In 2015, the Idaho legislature recodified Idaho’s public records act and open meeting law by combining their provisions, and adding others related to government transparency, into a new act called Transparent and Ethical Government, Title 74, Idaho Code. Within this new act, Chapter 1 is the Public Records Act (Idaho Code §§ 74-101 through 126), Chapter 2 is the Open Meetings Law (Idaho Code §§ 74-201 through 208), Chapter 3 is reserved, Chapter 4 is entitled “Ethics in Government Act of 2015” (Idaho Code §§ 74-401 through 406), and Chapter 5 is Prohibitions Against Contracts with Officers (Idaho Code §§ 501 through 511). The legislative purpose of the act was to “provide one place for citizens to find laws relating to government transparency.” This new act became effective July 1, 2015 and was largely the result of coordinated efforts by the Public Records Ombudsman (an executive branch position created by the Governor in 2014), Idaho media representatives, city and county representatives, members of the Attorney General’s office and the public.
Idaho’s public records act was originally enacted in 1990. See Idaho Code § 9-337 through 9-348 (1990). This act created for the first time in Idaho a definitive procedure for making requests to inspect and copy public records and at the same time placed specific responsibilities on governmental agencies for responding to such requests. In addition, the act defined the universe of public records in a broad, encompassing manner, thus making clear that the records of government at every level in Idaho and in every type of cooperative and "intergovernmental" activity are subject to public view unless specifically exempted by statute.
As in other states, the Idaho Legislature determined that some types of public records should not be available for public inspection and copying because, in the legislature’s view, the type of information contained in the records was inherently personal and private in nature, or involved proprietary business information or was similarly best left confidential. However, rather than follow the federal Freedom of Information Act model in which a small number of exemptions are loosely defined, with the parameters of the exemptions left to agency regulations and judicial interpretation, the Idaho legislature chose to identify the actual types of records exempt from public disclosure with a greater degree of specificity. In addition, in nearly all instances, the legislature specifically refused to give government agencies the power to exempt public records from public view by rule making. In attempting to draw more black and white lines, instead of fewer gray lines, the legislature hoped to reduce the number of disputes over public records. This approach is particularly appropriate in Idaho, which has a small population and thus can only expect infrequent judicial interpretations of the open records statutes.
Revisions to the public records act have occurred and numerous exemptions have been added or amended since 1990. The most significant of those revisions occurred in 2015, when the Idaho legislature recodified the public records act to include it within a larger act relating to government transparency, Title 74, Idaho Code. Chapter 1 of this new act contains the Public Records Act and, for the most part, mimics the previous act’s language, including exemptions (which are discussed infra).
Although the public records act is routinely used throughout Idaho and disputes about its application are often brought before trial courts, very few decisions make it to the Idaho Supreme Court. Indeed, the Idaho Supreme Court has issued only ten reported decisions directly addressing the Public Records Act since 1990.
First, in Federated Publications Inc. v. Boise City, 128 Idaho 459, 915 P.2d 21 (1996), the Idaho Supreme Court considered whether names and resumes of applicants for an appointment to a vacancy on the city council were subject to disclosure under the public records law. The court held that the term “applicant” in the provision of the public records law exempting from disclosure certain personnel information refers to an applicant for a position as a public employee, and does not apply to applicants to be a public official. Therefore, resumes and names of applicants for public office were held to be open to the public. The court also addressed whether records of an administrative review of a police shooting incident is exempt from public disclosure. The administrative review consisted of a review of policies and training, completeness of internal discipline procedures, and whether there had been a violation of the law. The court held that the records from such a review were open to the public and not exempt from disclosure as a personnel record. Id.
Second, in Bolger v. Lance, 137 Idaho 792, 53 P.3d 1211 (2002), the Idaho Supreme Court held that the Attorney General’s office qualified as a “law enforcement agency” under Idaho Code § 9-335(2) [new provision I.C. § 74-124(3)]. As such, records of the attorney general’s office were “investigatory records” exempt from disclosure pursuant to Idaho Code § 9-340B(1) [new provision I.C. § 74-105(1)], and this general exemption controlled over the provision allowing individuals to obtain copies of public records about themselves pursuant to Idaho Code § 9-342(1) [new provision I.C. § 74-113(1)].
Third, in Magic Valley Newspapers, Inc. v. Magic Valley Regional Medical Center, 138 Idaho 143, 59 P.3d 314 (2002), the Idaho Supreme Court was asked to consider whether the names of public employees are exempt from disclosure as “other personnel information” under Idaho Code § 9-340C(1) [new provision I.C. § 74-106(1)] when those names are connected with information regarding the employees’ gross salary. A public hospital refused to produce the names of its employees when a newspaper requested access to records showing the name, title, and annual salary of every employee earning more than $50,000 annually, relying in part on Idaho Code § 9-340A(1) which exempts records that are specifically made exempt under federal or state law or federal regulation. Here, the hospital urged the Court to adopted the federal Freedom of Information Act’s personnel file exemption, indicating that such records would be exempt to the extent they “would constitute a clearly unwarranted invasion of personal privacy.” The Court rejected this argument, finding that FOIA does not apply because its provisions are limited to the disclosure of public information from the federal government, not state agencies. Thus, the Court ordered the hospital to disclose the requested names and salaries.
Fourth, in Idaho Conservation League, Inc. v. Idaho State Dept. of Agriculture, 143 Idaho 366, 146 P.3d 632 (2006), the Idaho Supreme Court rejected arguments that documents previously submitted to a state agency and then returned to their owner were not subject to disclosure under the public records act because the state agency no longer had possession of such records. The court found that that fact that a state agency no longer had possession of a document was irrelevant to the question of whether such record was a public record and that such an argument was inconsistent with the purpose of the public records act. To that end, the court awarded ICL its attorneys fees on appeal because it found the state agency’s position on appeal to be “frivolously pursued” pursuant to Idaho Code § 9-344(2) [new provision I.C. § 74-116(2)].
Fifth, in Nation v. State, 144 Idaho 177, 158 P.3d 953 (2006) the Idaho Supreme Court held, in the context of a 42 U.S.C. § 1983 action brought by a former corrections officer, that the Idaho Public Records Act does not create a substantive right to bring a negligence suit. In this case, the former corrections officer asserted that he was entitled, inter alia, to bring a negligence per se action against the Idaho Department of Corrections because it improperly disclosed his private information under Idaho Code § 9-340C(1) [new provision I.C. § 74-106(1)] when it replied to a public records request by an inmate.
Sixth, in Cowles Publishing Co. v. Kootenai Co. Bd. of Co. Commissioners, 144 Idaho 259, 159 P.3d 896 (2007), the Idaho Supreme Court considered whether a series of e-mail messages of a personal nature exchanged between an elected public official and a public employee were public records subject to disclosure. The public employee claimed that the e-mail messages were not public records and, if they were, they were exempt from disclosure as a personnel record under Idaho Code § 9-340C(1) [new provision I.C. § 74-106(1)]. The court rejected each of these arguments. The court began its analysis by noting that “a record may be a public record if it is a writing that (1) contains information relating to the conduct or administration of the public’s business, and (2) was prepared, owned, used or retained by a governmental agency.” Id., 144 Idaho at 263. The court found that the e-mail messages satisfied each of these prongs. Next, the court considered the personnel records exemption of 9-340C(1) and held that “although the [e-mail messages] may be a form of correspondence, they are not the type of correspondence the legislature meant to exempt in Idaho Code § 9-340C(1).” Id., 144 Idaho at 264-265. As such, the e-mail messages were ordered to be released. The court also considered whether an associated settlement agreement should be released under the Public Records Act. Applying Idaho Code § 9-340D(11) [new provision I.C. § 74-107(11), the court held that only the statistical data and actual amounts paid are public records, and any other information contained in the settlement agreement is exempt from disclosure.
Seventh, in Ward v. Portneuf Medical Center, Inc., 150 Idaho 501, 248 P.3d 1236 (2011), an individual made a public records request to his local public hospital for copies of all contracts entered into between the hospital and any doctor. This request was denied. Thereafter, the public hospital was sold to a private entity and the new entity objected to producing the requested documents claiming it was not subject to the Public Records Act. On appeal, the Idaho Supreme Court held that “[t]he determination of whether a document qualifies as a public record is based on the content of the document and surrounding circumstances as they existed at the time the request was made.” Id., 150 Idaho at 505, 248 P.3d at 1240. Moreover, pursuant to Idaho Code § 9-343(2) [new provision I.C. § 74-115(2)], a public agency is required to maintain all documents or records requested until an appeal ends and cannot alter the statue of a public record by transferring the record outside the ambit of its control. Accordingly, the hospital was ordered to produce the requested documents.
