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S1359......................................................by STATE AFFAIRS
POTATO COMMISSION - Amends existing law to provide that investigative
records, trademarks, usage audits and purchase and sales information
submitted to the Idaho Potato Commission are exempt from disclosure under
certain circumstances, to provide application and to provide that some
deliberations of the Idaho Potato Commission may not be open to the public
under the state's Open Meeting Law.
01/29 Senate intro - 1st rdg - to printing
01/30 Rpt prt - to St Aff
02/05 Rpt out - rec d/p - to 2nd rdg
02/06 2nd rdg - to 3rd rdg
02/10 3rd rdg - PASSED - 31-4-0
AYES--Andreason, Boatright, Branch, Bunderson, Burtenshaw, Cameron,
Danielson, Darrington, Deide, Frasure, Geddes, Hansen, Ingram, Ipsen,
Keough, King, Lee, McLaughlin, Noh, Parry, Richardson, Riggs, Risch,
Sandy, Schroeder, Sorensen, Stennett, Sweeney, Thorne, Twiggs,
Wheeler
NAYS--Crow, Dunklin, Hawkins, Whitworth
Absent and excused--None
Floor Sponsor - Sandy
Title apvd - to House
02/11 House intro - 1st rdg - to St Aff
02/25 Rpt out - rec d/p - to 2nd rdg
02/26 2nd rdg - to 3rd rdg
03/02 3rd rdg - PASSED - 65-4-1
AYES -- Alltus, Barraclough, Barrett, Bell, Bieter, Bivens,
Black(15), Black(23), Boe, Bruneel, Callister, Campbell, Clark,
Crane, Crow, Cuddy, Deal, Denney, Field(13), Field(20), Gagner,
Geddes, Gould, Hadley, Hansen, Hornbeck, Jaquet, Jones(9), Jones(22),
Jones(20), Judd, Kellogg, Kempton, Kendell, Kjellander, Kunz, Lake,
Linford, Loertscher, Mader, McKague, Meyer, Miller, Mortensen,
Newcomb, Pischner, Pomeroy, Reynolds, Richman, Ridinger, Robison,
Sali, Schaefer, Stevenson, Stone, Stubbs, Taylor, Tilman, Tippets,
Trail, Watson, Wheeler, Wood, Zimmermann, Mr Speaker
NAYS -- Chase, Henbest, Marley, Stoicheff
Absent and excused -- Ellsworth
Floor Sponsor - Stevenson
Title apvd - to Senate
03/03 To enrol
03/04 Rpt enrol - Pres signed
03/05 Sp signed
03/06 To Governor
03/11 Governor VETOED
S1359|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fourth Legislature Second Regular Session - 1998IN THE SENATE SENATE BILL NO. 1359 BY STATE AFFAIRS COMMITTEE 1 AN ACT 2 RELATING TO THE IDAHO POTATO COMMISSION; AMENDING SECTION 9-340, IDAHO CODE, 3 TO PROVIDE THAT INVESTIGATIVE RECORDS, TRADEMARKS USAGE AUDITS AND PUR- 4 CHASE AND SALES INFORMATION SUBMITTED TO THE IDAHO POTATO COMMISSION ARE 5 EXEMPT FROM DISCLOSURE UNDER CERTAIN CIRCUMSTANCES, TO PROVIDE APPLICATION 6 AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 67-2342, IDAHO CODE, 7 TO PROVIDE THAT SOME DELIBERATIONS OF THE IDAHO POTATO COMMISSION MAY NOT 8 BE OPEN TO THE PUBLIC; AND DECLARING AN EMERGENCY. 9 Be It Enacted by the Legislature of the State of Idaho: 10 SECTION 1. That Section 9-340, Idaho Code, be, and the same is hereby 11 amended to read as follows: 12 9-340. RECORDS EXEMPT FROM DISCLOSURE. The following records are exempt 13 from disclosure: 14 (1) Exemption under state or federal law or court rule. 15 (a) Any public record exempt from disclosure by federal or state law or 16 federal regulations to the extent specifically provided for by such law or 17 regulation. 18 (b) Records contained in court files of judicial proceedings, the disclo- 19 sure of which is prohibited by or under rules adopted by the Idaho supreme 20 court, but only to the extent that confidentiality is provided under such 21 rules, and any drafts or other working memoranda related to judicial 22 decision-making, provided the provisions of this subsection making records 23 exempt from disclosure shall not apply to the extent that such records or 24 information contained in those records are necessary for a background 25 check on an individual that is required by federal law regulating the sale 26 of firearms, guns or ammunition. 27 (2) Law enforcement records, investigatory records of agencies, worker's 28 compensation. 29 (a) Investigatory records of a law enforcement agency, as defined in sec- 30 tion 9-337(5), Idaho Code, under the conditions set forth in section 31 9-335, Idaho Code. 32 (b) Juvenile records of a person maintained pursuant to chapter 5, title 33 20, Idaho Code, except that facts contained in such records shall be fur- 34 nished upon request in a manner determined by the court to persons and 35 governmental and private agencies and institutions conducting pertinent 36 research studies or having a legitimate interest in the protection, wel- 37 fare and treatment of the juvenile. If the juvenile is fourteen (14) years 38 or older and is adjudicated guilty of an offense which would be a felony 39 if committed by an adult, the name, offense of which the juvenile was 40 adjudicated and disposition of the court shall be subject to disclosure. 