Recent Updates (as of December 2011)

Two major pieces of legislation have passed since this project began, revising the Idaho Open Meeting Law and the Idaho Public Records Law:

  • SB 1142, in 2009, repaired and strengthened the Open Meeting Law after an Idaho Supreme Court decision blew a giant hole in it; and
  • HB 328, in 2011, amended the Public Records Law to limit labor charges and, most importantly, make the first 100 pages of records FREE.

In 2009, legislation that was co-sponsored by the Idaho Press Club, Idaho Attorney General Lawrence Wasden, and many others, fixed our open meeting law after an Idaho Supreme Court decision in 2007. In State vs. Yzaguirre, an Ada County case, the Idaho Supreme Court gave a new and very different meaning to the word "knowingly" as used in the law, creating an incentive for ignorance: If a public official didn't know about the details of the Idaho open meeting law, then he or she couldn't "knowingly" violate it.

An open meeting complaint was filed in 2008 against the State Board of Education. Attorney General Wasden conducted an extensive investigation, but concluded that while the board may have violated the law, he couldn't prove that they'd done so "knowingly" under the court's new interpretation. This validated the fears of many open government advocates after the Supreme Court decision - that the law had been essentially emasculated.

After the Board of Ed case, Wasden's office contacted various stakeholders, including media representatives, representatives of local governments including cities, counties and prosecutors, and many others, to work on improvements to our open meeting law. The result was SB 1142 in 2009. This bill fixed the "knowingly" problem; clarified exemptions that had been construed over-broadly; and cleared up murky language to make clear what's required, what's forbidden, and what the sanctions are.

The "knowingly" problem was fixed by setting up a new two-tiered violation system. This allows all violations to be sanctioned, but sets a very low fine of up to $50 for the first-time, inadvertent violation. The more egregious, knowing or repeated violations carry fines of up to $500.

The bill also made several other changes, most of them clarifying previously unclear language. The law now allows agenda changes during meetings, but only with a statement of a good-faith reason for the change, a motion, and a majority vote on the record. Good-faith is important here. It would be bad faith to change an agenda in order to make a decision without the public being present or knowing about it in advance. That would be a violation of the Open Meeting Law - a knowing violation, subject to the higher fine of up to $500. The law also permits an agency that recognizes it's violated the law to "cure" the violation, going back and redoing the decision the correct way. The bill passed overwhelmingly in both houses and Gov. Butch Otter signed it into law; it took effect July 1, 2009.

In 2011, HB 328 amended the Idaho Public Records Law after a series of concerns was raised by various parties, including media representatives concerned about unreasonably high labor charges, agencies concerned about getting reimbursed for the costs of huge requests requiring large amounts of labor, and concerns that the "make no inquiry" clause was causing some agencies to charge for huge numbers of unneeded copies rather than clarify public records requests.

The most significant change in HB 328 states that the first two hours of labor, and the first 100 pages of paper copies, are FREE - there is no charge for those. This applies to all public records except those for which a specific statute sets a different fee system, most notably items in court files, for which a separate, longstanding law sets a dollar-a-page fee. But it applies to virtually everything else. Another important change says that labor "fees, if charged", must be at the per-hour pay rate of the lowest-paid employee necessary and qualified to process the request. Another change requires agencies charging labor fees to provide the requester of the records an itemized statement explaining the fees charged, including per-page charges and actual employees' time and pay rates.

HB 328 also added this line to the exceptions to the "make no inquiry" clause: The agency "may provide the requester with information to help the requester narrow the scope of the request or help the requester make the request more specific when the response to the request is likely to be voluminous or require payment." They still can't ask why you want the information.

There were also changes made to the public interest exemption from fees. That section now echoes the federal FOIA law's language on public interest exemptions from fees, tightening up the "inability to pay" section, so that it applies only in combination with the public-interest exemption, not as an alternative exemption from fees for those not invoking the public-interest exemption.

HB 328 passed the House unanimously; it passed the Senate 31-2; it was signed into law on April 7; 2011 and it took effect immediately.

Funded by the John S. and James L. Knight Foundation
Idaho Public Television homepage link Idahoans for Openness in Government link