The eighth decision addressing the public records act from the Idaho Supreme Court is Henry v. Taylor, 152 Idaho 155, 267 P.3d 1270 (2011), a case involving access to a county prosecutor’s contract with the county and payments made thereunder. An individual had requested copies of Canyon County’s contract with its prosecutor, John Bujak, and information from the prosecutor’s private bank account where such sums were deposited. The county provided some information, but responded that it did not have other information, including information about Mr. Bujak’s personal bank account. The individual filed an action seeking such records, and the trial court held that the prosecutor’s private bank account records were not public records. On appeal, the Idaho Supreme Court reversed. It noted that the county prosecutor’s contract with county was a “public contract” and his performance of that contract was the public’s business, and under the definition of a “public record” in Idaho Code § 9-337(13) [new provision I.C. § 74-101(13)], the county prosecutor was “agency of the county.” Accordingly, the Court held that the requested bank account records were public records and must be produced.
Next, in Wade v. Taylor, 156 Idaho 91, 320 P.3d 1250 (2014), Wade was shot twice by a Fruitland police officer after an altercation. Intending to file a tort claim, Wade requested copies of investigatory records related to his shooting from the Idaho State Police and, later, the Payette County Prosecutor. His requests were denied under Idaho Code § 9-335(1) [new provision I.C. § 74-124(1)] as subject to an ongoing investigation. At the completion of its investigation, ISP sent all of its materials to the Canyon County Prosecutor who was serving as a special prosecuting attorney on the matter to determine if charges should be brought against either Wade or the officer. Wade then requested the “complete investigation” file from the Canyon County Prosecutor. His request was denied again pursuant to Idaho Code § 9-335, asserting that the investigation was ongoing and disclosure would interfere with enforcement proceedings and could deprive the parties of a fair trial or impartial adjudication. Wade filed an action in district court and the trial court ordered the documents to be produced, but limited their disclosure to Wade and his counsel. The prosecutor appealed, and the Supreme Court vacated the decision and remanded the matter to the district court. The Supreme Court’s decision addresses a number of issues under the public records act, including: (1) that investigative records under prosecutorial review are active, not inactive, investigatory records pursuant to Idaho Code § 9-335; (2) that the party withholding disclosure under Idaho Code § 9-335(1) has the burden to show a reasonable probability that disclosure of the investigatory records would result in one or more the harms identified in I.C. § 9-335(1)(a)-(f); (3) that a district court’s inquiry on a petition for access is whether the exemption from disclosure was justified at the time of the refusal to disclosure rather than at the time of hearing; (4) that in the event a request covers both exempt and non-exempt records, the district court has an obligation to segregate such records; and (5) that whether or not a record is exempt from disclosure is an objective inquiry. Thus, once a document is a public record a district court cannot limit its disclosure to certain individuals for certain purposes.
Finally, the most recent appellate decision involving the Public Records Act is Hymas v. Meridian Police Dept., 159 Idaho 594, 364 P.3d 295 (Ct.App. 2015). In this case, parents of a young man who died of carbon monoxide poisoning sought the investigatory file surrounding his death from law enforcement. Police originally denied the request and the parents filed an action to compel disclosure of the documents. Two days prior to the show cause hearing, the police provided the parents with the requested records. At the hearing, the parties agreed the records request was moot and only costs and attorneys fees were still at issue. The trial court refused to award costs and fees. After an appeal and remand, the matter was appealed again. This time, the issue was whether the parents were required to identify specific records that they believed were frivolously withheld in order to be entitled to an award of their costs and fees. The Court of Appeals answered that question in the negative, noting that the agency carries the burden of proof as to why it withheld specific records and that burden did not change, even after the agency disclosed the record. Id. at 599, 364 P.3d at 300. The Court also clarified that numerous provisions within the Public Records Act provided a basis for an award of attorney’s fees, not just § 74-116(2). Id. at 600, 364 P.3d at 301.
Today’s Idaho Public Records Act represents a comprehensive statutory treatment of an important tool of public knowledge about the workings of government. The act opens many doors and file drawers which previously had been opened only at the whim and caprice of public officials. However, the omnipresent tension between public inquiry and the inner workings of government has brought efforts to weaken the public records statutes, many of which have unfortunately been successfully pursued.
Idaho’s original Open Meeting Law, Idaho Code § 67-2340 through 67-2347 (1974), was weakened by a series of appellate judicial decisions in the late 1970s and early 1980s. Whether it was as a result of those decisions or in continuation of prior practice, the Open Meeting Law was ignored routinely by governmental bodies, mostly local, across Idaho. As a result, media groups made repeated efforts to obtain legislative amendment of the Open Meeting Law.
In 1992, media groups were finally successful in pushing for reform of the Idaho Open Meeting Law. Amendments passed during the 1992 legislative session imposed strict new meeting notice requirements upon public bodies, assigned specific responsibility to county prosecutors and the state attorney general's office for prosecuting violations of the law and provided civil penalties for knowing violations of the law by members of public bodies subject to the law.
The 1992 notice requirements give much more detailed information about agenda topics than was the case under prior law. Deliberations as well as decisions must take place in open meetings. Further amendments were passed in 1998 clarifying the requirements for open public meetings and executive sessions.
The Idaho Supreme Court has considered the application of the Open Meeting Law at least five times in the past few years. First, in State v. Yzaguirre, 144 Idaho 471, 163 P.3d 1183 (2007), the Idaho Supreme Court considered the contours of the “litigation exception” to the Open Meeting Law in I.C. § 67-2345(1)(f) [which has since been amended]. The court held that the presence of counsel was irrelevant to the application of the litigation exception; what was important was whether a public agency was meeting to discuss “probable litigation.” The court also held that the law’s requirement that “written minutes” of all meetings be kept under I.C. § 67-2344(1) did not include a requirement that an audio recording of the meeting take place. Finally, the court held that county commissioners could not be subject to the civil penalties of I.C. § 67-2347(2) for violations of the Open Meeting Law unless they knew they were not in compliance with the law.
Second, in Safe Air for Everyone v. Idaho State Dept. of Agriculture, et al, 145 Idaho 164, 177 P.3d 378 (2008), the Idaho Supreme Court was asked to consider whether the Open Meetings Act applied when Department of Agriculture employees attended an intergovernmental meeting to discuss issues related to crop residue burning. After noting that the crop residue disposal program was not a subagency of the Department of Agriculture, the court turned its attention to the definition of “governing body” under I.C. § 67-2341(5). The court held that a “governing body” must have “the authority to make decisions for or recommendations to a public agency regarding any matter.” Id. Since the employees at issue did not have “the authority” to make decisions for or recommendation to the Department of Agriculture, they did not constitute members of a “governing body” subject to the requirements of the Open Meetings Act. “The legislature has required that various bodies and commission transact business at a meeting where a quorum is present. It has not imposed that requirement upon groups of public employees.” Safe Air for Everyone, 145 Idaho at 168 (internal citations omitted).
Third, in Noble v. Kootenai County, 148 Idaho 937, 231 P.3d 1034 (2010), the Idaho Supreme Court held that a site visit by a county commission to a property that was the subject of the landowners’ subdivision application violated I.C. § 67-2342’s requirement that “all meetings of a governing body of a public agency shall be open to the public and persons shall be permitted to attend any meeting except as otherwise provided by this act.” The court found that the commission made it “practically impossible for the public to be present while the visit was conducted” in that it did not allow the public “to get close enough to the hearing body to hear what is being said” and “precluded the public from even listening to the hearing.” Id., 148 Idaho at 943.
Fourth, in Leavitt v. Craven, 154 Idaho 661, 302 P.3d 1 (2012), the Idaho Supreme Court held that the Commission on Pardons and Paroles did not violated the Open Meeting Act when it met in executive session to consider a death row inmate’s commutation petition.
And, finally, in Arnold v. City of Stanley, 158 Idaho 218, 345 P.3d 1008 (2015), the Idaho Supreme Court held that citizens who had not been “affected by a violation of the provisions of [the] act” pursuant to Idaho Code § 67-2347(6) [new provision I.C. § 74-208(6)] did not have standing to challenge an alleged violation of the open meeting act.
In 2008, the Idaho Attorney General issued an opinion on the application of the executive session exceptions set forth I.C. § 67-2345 [new provision I.C. § 74-206] indicating that such exceptions “should be interpreted narrowly in order to fulfill the broad public purpose of allowing citizens to observe their governments at work.” 2008 Idaho Op. Atty. Gen 42, Idaho Op. Atty. Gen. No. 08-3, 2008 WL 4360202 (Idaho). The opinion continues: “Violation of the OMA should be avoided whenever possible. If an entity is in doubt as to the propriety of an executive session, the doubt should be resolved in favor of openness. If a violation occurs, the entity should acknowledge the violation as soon as possible and take the appropriate steps to correct the violation, even if that means holding the entire meeting de novo and as if the prior improper meeting never occurred.” Id. at *5.
As indicated above, the Open Meetings Act went through a significant legislative recodification in 2015, when the Idaho legislature moved the act to include it within a larger act relating to government transparency, Title 74, Idaho Code. Chapter 2 of this new act contains the Open Meetings Law (Idaho Code §§ 74-201 through 208) and, for the most part, mimics the previous act’s language, including exemptions (which are discussed infra).