41 Additionally, facts contained in any records of a juvenile maintained 42 under chapter 5, title 20, Idaho Code, shall be furnished upon request to 43 any school district where the juvenile is enrolled or is seeking enroll- 2 1 ment. 2 (c) Records of the department of correction or the commission of pardons 3 and parole to the extent that disclosure thereof would interfere with the 4 secure and orderly conduct of their operations, or the rehabilitation of 5 any person in the custody of the department of correction or on parole, or 6 would substantially prejudice or prevent the carrying out of the functions 7 of the department of correction or the commission of pardons and parole if 8 the public interest in confidentiality clearly outweighs the public inter- 9 est in disclosure. Records exempt from disclosure shall include, but not 10 be limited to, those containing the names and addresses of witnesses or 11 victims or those containing information identifying victims or witnesses. 12 (d) Records of the sheriff or department of law enforcement received or 13 maintained pursuant to section 18-3302, Idaho Code, relating to an appli- 14 cant or licensee. 15 (e) Records of investigations prepared by the department of health and 16 welfare pursuant to its statutory responsibilities dealing with the pro- 17 tection of children, the rehabilitation of youth, adoptions and the com- 18 mitment of mentally ill persons. 19 (f) Records including, but not limited to, investigative reports, result- 20 ing from investigations conducted into complaints of discrimination made 21 to the Idaho human rights commission unless the public interest in allow- 22 ing inspection and copying of such records outweighs the legitimate public 23 or private interest in maintaining confidentiality of such records. A per- 24 son may inspect and copy documents from an investigative file to which he 25 or she is a named party if such documents are not otherwise prohibited 26 from disclosure by federal law or regulation or state law. The confidenti- 27 ality of this subsection will no longer apply to any record used in any 28 judicial proceeding brought by a named party to the complaint or investi- 29 gation, or by the Idaho human rights commission, relating to the complaint 30 of discrimination. 31 (g) Records containing information obtained by the manager of the Idaho 32 state insurance fund pursuant to chapter 9, title 72, Idaho Code, from or 33 on behalf of employers or employees contained in underwriting and claims 34 for benefits files. 35 (h) The worker's compensation records of the Idaho industrial commission 36 provided that the industrial commission shall make such records available: 37 (i) To the parties in any worker's compensation claim and to the 38 industrial special indemnity fund of the state of Idaho; or 39 (ii) To employers and prospective employers subject to the provi- 40 sions of the Americans with disabilities act, 42 U.S.C. 12112, or 41 other statutory limitations, who certify that the information is 42 being requested with respect to a worker to whom the employer has 43 extended an offer of employment and will be used in accordance with 44 the provisions of the Americans with disabilities act, 42 U.S.C. 45 12112, or other statutory limitations; or 46 (iii) To employers and prospective employers not subject to the pro- 47 visions of the Americans with disabilities act, 42 U.S.C. 12112, or 48 other statutory limitations, provided the employer presents a written 49 authorization from the person to whom the records pertain; or 50 (iv) To others who demonstrate that the public interest in allowing 51 inspection and copying of such records outweighs the public or pri- 52 vate interest in maintaining the confidentiality of such records, as 53 determined by a civil court of competent jurisdiction. 54 (3) Privacy, personnel records, personal information, health records, 55 professional discipline. 3 1 (a) Except as provided in this subsection, all personnel records of a 2 current or former public official other than the public official's public 3 service or employment history, classification, pay grade and step, longev- 4 ity, gross salary and salary history, status, workplace and employing 5 agency. All other personnel information relating to a public employee or 6 applicant including, but not limited to, information regarding sex, race, 7 marital status, birth date, home address and telephone number, applica- 8 tions, testing and scoring materials, grievances, correspondence and per- 9 formance evaluations, shall not be disclosed to the public without the 10 employee's or applicant's written consent. A public official or authorized 11 representative may inspect and copy his personnel records, except for 12 material used to screen and test for employment. 13 (b) Retired employees' and retired public officials' home addresses, home 14 telephone numbers and other financial and nonfinancial membership records; 15 active and inactive member financial and membership records and mortgage 16 portfolio loan documents maintained by the public employee retirement sys- 17 tem. Financial statements prepared by retirement system staff, funding 18 agents and custodians concerning the investment of assets of the public 19 employee retirement system of Idaho are not considered confidential under 20 this chapter. 