# APPENDIX XV

# IDAHO CODE

CONTAINING

### THE· 

# GENERAL LAWS OF IDAHO

ANNOTATED

ORIGINALLY PUBLISHED BYAUTHORITY OF LAWS 1947, CHAPrER 224

REPUBLISHED BYAUTHORITY OF LAWS 1949, CHAPTER 167 AS AMENDED



### Compiled Under the Supervision ofthe Idaho Code Commission

RICHARD F. GOODSON R. DANIEL 

### BOWEN THOMAS A. 

### MILLER COMMISSIONERS

MAX 

### M. SHEILS, JR. 

### EXECUTIVE SECRETARY



### TITLES 7·13



# MICHIE

### LexisNexis and the l{nowledge BurSt logO are registered trademarks, and 

### MICHIE'is a trademark of·Reed ElsevierPropertieb Inc., usedunderlicense. MatthewBender is 

### a registered trademark ofMatthew Bender Properties Inc.



## e 2010 State ofIdaho

All righte reserved.

4221710



### ISBN 978-1·4224·6373·4

(j'ub.4220S)363 PUBLIC WRITINGS 9-337

ble in light ofthe explicit statement ofpolicy in this section and the implicit statement of policy in Idaho Evidence Rules 402 and 804(b)(1). A c.so-by-cae. approach is the better way to determine whether the district
court was correct in ruling that the prelimi· naryhearingtestimony was admissible. Such aIi approach would allow the trial' court to determine, as a matter of fact, whether the party opposing the use ofsuch testimony had

an opportunity and similar motive to develop the testimony by duect, cross, or redirect examination. Stete v, Ricks, 122 Idaho 856, 840 P,2d 400 (Ct, APP, 1992),

Where trial court determines whether party opposing use of preliminary hearing testimony had an opportunity and similar motive to develop the testimony by direct,
cross, or redirect**examination~** and where sucb findings are challenged on appeal the court ofappeals will apply the "clear error" standardofreview, Ifthefactual predicates of IdahoEvidence Rule 804 are met, spdifthere

are no other reasons shown under the rules for its exclusion, the court may admit the evidence at trial. Stete 'if. Ricks, 122 Idaho 856, 840 P,2d 400 (Ct. App. 1992).

The trial court erred in ruling that the jailed witness who refused to testifY was in fac! an unavailable witness without first bringing him hack into court and ordering him to testifY wider the direct threat ofcon­ tempt; therefore) the witness was not an**Wl~** avaHable witness asreferencedin subdivision 2; and the admission ofhis preliminary**heal'~** ingtestimonywas error, Statev. Barcella, 1.35 Idaho 191, 16 P.3d 288 (Ct. App, 2000).

In an aggravated assault case where the victim testified in a preliminary hearing but <lied before trial, defendant's confrontation right was not violated by admission of that testimony at trial. Defendant was represented at the preliminary hearing by counsel who engaged the victim in full and effective**cross~examination** astohistruthfulness,bias, memory; and motive. State v, Mantz,

- Idaho

-, 222 P.3d 471 (Ct, App, 2009),

Standard ofReview.

Til. basis of defendant'. objection to the adnriSBion of preliminary hearing testimony.' while nfit set forth specifically as requiredby IdahoEvidenceRule 1Q3(a)(1), appearedtobe underthis section, andthetrialcourt'sruling, therefore, would not be disturbed }l,nless clearly erroneous. State v, Cross, 132 Idaho 667; 978 P,2d 227'(1999),

9·337. Definitions.

- As used in sections 9-337 through 9-347, Idaho Code: (1) "Applicant" means any person formally seeking a paid or volunteer position with a public agency, "Applicant" does not include any person seeking appointment to a position normally tilled by election. (2) "Copy" means transcribingbyhandwriting, photocopying, duplicating machine andreproducing by any othermeans so long as thepublicrecord is
not altered or damaged. (3) "Custodian"means the person having personal custody and control of the public records in question. Ifno such designation is made by the public
agency or independent public body corporate and politic, then custodian

means anypublic official having custody of, control of, or authorized access 

### to public records and includes all delegates of such officials, employees or representatives. .'

.. (4) "Independent public body 

### cor,p,qrate and politic" means·the Idaho housing and finance association as created in chapter 62, title 67, Idaho Code. (5) "Inspect" means the right to listen, view an"il"make notes of public recor.ds as long as the public record is not altered or damaged. (6) "Investigatory record" means information with respect to an identifiable person, group of 'persons or entities compiled by a public agency or independent public body corporate and politic pursua):lt to its statutory authority in the course of investigating a specific act, omission, failure to act, or other conduct over which the public agency or independent public body corporate and politic has regulatory authority or Jaw enforcement authority.