Idaho’s Public Records Act (Idaho Code §§ 74-101 through 126) can now be found within the larger Transparent and Ethical Government Act, Title 74, Idaho Code.
Any person can make a request for access to public records. Idaho Code § 74-102(1). A “person” is broadly defined to mean “any natural person, corporation, partnership, firm, association, joint venture, state or local agency or any other recognized legal entity.” Idaho Code § 74-101(9). There is no distinction made between citizens of the State of Idaho and others, nor is there any distinction noted between citizens of the U.S. and other countries. Any person who makes a request for access to a public record is permitted to examine and copy such record. Idaho Code § 74-102(1). The custodian of the records may require written requests and that the requester provide their name, a mailing address, e-mail address and telephone number. Idaho Code § 74-102(4). In practice, larger local and state agencies routinely require written requests on forms provided by the agency.
A person need not state a purpose for a request for public records. Furthermore, the statute prohibits public agencies from inquiring as to why a person wants to a public record, “except: (a) [t]o verify the identity of the requester . . . (b) [t]o ensure that the requested record or information will not be used for purposes of a mailing or telephone list prohibited by section 74-120, Idaho Code, or as otherwise provided by law; or (c) [a]s required for purposes of protecting personal information from disclosure under chapter 2, title 49, Idaho Code, and federal law.” Idaho Code § 74-102(5)(a)-(c).
The Idaho Public Records Act generally prohibits sale or distribution of any list of persons contained in public records for use as a mailing or telephone number list unless permission is obtained from those on the list. Idaho Code § 74-120(1). Accordingly, some agencies will require the requester to state that the records are not being sought for such a purpose. This prohibition does not prevent an individual from compiling a mailing or telephone number list by examining public which are otherwise open to public inspection. Idaho Code § 74-120(2). In addition, certain types of public records are categorically exempt from the general prohibition, such as records compiled by agencies which issue professional licenses and public records dealing with motor vehicle registration. See Idaho Code § 74-120(3)-(9).
“Public record” is broadly defined as “any writing containing information relating to the conduct or administration of the public’s business” and includes all such writings “prepared, owned, used or retained by any state agency, independent public body corporate and politic or local agency regardless of physical form or characteristics.” Idaho Code § 74-101(13). Furthermore, the statutory definition of “public record” is expressly “not limited to” that broad language. Id. Thus, other records may qualify even if they fall outside of that definition. A “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.” Idaho Code § 74-101(15). A “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.” Idaho Code § 74-101(8).
The definition of “state agency” includes the executive branch, with the exception of the state militia and the Idaho state historical society library and archives. Idaho Code § 74-101(15). In addition, the act defines “public official” as “any state, county, local district, independent public body corporate and politic or governmental official or employee, whether elected, appointed or hired.” Idaho Code § 74-101(12).
As all officers of the executive branch are included in the definition of state agency and public official, all records maintained by public officers in the executive branch in connection with their official functions are potentially accessible to the public. See, e.g. Cowles Publishing Co. v. Kootenai County Board of County Comm'rs, 144 Idaho 259, 159 P.3d 896 (2007).
The definition of “state agency” in the Public Records Act also includes all legislative bodies. Idaho Code § 74-101(15). The records maintained by officers of all legislative bodies, except as expressly provided otherwise by law, are open to the public.
The judiciary is included within the Idaho Public Records Act. The statute specifically covers “every state officer, department, division, bureau, commission and board or any committee of a state agency including those in the…judicial branch.” Idaho Code § 74-101(15). However, certain records contained in court files of judicial proceedings may be exempt from disclosure. Idaho Code § 74-104. The Act delegates to the Idaho Supreme Court the task of specifying by rule those judicial proceeding records that are exempt from public inspection (except where such information is necessary for a background check on an individual that is required by federal law regulating the sale of firearms, guns or ammunition). Idaho Code § 74-104(2). See Rule 32 of the Idaho Court Administrative Rules (ICAR) for specific exemptions identified by the judicial branch.
The Idaho Supreme Court has upheld public records requests under the Act when the record in question was not in the custody of a public entity. Idaho Conservation League, Inc. v. Idaho State Dept. of Agric., 143 Idaho 366, 146 P.3d 632, (2006); Ward v. Portneuf Medical Center, Inc., 150 Idaho 501, 248 P.3d 1236 (2011). In Idaho Conservation League, the Department of Agriculture argued that it was not required to provide the records at issue because the requested documents were returned to feedlot operators after being created. 143 Idaho at 368. Rather than focusing on the definition of public record – which includes any writings prepared or used by a state agency – the court relied on the fact that “[a] state agency is expressly prohibited from preventing examination of a public record ‘by contracting with a nongovernmental body to perform any of its duties or functions.’ ” Id. at 369 (citing Idaho Code § 9–338(9) [now Idaho Code § 74–102(13)]). In Ward, the Idaho Supreme Court held that an agency’s sale of a medical center to a private entity did not affect the obligation to provide public records that were subject to disclosure under the Act at the time of the plaintiff’s request. 150 Idaho at 505-07. The court concluded “so long as a document qualifies as a public record at the time of a request and is not subject to any exemptions, its subsequent transfer to a nongovernmental entity does not affect its status as a public record.” Id. at 507.
In addition, to the extent that any nongovernmental bodies meet the broad definition of either a "state agency" or “local agency,” their records would be considered “public records” under the act.
There have been no reported decisions on the applicability of the Idaho Public Records Act to such bodies. To the extent that such bodies meet the broad definition of either a “state agency” or “local agency,” their records would be considered “public records” under the act.
There have been no reported decisions on the applicability of the Idaho Public Records Act to such bodies. To the extent that such bodies meet the broad definition of either a “state agency” or “local agency,” their records would be considered “public records” under the act.
Public records include but are 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.” Idaho Code § 74-101(13). A “writing” is defined to include but not be limited to “handwriting, typewriting, printing, photostating, photographing and every means of recording, including letters, words, pictures, sounds or symbols or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums or other documents.” Idaho Code § 74-101(16).
There is no limitation on the physical form of records covered by the Act. The statutory definition of public record includes “any writing…regardless of physical form or characteristics.” Idaho Code § 74-101(13).
No, the Act provides that a person can inspect and take a copy of any non-exempt public record. Idaho Code § 74-102(1). Both “inspect” and “copy” are defined terms in the statute. Idaho Code § 74-101(2); (5). A person can copy a record by handwriting, photocopying, duplicating machine or reproducing by any other means so long as the record is not altered or damaged. Idaho Code § 74-101(2). “Inspect” is defined as “the right to listen, view and make notes of public records as long as the public record is not altered or damaged.” Idaho Code § 74-101(5).
Although not specifically called out in the act, the public records act broadly defines “public record” such that telephone call logs created and maintained by state or local agencies should fall within its definition.
Idaho Code § 74-102(15) provides that “[n]othing contained herein shall prevent a public agency or independent body corporate and politic from providing a copy of a public record in electronic form if the record is available in electronic form and if the person specifically requests an electronic copy.”
In addition to the variety of ways that requesters may select to create copies of records under Idaho Code § 74-101(2), a person may specifically request an electronic copy of any public record that is available in electronic form. Idaho Code § 74-102(15).
There is no provision in the Act or relevant case law relating to custom searches.
Idaho Code § 74-101(16) defines writing to include “every means of recording, including letters, words, pictures, sounds or symbols or combination thereof, and all…magnetic or punched cards, discs, drums, or other documents.” In Cowles Publishing Co. v. Kootenai Co. Bd. of County Commissioners, 144 Idaho 259, 159 P.3d 896 (2007), the Idaho Supreme Court held that a series of e-mail messages between a county prosecutor and a public employee were public records within Idaho Code § 9-337(13) [now Idaho Code § 74-101(13)].
There is no provision in the Act or relevant case law relating to online dissemination.
Idaho Code § 74-107(15) exempts computer programs developed or purchased by or for any public agency for its own use from disclosure under the Act. The definition of a “computer program” does not include: “(a) The original data including, but not limited to, numbers, text, voice, graphics and images; (b) Analysis, compilation and other manipulated forms of the original data produced by use of the program; or (c) The mathematical or statistical formulas that would be used if the manipulated forms of the original data were to be produced manually.” Id.
Idaho Code § 74-102(10)(b) dictates that any fees charged for copying a public record cannot exceed “the actual labor and copying costs associated with locating and copying documents.” The public agency may establish fees to cover these costs if “(i) The request is for more than 100 pages of paper records; or (ii) The request includes records from which nonpublic information must be deleted; or (iii) The actual labor associated with responding to requests for public records…exceeds two (2) person hours.” Idaho Code § 74-102(10)(b)(i)-(iii).
