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Frequently Asked Questions about Public Records

PURPOSE OF THE IDAHO PUBLIC RECORDS LAW

Question No. 1: What is the 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. This balance is contained in Idaho Code § 9-338, 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

Question No. 2: What does the Idaho Public Records Law provide?

Answer: The law includes definitions and a simple, uniform procedure for inspection and copying of records. Sections 9-340A through 9-340H list the records that are exempt from disclosure. 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

Question No. 3: What government entities are subject to the Public Records Law?

Answer: The law applies to all "public agencies." Section 9-337(11) defines a public agency as any state or local agency.

"Local agency," defined in section 9-337(8), 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." "State agency," defined in section 9-337(15), 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."

Thus, essentially every entity of state and local government is expected to comply with the Idaho Public Records Law.

Question No. 4: Does the Public Records Law apply to the Governor, the Legislature, and the Judiciary?

Answer: Yes. The definition of "state agency" includes all of the above. The only state entity omitted from coverage of the law is the military division of the governor's office.

Question No. 5: Are law enforcement entities treated differently by the Public Records Law?

Answer: Yes, to some extent. Section 9-335, relating to the investigatory records of law enforcement agencies, has been in effect since 1986 and is incorporated into the Public Records Law by section 9-340B(1). It contains the standards under which certain information may be released to the public. Sections 9-335(1) through 9-335(3) provide:

9-335. 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;
(e) Disclose investigative techniques and procedures; or
(f) Endanger the life or physical safety of law enforcement personnel.

(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 (f) 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;
(d) The crime charged;
(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.

Section 9-340B(1) provides that other entities with law enforcement responsibilities, such as the department of fish and game, have the same confidentiality standards. Section 9-337(7) defines "law enforcement agency" 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." For further discussion of this topic, see Attorney General Opinion No. 86-7.

RECORDS COVERED BY THE LAW

Question No. 6: What are public records?

Answer: "Public record," as defined in section 9-337(13), is an extremely broad concept. 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."

"Writing" in section 9-337(16) 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.

In Fox v. Estep, 118 Idaho 454 (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. "Working papers," "raw notes," "preliminary drafts" and the like are not necessarily exempt from disclosure.

To date, e-mail (electronic mail) has not been separately addressed by the Legislature. E-mail is considered a public record and is subject to the same laws as any other public record.

Question No. 7: Who are the custodians of public records?

Answer: "Custodian" is defined in section 9-337(3) as the "person having personal custody and control of the public records in question. If no such designation is made by the public agency or independent public body corporate and politic, then custodian means any public official having custody of, control of, or authorized access to public records and includes all delegates of such officials, employees or representatives."

Question No. 8: What responsibility does the public agency have for providing access to records?

Answer: Section 9-338(1) provides that 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. In addition, section 9-338(5) requires the public agency to extend reasonable comfort and facility to the individual requesting public records.

The concept of a "copy" of a public record in section 9-337(2) 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." Additionally, a certified copy, if feasible to produce, must be provided upon request. Idaho Code § 9-338(3).

A public agency may not refuse access to records "by contracting with a non-governmental body to perform any of its duties or functions." Idaho Code § 9-338(13). Furthermore, public agencies are required, without exception, to separate exempt information from records when a request is made, and to provide access to the non exempt material. Agencies are prohibited by section 9-341 from denying requests because a record contains both exempt and non exempt information.

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. 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.

Question No. 9: Does the public agency have a responsibility to protect the integrity of records?

Answer: Yes. In Adams County Abstract Co. v. Fisk, 117 Idaho 513 (Ct.App. 1990), 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.

The concepts of the Adams County case were preserved in the public records law. Sections 9-338(1) and (2) provide 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." 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. Section 9-338(7) provides that, "Nothing 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."

Question No. 10: For how long must a public record be retained?

Answer: Idaho's cities and counties are governed by statutes that define how records should be classified and retained, as well as the procedure for destruction of public records. Idaho Code § 31-871 (Counties) and Idaho Code § 50-907 (Municipal Corporations). 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.

