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SENATE BILL NO. 1300

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Bill Status

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S1300..........................................................by SCHROEDER
RECORDS - Amends existing law to revise proceedings to enforce the right to
examine or receive a copy of records; to provide duties of the Attorney
General or prosecuting attorney; to provide for appointment of a special
prosecutor in certain instances; to provide for an order by the Attorney
General or prosecuting attorney; and to provide for additional penalties
for certain findings by the Attorney General or prosecuting attorney.

01/18    Senate intro - 1st rdg - to printing
01/21    Rpt prt - to St Aff

Bill Text

                                                                       
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   Second Regular Session - 2008

                                                                       

                                       IN THE SENATE

                                    SENATE BILL NO. 1300

                                        BY SCHROEDER

  1                                        AN ACT
  2    RELATING TO THE PUBLIC RECORDS ACT; AMENDING SECTION  9-343,  IDAHO  CODE,  TO
  3        REVISE PROCEEDINGS TO ENFORCE THE RIGHT TO EXAMINE OR TO RECEIVE A COPY OF
  4        RECORDS,  TO PROVIDE DUTIES OF THE ATTORNEY GENERAL AND PROSECUTING ATTOR-
  5        NEYS AND TO PROVIDE FOR APPOINTMENT OF A  SPECIAL  PROSECUTOR  IN  CERTAIN
  6        INSTANCES;  AMENDING SECTION 9-344, IDAHO CODE, TO PROVIDE FOR AN ORDER BY
  7        THE ATTORNEY GENERAL OR PROSECUTING ATTORNEY; AND AMENDING SECTION  9-345,
  8        IDAHO  CODE,  TO PROVIDE FOR ADDITIONAL PENALTIES UPON CERTAIN FINDINGS BY
  9        THE ATTORNEY GENERAL OR PROSECUTING ATTORNEY AND TO MAKE A TECHNICAL  COR-
 10        RECTION.

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

 12        SECTION  1.  That  Section  9-343,  Idaho Code, be, and the same is hereby
 13    amended to read as follows:

 14        9-343.  PROCEEDINGS TO ENFORCE RIGHT TO EXAMINE OR TO RECEIVE  A  COPY  OF
 15    RECORDS  --  RETENTION  OF  DISPUTED RECORDS. (1) The sole remedy for a person
 16    aggrieved by the denial of a request for disclosure is to  institute  proceed-
 17    ings  in  the  district  court  of  the  county where the records or some part
 18    thereof are located, petition the attorney general or the prosecuting attorney
 19    as provided in subsection (4) of this section to compel the public  agency  or
 20    independent  public  body corporate and politic to make the information avail-
 21    able for public inspection in accordance with the provisions of sections 9-337
 22    through 9-348, Idaho Code. The petition  contesting  the  public  agency's  or
 23    independent public body corporate and politic's decision shall be filed within
 24    one  hundred eighty (180) calendar days from the date of mailing of the notice
 25    of denial or partial denial by the public agency or  independent  public  body
 26    corporate and politic. The time for responsive pleadings and for hearings sub-
 27    mission  of  petitions  in  such proceedings matters shall be set by the court
 28    attorney general or prosecuting attorney at the earliest possible time, or  in
 29    no event beyond twenty-eight (28) calendar days from the date of filing of the
 30    petition.
 31        (2)  The  public  agency  or independent public body corporate and politic
 32    shall keep all documents or records in question until the end  of  the  appeal
 33    period,  until  a  decision has been rendered on the petition, or as otherwise
 34    statutorily provided, whichever is longer.
 35        (3)  Nothing contained in sections 9-337 through 9-348, Idaho Code,  shall
 36    limit  the  availability  of documents and records for discovery in the normal
 37    course of judicial or the administrative adjudicatory proceedings, subject  to
 38    the  law  and  rules  of evidence and of discovery governing such proceedings.
 39    Additionally, in any criminal appeal or post-conviction civil action, sections
 40    9-335 through 9-348, Idaho Code, shall not  make  available  the  contents  of
 41    prosecution case files where such material has previously been provided to the
 42    defendant  nor shall sections 9-335 through 9-348, Idaho Code, be available to
 43    supplement, augment, substitute or supplant discovery procedures in any  other