The public agency may establish fees to cover costs associated with locating and copying records, provided that such fees “shall not exceed reasonable labor costs necessarily incurred in responding to a public records request.” Idaho Code § 74-102(10)(e). Fees for labor costs shall be charged at the per hour pay rate of the lowest paid administrative staff employee or public official of the public entity who is necessary and qualified to process the request. Id. If a request requires redactions to be made by an attorney who is employed by the public entity, the rate charged shall be no more than the per hour rate of the lowest paid attorney within the within the entity who is necessary and qualified to process the public records request. Id. If a request is submitted to a public entity that does not have an attorney on staff, and the requested records require redactions by an attorney, the rate shall be no more than the usual and customary rate of the attorney who is retained by the public entity for that purpose. Id.
The Act provides that any fees charged for copying a public record cannot exceed “the actual cost to the agency of copying the record if another fee is not otherwise provided by law.” Idaho Code § 74-102(10)(c). The public agency or independent public official may charge a fee for providing a duplicate of a computer tape, computer disk, microfilm or similar record system containing public record information. Idaho Code §74-102(10)(d). This fee must be uniform to all persons and cannot exceed the sum of the following: the agency's direct cost of copying the information in that form, the standard cost for selling the same information in the form of a publication, and the agency’s cost of conversion, or the cost of conversion charged by a third party, if the existing electronic record is converted to another electronic form. Idaho Code § 74-102(10)(d)(i)-(iii).
Statements of fees by the public entity responding to the request shall be itemized to show the per page costs for copies, and hourly rates of employees and attorneys involved in responding to the request, and the actual time spent on the public records request. Idaho Code § 74-102(10)(g). No lump sum costs shall be assigned to any public records request. Id.
A requester may not file multiple requests for public records solely to avoid payment of fees. Idaho Code § 74-102(11). When a public entity reasonably believes that one or more requesters is segmenting a request into a series of requests to avoid payment of authorized fees, the entity may aggregate such requests and charge the appropriate fees.
The Act provides that a public agency “shall not charge any cost or fee for copies or labor” when the requester has demonstrated that the request “(i) Is likely to contribute significantly to the public's understanding of the operations or activities of the government; (ii) Is 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 (iii) Will not occur if fees are charged because the requester has insufficient financial resources to pay such fees.” Idaho Code § 74-102(10)(f)(i)-(iii).
The custodian of the requested public records may require advance payment of authorized fees. Idaho Code § 74-102(12). Any portion of an advance payment in excess of the actual costs of labor and copying incurred by the agency in responding to the request shall be returned to the requester. Id.
The public agency is prohibited from imposing fees above the actual cost to the agency of copying the record “if another fee is not otherwise provided by law.” Idaho Code § 74-102(10)(c). Additionally, the public agency is prohibited from imposing a fee for copying computer records above the agency’s direct cost and the standard cost for selling the information in the form of a publication. Idaho Code § 74-102(10)(d) However, as set forth above, agencies may establish fees to cover the actual labor costs under certain circumstances.
The act provides that 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.” Idaho Code § 74-115(1). Thus, the act is enforced through private enforcement.
Given that the act only provides for private enforcement, the attorney general’s role is limited to providing information to the public, not enforcement. To that end, the attorney general’s office publishes an “Idaho Public Records Law Manual” to inform the public of their rights under the act. Copies of the manual are available from the Office of the Attorney General in Boise or online at https://ag.idaho.gov/office-resources/public-records/. The attorney general also encourages compliance by state agencies and officials and conducts training on the act throughout the state for such individuals and entities.
The Act does not provide for an ombudsman or similar role to assist in the enforcement of it provisions. However, in 2014, the Governor signed Executive Order 2014-04 creating the position of Public Records Ombudsman with jurisdiction over executive branch agencies, committees, boards and commissions. It specifically did not include jurisdiction over state and local agencies, which would require legislative action. The move was seen as a step towards streamlining the often costly and expensive process involved in gaining access to public records. Today, the ombudsman’s office is available to answer questions and informally mediate disputes about public records sought from the executive branch.
Idaho Code § 74-116(2) provides that, in any action to enforce the provisions of the Act, a “court shall award reasonable costs and attorney fees to the prevailing party or parties, if it finds that the request or refusal to provide records was frivolously pursued.” In addition, the Act provides that a court may assess a civil penalty of up to $1,000 against any public official who it finds “has deliberately and in bad faith improperly refused a legitimate request for inspection or copying.” Idaho Code § 74-117.
Many state and local agencies provide access to their public records on their websites, although this is not required under the Act.
The records retention schedule for Idaho government agencies can be viewed at https://history.idaho.gov/records-center/idaho-records-center-retention-schedules/. In addition, the Act requires retention of all disputed records – i.e. records involved in a request for disclosure that was denied – until the end of the appeal period, until a decision has been rendered on the appeal, or as otherwise statutorily provided, whichever is longer. Idaho Code § 74-115(1)-(2).
All public records are subject to inspection and copying unless otherwise expressly provided by statute. Idaho Code § 74-102(1). Idaho has listed actual types of records exempt from public disclosure. Idaho Code §§ 74-104 to 74-111. Generally these exemptions are mandatory; however, there are a few which are discretionary or can be waived.
When considering whether a public record is exempt from disclosure, Idaho courts begin with the presumption that all public records are open to disclosure and that all exemptions are to be narrowly construed. Ward v. Portneuf Medical Center, Inc., supra, n. 4. See also Idaho Code § 74-102(1). Therefore, “the agency bears the burden of persuasion and must ‘show cause,’ or prove, that the documents fit within one of the narrowly-construed exemptions.” Hymas v. Meridian Police Dept., 156 Idaho 739, 745, 330 P.3d 1097, 1103 (Ct. App. 2014) (citation omitted).
Importantly, the public records act was crafted to encourage the release of a public record even in those cases in which it may be a close call as to whether the public record is exempt from public disclosure. If the record is released “in good faith in attempting to comply” with the public records act, then the public agency, public official or custodian involved is immune from any claim for loss or damage based upon the release of the record. Idaho Code § 74-118. In practice, however, despite this protection some agencies remain concerned about possible liability for release of their records and make decisions to deny disclosure that appear to be influenced by such a concern.
Only Idaho’s police investigatory record statute, Idaho Code § 74-124, patterned after Exemption 7 of the federal Freedom of Information Act, is specifically based upon a federal statute.
These are the specific exemptions as detailed in Idaho Code §§ 74-104 through 74-111 and 74-124.
"(1) Investigatory records compiled for law enforcement purposes by a law enforcement agency.
However, this 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 or confidential information furnished only by a confidential source;
(e) Disclose investigative techniques and procedures; or
(f) Endanger the life or physical safety of law enforcement personnel.
In addition, the exemption does not apply to reports prepared by a law enforcement agency in connection with a motor vehicle collision if the report is being requested by any person involved in the collision, their legal representative, or insurer."
Idaho Code § 74-124(1)-(2).
A recent Idaho Court of Appeals decision interpreting this language held that there is no categorical exemption for all records related to ongoing police investigations. Hymas v. Meridian Police Dept., 156 Idaho 739, 330 P.3d 1097 (Ct. App. 2014). The court concluded that the ongoing nature of an investigation into a death from apparent carbon monoxide poisoning was not a sufficient basis for police department to categorically deny the plaintiff’s public records request in its entirety and not provide any documents until the investigation was complete. 156 Idaho at 746. Thus, the law enforcement agency had a duty to examine the documents subject to the request and separate the exempt and nonexempt material and make the nonexempt material available to the requestor, regardless of whether the investigation was active or inactive. Id.
(2) Any public record exempt from disclosure by federal or state law or federal regulations to the extent specifically provided for by such law or regulation. Idaho Code § 74-104(1).
(3) Records contained in Court files of judicial proceedings, the disclosure of which is prohibited by or under rules adopted by the Idaho Supreme Court, but only to the extent that confidentiality is provided under such rules, and any drafts or any working memoranda related to judicial decision making. However, this exemption does not apply to the extent that such records or information are necessary for a background check required by federal law regulating the sale of firearms, guns, or ammunition. Idaho Code § 74-104(2).
(4) Investigatory records of law enforcement agency as defined in Idaho Code § 74-101(7) under the conditions set forth in Idaho Code § 74-124. Idaho Code § 74-105(1).
(5) Juvenile records, except that facts contained in such records shall be furnished upon request in a manner determined by the Court to persons in governmental and private agencies and institutions conducting pertinent research studies having a legitimate interest in protection, welfare and treatment of the juvenile who is 13 years of age or younger. If the juvenile is charged with the offense which would be a criminal offense if committed by an adult, the name, offense of which the juvenile is petitioned or charged and the disposition of the Court shall be subject to disclosure as provided in Idaho Code § 20-525. Additionally, any facts requested by a school district where the juvenile is enrolled or seeking enrollment shall be furnished. Idaho Code § 74-105(2).
