1998 Legislation
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HOUSE BILL NO. 829 – Potato Comm, certain records, exmpt


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H0829.....................................................by WAYS AND MEANS
POTATO COMMISSION - RECORDS - Amends existing law to provide that active
investigation records relating to trademark usage audits and purchase and
sales information submitted to the Idaho Potato Commission are exempt from
disclosure under certain circumstances.

03/13    House intro - 1st rdg - to printing
03/16    Rpt prt - to 2nd rdg
03/17    2nd rdg - to 3rd rdg
03/17    3rd rdg - PASSED - 61-1-8
      AYES -- Alltus, Barraclough, Barrett, Bell, Bieter, Black(23), Boe,
      Bruneel, Callister, Campbell, Chase, Clark, Crane, Crow, Cuddy, Deal,
      Denney, Ellsworth, Field(13), Field(20), Geddes, Gould, Hadley,
      Henbest, Hornbeck, Jaquet, Jones(9), Jones(22), Jones(20), Judd,
      Kellogg, Kempton, Kendell, Kunz, Lake, Linford, Loertscher, Mader,
      Marley, McKague, Meyer, Miller, Mortensen, Newcomb, Pischner,
      Pomeroy, Reynolds, Richman, Robison, Sali, Schaefer, Stevenson,
      Stone, Taylor, Tilman, Tippets, Trail, Watson, Wheeler, Zimmermann,
      Mr Speaker
      NAYS -- Stoicheff
      Absent and excused -- Bivens, Black(15), Gagner, Hansen, Kjellander,
      Ridinger, Stubbs, Wood
    Floor Sponsor - Stevenson
    Title apvd - to Senate
03/18    Senate intro - 1st rdg - to 2nd rdg
03/18    Rls susp - PASSED - 33-0-2
      AYES--Andreason, Boatright, Branch, Bunderson, Burtenshaw, Cameron,
      Crow, Danielson, Darrington, Deide, Dunklin, Geddes, Hawkins, Ingram,
      Ipsen, Keough, King, Lee, McLaughlin, Noh, Parry, Richardson, Riggs,
      Risch, Sandy, Schroeder, Sorensen, Stennett, Sweeney, Thorne, Twiggs,
      Wheeler, Whitworth
      Absent and excused--Frasure, Hansen
    Floor Sponsor - Risch
    Title apvd - to House
03/19    To enrol - rpt enrol - Sp signed
    Pres signed - to Governor
03/23    Governor signed
         Session Law Chapter 262
         Effective: 03/23/98

Bill Text


 ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
Fifty-fourth Legislature                 Second Regular Session - 1998

                             IN THE HOUSE OF REPRESENTATIVES

                                    HOUSE BILL NO. 829

                               BY WAYS AND MEANS COMMITTEE

 1                                        AN ACT
 7        GENCY.

 8    Be It Enacted by the Legislature of the State of Idaho:

 9        SECTION  1.  That  Section  9-340,  Idaho Code, be, and the same is hereby
10    amended to read as follows:

11        9-340.  RECORDS EXEMPT FROM DISCLOSURE. The following records  are  exempt
12    from disclosure:
13        (1)  Exemption under state or federal law or court rule.
14        (a)  Any  public  record exempt from disclosure by federal or state law or
15        federal regulations to the extent specifically provided for by such law or
16        regulation.
17        (b)  Records contained in court files of judicial proceedings, the disclo-
18        sure of which is prohibited by or under rules adopted by the Idaho supreme
19        court, but only to the extent that confidentiality is provided under  such
20        rules,  and  any  drafts  or  other  working memoranda related to judicial
21        decision-making, provided the provisions of this subsection making records
22        exempt from disclosure shall not apply to the extent that such records  or
23        information  contained  in  those  records  are necessary for a background
24        check on an individual that is required by federal law regulating the sale
25        of firearms, guns or ammunition.
26        (2)  Law enforcement records, investigatory records of agencies,  worker's
27    compensation.
28        (a)  Investigatory records of a law enforcement agency, as defined in sec-
29        tion  9-337(5),  Idaho  Code,  under  the  conditions set forth in section
30        9-335, Idaho Code.
31        (b)  Juvenile records of a person maintained pursuant to chapter 5,  title
32        20,  Idaho Code, except that facts contained in such records shall be fur-
33        nished upon request in a manner determined by the  court  to  persons  and
34        governmental  and  private  agencies and institutions conducting pertinent
35        research studies or having a legitimate interest in the  protection,  wel-
36        fare and treatment of the juvenile. If the juvenile is fourteen (14) years
37        or  older  and is adjudicated guilty of an offense which would be a felony
38        if committed by an adult, the name, offense  of  which  the  juvenile  was
39        adjudicated  and  disposition of the court shall be subject to disclosure.
40        Additionally, facts contained in any  records  of  a  juvenile  maintained
41        under  chapter 5, title 20, Idaho Code, shall be furnished upon request to
42        any school district where the juvenile is enrolled or is  seeking  enroll-
43        ment.