### 364 9-337 EVIDENCE

(7) "Law enforcement agency" means any state or local agency given law enforcement powerS 

### Cit which h1l8 authority to investigate, enforce, prosecute orpunishviolations ofstate orfederal criminal statutes, ordinances or regulations. (8) "Local agency" means a county, city, school district, municipal corporation, district, public health district, political subdivision, or any agency thereof; or any committee of a local agency, or any combination thereof. (9) "Person" means any natural person, corporation, partnership, firm, association,jointventure, state orlocal agency**o~ny** otherrecognized legal entity. (10) "Prisoner" means a person who has been convicted ofa crime and

### is either incarcerated'or 

## 'O'h parole for that crime or who is being held in custody for trial or sentencing. (11) "Public agency" means any state or local agency as defined in this section.

. (12) "Public official" means any state, county, local district, independent public body corporate and politic or governmental official or employee, whether elected, appointed or**hired~** (13) "Publicrecord"includes, butis notlimitedto, anywritingcontaining i,nformation relating to the conduct or administration ofthe public'!! business prepared, owned, used or retained by any state agency, indevendent public body corporate and politic orlocal agency regardless ofphy.sical form

or characteristics. (14) "State agency" means every state officer, department, division, bureau, commission and boardor any committee ofa state agencyinclulling those in the legislative orjudicial branch, except the state militia. (15) "Writing" includes, but is not limited to, handwriting, typewriting, printing;photostating, photographing and every means ofrecording, including letters', words, pictures, soundsor symbols or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums or other documents.

History. am, 2000, ch, 368, § 1, p. 1219; am. 2006, th,

I.C., § 9-337, as added by 1990, ch. 213, 352, § 1, p. 1071. § 1, 

### p. 480; am, 2000, ch. 342, § 1, p. 1146;

STATUTORY NOTES

Amendments.

This sectionwas amended by'two 2000.J.lcts which appear to be**compati~1e** andhave been compiled together,

The 2000 amendment, by ch, 342, § 1, inserted "or independent public body corporate and politic" once in subsections (2) and (10) and twice in subsection (5); added subsection (3); redesignated subsections (4) through (12) as (5) through (13); in subsection (5) inserted "over)' following uor other**con~** duct", and deleted ·over" at the end.

The 2000 amendment, by ch, 368, § 1, added subsection (8); and red••ignat.id suhsections (9) through (12) as (10) through (13),

The 2006 amendment, by ch. 352, addedthe definition for "applicant" and redesignated the foUowing subs.ctim;. accordingly.

.365 PUBIJC WRITINGS 9-338

JUDICIAL DECISIONS

ANALYSIS

Custodian. E-mail•. Investigatory records. Pablic official.

Custodian.

Identification ofa custodian has no bearing

on whether documents are exempt from disclosure; therefore. it was irrelevant whether theIdahosintedepartmentofagriculturewas the custodian ofnutritionmanagement plans

or not in the determination ofwhether or not they were exemptfrom disclosure to a**conser~** vstion league, Idaho Conservation League, Inc. v. Idaho Stete Dep't ofAgric., 143Idaho 366, 146 P3d 632 (2006).
E·MaiIs.

E-mail correspondence between a county employee and the county prosecutor were public records, and the public had a ,1egiti· mate interest in these communications**be~** cause the prosecutor defended the employee's management of a county program when an investigation of the program's finances was startedbytheboardofcountycommissioners. Cowl

.. PabYg Co. v. Kootenai County Bd. of County Comm'rs, 144Idapo259, 159 P.3d 896 (2007). lnv_igatury Record••

Where: forms containingcorrections officers' personal information were disclosed to· an inmate during criminal proceeding discovery, the invasion ofprivacy claims failed because (1) the**publ~c** defllllder and the inmate were entitled to the unredacted. forms in order to authenticate them and defend against any restitution claim, (2) the information was an investigatory record and certain defendants

were law enforcement agencies, (3) these records were exempt from public disclosure) and (4) none ofthe sinte defendants publicly di,sclosed privateinformation. Nationv. State, 144 Idaho 177, 158 P.3d 95? (2007).