(6) Records of the custody review board of the Idaho department of juvenile corrections, including records containing the names, addresses and written statements of victims and family members of juveniles. Idaho Code § 74-105(3).
(7) Any records of the department of corrections which the public interest in confidentiality, public safety, security and habilitation clearly outweighs the public interest in disclosure (74-105(4)(a)(i)), records that contain any identifying information, or any information that would lead to the identification of any victims or witnesses (74-105(4)(a)(ii)), records that reflect future transportation or movement of a prisoner (74-105(4)(a)(iii)), records gathered during the course of the presentence investigation (74-105(4)(a)(iv)), and records of a prisoner or probationer shall not be disclosed to any other prisoner or probationer, and are exempt from disclosure. Idaho Code § 74-105(a)(v). Records of buildings, facilities, infrastructure and systems held by or in the custody of any public agency are exempt if the disclosure of such information would jeopardize the safety or persons or the public safety. Idaho Code § 74-105(4)(b). Records of commissions or pardons and parole, along with names, addresses and written statements of victims are exempt from disclosure. Idaho Code 74-105(4)(c).
(8) Voting records of the sexual offender classification board. The written record of the vote to classify an offender as a violent sexual predator by each board member and each case reviewed by that board member shall be made available upon request only to the Governor, chairman of the Senate Judiciary and Rules Committee, and the chairman of the House of Representatives Judiciary, Rules and Administration Committee, for all lawful purpose. Idaho Code § 74-105(5).
(9) Records of the sheriff or Idaho state police received or maintained pursuant to section 18-3302H and 18-3302K, Idaho Code, relating to an applicant or licensee except that any law enforcement officer and law enforcement agency, whether inside or outside the state of Idaho, may access information maintained in the license record system as set forth in section 18-3302K(16), Idaho Code. Idaho Code § 74-105(6).
(10) Records of investigations prepared by the department of health and welfare dealing with protection of children, rehabilitation of youth, adoptions and commitment of mentally ill persons. However, for reasons of health and safety, best interests of the child or public interest, the department of health and welfare may provide for the disclosure of records of investigations associated with actions pursuant to the provisions of chapter 16, title 16, Idaho Code, prepared by the department of health and welfare pursuant to its statutory responsibilities dealing with the protection of children except any such records regarding adoptions shall remain exempt from disclosure. Idaho Code § 74-105(7).
(11) Records including, but not limited to, investigative reports resulting from investigations into complaints of discrimination conducted by the Idaho human rights commission, unless the public interest in allowing the inspection and copying of such records outweighs the legitimate public or private interests in maintaining confidentiality of such records. However, a person may inspect and copy documents from an investigative file to which he or she is a named party if such documents are not otherwise prohibited from disclosure by federal law or regulation or state law. In addition, the confidentiality of this exemption no longer applies to any record used in any judicial proceeding brought by a named party to the complaint or investigation, or by the Idaho human rights commission, relating to the complaint of discrimination. Idaho Code § 74-105(8).
(12) Records containing information obtained by the manager of the Idaho State Insurance Fund pursuant to chapter 9, title 72, Idaho Code, from or on behalf of employers or employees contained in underwriting in claims for benefit files. Idaho Code § 74-105(9).
(13) Worker's compensation records of the Idaho industrial commission provided that the industrial commission shall make such records available:
(a) To parties in any worker's compensation claim and to the Industrial Special Indemnity Fund of Idaho; or
(b) To employers or prospective employers subject to the provisions of the Americans with disabilities act, 42 U.S.C. 12112, or other statutory limitations, who certify that the information is being requested with respect to a worker to whom the employer has extended an offer of employment and will be used in accordance with the provisions of the Americans with disabilities act, 42 U.S.C. 12112, or other statutory limitations; or
(c) To employers and prospective employers not subject to provisions of the Americans with Disabilities Act, 42 U.S.C. 12111, or other statutory limitations, provided the employer presents written authorization from the person to whom the records pertain; or
(d) To others who demonstrate that the public interest in allowing inspection and copying of such records outweighs the public or private interest in maintaining the confidentiality of such records, determined by a civil court of competent jurisdiction; or
(e) Although a claimant’s records maintained by the industrial commission, including medical and rehabilitation records, are otherwise exempt, the quoting or discussing of medical or rehabilitation records contained within the industrial commission’s records during a hearing for compensation or in a written decision issued by the industrial commission shall be permitted except that that true identities of the parties shall be exempt.
Idaho Code § 74-105(10)(a)-(e).
(14) Records of investigations compiled by the commission on aging involving vulnerable adults, as defined in section 18-1505, Idaho Code, alleged to be abused neglected or exploited. Idaho Code § 74-105(11).
(15) Criminal history records and fingerprints, as defined by section 67-3001, Idaho Code, compiled by the Idaho State Police. Such records shall be released only in accordance with chapter 30, title 67, Idaho Code. Idaho Code § 74-105(12).
(16) Records furnished or obtained pursuant section 41-1019, Idaho Code, regarding termination of an appointment, employment, contract or other insurance business relationship between an insurer and a producer. Idaho Code § 74-105(13).
(17) Records of a prisoner or former prisoner in the custody of any state or local correctional facility, when the request is made by another prisoner in the custody of any state or local correctional facility. Idaho Code § 74-105(14). [Note: this exemption appears to duplicate, in large part, the exemption found in Idaho Code § 74-105(4)(a)(v).]
(18) Except as provided in section 72-1007, Idaho Code, records of the Idaho industrial commission relating to compensation for crime victims under chapter 10, title 72, Idaho Code. Idaho Code § 74-105(15).
(19) Records or information identifying a complainant maintained by the department of health and welfare pursuant to section 39-3556, Idaho Code, relating to certified family homes, unless the complainant consents in writing to the disclosure or disclosure of the complainant’s identity is required in any administrative or judicial proceeding. Idaho Code § 74-105(16).
(20) Records of any certification or notification required by federal law to be made in connection with the acquisition or transfer of a firearm, including a firearm as defined in 26 U.S.C. 5845(a). Idaho Code § 74-105(17).
(21) Records related to the administration of the extraordinary litigation fund by the state public defense commission, pursuant to section 19-850(2)(e), Idaho Code, to the extent that such records contain information protected by, or exempted from disclosure by, or under rules adopted by the Idaho supreme court, attorney work product or as attorney-client privileged communication. This exemption does not include the amount awarded based upon an application for extraordinary litigation funds. Idaho Code § 74-105(18).
(22) All personnel records of a current or former public official other than the public official's public service or employment history, classification, pay grade and step, longevity, gross salary and salary history, status, workplace and employing agency. All other personnel information relating to a public employee or applicant including, but not limited to, information regarding sex, race, marital status, birth date,’ home address and telephone number, applications, testing and scoring materials, grievances, correspondence and performance evaluations, shall not be disclosed to the public without the employee's or applicant's written consent. Names of applicants to classified or merit system positions shall not be disclosed to the public without the applicant's written consent. Disclosure of names as part of a background check is permitted. Names of the five (5) final applicants to all other positions shall be available to the public. If such group is less than five (5) finalists, then the entire list of applicants shall be available to the public. However, a public official or authorized representative may inspect and copy his or her personnel records, except for material used to screen and test for employment. Idaho Code § 74-106(1).
(23) Retired employees and retired public officials’ home addresses, home telephone numbers and other financial and non-financial membership records; active and inactive member, financial and membership records and mortgage portfolio loan documents maintained by the public employee retirement system. Financial statements prepared by the retirement system staff, funding agents and custodians concerning the investment of assets that public employees retirement system of Idaho are not considered confidential under this chapter. Idaho Code § 74-106(2).
(24) Information and records submitted to the Idaho state lottery for the performance of background investigations of employees, lottery retailers and major procurement contractors; validation and security tests of the state lottery for lottery games; business records and information submitted pursuant to section 67-7412(8) and (9), Idaho Code, and such documents and information obtained and held for the purpose of lottery security and investigative action as determined by lottery rules unless the public interest in disclosure substantially outweighs the private need for protection from public disclosure. Idaho Code § 74-106(3).
(25) Records of a personal debt filed with a public agency or independent public body pursuant to law; personal bank records compiled by a public depositor for the purpose of public funds transactions conducted pursuant to law; records of ownership or financial obligations and instruments of a public agency or independent public body, such as bonds, compiled by public agency or independent public body pursuant to law; records, with regard to ownership of, and for security interest in, registered public obligations; vital statistic records; and military records as described in and pursuant to section 65-301, Idaho Code. Idaho Code § 74-106(4)(a)-(f).
(26) Information in an income or other tax return measured by items of income or sales, which is gathered by a public agency for the purpose of administering the tax, except such information to the extent disclosed in a written decision of the tax commission pursuant to a taxpayer protest of a deficiency determination by the tax commission under the provisions of section 63-3045B, Idaho Code. Idaho Code § 74-106(5).