 1        (c)  Records  of the department of correction or the commission of pardons
 2        and parole to the extent that disclosure thereof would interfere with  the
 3        secure  and  orderly conduct of their operations, or the rehabilitation of
 4        any person in the custody of the department of correction or on parole, or
 5        would substantially prejudice or prevent the carrying out of the functions
 6        of the department of correction or the commission of pardons and parole if
 7        the public interest in confidentiality clearly outweighs the public inter-
 8        est in disclosure. Records exempt from disclosure shall include,  but  not
 9        be  limited  to, those  containing the names and addresses of witnesses or
10        victims or those containing information identifying victims or witnesses.
11        (d)  Records of the sheriff or department of law enforcement  received  or
12        maintained pursuant to section 18-3302, Idaho Code, relating to an  appli-
13        cant or licensee.
14        (e)  Records  of  investigations  prepared by the department of health and
15        welfare pursuant to its statutory responsibilities dealing with  the  pro-
16        tection  of  children, the rehabilitation of youth, adoptions and the com-
17        mitment of mentally ill persons.
18        (f)  Records including, but not limited to, investigative reports, result-
19        ing from investigations conducted into complaints of  discrimination  made
20        to  the Idaho human rights commission unless the public interest in allow-
21        ing inspection and copying of such records outweighs the legitimate public
22        or private interest in maintaining confidentiality of such records. A per-
23        son may inspect and copy documents from an investigative file to which  he
24        or  she  is  a  named party if such documents are not otherwise prohibited
25        from disclosure by federal law or regulation or state law. The confidenti-
26        ality of this subsection will no longer apply to any record  used  in  any
27        judicial  proceeding brought by a named party to the complaint or investi-
28        gation, or by the Idaho human rights commission, relating to the complaint
29        of discrimination.
30        (g)  Records containing information obtained by the manager of  the  Idaho
31        state insurance fund pursuant to chapter 9, title 72, Idaho Code, from  or
32        on  behalf  of employers or employees contained in underwriting and claims
33        for benefits files.
34        (h)  The worker's compensation records of the Idaho industrial  commission
35        provided that the industrial commission shall make such records available:
36             (i)   To  the  parties  in any worker's compensation claim and to the
37             industrial special indemnity fund of the state of Idaho; or
38             (ii)  To employers and prospective employers subject  to  the  provi-
39             sions  of  the  Americans  with disabilities act, 42 U.S.C. 12112, or
40             other statutory limitations, who  certify  that  the  information  is
41             being  requested  with  respect  to a worker to whom the employer has
42             extended an offer of employment and will be used in  accordance  with
43             the  provisions  of  the  Americans  with disabilities act, 42 U.S.C.
44             12112, or other statutory limitations; or
45             (iii) To employers and prospective employers not subject to the  pro-
46             visions  of  the Americans with disabilities act, 42 U.S.C. 12112, or
47             other statutory limitations, provided the employer presents a written
48             authorization from the person to whom the records pertain; or
49             (iv)  To others who demonstrate that the public interest in  allowing
50             inspection  and  copying of such records outweighs the public or pri-
51             vate interest in maintaining the confidentiality of such records,  as
52             determined by a civil court of competent jurisdiction.
53        (3)  Privacy,  personnel  records,  personal  information, health records,
54    professional discipline.
55        (a)  Except as provided in this subsection, all  personnel  records  of  a