21 (c) Information and records submitted to the Idaho state lottery for the 22 performance of background investigations of employees, lottery retailers 23 and major procurement contractors; audit records of lottery retailers, 24 vendors and major procurement contractors submitted to or performed by the 25 Idaho state lottery; validation and security tests of the state lottery 26 for lottery games; business records and information submitted pursuant to 27 sections 67-7412(8) and (9) and 67-7421(8) and (9), Idaho Code, and such 28 documents and information obtained and held for the purposes of lottery 29 security and investigative action as determined by lottery rules unless 30 the public interest in disclosure substantially outweighs the private need 31 for protection from public disclosure. 32 (d) Records of a personal nature as follows: 33 (i) Records of personal debt filed with a public agency pursuant to 34 law; 35 (ii) Personal bank records compiled by a public depositor for the 36 purpose of public funds transactions conducted pursuant to law; 37 (iii) Records of ownership of financial obligations and instruments 38 of a public agency, such as bonds, compiled by the public agency pur- 39 suant to law; 40 (iv) Records, with regard to the ownership of, or security interests 41 in, registered public obligations; 42 (v) Vital statistics records; 43 (vi) Except as provided in this subsection, all information provided 44 to a law enforcement agency for sex offender registration pursuant to 45 the provisions of section 18-8306, Idaho Code: 46 1. Such information shall be available upon request to a law 47 enforcement agency; and 48 2. The information provided pursuant to the provisions of sub- 49 sections (1) and (3) of section 18-8306, Idaho Code, shall be 50 provided to any person upon written request. Such written 51 request shall include the name and either date of birth or 52 address of the person for whom the information is requested. 53 (e) Information in an income or other tax return measured by items of 54 income or sales, which is gathered by a public agency for the purpose of 55 administering the tax, except such information to the extent disclosed in 4 1 a written decision of the tax commission pursuant to a taxpayer protest of 2 a deficiency determination by the tax commission, under the provisions of 3 section 63-3045B, Idaho Code. 4 (f) Records of a personal nature related directly or indirectly to the 5 application for and provision of statutory services rendered to persons 6 applying for public care for the elderly, indigent, or mentally or physi- 7 cally handicapped, or participation in an environmental or a public 8 health study, provided the provisions of this subsection making records 9 exempt from disclosure shall not apply to the extent that such records or 10 information contained in those records are necessary for a background 11 check on an individual that is required by federal law regulating the sale 12 of firearms, guns or ammunition. 13 (g) Employment security information and unemployment insurance benefit 14 information, except that all interested parties may agree to waive the 15 exemption. 16 (h) Any personal records, other than names, business addresses and busi- 17 ness phone numbers, such as parentage, race, religion, sex, height, 18 weight, tax identification and social security numbers, financial worth or 19 medical condition submitted to any public agency pursuant to a statutory 20 requirement for licensing, certification, permit or bonding. 21 (i) Unless otherwise provided by agency rule, information obtained as 22 part of an inquiry into a person's fitness to be granted or retain a 23 license, certificate, permit, privilege, commission or position, private 24 association peer review committee records authorized in title 54, Idaho 25 Code. Any agency which has records exempt from disclosure under the provi- 26 sions of this subsection shall annually make available a statistical sum- 27 mary of the number and types of matters considered and their disposition. 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 thatidentifiesidentify 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- 5 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 6 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) Investigative records and trademark usage audits of the Idaho 33 potato commission relating to the enforcement of chapter 12, title 22, 34 Idaho Code, until the commencement of formal proceedings as provided by 35 rules of the commission; purchase and sales information submitted to the 36 Idaho potato commission during a trademark usage audit, investigation or 37 enforcement proceeding; and drafts of working memoranda related to admin- 38 istrative decision-making when the commission is deliberating in a judi- 39 cial capacity. Nothing in this subsection shall limit the use which can be 40 made, or availability of such information if used, for regulatory purposes 41 or its admissibility in any enforcement proceeding. 