(27) Records of a personal nature related directly or indirectly to the application for and provision of state statutory services rendered to persons applying for public care for the elderly, indigent, or mentally or physically handicapped, or participation in an environmental or a public health study. However, this exemption shall not apply to the extent that such records or information are necessary for a background check required by federal law regulating the sale of firearms, guns or ammunition. Idaho Code § 74-106(6).
(28) Employment security information, except that a person may agree, through written, informed consent, to waive the exemption so that a third party may obtain information pertaining to the person, unless access to the information by the person is restricted by subsection (3)(a), (3)(b) or (3)(d) of section 74-113, Idaho Code. Notwithstanding the provisions of section 74-113, Idaho Code, a person may not review identifying information concerning an informant who reported to the department of labor a suspected violation by the person of the employment security law, chapter 13, title 72, Idaho Code, under an assurance of confidentiality. As used in this section and in chapter 13, title 72, Idaho Code, “employment security information” means any information descriptive of an identifiable person or persons that is received by, recorded by, prepared by, furnished to or collected by the department of labor or the industrial commission in the administration of the employment security law. Idaho Code § 74-106(7).
(29) Any personal records, other than names, business addresses and business phone numbers, such as parentage, race, religion, sex, height, weight, tax identification and Social Security numbers, financial worth or medical conditions submitted to any public agency or independent public body, pursuant to a statutory requirement for licensing, certification, permit or bonding. Idaho Code § 74-106(8).
(30) Unless otherwise provided by agency rule, information obtained as part of an inquiry into a person’s fitness to be granted or retain a license, certificate, permit, privilege, or commission or position, private association or peer review committee records authorized in title 54, Idaho Code, unless provided by agency rule. Any agency which has records exempt from disclosure under the provisions of this subsection shall annually make available a statistical summary of the number and types of matters considered and their disposition. Idaho Code § 74-106(9).
(31) The records, findings, determinations and decisions of any pre-litigation screening panel formed under chapter 10 and 23, title 6, Idaho Code. Idaho Code § 74-106(10).
(32) Complaints received by the Board of Medicine and investigations and informal proceedings, including informal proceedings of any committee of the Board of Medicine, pursuant to chapter 18, title 54, Idaho Code, and rules adopted thereunder. Idaho Code § 74-106(11).
(33) Records of the department of health and welfare or public health district that identify a person infected with a reportable disease. Idaho Code § 74-106(12).
(34) Records of hospital care, medical records, including prescriptions, drug orders, records or any other prescription information that specifically identifies an individual patient, prescription records maintained by the board of pharmacy under sections 37-2726 and 37-2730A, Idaho Code, or records of psychiatric care or treatment and professional counseling records relating to an individual condition, diagnosis, care or treatment, provided the provisions of this subsection making records exempt from disclosure shall not apply to the extent that such records or information contained in those records are necessary for a background check on an individual that is required by federal law regulating the sale of firearms, guns or ammunition. Idaho Code § 74-106(13).
(35) Information collected pursuant to the directory of new hires act, chapter 16, title 72, Idaho Code. Idaho Code § 74-106(14).
(36) Personal information contained in motor vehicle and driver records that is exempt from disclosure under the provisions of chapter 2, title 49, Idaho Code. Idaho Code § 74-106(15).
(37) Records of the financial status of prisoners pursuant to section 20-607(2), Idaho Code. Idaho Code § 74-106(16).
(38) Records of Idaho state police or department of correction received or maintained pursuant to section 19-5514, Idaho Code, relating to DNA databases and databanks. Idaho Code § 74-106(17).
(39) Records of the department of health and welfare relating to a survey, resurvey or complaint investigation of a licensed nursing facility shall be exempt from disclosure. Such records shall, however, be subject to disclosure as public records as soon as the facility in question has received the report, and no later than the fourteenth day following the date that the department of health and welfare representatives officially exit the facility pursuant to federal regulations. Provided, however, that for purposes of confidentiality, no records shall be released under this section which specifically identifies any nursing facility resident. Idaho Code § 74-106(18).
(40) Records and information contained in the registry of immunizations against childhood diseases maintained in the department of health and welfare, including information disseminated to others from the registry by the department of health and welfare. Idaho Code § 74-106(19).
(41) Records of the Idaho Housing and Finance Association ("IHFA") relating to the following:
(a) Records containing personal, financial, family, health or similar personal information submitted to or otherwise obtained by the IHFA;
(b) Records submitted to or otherwise obtained by the IHFA with regard to obtaining and servicing mortgage loans and all records related to the review, approval or rejection by the IHFA of said loans;
(c) Mortgage portfolio loan documents;
(d) Records of a current or former employee other than the employee’s duration of employment with an association, position held and location of employment. This exemption from disclosure does not include the contracts of employment or any remuneration, including reimbursement of expenses, of the executive director, executive officers or commissioners of the association. All other personnel information relating to an association employee or applicant including, but not limited to, information regarding sex, race, marital status, birth date, home address and telephone number, applications, testing and scoring materials, grievances, correspondence, retirement plan information and performance evaluations, shall not be disclosed to the public without the employee’s or applicant’s written consent. An employee or authorized representative may inspect and copy that employee's personnel records, except for material used to screen and test for employment or material not subject to disclosure elsewhere in the Idaho public records act.
Idaho Code § 74-106(20)(a)-(d).
(42) Records of the department of health and welfare related to child support services in cases in which there is reasonable evidence of domestic violence, as defined in chapter 63, title 39, Idaho Code, that can be used to locate any individuals in the child support case except in response to a court order. Idaho Code § 74-106(21).
(43) Records of the Idaho state bar lawyer assistance program pursuant to chapter 49, title 54, Idaho Code, unless a participant in the program authorizes the release pursuant to subsection (4) of section 54-4901, Idaho Code. Idaho Code § 74-106(22).
(44) Records and information contained in the trauma registry created by chapter 20, title 57, Idaho Code, together with any reports, analyses and compilations created from such information and records. Idaho Code § 74-106(23).
(45) Records contained in the court files, or other records prepared as part of the proceedings for judicial authorization of sterilization procedure pursuant to chapter 39, title 39, Idaho Code. Idaho Code § 74-106(24).
(46) The physical voter registration application on file in the county clerk’s office; however, a redacted copy of said application shall be made available consistent with the requirements of this section. Information from the voter registration application maintained in the statewide voter registration database, including age, will be made available except for the voter’s driver’s license number, date of birth and, upon a showing that the voter comes within the provisions of subsection 30 of this section [enumerated exception (51) of this article] or upon showing of good cause by the voter to the county clerk in consultation with the county prosecuting attorney, the physical residence address of the voter. For the purposes of this subsection good cause shall include the protection of life and property and protection of victims of domestic violence and similar crimes. Idaho Code § 74-106(25).
(47) File numbers, passwords and information in the files of the health care directive registry maintained by the secretary of state under section 39-4515, Idaho Code, are confidential and shall not be disclosed to any person other than to the person who executed the health care directive or the revocation thereof and that person's legal representatives, to the person who registered the health care directive or revocation thereof, and to physicians, hospitals, medical personnel, nursing homes, and other persons who have been granted file number and password access to the documents within that specific file. Idaho Code § 74-106(26).
(48) Records in an address confidentiality program participant’s file as provided for in chapter 57, title 19, Idaho Code, other than the address designated by the secretary of state, except under the following circumstances:
(a) If requested by a law enforcement agency, to the law enforcement agency; or
(b) If directed by a Court order, to a person identified in the order.
Idaho Code § 74-106(27).
(49) Except as otherwise provided by law relating to the release of information to a governmental entity or law enforcement agency, any personal information including, but not limited to, names, personal and business addresses and phone numbers, sex, height, weight, date of birth, social security and driver’s license numbers, or any other identifying numbers and/or information related to any Idaho fish and game licenses, permits and tags unless written consent is obtained from the affected person. Idaho Code § 74-106(28).
(50) Documents and records related to alternatives to discipline that are maintained by the Idaho board of veterinary medicine under the provisions of section 54-2118(1)(b), Idaho Code, provided the requirements set forth therein are met. Idaho Code § 74-106 (29).
(51) The Idaho residential street address and telephone number of an eligible law enforcement officer and such officer’s residing household member(s) as provided for in chapter 58, title 19, Idaho Code, except under the following circumstances:
(a) If directed by a court order, to a person identified in the court order;
(b) If requested by a law enforcement agency, to the law enforcement agency;
(c) If requested by a financial institution or title company for business purposes, to the requesting financial institution or title company; or
(d) If the law enforcement officer provides written permission for disclosure of such information.
Idaho Code § 74-106(30).
(52) 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, pursuant to section 49-1234, Idaho Code. Idaho Code § 74-106(31).
(53) Personal information including, but not limited to, 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 chapter 5, title 14, Idaho Code. Nothing in this subsection shall prohibit the release of names, last know city of residence, property value ranges and general property information by the administrator for the purpose of reuniting unclaimed property with its owner. Idaho Code Ann. § 74-106(33).
