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Lack of retention policy puts Legislature at odds with public records law

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Priscilla Giddings LewTrib file 3-2-21

Priscilla Giddings, R-White Bird, debates in the Idaho House on March 2, 2021, in this file photo.

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LEWISTON — When Shireene Hale first heard that Rep. Priscilla Giddings, R-White Bird, was deleting controversial posts and comments from her Facebook page, she was sure it was a public records violation.

Hale, who serves as chairwoman of the 7th Legislative District Democratic Central Committee, figured even if posts were being removed, a hard copy had to be retained. Otherwise, lawmakers could simply rewrite history whenever they wanted.

Hale’s understanding of public records requirements is based on training she received while working as a county planner in Idaho and Washington.

The whole intent of the law, according to Idaho’s Public Records Law Manual, is to “protect each citizen’s right to monitor the actions of state and local government entities by providing access to government records.”

What Hale discovered, though, is the Idaho Legislature puts blinders on the public’s monitoring capabilities by refusing to adopt a records retention policy.

With no retention schedule, nothing in state law or legislative rule spells out how long certain records must be kept. As a result, the common practice is for lawmakers to delete email messages, social media posts and other communications whenever they see fit.

And so long as a pending records request isn’t seeking the information, they say such actions are perfectly legal.

Hale was stunned and disappointed when she learned how the law is being circumvented.

“It seems like this is a bigger problem than just Rep. Giddings, if all of them can delete records,” she said. “It makes no sense to me. This makes it nearly impossible to keep track of what goes on with elected officials.”

Unlikely to changeAs with other segments of society, social media and email have become indispensable tools for political leaders to communicate with constituents, as well as with lobbyists, donors and special interest groups.

Social media straddles the public, private boundary

Archivists and historians have raised red flags about this for years, saying the loss of digital data is obscuring the evidence, the breadcrumb trail, that shows how policy is developed — and who influences that process.

As noted in the first sentence of Idaho’s public records manual, open government “is the cornerstone of a free society.” But if officials regularly delete records, that cornerstone provides a shaky foundation at best.

Giddings, who recently announced her intent to run for lieutenant governor, said there really isn’t much to keep track of when it comes to her online activities.

“I don’t think I’m that active on social media,” she said. “I don’t do Twitter or Instagram.”

She uses her Facebook page to let constituents know what she’s up to throughout the year. During the legislative session, she also provides information about bills and policy debates.

Giddings was widely criticized earlier this year for posting a link to a Redoubt News story that included the name and a photo of the 19-year-old intern who accused Rep. Aaron von Ehlinger, R-Lewiston, of rape.

She deleted the link after von Ehlinger resigned his seat.

Giddings has also removed comments from her Facebook page. She said she generally welcomes feedback on both sides of an issue, but will delete responses if they’re “inappropriate or foul, when they’re from an individual who doesn’t have a traceable identity — someone who would normally be described as a ‘troll’ — or if what they say is inappropriate or inaccurate.”

She noted that Idaho lawmakers don’t have “official” social media accounts run by legislative staff. All of their Facebook, Twitter or Instagram accounts are ones they use for their election campaigns or as private individuals.

“When it comes to social media, all of that is private,” she said. “So there are no laws, per se (regarding public records access).”

While that position hasn’t been tested in Idaho, court rulings elsewhere suggest it may be incorrect.

Nevertheless, Giddings certainly isn’t outside the norm in the way she manages her social media account. Conversations with several other officials indicate they follow similar practices. Some are more tolerant of dissent than others, but the question of what to allow and what to delete is something each decides on their own.

“I think that’s correct. And until it’s challenged, I don’t anticipate it changing,” said House Republican Caucus Chairwoman Megan Blanksma, R-Hammett.

Inviting suspicionBlanksma handles communications for the Republican leadership team and administers the caucus Facebook page. She said the only formal training lawmakers get in public records laws is during the freshman orientation session, which takes place their first week in office.

She doesn’t recall much discussion about social media, but said the training does address email. It emphasizes that email messages are subject to public records requests — both those in a lawmaker’s legislative account, as well as those in private accounts, if they deal with public business. Officials are also cautioned not to delete messages if there’s a pending records request.

Blanksma said she reminds caucus members about the law every year, including that they aren’t required to keep emails or other communications for a set amount of time.

“That applies to all records, with the caveat that they can’t delete things once they get a records request,” she said.

Boise attorney Deb Kristensen Grasham found that perspective both troubling and contrary to the intent of the law.

“It just invites suspicion,” she said. “What good is the Public Records Act if records aren’t being retained? You just have to hope you get lucky and ask the right legislator before they’re deleted? That doesn’t provide any certainty from the public’s standpoint.”

