Public records law is not on Idaho’s side when it comes to nursing home records

Whenever I write about public records, I often find it difficult to convey to readers why it’s so important that we maintain public access to public records.

I’ve found that many readers construe journalists’ requests for public records simply as being nosy, trying to “dig up dirt” or get something salacious.

Journalists tend to think about public information differently from the way the public thinks about it. Let me give you one small example from my reporting past.

Several years ago, a young man was arrested when he was caught breaking into the Kuna Middle School. It turns out he had been breaking into schools and churches for an entire year without being caught. Police finally caught him and connected him to several previous robberies.

During a press conference announcing the arrest, I asked the police chief how he had broken into the school. The police chief said the school had double metal doors with a metal bar separating them, and the suspect had figured out that he could simply pry the metal bar aside to open the doors. At that point, another police commander stepped in to say that he didn’t want to release that information to the public and asked us to not report it.

Valid point, right? If you put that in the paper, others may see that and realize they can easily break into their local school or church. But that’s not how journalists view such information. I looked at that information from the other direction: If I publish this information, other schools and churches will realize they have a security weakness and get it fixed before they get robbed. Heck, if police had released this information a year earlier, perhaps the Kuna Middle School would have fixed their problem and not gotten robbed to begin with.

Here’s another point: Public officials often will have what they consider to be valid reasons for not disclosing public information. I called the Rexburg city manager one time and asked for the police chief’s salary. He refused to tell me, saying he didn’t want to upset people if they found out how much the police chief made. Fortunately, there is no exemption in state law for “making people upset.” I filed a public records request under the Idaho Public Records Law and got the salary.

Even though a public official may think he or she has a very good reason for keeping public information a secret, Idaho’s public records act lays out what can and can’t be disclosed.

So it was disappointing to see the Idaho Attorney General’s Office deny the Idaho Statesman’s public records request for information about nursing homes that have had cases of coronavirus, especially when it appears that the Attorney General’s Office was citing the law incorrectly.

Specifically, in two citations, the Attorney General’s Office was citing a part of code that exempted revealing people’s identities. Nowhere in Idaho Statesman health care reporter Audrey Dutton’s request was there a request for anyone’s identity.

Another exemption cited by the Attorney General’s Office involved protection of critical infrastructure, which stretches the imagination in this case. In New York state, we would be denied information on these grounds for something like the Ginna nuclear power plant, which is understandable. Asking for nursing homes with cases of coronavirus hardly jeopardizes critical infrastructure.

The denial of our request was doubly disappointing coming from an Attorney General’s Office that co-hosts public records/open meeting seminars all over the state with the group Idahoans for Openness in Government. I’ve taken part in three of these seminars.

Other states in the region, such as Colorado, Oregon, Utah and Washington have released detailed information about outbreaks in nursing homes. Idaho should, too.

Here’s why. Boise State Public Radio reported May 7 that family members of patients at Life Care Center of Lewiston hadn’t been made aware of the extent of the coronavirus outbreak at their loved one’s nursing home. One family member told the news outlet that if she’d known how large the outbreak there was, “she might’ve tried to get her mother released to family living in the area.”

The daughter of one patient who died at Life Care Center of Lewiston told Fox 28 in Spokane that she had pushed to have her mother tested for COVID-19, the nursing home refused, and she only learned her mother’s death was due to COVID-19 from the death certificate.

Unfortunately, the Idaho Statesman is having to request the information under threat of a lawsuit, which under Idaho’s public records law, is the only means of redress we have for an improper denial of our request.

The Idaho Press Club, of which I am a board member, successfully sued Ada County last year for a series of improper public records request denials. Ada County was ordered to pay $47,310 in court costs and attorney fees in the case.

Information about nursing homes with cases of coronavirus is of vital public interest and should be released to the public. Even if you don’t believe that, the state’s public records law clearly doesn’t offer an exemption. So whether the Attorney General’s Office feels it has a compelling reason to deny the request or not, the law just isn’t on its side in this case.

Scott McIntosh is the opinion editor of the Idaho Statesman. You can email him at smcintosh@idahostatesman.com or call him at 208-377-6202. Follow him on Twitter @ScottMcIntosh12. Sign up for his weekly email newsletter The Idaho Way.

Scott McIntosh

Opinion Contributor,

Idaho Statesman

208-377-6202

Scott McIntosh is the Idaho Statesman opinion editor. A graduate of Syracuse University, he joined the Statesman in August 2019. He previously was editor of the Idaho Press and the Argus Observer and was the owner and editor of the Kuna Melba News. He has been honored for his editorials and columns as well as his education, business and local government watchdog reporting by the Idaho Press Club and the National Newspaper Association. Sign up for his weekly newsletter, The Idaho Way. Support my work with a digital subscription