42 (5) Archaeological, endangered species, libraries, legislative, test 43 keys, miscellaneous exemptions. 44 (a) Records, maps or other records identifying the location of archaeo- 45 logical or geophysical sites or endangered species, if not already known 46 to the general public. 47 (b) Archaeological and geologic records concerning exploratory drilling, 48 logging, mining and other excavation, when such records are required to be 49 filed by statute for the time provided by statute. 50 (c) The records of a library which, when examined alone, or when examined 51 with other public records, would reveal the identity of the library patron 52 checking out, requesting, or using an item from a library. 53 (d) The material of a library, museum or archive which has been contrib- 54 uted by a private person, to the extent of any limitation that is a condi- 55 tion of the contribution. 7 1 (e) Test questions, scoring keys, and other data used to administer a 2 licensing examination, employment, academic or other examination or test- 3 ing procedure before the examination is given if the examination is to be 4 used again. Records establishing procedures for and instructing persons 5 administering, grading or evaluating an examination or testing procedure 6 are included in this exemption, to the extent that disclosure would create 7 a risk that the result might be affected. 8 (f) Records consisting of draft legislation and documents specifically 9 related to such draft legislation or research requests submitted to the 10 legislative services office by a member of the Idaho legislature for the 11 purpose of placing such draft legislation into a form suitable for intro- 12 duction as official proposed legislation of the legislature of the state 13 of Idaho, unless the individual legislator having submitted or requested 14 such records or research agrees to waive the provisions of confidentiality 15 provided by this subsection. 16 (g) All papers, physical and electronic records and correspondence or 17 other supporting materials comprising the work papers in the possession of 18 the legislative services office or the director of legislative performance 19 evaluations prior to release of the related final audit and all other 20 records or materials in the possession of the legislative services office 21 or the director of legislative performance evaluations that would other- 22 wise be confidential or exempt from disclosure. 23 (h) Records that identify the method by which the Idaho state tax com- 24 mission selects tax returns for audit review. 25 SECTION 2. That Section 67-2342, Idaho Code, be, and the same is hereby 26 amended to read as follows: 27 67-2342. GOVERNING BODIES -- REQUIREMENT FOR OPEN PUBLIC MEETINGS. (1) 28 Except as provided below, all meetings of a governing body of a public agency 29 shall be open to the public and all persons shall be permitted to attend any 30 meeting except as otherwise provided by this act. No decision at a meeting of 31 a governing body of a public agency shall be made by secret ballot. 32 (2) Deliberations of the board of tax appeals created in chapter 38, 33 title 63, Idaho Code, the Idaho potato commission created in chapter 12, 34 title 22, Idaho Code, the public utilities commission and the indus- 35 trial commission in a fully submitted adjudicatory proceeding in which hear- 36 ings, if any are required, have been completed, and in which the legal rights, 37 duties or privileges of a party are to be determined are not required by this 38 act to take place in a meeting open to the public. Such deliberations may, 39 however, be made and/or conducted in a public meeting at the discretion of the 40 agency. 41 (3) A governing body shall not hold a meeting at any place where discrim- 42 ination on the basis of race, creed, color, sex, age or national origin is 43 practiced. 44 SECTION 3. An emergency existing therefor, which emergency is hereby 45 declared to exist, this act shall be in full force and effect on and after its 46 passage and approval.
STATEMENT OF PURPOSE
RS 07650 Cl
This legislation clarifies the existing law concerning investigative
records, trademark usage audits and deliberative proceedings 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 bags.
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.
The second provision of the bill would permit IPC's Commissioners, when
deliberating in a judicial capacity, to exchange drafts of proposed orders
prior to reaching a decision. A corresponding change is made in the Open
Meeting law for the same reasons. 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 Deputy Attorney General advising
IPC raised concerns that the Commissioners might be in violation of the law if
they kept confidential the drafts they were working from while deliberating
over the evidence they reviewed in the case. This legislation
would alleviate that concern.
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
Bill No S1359