Question No. 11: What fees may be charged for the cost of copying public records?

Answer: The concept of the law is that examination and copying of public records is part of the public business, already funded by taxpayers. Under section 9-338(10)(c) of the public records statute, an agency may establish a copying fee schedule, which "may not exceed the actual cost to the agency of copying the record . . . ." The section contains an exception to preserve fees already established by other laws, such as recorders' fees and fees for court records.

Some state and local agencies provide information in the form of computer tapes and disks. Section 9-338(10)(d)(i) permits charging for the "direct cost of copying the information in that form." 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." 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.

Question No. 12: May the agency recover the cost of mailing or faxing copies of public records?

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.

Question No. 13: What fees may be charged for any labor costs incurred in locating, redacting, copying, and providing access to public records?

Answer: Agencies may establish a fee to recover such labor costs for voluminous or complex requests, or requests that involve locating archival information. Idaho Code § 9-338(10).

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. Idaho Code § 9-338(8).

Question No. 14: Are all members of the public required to pay copying fees and labor costs?

Answer: Section 9-338(10)(f) allows an agency 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," or "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."

Question No. 15: May the agency require advance payment of fees?

Answer: Section 9-338(8) allows the agency to require advance payment of the costs of copying and labor costs.

RECORDS EXEMPT FROM DISCLOSURE

Question No. 16: What information is exempt from disclosure under the law?

Answer: With the exception of section 9-335, relating to law enforcement records, most exemptions from disclosure in the public records law are contained in Idaho Code sections 9-340A through 9-340H. Even if an exemption applies to a record, according to section 9-338(14), the law does not prevent the disclosure of statistical information that identifies a particular person, unless such disclosure is otherwise prohibited by law.

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. Idaho Code § 9-343(3).

Question No. 17: What are the law's requirements relating to employee or personnel records?

Answer: There is one standard for disclosure of personnel information for all public employers. Section 9-340C(1) requires 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, status, workplace and employing agency." 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 and phone 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." Idaho Code 39-340(c)(i). A similar exemption relating to test questions in licensing, employment, academic or other examination situations is contained in section 9-340E(5).

In addition, Idaho Code Section 33-518 pertains only to school district employees. Section 33-518 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 9-301 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.

Question No. 18: Does the exemption restricting disclosure of most information in a public employee's personnel file apply to applicants for public employment?

Answer: It depends. Section 9-340C(1) states that the exemption covers "[a]ll other personnel information relating to a public employee or applicant . . . ."

In Federated Publications v. Boise City, 128 Idaho 459 (1996), the Idaho Supreme Court distinguished the terms "public official" and "public employee," holding that applications and resumes submitted by applicants for a vacant city council seat are subject to disclosure. However, in Federated Publications, Inc. v. City of Meridian, Case No. CV OC 97-06708D, the Fourth District ruled that the resumes of applicants for an appointed public office do not need to be disclosed under the public records law. Thus, résumés for a vacant elected office are likely subject to disclosure while those for an unelected employee may not be.

Question No. 19: What are the law's requirements regarding distributing, selling or using lists of persons for mailing or telephone number lists?

Answer: Section 9-348 prohibits an agency 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. Idaho Code § 9-348(1)(a). 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. Idaho Code § 9-348(1)(b).

However, section 9-348 does not prevent individuals 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.

Certain agencies and types of records do not fall within the general prohibition contained in section 9-348(1). Section 9-348 does not apply to: (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.

Section 9-348 provides for 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 9-348(1)(b).

Question No. 20: May a governmental entity refuse to disclose administrative investigative reports prepared in anticipation of litigation at the direction of its attorney?

Answer: Yes. 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

Question No. 21: Must an individual fill out a written request for inspection or copying of public records?

Answer: Section 9-338(4) permits an agency to require requests for access to public documents be made in writing. If a written request is required by the public agency, the individual may be required to provide a mailing address and telephone number. This information may assist the public agency to clarify a request and provide a document as soon as possible.

