Idaho’s Public Records Law might better be named Idaho’s Deny and Delay Law. The case of the video of the bus driver for the Emmett School District is just the latest example of a law that often fails to provide the public accountability it promises. Too often, the Idaho Public Records Law is public in title only.
Here are the basics of the latest case: An Emmett bus driver is accused of verbally and physically abusing a disabled student. The district, which operates the bus and employs the driver, has video from the bus. The district allows the upset parents to view the video, then denies the parents a copy, citing student and driver privacy. Then it denies the Statesman on similar grounds.
Put aside for a moment that the driver is a public employee working in a public job in a public vehicle in a public place. Letting the parents view the video is a de facto release of the record, undercutting the absurd argument that personnel privacy prevents its release. And student privacy isn’t an issue, because it’s the student and the parent who want the video released, waiving any claim to privacy so that reporters and citizens can see for themselves what happened. In 2016, Pennsylvania state courts ruled that a school bus video is a public record, not a private student record, but such rulings have gone both ways across the country.
The Statesman now has to pay its lawyer to argue with the district to get what should be a public record. And all too often, getting public records in Idaho comes with just such a cost. Call it the Idaho Public Records Tax.
So if Idaho journalists sound frustrated, it is because we are. Idaho Public Records Law essentially relies on the good will of the public agencies to produce public records. Some are good; some are bad. Most are some of both, depending on the embarrassment factor of the record at issue. When you are a citizen or a reporter who gets denied access to a public record, you have one recourse: Hire a lawyer and take it to court, to fight the government agency that has its lawyers lined up to fight you.
If you think about it, this Idaho Public Records Tax really makes the public records law accessible only to corporations or citizens with deep pockets. It forces news companies and citizens to decide which battle to fight in court and which to swallow and accept. When you face a lawyer bill every time to challenge a denial, you challenge carefully. So rather than empower the public to get public records, the public records law basically gives rear-end-covering government agencies the power to say “See you in court.”
And even short of forcing us to court, the public records law frustrates its public intent. Public bodies routinely take the full 10 days the law gives them to release documents, even when the record is easily reproducible. That’s because a delay of 10 days – and often more than that, because, hey, we’re the government and you don’t tell us what to do – waits out the journalist with a story to write. Delay long enough, and the value of the information is lessened or lost. If we have to wait a week or two to get the address of a burglary or information about a car crash, that information becomes less and less valuable. The delayers know this.
Public bodies have other ways to deny and delay. They can essentially sandbag requesters with big fees for retrieval and redacting, sometimes insisting that a highly paid lawyer is the only one with the expertise to redact a record. We lose time negotiating fees and redactions. Or the public body can route the public document through the counsel’s office, then claim attorney-client privilege. And guess who decides whether to release the document? The same lawyers.
In reporting this year on the sex assault and harassment cases at the University of Idaho, we had to hire an attorney when the city of Moscow and Latah County refused to give us police reports for cases that didn't result in charges. Both agencies released redacted reports after our attorney intervened.
In a separate request, the University of Idaho refused to provide an employment contract we requested. When we challenged that decision, the university obtained the employee's permission to release the document rather than concede that we had a right to a basic employment document.
Perhaps Idaho’s new governor and legislators will finally be willing to invest time and energy in crafting some common-sense enforcement, empowering a knowledgeable officer with the power to quickly review and enforce public records requests. Until then, activists, journalists and anyone else with an interest in ensuring the accountability of their government will keep having to decide whether to pay the Idaho Public Records Tax to challenge Idaho’s Deny and Delay Law.