Public OfficiaL**B~uBe** a member ofa citycouncil is a local gove'rnmeninl official, not an employee, the exemptionfrom disclosure did not applyto an applicant for appointment as a local governmental.official; the name and resume of an applicant to be appointed to a citycouncil are not exempt from disclosure. Federated Publications, Inc. v. Boise City, 128 Idaho 459, 915 P.2d 21 (1996).

Cited in: Bolger v. Lance, 137 Idaho 792, 53 P.3d 1211 (2002).

DECISIONS UNDER PRIOR LAw**Li~t** ofCertain Taxpayers. Tlie legislature intended the definition of "public records," as used in former law, to be broad enough to include a list of names obtained by an agency in the normal**cQ~se** of carrying out its duti

..; in addition, the language of this section clearly evidenced an intent by the legislature to create a very broad scope ofgovernmentrecords and information accessible to thepublic. Thus, a list of

names of dairy produet producers who paid the taxes levied by § 25.3117, which list was compiled by theIdaho dairyproductscommission•.fell within the purview of such former section as "publicrecOrds and other matters f " and was sulUect to inspection by a private citizen. Daltonv. IdahoDairy Prods. Comm'n, 107 Idaho 6, 684 P.2d 983 (1984).

OPllnONSOFATTORNEYGENERAL

The department ofbealth and welfare has the aUthprity to investigate reports ofsuspected child abuse, abandonmentandneglect; such authority to .investigate extends to school· facilities; such investigation· should pr.oceed in**accord~ce** with governing s.tfJ,t-. utes, the department's promulgated ruJ.es, and internal policies. OAG 93-2.

Pablic records that are exempt from public**di'-~osur.** are nevertheless subject to disclo­

sure in a judicial or administrative·**proceed~** ingifthey are subjectto di.clos1ll'e .under the laws or rul

.. of evidence and discovery governing those proceedings. OAG 95-6.

.

A document's lack ofavailability under the Pablic Records Act, § 9-301 at seq., is not a valid basis to refuse to honor an administrative subpoena. OAG 95-6;



### 9·338; Publicrecords

..... Right to 

### examine.

- (1) Every person has

a right 

### to examine and take a copy of any public record ofthis state and366 9-338 EVIDENCE



### there is a presumption that all public records in Idaho are open at all reasonable times for inspection except as otherwise expressly provided by
statute. (2) The right to copy public records shall include the right to make photographs or photographic or other copies while the records are in the possession ofthe custodian ofthe records using equipment provided by the public agency or independent public body corporate and politic or using equipment designated by the custodian.

, (3) Additionally, the custodian ofanyp,uplic**r~ord** 

### shall give tJ}e person,

on d{lmand, a certified copy ofit ifthe record is ofa nature permitting such copying or shall furnish reasonable opportunity to inspect or cbpy such '**,~** 

### record



### . (4) The custodian shall make no inquiry ofanyperson who applies for a public record, except toverifY theidentityofa personrequesting a recordin accordance with section 9-342, Idaho Code, to ensure that the requested record orinformation will notbeusedfor purposes ofa mailingortel"phone listprohibitedby section 9-348, Idahg Code, oras otherwiseprovidillibylaw, andexcept as requiredfor purposes ofprotectingpersonalinformationfrom disclosure underchapter2, title 49, Idaho Code, andfederal law. Theperson may be required to make a written request and provide their name, a mailing address and telephone number. -' (5) The custodian shall not review, examine or scrutinize any copy, photographor memoranda in the possession of any such person and shall extend to the person all 

### reasonable comfort and facility for the full exercise ofthe right granted under this act. (6) Nothingherein contained shall prevent the custodianfrom maintaining such vigilance as is required to prevent alteration of any public record while it is being examined. (7) Examinationofpublic records underthe authorityofthis section must be conducted during regnlar office or worldng hours unless the custodian shall**authori~** 

