The Abraham Lincoln statue in front of the Idaho State Capitol building in Boise on Jan. 23, 2024. (Otto Kitsinger for Idaho Capital Sun)
There are two fundamental truths about open government laws. First, it is essential for citizens to have robust and easy access to public records to hold their government accountable. Second, bad actors will take every opportunity to abuse this process to engage in mischief and harass public officials while also increasing taxpayer costs. Realizing these two facts are often on a collision course, what is the best way to protect our right to open government while mitigating the abuse from bad actors?
This dilemma continues to vex policy makers across the country. The first step is to clearly define the problem and then study best practices to ensure that stopping bad actors doesn’t thwart the people’s right to know about the actions of their government. One idea that is gaining attention in various states is to create an official Open Government Ombudsman to help citizens access public records and monitor and make recommendations to stop the abuse of bad actors.
Authorizing an open government ombudsman is one of the recommendations from our Policy Manual.
This type of citizen-focused open government expert would help reduce the possibility of litigation when a public records dispute occurs. A similar concept is currently used in Connecticut. That state uses a Freedom of Information Commission to help mediate access to public records.
Wyoming is one of the states that currently has an open government ombudsman. According to a release by Gov. Mark Gordon: “The Public Records Ombudsman serves as a resource for the public to resolve issues regarding public records requests submitted to state and local government agencies. In addition, the position provides aid to state and local governments to understand their obligations in response to such requests. The Ombudsman is also charged with mediating disputes relating to the timeliness of a records production, an agency’s claim of privilege or confidentiality, and fees.”
The National Freedom of Information Coalition (NFOIC) created a white paper in 2018 discussing some of the possible solutions to stop bad actors from ruining open government laws. NFOIC said: “Federal case law has set forth guidelines on what kinds of Freedom of Information Act (FOIA) requests are unduly burdensome. Among the factors considered when determining the burden on an agency are 1) the ease with which the records can be searched — whether they are indexed, catalogued, digitized or physical, 2) the scope and specificity of the request, and 3) the sheer number of documents requested. But state laws are less clear on what ‘unduly burdensome’ really means regarding their own open record laws.”
A new proposal in Idaho (House Bill 253) attempts to stop bad actors from abusing the system, but it may go too far and create unintended consequences that unduly impact the people’s right to know.
A February 27 email to lawmakers from the Idaho Press Club says about House Bill 253: “This bill would affect the fee schedule and timeline for public records requests at every level of government, from city councils and school districts to state agencies and constitutional officers. We understand that one state agency has struggled with requests from a national news agency, but we strongly feel that changing the entire public records law in response to that issue is an overreaction that will harm news organizations in the West.”
The Idaho Press Club letter continued: “We understand the concern over burdensome records requests, and we’re not unsympathetic. This has been an issue nationwide, but we ask that you hold this bill so we can work together to find a solution that doesn’t affect journalists’ ability to do their jobs, nor dismantle Idaho’s commitment to government transparency.”
Financial data on each of Idaho’s 198 cities now available on Transparent Idaho
So, what is the current state of open government in Idaho? There are several resources available in Idaho to help citizens participate in their governance. They include open meetings and public records laws as well as Transparent Idaho (a government transparency website run by the Controller’s Office). Idaho has traditionally been strongly committed to facilitating the people’s right to know.
The state’s Public Records Law Manual clearly explains:“ Open government is the cornerstone of a free society.” Idaho’s constitution also proclaims: “All political power is inherent in the people.”
The foundations for an accountable government can be found in strong citizen oversight, and one of the most critical tools to achieve this is open government laws. Authorizing an open government ombudsman would provide a helpful resource for citizens and potentially reduce the possibility of litigation relating to the enforcement of state public records and open meeting laws. A state open government expert could also help to monitor and make recommendations on national best practices to stop the abuse of public records laws by bad actors.
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