Idaho Public Records Law

An open letter to Representative Gary Young Re: H.B. No. 151 and H.B. No. 152

Dear Representative Young

I am writing to oppose the extension of state power and secrecy that is embodied in H.B. No. 151 and H.B. No. 152. Both should be anathema to the concept of limited, open government, by the people and for the people. They are presently being considered by your House Judiciary Rules and Administration Committee.

As I understand H.B. 151, it seems to strip away a power that all citizens of Idaho have -- to obtain information that is a public record -- when the citizen is a party to litigation. A simple, if unpleasant fact of life, is that all people are not forthcoming and honest, particularly when they are involved in litigation. If someone might be aided by what is otherwise public information, why should they be denied access to that information simply because they have been sued, or are suing somebody else to try to right a wrong? Moreover, just because discovery might be granted in a court case is no guarantee that it will be granted. Depriving the use of otherwise public information to litigants, in addition to being unfair and unwise, would seem to violate the equal protection of our laws to all citizens.

H.B. No. 152 seems even more onerous to me. As I understand H.B. 152, it exempts the entirety of prosecuting attorney files from disclosure, even after the case is closed. Numerous exemptions already in our public records law protect enforcement proceedings and ongoing criminal investigations, as well as the identity of confidential informants, unwarranted invasion of personal privacy, investigative techniques and procedures, the life and physical safety of law enforcement personnel. Closed and inactive investigations are subject to all of the above exemptions. Honest prosecutors, who recognize the need for the public to have complete confidence in the arm of government that deprives its citizens of liberty and life, have no fear of the limited disclosure of closed files as currently allowed.

A prosecutor’s job is to do justice, not to obtain convictions at any price. Many innocent people have been exonerated of crimes for which they were wrongly convicted; prosecutorial misconduct is a leading cause of such wrongful convictions. Prosecutors occasionally are faced with high profile cases that present tremendous pressure to obtain a conviction. Prosecutors are human, and as such, imperfect. In rare occasions (hopefully, exceedingly so), prosecutors have proven to be dishonest. For a fascinating study on instances of prosecutorial misconduct, see the attached article. Prosecutors embody the public trust and have great power. Secrecy encourages the abuse of power and should not be countenanced.

Any tool that has also been used to correct improper deprivations of life and liberty, whether through postconviction attacks on one’s conviction, or the dogged pursuit of injustice by investigative journalists, is a tool that should remain available to us all. Potential disclosure of non-exempt portions of a prosecutor’s file operates as a wise and necessary check on government power and as a means of insuring that prosecutorial power is exercised judiciously and appropriately.

Please vote no on both House Bill No. 151 and No. 152.

Sincerely,

Bruce Livingston

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