                                       2


  1    federal, civil or administrative proceeding.
  2        (4)  The attorney general shall have the duty to enforce the provisions of
  3    sections  9-335  through  9-348, Idaho Code, in relation to public agencies of
  4    state government, and the prosecuting attorneys of the various counties  shall
  5    have the duty to enforce the provisions of sections 9-335 through 9-348, Idaho
  6    Code,  in  relation to local public agencies within their respective jurisdic-
  7    tions. In the event that there is reason to believe that a  violation  of  the
  8    provisions  of sections 9-335 through 9-348, Idaho Code, has been committed by
  9    members of a board of county commissioners or, for any other reason, a  county
 10    prosecuting  attorney  is  deemed  disqualified from proceeding to enforce the
 11    provisions of sections 9-335 through 9-348, Idaho Code, the prosecuting attor-
 12    ney or board of county commissioners shall seek to have a  special  prosecutor
 13    appointed  for  that  purpose  as provided in section 31-2603, Idaho Code. For
 14    purposes of sections 9-335 through 9-348, Idaho Code, the  special  prosecutor
 15    shall be deemed a prosecuting attorney.

 16        SECTION  2.  That  Section  9-344,  Idaho Code, be, and the same is hereby
 17    amended to read as follows:

 18        9-344.  ORDER. OF THE COURT -- COURT COSTS AND ATTORNEY FEES. (1) Whenever
 19    it appears that certain public records are being improperly  withheld  from  a
 20    member of the public, the court attorney general or prosecuting attorney shall
 21    order the public official charged with withholding the records to disclose the
 22    public  record  or show cause why he should not do so. The court attorney gen-
 23    eral or the prosecuting attorney shall decide the case matter after  examining
 24    the  pleadings  filed evidence submitted by the parties and such may hear oral
 25    arguments and additional evidence. as the court may allow. The court may exam-
 26    ine the record in camera in its discretion.
 27        (2)  If the court attorney general or prosecuting attorney finds that  the
 28    public  official's  decision  to  refuse  disclosure  is not justified, it the
 29    attorney general or prosecuting attorney shall order the  public  official  to
 30    make  the  requested  disclosure. If the court attorney general or prosecuting
 31    attorney determines that the public official was justified in refusing to make
 32    the requested record available, he shall return the item to the  public  offi-
 33    cial  without  disclosing  its content and shall enter an order a finding sup-
 34    porting the decision refusing disclosure. In any such action, the court  shall
 35    award  reasonable  costs and attorney fees to the prevailing party or parties,
 36    if it finds that the request or refusal to  provide  records  was  frivolously
 37    pursued.

 38        SECTION  3.  That  Section  9-345,  Idaho Code, be, and the same is hereby
 39    amended to read as follows:

 40        9-345.  ADDITIONAL PENALTY. If the court attorney general  or  prosecuting
 41    attorney  finds  that  a  public  official  has  deliberately and in bad faith
 42    improperly refused a legitimate request for inspection  or  copying,  a  civil
 43    penalty  shall  be  assessed  against  the public official in an amount not to
 44    exceed one thousand dollars ($1,000), which shall be  paid  into  the  general
 45    account fund.

Statement of Purpose / Fiscal Impact

                       STATEMENT OF PURPOSE

                             RS 17533

Amends 9-343 Idaho Code to revise proceedings to enforce the
right to examine or to receive a copy of records and to provide
duties for the Attorney General and Prosecuting Attorneys and to
provide for an appointment of a special prosecutor in certain
instances.


                           FISCAL NOTE

Costs will be dependent upon the willingness of public agencies
to provide legally requested documents to citizens.




Contact
Name: Roger Falen 
Phone: 208-285-1116
516 N. Laurel
Genesee, Idaho 83832


STATEMENT OF PURPOSE/FISCAL NOTE                        S 1300