Freedom is Why We're Here!

Using the Public Records Law: An Activist’s Guide
 

Since federal and state public information laws have been utilized by the public, the proposition that our own government actively and consistently monitors the activities of people and groups who dare to exercise their rights of association and speech is no longer met with wide-eyed disbelief.  The release of numerous government documents over past decades has confirmed federal and municipal surveillance of citizens across the country. 

Consider the following sampling of past government surveillance:

 · Of individuals: In 1978 the American Friends Service Committee discovered that the FBI kept a list of over 24,000 political dissidents to be sent to detention camps in the event of a national emergency.

 · Of students and academe: The FBI monitored student members of the Black Student Union at the University of Santa Barbara, California in 1979, monitored student groups at New Mexico State University from 1968 to 1970 and at fifteen Iowa campuses from 1957 to 1979, and attempted to have university professors fired at the California State University and Arizona State University.

· Of political groups: Government documents confirm FBI efforts to undermine and discredit the work of Martin Luther King Jr., Malcolm X, and the Black Panther Party, and to infiltrate their organizations.

Such gems of our country’s history were not revealed after ethical contemplation by subsequent administrations, but are the fruit of persistent and successful efforts of individuals and organizations that invoked their rights under the federal Freedom of Information Act and similar state laws authorizing disclosure of public records.

Generally, public records are open to inspection by anyone who makes a request.  An individual has three avenues for requesting public information: (1) requests to a federal agency about a general subject matter or person, (2) requests to an Idaho state agency about a particular subject matter, or (3) a request to an Idaho agency about a particular person made by the person subject of the request.

Who can make a request?   Any person or entity can request public records. However, certain materials generally aimed at protecting privacy interests, ongoing law enforcement activities and information like trade secrets are exempted from disclosure.

To whom do I make the request?   The most efficient request will be sent directly to the custodian of public records of the particular state agency that maintains the records you seek. Overbroad and multiple requests may lead to the incurring of unnecessary fines for copying and labor costs. Distinguishing what agency holds your information can be difficult. The Idaho Blue Book published by the Secretary of State outlines the organization of state government agencies and is recommended as a resource for identifying the proper target of a request. Additionally, a simple phone call to the particular agency asking whether or not that agency has the type of records you seek may be helpful.  In many cases the target agency may be obvious from the general mission of the particular agency.

What information can I get?   An individual can get reports, statistics, memos, or anything else the agency creates in carrying out its official duties. Most important, you can find out whether or not a particular agency has gathered or maintained information about you personally. This type of request is called a request “by a person about a person” and is authorized by Idaho Code § 9-342.  Generally speaking, and particularly in the case of police records, a person seeking public information about themselves can get more information than a third person making the same request (See “Police Records” below).

Also, if the document you request contains both public and nonpublic information the document must be provided with the nonpublic information redacted. Idaho Code § 9-341.

A person who discovers incorrect or irrelevant information about themselves in their record may apply to have the record corrected. Idaho Code § 9-342(2).

When do I get the information? The agency must reply in some way within 3 days even if it is only to say that they need more time to search. In any case, the agency must provide the documents if they are going to do so within 10 days of receipt of your request. The failure to do so is deemed a denial. Idaho Code § 9-339.

Special Note Regarding Police Records:  Idaho has adopted the federal Freedom of Information Act (FOIA) provisions related to releasing police records which is more restrictive than most of the remaining Idaho statute. In general, the availability of police records will depend on: (1) whether the file is active or not, (2) who is doing the requesting, and (3) whether the release of the information would compromise police activity.

ACTIVE police investigatory records may be withheld if, and only if, the release of the records would: compromise somebody’s right to a fair trial, disclose the name of a confidential informant, constitute an unlawful invasion of personal privacy, disclose investigative techniques or procedures, or endanger the life or safety of the police. These conditions apply regardless of who is filing the request.  Idaho Code §
9-335(2)(a)-(g).

INACTIVE investigatory records are subject to the same restrictions listed above but are presumed available when the investor is asking for records about themselves (“by a person about a person”) under Idaho Code § 9-342(3).

How do I make a request? A request can be made in person or by telephone, but
written requests are recommended. Your request should be addressed to the attention of the custodian of the records, state with particularity the items you request, reference the applicable state laws mandating disclosure, and request the procedure for filing an appeal should your request be denied.

Fees and Costs: An agency may impose a reasonable free for responding to the request if the response takes more than two hours, is for more than 100 pages, or includes material that must be divided into non-public and public information, or if the agency is providing a duplicate computer tape, disc or similar medium.  However a fee cannot be charged if (1) the requester cannot afford to pay; or (2) the public interest and understanding of the operations or activities of government or its records would suffer by the assessment of a fee. Idaho Code § -338(8)(c).  One may simultaneously assert both justifications for a waiver.

What if the information is denied? A statement identifying the precise statutory authority for withholding information must accompany all denials.  Denials should be carefully scrutinized to ensure that exemptions are narrowly applied. The presumption is in favor of disclosure and no exemption is mandatory, thus there is always room for arguing that information should be made public. All denials may be appealed and different agencies set different review procedures. Review of denials of open criminal investigation records are subject to a specific statutory review process.  Idaho Code § 9-335(3). Ultimately, all cases may be litigated in court if necessary by filing a petition in court asking that an order be issued to the agency to disclose the information filed within six months of the denial. Idaho Code § 9-343. Litigation is commonly necessary to enforce release of information especially in the political and law enforcement areas. Several Federal FOIA cases have taken years to resolve.

Federal and State public records laws are among the greatest tools for advocates, activists, concerned citizens and anybody who cares to monitor government activity. The laws are easy to use and have been shown to reveal mountains of previously “secret” information about government surveillance of lawful, constitutionally protected activity of ordinary people across the country.

For more information: See the Idaho Attorney General’s Manual on the state public records law at http://www2.state.id.us/ag/manuals/publicrecords.pdf