BOCC Public Records Request webpage. The law does not require that a requester use the department’s form (or any particular form for that matter), but I try to provided it allows sufficient space to fully explain what I am seeking.
I’m pretty sure that if a requester submits a request to the BOCC with sufficient information to identify what is sought, it will either be routed to the proper department or returned with the proper department identified.
The County Clerk could not go directly to the judge simply because the County Clerk is not the requester.
I’ve never had any particular problem getting timely responses to my requests from the county provided I did a little research ahead of time and determined which department(s) likely had the records. In fact, there have been times when I’ve received a complete reply the same day, because I was willing to accept an email response.
Comment by Bill — January 31, 2016 @ 6:51 pm
Well, it appears to be a quandary or maybe certain judges or counties just do things differently. Years ago, I requested records from Bonner County thru a public records request via the County Clerk. She would not provide me the records citing that the Judge had to be consulted so I was denied. My “sole” remedy was to go to Court. I filed the case in Bonner County but the appointed judge recused himself sending me to Kootenai County. So, they sent the records to Kootenai County which have since then have disappeared. I was forced to go before the Kootenai judge to seal a case and prove that records did not exist that were cited in a public record and move for the sealing of a debauchery of crap. I cited the Court Administrative Rules of which any judge can disclose or seal records because they are the custodians of their own cases for numerous reasons. In that case, the Bonner County Clerk was directed by the Judge in Bonner County (assuming thru her own judicial administrative rules) not to comply or provide me the records, so I do not know why in this case the County Clerk in Kootenai does not have applicable permissions. It was 2008 that I did this, it has been awhile, I would need to most likely review the case again, myself. Nevertheless, the one thing I learned is a person can cite the Judicial Administrative Court Rules, because the Judges are the ultimate custodians. I did not know exactly what I was doing at the time, but it was worth the try because I could not afford an attorney. It must have been good enough, because it worked, but not without my hard work and sufficeint grief and agony … especially when any decent judge could have fixed it on their own. They knew better. I could not get the Bonner County Judge to comply, which is why my “sole” remedy was District Court in Kootenai and then I was forced back to Bonner County for another hearing to file another request to seal, because it was too big of a mess for Kootenai County to deal with. The Bonner County Clerk at that time produced an affidavit. So, that is why I just say, cut to the chase and go for broke … hit the judges first with their own rules that they do not care to follow unless forced to.
Comment by Stebbijo — January 31, 2016 @ 7:56 pm
On the flipside, I too, have had no problem getting information. But, the particular incident, I
decribed was like pulling an infected wisdom tooth from a clavicle.
Comment by Stebbijo — January 31, 2016 @ 8:13 pm
I don’t know if this will help or not explain my concerns. They have changed it a lot. http://www.isc.idaho.gov/icar32
Comment by Stebbijo — January 31, 2016 @ 9:06 pm
Stebbijo,
After observing the operation of the District Court in the First Judicial District, my opinion is that if a matter (or record) may have adverse political consequences for any elected or well-connected appointed official, it’s best to try and get a hearing in a different judicial district where the judges are presumably beyond the reach of local influences.
Comment by Bill — February 1, 2016 @ 5:47 am
Mr. Davis seeks attorney fees and cites a statute that provides for attorney fees. Since he is proceeding pro se, one has to wonder what the basis of his claim is for attorney fees. As to his request for records, why would anyone believe that the public is entitled to have access to public records?
Comment by Tributary — February 2, 2016 @ 12:47 pm
Tributary,
I don’t know about the attorney fees. If he initiates the action pro se but subsequently decides to engage legal counsel, would it be necessary to request the fees in the original petition to preserve his claim to fees if he does engage an attorney later in the action?
I understand the reasonableness for some exceptions. Prisoners in jails and prison have been known to flood the investigating agencies and prosecutors with state public records request to try and identify informants or potential witnesses. And I’m pretty sure there are a few prisoners who have nothing but time and who have submitted ongoing requests for no other reason than to harass the agency.
However, the Idaho Code seems to make it pretty clear that the custodian of records has the responsibility to separate the truly and properly excempt information from the truly and properly public information, then provide the public information to the requester. When the law says Mr. Davis’s sole remedy to challenge denial is to petition the court for a ruling, it seems to me that it would be pretty difficult for the county to credibly assert and prove that the request is frivolous.
Comment by Bill — February 2, 2016 @ 2:41 pm