 1        current  or former public official other than the public official's public
 2        service or employment history, classification, pay grade and step, longev-
 3        ity, gross salary and salary  history,  status,  workplace  and  employing
 4        agency.  All  other personnel information relating to a public employee or
 5        applicant including, but not limited to, information regarding sex,  race,
 6        marital  status,  birth  date, home address and telephone number, applica-
 7        tions, testing and scoring materials, grievances, correspondence and  per-
 8        formance  evaluations,  shall  not  be disclosed to the public without the
 9        employee's or applicant's written consent.  A public  official  or  autho-
10        rized  representative  may  inspect and copy his personnel records, except
11        for material used to screen and test for employment.
12        (b)  Retired employees' and retired public officials' home addresses, home
13        telephone numbers and other financial and nonfinancial membership records;
14        active and inactive member financial and membership records  and  mortgage
15        portfolio loan documents maintained by the public employee retirement sys-
16        tem.  Financial  statements  prepared  by retirement system staff, funding
17        agents and custodians concerning the investment of assets  of  the  public
18        employee  retirement system of Idaho are not considered confidential under
19        this chapter.
20        (c)  Information and records submitted to the Idaho state lottery for  the
21        performance  of background investigations of employees, lottery  retailers
22        and major procurement contractors; audit  records  of  lottery  retailers,
23        vendors and major procurement contractors submitted to or performed by the
24        Idaho  state  lottery;  validation and security tests of the state lottery
25        for lottery games; business records and information submitted pursuant  to
26        sections  67-7412(8)  and (9) and 67-7421(8) and (9), Idaho Code, and such
27        documents and information obtained and held for the  purposes  of  lottery
28        security  and  investigative  action as determined by lottery rules unless
29        the public interest in disclosure substantially outweighs the private need
30        for protection from public disclosure.
31        (d)  Records of a personal nature as follows:
32             (i)   Records of personal debt filed with a public agency pursuant to
33             law;
34             (ii)  Personal bank records compiled by a public  depositor  for  the
35             purpose of public funds transactions conducted pursuant to law;
36             (iii) Records  of  ownership of financial obligations and instruments
37             of a public agency, such as bonds, compiled by the public agency pur-
38             suant to law;
39             (iv)  Records, with regard to the ownership of, or security interests
40             in, registered public obligations;
41             (v)   Vital statistics records;
42             (vi)  Except as provided in this subsection, all information provided
43             to a law enforcement agency for sex offender registration pursuant to
44             the provisions of section 18-8306, Idaho Code:
45                  1.  Such information shall be available upon request  to  a  law
46                  enforcement agency; and
47                  2.  The  information provided pursuant to the provisions of sub-
48                  sections (1) and (3) of section 18-8306, Idaho  Code,  shall  be
49                  provided  to   any  person  upon  written  request. Such written
50                  request shall include the name  and  either  date  of  birth  or
51                  address of the person for whom the information is requested.
52        (e)  Information  in  an  income  or other tax return measured by items of
53        income or sales, which is gathered by a public agency for the  purpose  of
54        administering  the tax, except such information to the extent disclosed in
55        a written decision of the tax commission pursuant to a taxpayer protest of