Grasham serves on the board of the Idaho Press Club and has represented media and communications firms in various courtroom access and public records cases.

In her experience, government agencies almost always have some sort of retention policy. Nevertheless, it’s not uncommon for elected officials to view documents as “their” property and be very hesitant about handing them over to the public.

That’s true even when it’s a clear-cut public record, she said. When it comes to “new and evolving” situations like email and social media, there’s even more room for disagreement.

“To enhance transparency and ethical government, the rules should be as clear as possible,” Grasham said. “If there’s no retention policy, (public records access) is a right without a remedy. The question isn’t whether it’s a public record, but whether it will be available when you ask for it.”

Practical realitiesGiddings said regularly clearing email inboxes is the only way lawmakers can manage the influx of communications they get every session.

It isn’t unusual for them to get hundreds of emails every day, particularly when a controversial topic is up for debate. And in most cases, they have little or no staff help to deal with that.

“I don’t think there’s any attempt at sidestepping (the Public Records Act),” Giddings said. “I think it’s just the reality of the situation we’re in.”

Rep. Steve Berch, D-Boise, agreed.

Rep. Steve Berch

Rep. Steve Berch

“I wouldn’t want to accuse the Legislature of making a deliberate effort to avoid or ignore this issue,” he said. “There are other factors that get in the way.”

For example, legislative bodies are typically reactive, not proactive. They also have a short-term focus, and when you combine that with rapidly changing communications technology, it makes it hard to prioritize records retention over other pressing topics.

Moreover, Berch said, “given the Legislature’s reluctance to require any form of financial disclosure for candidates, it isn’t surprising that the same lack of transparency applies to social media communications.”

Even if lawmakers were eager to tackle this issue, former House Minority Leader Mat Erpelding said modern technology makes it nearly impossible to close every loophole.

Anyone with a smartphone, for example, can program it to automatically delete text messages after a set period of time. Popular encryption apps also make email messages unreadable for anyone who doesn’t have the proper key. And officials would certainly object to the notion that they can’t remove negative comments from a campaign Facebook page.

“This is an example of how advances in technology are outpacing laws designed to bring sunshine (to government actions),” Erpelding said. “With electronic communications these days, I don’t know how you make everything discoverable. The system will always depend on the honesty of legislators and staff.”

Records retention ‘not a sexy issue’Idaho isn’t alone in struggling with this issue.

Washington lawmakers, for example, argued for years that their email messages and other records, including sexual harassment complaints, weren’t subject to public disclosure.

Idaho Public Records manual cover

It took a 2017 lawsuit by a coalition of news organizations to change that. After the lower court ruled in the coalition’s favor, lawmakers advanced a bill to retroactively exempt themselves. The proposal was introduced near the tail end of the 2018 session. It passed — with strong bipartisan support — in less than 48 hours, with no public hearing or floor debate.

After a huge public outcry, Gov. Jay Inslee vetoed the bill. The Washington Supreme Court subsequently upheld the lower court ruling.

Since then, the Legislature has adopted a retention policy that requires routine written and electronic communications with constituents to be retained for one year. Routine communications with lobbyists and stakeholder groups can be deleted when no longer needed.

Joan Cartan-Hansen said when Idaho’s Public Records Act was adopted in 1990, it clearly applied to legislators. However, she doesn’t remember there being much discussion about retention schedules.

Cartan-Hansen is a producer/reporter/writer for Idaho Public Television and serves on the board of the Idaho Press Club. She was president of the club in 1990, and worked with lawmakers to secure passage of the act.

“A lot of what we did was educational, just reinforcing the reality that this (providing access to records) is part of the government’s job in serving the public,” she said. “How are we going to know what government is doing if we can’t get access to records?”

When first approved, the act exempted 36 types of records from public disclosure. It also phased out more than 100 other exemptions that were scattered throughout state code.

Since then, the number of exemptions has nearly tripled, and new ones are proposed almost every session. The Legislature’s position regarding records retention is just another weak link in the law.

“It’s not a sexy issue,” Cartan-Hansen said. “It’s not an issue that leaps out as a daily problem. But the first time you need access to records and can’t get them, then it’s a real problem.”

Idaho’s Public Records Law Manual says if people disagree with the way government officials or agencies are handling records requests, their only recourse is to go to court.

“It’s up to the individual to challenge the government agency’s refusal to provide access,” notes the introduction to the manual.

Grasham, the Boise attorney, said lawsuits can address specific situations, but given the increasing reliance on social media and email, a more responsible approach might be to simply adopt a retention schedule.

“The whole Public Records Act is based on the notion of transparency and open government,” she said. “If there’s a looming problem that could otherwise be fixed, it seems like something the Legislature should embrace.”

This article first published in the Lewiston Tribune.

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