By Cynthia Sewell
Gov. Butch Otter in April created a new position within his office to review how state agencies handle records requests and how Idaho’s public record laws can be improved.
Otter tapped staff attorney Cally Younger to become the state’s first public records ombudsman.
Younger has already begun compiling concerns and complaints from individuals about agency policies, processes and decisions, and will report that information to the governor annually.
In addition, she has sent a survey to all state agencies to identify issues and has met with members of the Newspaper Association of Idaho, the Idaho Press Club, the Attorney General’s office, the Association of Idaho Cities and the Idaho Association of Counties to start working to identify potential problems and possible legislation could reduce conflicts and improve transparency.
The following Q&A with Younger was first published in the Idaho Statesman; it is reprinted here by permission:
Q: What don’t people know about Idaho public records they should know?
A: The Idaho Public Records Act is different than the Freedom of Information Act (FOIA). FOIA requests are made to federal agencies. So when people reference FOIA to apply to a state agency they are referencing the wrong law. The applicable code is the Idaho Public Records Act. Also some people have confused this act with articles of the state Constitution. There is no provision governing public records in the State Constitution.
Q: What should public officials know that they don’t?
A: Public Officials can be proactive by making commonly requested public information available on their website. This can help the agency cut down on duplicative requests and also save taxpayers money because it takes staff time to research, retrieve, copy and provide that information.
Q: What is the most common request you get?
A: Most of the requests I get vary greatly. Requests to review denials generally involve a similar theme, individuals seeking public records pertaining to issues that have personally affected them, their loved ones, or their employment. In contrast, the public records requests we receive in this office are usually broader in scope.
Q. Are you getting more or fewer appeals than you expected? Are most people pleased with the answers they get, or frustrated?
A: The Executive Order didn’t actually give me the authority to override public records request denials from other agencies. However, I still do get a few requests to review denials. I appreciate getting these requests because it gives me insight into things that may need to be changed legislatively.
Q: Based on your experience, what do you think is the best way to handle local public records conflicts? Do you think it’s realistic that counties and cities will adopt the same model? Is there a statewide approach Idaho needs to be looking at?
A: I think it depends on the volume of requests that a particular agency or local governing body receives. My goal this year is to update the public records request process. I strongly encourage counties and cities to follow the state’s example to the extent practicable. We certainly don’t want to dictate how they should proceed. But if local governing bodies do receive numerous requests, it may make sense to implement some of the changes we’re doing at the state level. We’d definitely want to see more accountability in responding to public record requests at all levels of government and I think updating the process is an important part of that.
Q: Have you identified or implemented any changes in the way the Governor’s office and other offices under its authority process public records requests and retain public records?
A: Yes. We are currently working on making it easier to make public records requests to our office. Soon, the public will be able to make public records requests straight from our website. There will also be a few technology updates internally that will make it easier to complete records requests. DEQ receives roughly 100 requests a year and they’ve really streamlined their system, so despite the volume of the requests they receive, they still respond to nearly every request in 3 days. My goal is to have all state agencies implement something similar. For some, it won’t be practical due to too few requests, but for agencies that receive lots of requests, it could make a huge difference.
Q: In some states, the public records ombudsman assists all state agencies. Do you think Idaho could benefit from having a statewide ombudsman?
A: I think I could definitely be a resource to state agencies as they encounter new issues with requests.
Q: In April, David Hensley told Jeremy Pisca/Newspaper Association of Idaho, “I would commit to working with you on legislation for the next session to codify a review process for state agencies and local governments prior to and/or in lieu of litigation.” Is the governor’s office still committed to introducing this legislation in the next session?
A: Yes. We actually had our first meeting this week to talk about our goals for this session. I am hopeful that we can add that review process and also clear up some ambiguities in the law.
Q: Are you considering any legislation to clarify or strengthen Idaho’s public records laws?
A: Yes, particularly after the confusion our office encountered recently about what types of records in our office are actually public. For instance our office was recently criticized for not releasing records some in the media assumed were public when in fact they contained personal information that we legally weren’t allowed to disclose. So balancing the public’s right to know with an individual’s right to privacy is where we probably need to focus next.
Q: Have any changes been made in policy or procedure following the destruction of more than 20 State Board of Education applications?
A: Yes and no. The request for the applications allowed us to go back and look at what the relevant statutes actually said. Our internal policy for all board positions was to only keep applications until that candidate was eliminated from consideration. The statute (Idaho Code 9-340C) actually says that personal information, including applications, cannot be released without written consent of the applicant. Further, that statute only requires that we release the names of the top 5 finalists for each board position. So despite some media reports to the contrary, we actually went above and beyond what the law required. We released that additional information because of our commitment to transparency. We also made this clearer on our website in notice to potential applicants; so that they will know their personal information is safe and will not be kept in our office any longer than required by code. So while our office strives to be as transparent as possible — even going above what the law requires in some cases — we have to balance that desire with protecting personal information of private citizens.
Q: Of the public record conflicts you have handled so far, is the crux of the problem lack of citizen/agency education, lack of clarity in state law or an intentional obfuscation of public records requests?
A: Many citizens making requests get confused about what types of records they can actually obtain and what types of records agencies realistically keep. Further, each agency has its own policy that while similar, are by no means identical. So if a citizen makes requests across several agencies, the prices, the response time and the way in which the records are provided may be different. I think our state agencies are sincere in their desire to give citizens access to their public records.
Cynthia Sewell is a reporter for the Idaho Statesman, and is the vice-president of the Idaho Press Club.