(54) Trade secrets including those contained in response to public agency or independent public body corporate and politic requests for proposal, requests for clarification, requests for information and similar requests. “Trade secrets” as used in this section means information, including a formula, pattern, compilation, program, computer program, device, method, technique, process or unpublished or in-progress research that:
(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Idaho Code § 74-107(1).
(55) Production records, housing production, rental and financing records, sale or purchase records, catch records, mortgage portfolio loan documents, or similar business records of a private concern or enterprise required by law to be submitted to or inspected by a public agency or submitted to or otherwise obtained by an independent public body corporate and politic. Nothing in this subsection shall limit the use which can be made of such information for regulatory purposes or its admissibility in any enforcement proceeding. Idaho Code § 74-107(2).
(56) Records relating to the appraisal of real property, timber or mineral rights prior to its acquisition, sale, or lease by a public agency or independent public body corporate and politic. Idaho Code § 74-107(3).
(57) Any estimate prepared by a public agency or independent public body corporate and politic that details the cost of a public project until such time as disclosed or bids are opened, or upon award of the contract for construction of the public project. Idaho Code § 74-107(4).
(58) Examination, operating or condition reports and all documents relating thereto, prepared by or supplied to any public agency or independent public body corporate and politic responsible for the regulation or supervision of financial institutions including, but not limited to, banks, savings and loan associations, regulated lenders, business and industrial development corporations, credit unions, and insurance companies, or for the regulation or supervision of the issuance of securities. Idaho Code § 74-107(5).
(59) Records gathered by a local agency or the Idaho department of commerce, as described in chapter 47, title 67, Idaho Code, for the specific purpose of assisting a person to locate, maintain, invest in, or expand business operations in the state of Idaho. Idaho Code § 74-107(6).
(60) Shipping and marketing records of commodity commissions used to evaluate marketing and advertising strategies and the names and addresses of growers and shippers maintained by commodity commissions. Idaho Code § 74-107(7).
(61) Financial statements and business information and reports submitted by a legal entity to a port district organized under title 70, Idaho Code, in connection with a business agreement, or with a development proposal or with a financing application for any industrial, manufacturing, or other business activity within a port district. Idaho Code § 74-107(8).
(62) Names and addresses of seed companies, seed crop growers, seed crop consignees, locations of seed crop fields, variety name and acreage by variety. Upon the request of the owner of the proprietary variety, this information shall be released to the owner. Provided however, that if a seed crop has been identified as diseased or has been otherwise identified by the Idaho department of agriculture, other state departments of agriculture, or the United States department of agriculture to represent a threat to that particular seed or commercial crop industry or to individual growers, information as to test results, location, acreage involved and disease symptoms of that particular seed crop, for that growing season, shall be available for public inspection and copying. This exemption does not supersede the provisions of section 22-436, Idaho Code, nor shall this exemption apply to information regarding specific property locations subject to an open burning of crop residue pursuant to section 39-114, Idaho Code, names of persons responsible for the open burn, acreage and crop type to be burned, and time frames for burning. Idaho Code § 74-107(9).
(63) Information obtained from books, records and accounts required in chapter 47, title 22, Idaho Code, to be maintained by the Idaho oilseed commission and pertaining to the individual production records of oil seed growers. Idaho Code § 74-107(10).
(64) Records of any risk retention or self insurance programs prepared in anticipation of litigation or for analysis or settlement of potential or actual money damage claims against a public entity and its employees or against the industrial special indemnity fund except as otherwise discoverable under the Idaho or federal rules of civil procedure. These records shall include, but are not limited to, claims evaluations, investigatory records, computerized reports of losses, case reserves, internal documents and correspondence relating thereto. At the time any claim is concluded, only statistical data and actual amounts paid in settlement shall be deemed public records unless otherwise ordered to be sealed by a court of competent jurisdiction. Provided, however, nothing in this subsection is intended to limit the attorney client privilege or attorney work produce privilege otherwise available to public agency or independent public body corporate and politic. Idaho Code § 74-107(11).
(65) Records of laboratory test results provided by or retained by the Idaho food quality assurance laboratory. Nothing in this subsection shall limit the use which caan be made, or availability of such information if used, for regulatory purposes or its admissibility in any enforcement proceeding. Idaho Code § 74-107(12).
(66) Reports required to be filed under chapter 13, title 62, Idaho Code, identifying electrical or natural or manufactured gas consumption data for the individual customer or account. Idaho Code § 74-107(13).
(67) Voluntarily prepared environmental audits, and voluntary disclosures of information submitted on or before December 31, 1997, to an environmental agency which are claimed to be confidential business information. Idaho Code § 74-107(14).
(68) Computer programs developed or purchased by or for any public agency or independent public body corporate and politic for its own use. As used in this subsection, “computer program” means a series of instructions or statements which permit the functioning of a computer system in a manner designed to provide storage, retrieval and manipulation of data from the computer system, and any associated documentation and source material that explain how to operate the computer program. Computer program does not include:
(a) The original data including, but not limited to, numbers, text, voice, graphics and images;
(b) Analysis, compilation and other manipulated forms of the original data produced by use of the program; or
(c) The mathematical or statistical formulas that would be used if the manipulated forms of the original data were to be produced manually.
Idaho Code § 74-107(15).
(69) Active investigative records and trademark usage audits of the Idaho potato commission specifically related to the enforcement of chapter 12, title 22, Idaho Code, until the commencement of formal proceedings as provided by the rules of the commission; purchase and sales information submitted to the Idaho potato commission during a trademark usage audit, and investigation or enforcement proceedings. Inactive investigatory records shall be disclosed unless the disclosure would violate the standards set forth in subsection (1)(a) through (f) of section 74-124, Idaho Code. Nothing in this subsection shall limit the use which can be made, or availability of such information if used, for regulatory purposes or its admissibility in any enforcement proceeding. Idaho Code § 74-107(16).
(70) All records copied or obtained by the director of the department of agriculture of his designee as a result of an inspection pursuant to section 25-3806, Idaho Code, except:
(a) Records otherwise deemed to be public records not exempt from disclosure pursuant to this chapter; and
(b) Inspection reports, determinations of compliance or noncompliance and all other records created by the director of his designee pursuant to section 25-3806, Idaho Code.
Idaho Code § 74-107(17).
(71) All data and information collected by the division of animal industries or the state brand board pursuant to the provisions of section 25-207B, Idaho Codes, or rules promulgated thereunder. Idaho Code § 74-107(18).
(72) Records disclosed to a county official by the state tax commission pursuant to subsection (4)(c) of section 63-3029B, Idaho Code. Idaho Code § 74-107(19).
(73) Records, data, information and materials collected, developed, generated, ascertained or discovered during the course of academic research at public institutions of higher education if the disclosure of such could reasonably affect the conduct or outcome of the research, or the ability of the public institution of higher education to patent or copyright the research or protect intellectual property. Idaho Code § 74-107(20).
(74) Records, data, information and materials collected or utilized during the course of academic research at public institutions of higher education provided by any person or entity other than the public institution of higher education or a public agency. Idaho Code § 74-107(21).
(75) The exemptions from disclosure provided in subsections (20) and (21) of this section [referred to as exemptions 73 and 74 above] shall apply only until the academic research is publicly released, copyrighted or patented, or until the academic research is completed or terminated. At such time, the records, data, information, and materials shall be subject to public disclosure unless: (a) another exemption in this chapter applies; (b) such information was provided to the institution subject to a written agreement of confidentiality; or (c) public disclosure would pose a danger to persons or property. Idaho Code § 74-107(22).
(76) The exemptions from disclosure provided in subsections (20) and (21) of this section [referred to as exemptions 73 and 74 above] do not include basic information about a particular research project that is otherwise subject to public disclosure, such as the nature of the academic research, the name of the researcher, and the amount and source of the funding provided for the project. Idaho Code § 74-107(23).
(77) Records of a county assessor, the state tax commission, a county board of equalization or the state board of tax appeals containing the following information: (i) lists of personal property required to be filed pursuant to section 63-302, Idaho Code, and operating statements required to be filed pursuant to section 63-404, Idaho Code, and (ii) confidential commercial or financial information including trade secrets. Except with respect to lists of personal property required to be filed pursuant to section 63-302, Idaho Code, and the operator statements required to be filed pursuant to section 63-404, Idaho Code, it shall be the responsibility of the taxpayer to give notice of its claim to exemption by stamping or marking each page or the first page of each portion of documents so claimed. No records that are exempt pursuant to this subsection shall be disclosed without the consent of the taxpayer except as follows:
(a) To any officer, employee or authorized representative of the state or the United States, under a continuing claim of confidentiality, as necessary to carry out the provisions of state or federal law or when relevant to any proceeding thereunder.
(b) In the publication of statistics or reports as long as the statistics or reports do not reasonably lead to the identification of the specific taxpayer or information submitted by taxpayers exempt pursuant to this subsection.