### examination of records in other than regular office or working hours. In this event, the persons designated to represent the custodian during such exajUina,tion shall be Eintitled to reasonable compensation to be paid to the.Q1by the public agency or independent public body corporate and pOlitic having custody ofsuch records, out offunds provided in advance by the person examining such records, at other than: regular office or working hours. (8)(a) Apublic agency orindependentpublic body corporate andpolitic or pubHc official may establish a copying fee schedule. The fee may not exceed·the actual cost to the agency ofcopying therecord ifanotherfee is \lot Qthecrwise provided by law: The actual cost shall nQt inc1.1.ldll any administrative orlaborcosts resultingfrom locating and·providinga copy ofthe public record; provided however, that a public agency or independentpublicbodycorporate andpOlitic orpublic official jUay establisha fee
to recover the actual labor cost associated with locating and copying documents if: (i) 

### The request is for more than one hundred (100) pages of paper records; or

### 367 PUBLIC WRITINGS 9-338

(ii) The request includes records from which nonpublic information
must :Qe deleted; or (iii) The actual labor associated with locating and copying documents for a request exceeds two (2) person hours. (b) Forproviding a duplicate ofa computertape, computer disc, microfilm

or similar or analogous record system containing public record information, a public agency or independent public body corporate and politic or public official may charge a fee, uniform to all persons that does not exceed the sum ofthe following: (i) The agency's direct cost ofcopying the information in that form; (ii) The standard cost, if any, for selling the same information in the form of a publication; (iii) Theagency's costofconversion, orthecost ofconversion chargedby

a third party, ifthe existing electronic record is converted to another electronic form. The custodian may require advance payment ofthe cost ofcopying. 

### Any
moneyreceivedbythepublicagency orindependentpublicbodycorporate and politic**sh~l** be credited to the account for which the expense 'being reimbursed was or will be charged, and such funds may be expended by the agency as part ofits appropriation from that fund. (c) The public agency or independent public body corporate and politic
may not charge any cost or fee for copies or labor when the requester demonstrates either: (i) The inabilityto pay; or (il) That the public's interest or the public's understanding of the operations or activities ofgovernment or itsrecords would suffer bythe
assessment or collection ofany fee. (9) A public agency 

### orindependentpublic bodycorporate andpolitic shall
not prevent the examination or copying of a public record by, contracting with a nongovernmental body to perform any ofits duties or functions. (10) Nothing contained herein shall prevent a public agency or independentpublicbodycorporate andpoliticfrom disclosing statisticalinformation that is descriptive ofan identifiable person

### Or persons, unless prohibited by law. (11) Nothing contained herein shall prevent a public agency or independent public body corporate and politic from prpvj4in!1:., a copy

# ora pub1ic record in electronic form ifthe record is available in electronic form and if the person specifically requests an electronic copy. A request for a public record and deliveryofthePUblic recordntaybe conductedbyelectronicmail.

History. 1997, th. 152, § 1, p. 432; am. 2000, ch. 342,

LC., § 9-338, as added by 1990, ch. 213, § 2, p. 1146; am. 2006, ch. 103, § 1, p. 284. § 1, p. 480; am. 1997, ch. 80, § 1, p. 165; am.

STATUTORY NOTES

Amendments. tion from disclosure under chapter 2, title 49,

The 2006 amendment, by ch. 103, in sub· Idaho COOe, andfederalJaw"anddeleted "and section (4), inserted "and except as required except as required for purposes ofprotecting for purposes of protecting personal inforxna- personal infurmatian from disclosure under9-338 EVIDENCE 

### 368

chapter 2, tjtle 49, IdlIho Code, and federal law" at the end of the last sentence; added subsection (S)(b)(iiil; in subsection (10), deleted '"not!1 preceding "descriptive" and**in~** serted "unless prohihited by law"; and added subsection (11). Compiler'sNot_es.

"This act" in subsection (5) refers to S.L. 1990, ch. 213 which is codified as over 100 sections throughout tho code. Here the refer·

ence should probably be to "this chapter," meaning chapter 3, title'9, Idaho Cede.

Effective Dates.

Section 13 ofS.L. 1997, ch. 80provided that the act should be in full force and effect on and after September 13, 1997.

Section 3 ofS.L. 2006, ch. 103 declared an emergency. Approved March 22, 2006.