 1        a deficiency determination by the tax commission, under the provisions  of
 2        section 63-3045B, Idaho Code.
 3        (f)  Records  of  a  personal nature related directly or indirectly to the
 4        application for and provision of statutory services  rendered  to  persons
 5        applying  for public care for the elderly, indigent, or mentally or physi-
 6        cally handicapped, or participation in an environmental or a public health
 7        study, provided the provisions of this subsection  making  records  exempt
 8        from disclosure shall not apply to the extent that such records  or infor-
 9        mation  contained in those records are necessary for a background check on
10        an individual that is required by federal law regulating the sale of fire-
11        arms, guns or ammunition.
12        (g)  Employment security information and  unemployment  insurance  benefit
13        information,  except  that  all  interested parties may agree to waive the
14        exemption.
15        (h)  Any personal records, other than names, business addresses and  busi-
16        ness  phone  numbers,  such  as  parentage,  race,  religion, sex, height,
17        weight, tax identification and social security numbers, financial worth or
18        medical condition submitted to any public agency pursuant to  a  statutory
19        requirement for licensing, certification, permit or bonding.
20        (i)  Unless  otherwise  provided  by  agency rule, information obtained as
21        part of an inquiry into a person's fitness  to  be  granted  or  retain  a
22        license,  certificate,  permit, privilege, commission or position, private
23        association peer review committee records authorized in  title  54,  Idaho
24        Code.  Any agency which has records  exempt from disclosure under the pro-
25        visions  of  this  subsection  shall annually make available a statistical
26        summary of the number and types of matters considered and  their  disposi-
27        tion.
28        (j)  The  records,  finding, determinations and decision of any prelitiga-
29        tion screening panel formed under chapter 10, title 6, Idaho Code.
30        (k)  Board of professional discipline reprimands  by  informal  admonition
31        pursuant to subsection (6)(f) of section 54-1806A, Idaho Code.
32        (l)  Records  of  the  department of health and welfare or a public health
33        district that  identifies      identify    a  person
34        infected with a reportable disease.
35        (m)  Records  of  hospital  care,  medical records, records of psychiatric
36        care or treatment and  professional  counseling  records  relating  to  an
37        individual's  condition, diagnosis, care or treatment, provided the provi-
38        sions of this subsection making records exempt from disclosure  shall  not
39        apply  to  the  extent that such records or information contained in those
40        records are necessary for a background check  on  an  individual  that  is
41        required  by  federal law regulating the sale of firearms, guns or ammuni-
42        tion.
43        (4)  Trade secrets,  production  records,  appraisals,  bids,  proprietary
44    information.
45        (a)  Trade  secrets including those contained in response to public agency
46        requests for proposal, requests for clarification, requests  for  informa-
47        tion  and  similar requests. "Trade secrets" as used in this section means
48        information,   including a formula, pattern,  compilation,  program,  com-
49        puter  program,  device,  method, technique, process, or unpublished or in
50        progress research that:
51             (i)   Derives independent economic value, actual or  potential,  from
52             not  being generally known to, and not being readily ascertainable by
53             proper means by other persons who can obtain economic value from  its
54             disclosure or use; and
55             (ii)  Is the subject of efforts that are reasonable under the circum-


 1             stances to maintain its secrecy.
 2        (b)  Production records, sale or purchase records, catch records, mortgage
 3        portfolio  loan  documents, or similar business records of a private  con-
 4        cern or enterprise required by law to be submitted to or  inspected  by  a
 5        public  agency.  Nothing  in this subsection shall limit the use which can
 6        be made of such information for regulatory purposes or  its  admissibility
 7        in any enforcement proceeding.
 8        (c)  Records relating to the appraisal of real property, timber or mineral
 9        rights prior to its acquisition, sale or lease by a public agency.
10        (d)  Any  estimate  prepared by a public agency that details the cost of a
11        public project until such time as disclosed or bids are  opened,  or  upon
12        award of the contract for construction of the public project.
13        (e)  Examination,  operating or condition reports and all documents relat-
14        ing thereto, prepared by or supplied to any public agency responsible  for
15        the regulation or supervision of financial institutions including, but not
16        limited to, banks, savings and loan associations, regulated lenders, busi-
17        ness and industrial development corporations, credit unions, and insurance
18        companies, or for the regulation or supervision of the issuance of securi-
19        ties.
20        (f)  Records  gathered  by  a local agency or the Idaho department of com-
21        merce, as described in chapter 47, title 67, Idaho Code, for the  specific
22        purpose  of  assisting  a person to locate, maintain, invest in, or expand
23        business operations in the state of Idaho.
24        (g)  Shipping and marketing records of commodity commissions used to eval-
25        uate marketing and advertising strategies and the names and  addresses  of
26        growers and shippers maintained by commodity commissions.
27        (h)  Financial  statements  and business information and reports submitted
28        by a legal entity to a port district organized under title 70, Idaho Code,
29        in connection with a business agreement, or with a development proposal or
30        with a financing application for any industrial, manufacturing,  or  other
31        business activity within a port district.
32        (i)  Names  and  addresses of seed companies, seed crop growers, seed crop
33        consignees, locations of seed crop fields, variety  name  and  acreage  by
34        variety.  Upon  the  request of the owner of the proprietary variety, this
35        information shall be released to the owner. Provided, however, that  if  a
36        seed crop has been identified as diseased or has been otherwise identified
37        by  the  Idaho department of agriculture, other state departments of agri-
38        culture, or the United States department of  agriculture  to  represent  a
39        threat  to that particular seed or commercial crop industry or to individ-
40        ual growers, information as to test results,  location,  acreage  involved
41        and  disease  symptoms of that particular seed crop, for that growing sea-
42        son, shall be available for public inspection and copying. This  exemption
43        shall not supersede the provisions of section 22-436, Idaho Code.
44        (j)  Information  obtained  from  books, records, and accounts required in
45        chapter 47, title 22, Idaho Code, to be maintained by the Idaho canola and
46        rapeseed commission and pertaining to the individual production records of
47        canola or rapeseed growers.
48        (k)  Records of any risk retention or self-insurance program  prepared  in
49        anticipation  of  litigation or for analysis of or settlement of potential
50        or actual money damage claims against a public entity and its employees or
51        against  the  industrial  special  indemnity  fund  except  as   otherwise
52        discoverable  under  the  Idaho or federal rules of civil procedure. These
53        records shall include, but are not limited to, claims evaluations,  inves-
54        tigatory  records, computerized reports of losses, case reserves, internal
55        documents and correspondence relating thereto. At the time  any  claim  is