Question No. 22: May the agency ask the purpose of the request?

Answer: Public agencies generally are not allowed to ask why a person wants public records. Idaho Code § 9-338(5). Likewise, section 9-338(6) provides that, "The custodian shall not review, examine or scrutinize any copy, photograph or memoranda in the possession of any such person. . . ." 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. Further, section 9-338(5)(b) allows an inquiry by the agency to make sure its information is not to be used as a mailing or phone list, and the agency can demand a letter promising no commercial use.

Question No. 23: What are the time limits for a public agency to respond to a request for information?

Answer: The intent of the law is that documents be provided upon request whenever possible. Section 9-339(1) provides three (3) working days from the date of the receipt of the request for the public agency to grant or deny the information. However, public agencies should not delay three days to provide information that is readily available.

Section 9-339 allows the employees of the public agency 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. 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.

Question No. 24: What happens if the agency does not 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, according to section 9-339(2). The 180-day period to seek court relief provided in section 9-343(1) begins at that point.

DENIAL OF A REQUEST FOR PUBLIC RECORDS

Question No. 25: Who determines if a request for records must be denied?

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. Idaho Code § 9-339(3). Section 9-339(4) also encourages the public agency to have an attorney review the request if the information appears to be exempt from disclosure.

Question No. 26: Must a public agency provide a written denial?

Answer: Yes. Section 9-339(3) requires that a written denial be provided to the individual requesting the information. However, failure to respond in writing does not extend the time period for response. It is deemed denied after 10 days.

Question No. 27: What information must a public agency provide if a request is denied?

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.

In addition, section 9-339(4) also requires 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."

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.

Question No. 28: What happens to the requested records if access has been denied?

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.

Question No. 29: When a public agency or public official is a party to a proceeding governed by the rules of discovery, may another party to the litigation use the Public Records Law to obtain records instead of complying with the discovery process?

Answer: No. Section 9-343(3) specifically states that 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.

PROTEST OF A DENIAL OF A REQUEST FOR PUBLIC RECORDS

Question No. 30: What recourse does an individual have if a request for public records is denied?

Answer: Section 9-343 authorizes a person aggrieved by the denial of a request for records 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.

Question No. 31: Must public agency appeal processes also be followed?

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. As provided in section 9-343(1), the "sole remedy" for denial of a request is the court process described in the Public Records Law.

Question No. 32: What happens once a petition is filed?

Answer: Section 9-343 directs the court to 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.

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.

Question No. 33: May attorney fees and costs be awarded by the court?

Answer: Yes, under certain circumstances. Section 9-344(2) provides for the award of reasonable costs and attorney fees to whichever party prevails, if the court "finds that the request or refusal to provide records was frivolously pursued."

INSPECTION AND AMENDMENT OF RECORDS PERTAINING TO AN INDIVIDUAL

Question No. 34: Do individuals have a right to inspect records that pertain to themselves?

Answer: Yes, with some exceptions. Subsection (1) of section 9-342 permits inspection and copying of records pertaining to oneself "even if the record is otherwise exempt from public disclosure." However, subsections (3)(a) through (e) of that section provide 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.

Question No. 35: What right does an individual involved in a motor vehicle collision have to an unaltered copy of the accident report prepared by a law enforcement agency?

Answer: Section 9-335(2) authorizes the individuals involved, as well as their attorney, or insurance company, the right to a complete, unaltered copy of the impact report and any subsequent final report prepared.

Question No. 36: May individuals request correction of records that pertain to themselves?

Answer: Yes. Section 9-342(2) permits an individual to 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.

Question No. 37: What happens if a request for correction of a record is denied?

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.

PENALTIES FOR BAD FAITH NONCOMPLIANCE; IMMUNITY

Question No. 38: Is there any penalty for a public official who refuses to provide a public record?

Answer: Section 9-345 provides for a civil penalty of up to $1,000 to 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.

Question No. 39: Is there any protection for a public official who attempts to comply in good faith with the Public Records Law?

Answer: Yes. Section 9-346 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.

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