(c) To the board of tax appeals or the district court as evidence or otherwise in connection with an appeal of the taxpayer's property tax assessment, but only if the board or the court, as applicable, has entered a protective order specifying that the taxpayer information may not be disclosed by any person conducting or participating in the action or proceeding, except as authorized by the board or the court in accordance with applicable law.
(d) Nothing in this subsection shall prevent disclosure of the following information:
(i) Name and mailing address of the property owner;
(ii) A parcel number;
(iii) A legal description of real property;
(iv) The square footage and acreage of real property;
(v) The assessed value of taxable property;
(vi) The tax district and the tax rate; and
(vii) The total property tax assessed.
Idaho Code § 74-107(24).
(78) Results of laboratory tests which have no known adverse impacts to human health conducted by the Idaho state department of agriculture animal health laboratory, related to diagnosis of animal diseases of individual animals or herds, on samples submitted by veterinarians or animal owners unless:
(a) The laboratory test results indicate the presence of a state or federally reportable or regulated disease in animals;
(b) The release of the test results is required by state or federal law; or
(c) The test result is identified as representing a threat to animal or human health or to the livestock industry by the Idaho state department of agriculture or the United States department of agriculture. Nothing in this subsection shall limit the use which can be made, or availability of such information if used, for regulatory purposes or its admissibility in any enforcement proceeding, or the duty of any person to report contagious or infectious diseases as required by state or federal law. Idaho Code § 74-107(25).
(79) Results of laboratory tests conducted by the Idaho state department of agriculture seed laboratory on samples submitted by seed producers or seed companies. Nothing in this subsection shall limit the use which can be made, or availability of such information pursuant to the provisions of subsections (9) and (10) of section 22-418, Idaho Code. Idaho Code § 74-107(26).
(80) For policies that are owned by private persons, and not by a public agency of the state of Idaho, records of policies, endorsements, affidavits and any records that discuss policies, endorsements and affidavits that may be required to be filed with or by a surplus line association pursuant to chapter 12, title 41, Idaho Code. Idaho Code § 74-107(27).
(81) Individual financial statements of a postsecondary educational institution or a proprietary school submitted to the state board of education, its director or a representative thereof, for the purpose of registering the postsecondary educational institution or proprietary school pursuant to section 33-2402 or 33-2403, Idaho Code, or provided pursuant to an administrative rule of the board adopted pursuant to such sections. Idaho Code § 74-107(28).
(82) Information submitted by insurance companies pursuant to section 41-612(17), Idaho Code. Idaho Code § 74-107(29).
(83) Documents, materials or other information submitted to the director of the department of insurance as provided in chapter 64, title 41, Idaho Code. Idaho Code § 74-107(30).
(84) Reports, information and other materials exempted by chapter 63, title 41, Idaho Code. Idaho Code § 74-107(31).
(85) Records, maps or other records identifying the location of archeological or geophysical sites or endangered species, if not already known to the general public. Idaho Code § 74-108(1).
(86) Archeological and geological records concerning exploratory drilling, logging, mining, and other excavation, when such records are required to be filed by statute for the time provided by statute. Idaho Code § 74-108(2).
(87) Documents and data related to oil and gas production submitted to the department of lands or the oil and gas conservation commission under the provisions of chapter 3, title 47, Idaho Code, provided that the records qualify for confidential status under section 47-327, Idaho Code, under the conditions and for the time provided by statute. Idaho Code § 74-108(3).
(87) The records of a library, which when examined alone, or when examined with other public records, would reveal the identity of the library patron checking out, requesting, or using an item from a library. Idaho Code § 74-108(4).
(88) The material of a library, museum or archive that has been contributed to by a private person, to the extent of any limitation that is a condition on the contribution. Idaho Code § 74-108(5).
(89) Test questions, scoring keys and other data used to administer a licensing examination, employment, academic or other examination or testing procedure before the examination is given if the examination is to be used again. Records establishing procedures for and instructing persons administering, grading or evaluating examination or testing procedures are included in this exemption, to the extent the disclosure would create a risk that the result might be affected. Idaho Code § 74-108(6).
(90) Land management plans required for voluntary stewardship agreements entered into pursuant to law and written agreements relating to the conservation of all species of sage grouse entered into voluntarily by owners or occupiers of land with a soil conservation district. Idaho Code § 74-108(7).
(91) Records consisting of draft legislation and documents specifically related to such draft legislation or research requests submitted to the legislative services office by a member of the Idaho legislature for the purpose of placing such draft legislation into a form suitable for introduction as official proposed legislation, unless the individual legislator having submitted or requested such records or research agrees to waive the provisions of confidentiality provided by this subsection. Idaho Code § 74-109(1).
(92) All papers, physical and electronic records and correspondence or other supporting materials comprising the work papers in the possession of the legislative services office or the director of the legislative performance evaluations prior to the release of the related final audit, and all other records or material in possession of the legislative services office or the director of the legislative performance evaluations that would otherwise be confidential or exempt from disclosure. Idaho Code § 74-109(2).
(93) Records consisting of draft congressional legislative redistricting plans and documents specifically related to such draft redistricting plans or research requests submitted to the commission staff by a member of the commission for reapportionment for the purpose of placing such draft redistricting plan in a form suitable for presentation to the full membership of the commission, unless the individual commission member having submitted or requested such plans or research agrees to waive the provisions of confidentiality provided by this subsection. Idaho Code § 74-109(3).
(94) Records that identify the method by which the Idaho state tax commission selects tax returns for audit review. Idaho Code § 74-109(4).
(95) Records that identify the method by which the administrator of the unclaimed property law set forth in chapter 5, title 14, Idaho Code, selects reports for audit review or conducts audit review of such reports and the identity of individuals or entities under audit. Idaho Code § 74-109(5).
(96) Underwriting and claims records of the Idaho petroleum clean water trust fund obtained pursuant to section 41-4905, 41-4909, 41-4911A, 41-4912A, Idaho Code. Provided however, that this subsection shall not prevent the Idaho petroleum clean water trust fund’s submittal to the Idaho department of environmental quality, or other regulatory agencies of information necessary to satisfy an insured’s correction action requirement under applicable federal or state standards in the event of a release in to the environment from a petroleum storage tank; and provided further that nothing in this subsection shall prevent the Idaho petroleum clean water trust fund from providing auditing, reporting, or actuarial information as otherwise required of it pursuant to section 41-4919, 41-4925A, 41-4928, 41-4930, 41-4932, 41-4937 or 41-4938, Idaho Code. Idaho Code § 74-109(6).
(97) In accordance with section 18-609A, the following records are exempt from public disclosure: all records contained in court files of judicial proceedings arising under section 18-609A, Idaho Code, are exempt from disclosure. Idaho Code § 74-110.
(98) A record obtained or created by the director of the department of finance or a representative of the director in connection with an audit or inspection under section 30-14-411(d), Idaho Code, or an investigation under section 30-14-602, Idaho Code. Idaho Code § 74-111(1).
(99) A part of a record filed in connection with a registration statement under section 30-14-301, Idaho Code, and sections 30-14-303 through 30-14-305, Idaho Code, or a record under section 30-13-411(d), Idaho Code, that contains trade secrets or confidential information if the person filling the registration statement or report has asserted a claim of confidentiality or privilege that is authorized by law. Idaho Code § 74-111(2).
(100) A record that is not required to be provided to the director of the department of finance or filed under chapter 14, title 30, Idaho Code, and is provided to the director only on the condition that the records will not be subject to public examination or disclosure. Idaho Code § 74-111(3).
(101) A nonpublic record received from a person specified in section 30-14-608(a), Idaho Code. Idaho Code § 74-111(4).
(102) Any social security number, residential address unless used as a business address, and residential telephone number unless used as a business telephone number, contained in a record that is filed pursuant to chapter 14, title 30, Idaho Code. Idaho Code § 74-111(5).
Idaho law also exempts certain tax documents from public disclosure. See, e.g., Idaho Code §§ 63-3076, 63-3077.
Idaho Code § 74-113(1) provides “a person may inspect and copy the records of a public agency or independent public body corporate and politic pertaining to that person, even if the record is otherwise exempt from public disclosure.” However, the right to inspect and amend records pertaining to oneself does not include the right to review:
(a) Otherwise exempt investigatory records of a public agency or independent public body corporate and politic if the investigation is ongoing;
(b) Information that is compiled in reasonable anticipation of a civil action or proceeding which is not otherwise discoverable;
(c) The information relates to adoption records;
(d) Information which is otherwise exempt from disclosure by statute or court rule;
(e) 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.
Idaho Code § 74-113(3)
In Bolger v. Lance, 137 Idaho 792, 53 P.3d 1211 (2002), the Idaho Supreme Court held that the Office of the Attorney General is a law enforcement agency under the public records act and an individual does not have the right to examine investigatory records about himself during an ongoing investigation.