 1        concluded,  only  statistical  data  and actual amounts paid in settlement
 2        shall be deemed a public record unless otherwise ordered to be sealed by a
 3        court of competent jurisdiction. Provided however, nothing in this subsec-
 4        tion is intended to limit the attorney client privilege or  attorney  work
 5        product privilege otherwise  available to any public agency.
 6        (l)  Records  of  laboratory  test  results provided by or retained by the
 7        department of agriculture's quality assurance laboratory.  Nothing in this
 8        subsection shall limit the use which can be made, or availability of  such
 9        information  if  used, for regulatory purposes or its admissibility in any
10        enforcement proceeding.
11        (m)  Reports required to be filed under chapter 13, title 62, Idaho  Code,
12        identifying electrical or natural or manufactured gas consumption data for
13        an individual customer or account.
14        (n)  Voluntarily  prepared environmental audits, and voluntary disclosures
15        of information submitted to an environmental agency as defined in  section
16        9-803,  Idaho Code, which are claimed to be confidential business informa-
17        tion.
18        (o)  Computer programs developed or purchased by or for any public  agency
19        for  its  own  use. As used in this subsection, "computer program" means a
20        series of instructions or statements which permit  the  functioning  of  a
21        computer  system  in  a  manner designed to provide storage, retrieval and
22        manipulation of data from the computer system, and any associated documen-
23        tation and source material that explain how to operate the  computer  pro-
24        gram. Computer program does not include:
25             (i)   The original data including, but not limited to, numbers, text,
26             voice, graphics and images;
27             (ii)  Analysis, compilation and other manipulated forms of the origi-
28             nal data produced by use of the program; or
29             (iii) The  mathematical or statistical formulas that would be used if
30             the manipulated forms of the original data were to be produced  manu-
31             ally.
32          (p)  Active investigative records and trademark usage audits of the
33        Idaho potato commission specifically relating to the enforcement of  chap-
34        ter 12, title 22, Idaho Code, until the commencement of formal proceedings
35        as  provided  by  rules  of the commission; purchase and sales information
36        submitted to the Idaho potato commission during a trademark  usage  audit,
37        and  investigation  or  enforcement  proceedings.  Inactive  investigatory
38        records  shall  be disclosed unless the disclosure would violate the stan-
39        dards set forth in subsections (1)(a) through (f) of section 9-335,  Idaho
40        Code. Nothing in this subsection shall limit the use which can be made, or
41        availability  of  such information if used, for regulatory purposes or its
42        admissibility in any enforcement proceeding. 
43        (5)  Archaeological,  endangered  species,  libraries,  legislative,  test
44    keys, miscellaneous exemptions.
45        (a)  Records, maps or other records identifying the location  of  archaeo-
46        logical  or  geophysical sites or endangered species, if not already known
47        to the general public.
48        (b)  Archaeological and geologic records concerning exploratory  drilling,
49        logging, mining and other excavation, when such records are required to be
50        filed by statute for the time provided by statute.
51        (c)  The records of a library which, when examined alone, or when examined
52        with other public records, would reveal the identity of the library patron
53        checking out, requesting, or using an item from a library.
54        (d)  The  material of a library, museum or archive which has been contrib-
55        uted by a private person, to the extent of any limitation that is a condi-


