Governor’s ombudsman order had last minute tweaks

BOISE, Idaho (AP) — The Idaho governor’s executive order creating a public records ombudsman post had to be scaled back at the last minute over concerns that it could step on existing laws, public records from the governor’s office show.

Idaho Gov. C.L. “Butch” Otter issued the executive order late last month, naming Cally Younger as state public records ombudsman and calling on her to review state agencies’ policies on public records. She’s also expected to collect information about the number of denials issued by the state and to compile that and other data into an annual report for the governor.

The move was in response to a request from the Newspaper Association of Idaho, in hopes of creating an option that could resolve public records disputes without the expense of taking it to the court system. While an early draft of the executive order did just that — allowing individuals upset with records denials to ask for a second opinion from the ombudsman — that intermediate step was stripped from the official order issued by Otter on April 23.

“We just wanted to take a few steps back and really look at the whole process before we jumped in and tried to start fixing things,” Otter’s spokesman Jon Hanian told the Associated Press. “… We thought, you know, this is something that the legislature can look at.”

Emails between the governor’s staffers, the lobbyist from the Newspaper Association of Idaho and the attorney general’s office show that the bulk of the changes to the order were made the night before it was announced. The Associated Press obtained the emails through a public records request to the governor’s office.

Younger fulfilled the records request and included some documents that wouldn’t normally be released under Idaho’s public records law.

“In the interest of transparency, we have included public records that would have been exempt under the attorney-client privilege. The waiver of the attorney-client privilege and inclusion of otherwise exempt documents is specific to this request only and does not constitute a waiver for any future requests,” Younger wrote.

The emails indicate there was concern that the first draft of the executive order amounted to creating new law, a task reserved for the Legislature. But those concerns apparently didn’t arise until the last minute. A draft sent to state agency directors and administrators on the afternoon of April 22 still included the second-opinion option.

Later that evening, Otter’s chief of staff David Hensley asked several stakeholders how the office should respond to questions about whether the executive order creates a remedy in violation of public records law. The current law says the only remedy for a person aggrieved by the denial of a record request is for that person to go to court.

Deputy Chief Attorney General Brian Kane responded to Hensley’s email by saying the draft appeared to create a separate remedy through the executive branch. Kane also noted a few places where it could complicate matters if a public records case goes to court, possibly opening the agencies or ombudsman up to a “bad faith” court claim from a disgruntled record-seeker.

The issues could be avoided with a change to the state law, Kane said, adding the ombudsman as a middle or alternate step to the courts.

Just before midnight, Hensley sent a revised version to colleagues in the governor’s office and to Jeremy Pisca.

“I know it is short of where you and your clients wanted to be. I also know this is short notice. If you and your clients are willing to support this direction, 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,” Hensley wrote.

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