 1        tion of the contribution.
 2        (e)  Test questions, scoring keys, and other data  used  to  administer  a
 3        licensing  examination, employment, academic or other examination or test-
 4        ing procedure before the examination is given if the examination is to  be
 5        used  again.  Records  establishing procedures for and instructing persons
 6        administering, grading or evaluating  an examination or testing  procedure
 7        are included in this exemption, to the extent that disclosure would create
 8        a risk that the result might be affected.
 9        (f)  Records  consisting  of  draft legislation and documents specifically
10        related to such draft legislation or research requests  submitted  to  the
11        legislative  services  office by a member of the Idaho legislature for the
12        purpose of placing such draft legislation into a form suitable for  intro-
13        duction  as  official proposed legislation of the legislature of the state
14        of Idaho, unless the individual legislator having submitted  or  requested
15        such records or research agrees to waive the provisions of confidentiality
16        provided by this  subsection.
17        (g)  All  papers,  physical  and  electronic records and correspondence or
18        other supporting materials comprising the work papers in the possession of
19        the legislative services office or the director of legislative performance
20        evaluations prior to release of the related  final  audit  and  all  other
21        records  or materials in the possession of the legislative services office
22        or the director of legislative performance evaluations that would   other-
23        wise be confidential or exempt from disclosure.
24        (h)  Records  that  identify the method by which the Idaho state  tax com-
25        mission selects tax returns for audit review.

26        SECTION 2.  An emergency existing  therefor,  which  emergency  is  hereby
27    declared to exist, this act shall be in full force and effect on and after its
28    passage and approval.

Statement of Purpose / Fiscal Impact


                           STATEMENT OF PURPOSE
                                 RS 08214
    This legislation clarifies the existing law concerning 
    investigative records and trademark usage audits of the Idaho 
    Potato Commission.
    The state of Idaho has invested over $100 million dollars over 
    the past sixty years to educate consumers about the superior 
    quality of Idaho potatoes. This effort has lead to a record 
    awareness of Idaho potatoes among consumers of over 82% of 
    those surveyed. Unfortunately, the success of this effort has 
    tempted some to put non-Idaho potatoes into Idaho~ potato 
    In order to catch offenders, the Idaho Potato Commission 
    (IPC) audits the records of those it licenses to use the 
    Idaho trademarks. Not all licensees keep honest records. It 
    therefore becomes necessary to contact third parties, those 
    who sold potatoes to the licensee or those who bought 
    potatoes from the licensee, in order to verify the accuracy 
    of the licensees records.
    This practice is commonly called a "third-party 
    confirmation." In the highly competitive produce industry, 
    buyer-seller information is closely guarded. In order to 
    obtain the cooperation of third parties in these 
    investigations, IPC has promised that this information will 
    be kept confidential as an investigative record or trade 
    secret. Recently, however, lawyers have questioned whether 
    these exemptions are applicable. In order to avoid 
    litigation, this legislation would clarify the position taken 
    by IPC since the enactment of the Public Records law.
    In a recent case, IPC found that an out-of-state licensee had 
    misbranded over 1.5 million consumer bags and imposed over $2 
    million in civil penalties and costs. The bill also provides 
    that inactive investigatory records shall be disclosed when 
    the proceedings are no longer active.
    Finally, an emergency clause is added to permit the 
    legislation to become effective upon passage. This is 
    necessary in order to cover current enforcement proceedings 
    now underway by the IPC.
                                FISCAL NOTE
    The Idaho Potato Commission is funded through a tax imposed 
    upon the potato industry. Therefore there is no impact on the 
    general fund. This legislation will not increase any 
    expenditure from the Idaho Potato Commission budget.
    CONTACT: Patrick J. Kole
             (208) 334-2350
    HB 829