JUDICIAL DECISIONS

Administrative review. Custodian. E-mail •. N:utrition management plans. Physical handling ofdoCument. Private photocopying ofrecords. "Raw notes."

A<\mi¢strative Revia",.

;BeCause ofthe presumption ofthis-section that lil1l)JubJie records are open unless expressly otherwise, since the administrative review ofa shooting incident involving Boise police**~fficer$** pteparoo by a POlice lieutenant

was not a· personnel record, personnel information, or a personnel evaluation, and because all ofthe'inform.tion tha.t would have constituted an invasion ofthe officers'privacy under §**9-33~** was contained in th. iny••tigation report which had beert**~closed** pursUant to' a court: drder, the administrative review was not exempt from disclosure; city

was required to disclose admiuistrative review upon r.;quest of publisher. Federated Publication., Inc.

### v. B<iise City, 128 Idaho459, 915 P.2d 21(1996).
Custodian.

io;lentification ofa custodianhas no bearing

on w.het\ler docum,ents,;Jlre e"emp,t from disclosUre; therefore, it "'as irrelevant whether theIdaho statedepartmentofagriculturewas the.custodian ofnutrition management plans

or not in the determination ofwhether or not**tli~ywere** exemptfrom disclosure to a canservation league. Idaho' Con".rvation'League, Inc. v"Idaho State Dep't ofAgric., 143 Idaho 366,\41> P.3d 632 (2006).

E-Man••

E,mail correspondence between a county ett.lployee and the county prosecll,tor were public records, and the public had a legitimate interest in these communications because the prosecutor defended the eIDp'loyse's management of a county program when an investigation of the program's finances was startedbythe board ofcountycommissioners. Cowles Publ'g Co. v. Kootenai County Bd. of CountyCorom'r', 144Idaho 259, 159P.3d 896 (2007). Nutrition**~agement** Plans. Two nutrition management plans (NMP) of certain feedlots were subject to disclosure because tbey were public records that were not**~mpt;** however 1 two other NMPs that

were filed 

## via a state computer system were not SUbject to disclosure because they were exempt. Idaho Conservation League, Inc. v. Idaho State Dep't of Agric., 143 Idaho 366, 146 P.3d 632 (2006).
Physicad Handling ofDocument.

Even if the,public i. entitled to know the
contents of

## adoc'tunimtwhenithasbeen filed, this entitlement do., riot necessarily extend to the physical handling of the document; to allow physical handliog of an original documentbefore itbecome. anoB:iciaJrecordupon microfilming would carry a potential for abuse, because ifthe document were altered

or d"lllaged, the public record would be afiected; moreover, private rights orobligations could be putin doubt ifan original document

were altered or damaged a.fter;it was**mie:ro~** filmed but berore it was returned to the proper party. Adams County A,bstract Co. v. Fisk, 117 Idaho 513, 788 P.2d 1336 (Ct. App. 1990).

Private Photocopying ofRecord•.

Title company's desire to avoid**incr~es** in fees charged by the recorder does not outweightherecorder's dutytoprotect the safety ofdocumentsentrusted to hiscare, nor does it diminil?h the recorder's power to control the orderlyfunction ofh;s office, and, accordingly the recorder cannot be compelled to allow private photocopying ofpublic records in the courthouse. Adams County Abstract Co. v. Fisk, 117 Idaho 513, 788 P.2d 1336 (Ct. App. 1990).369 PUBUC WRITINGS 

### 9-339

"RawNotes.n

Trialcourterredinholdingthatas a matter oflaw ":raw notes" C'handwritten notes,» "raw minutes") taken by clerk of tbe board of county commisl?ioners duringmeetings ofthe county board of co:mmissioners. could not be public writings, Fox v, Estep, 118 Idaho 464, 797 P,2d 854 (1990). Cited in: Bolger v. Lance, 137 Idaho 792, 53 P.3d 1211 (2002); Hayden Lake Fire Prot. Dist. v. Alcorn, 141 Idaho 388, 111 P.3d 73 (2005).

DECISIONS UNDER PlUOR LAw

Disclosure Mandatory.

Because former laws providing for the ,inspection ofpublic records by private citizens

were mandatory, there were no exceptions to therule ofdiaclosure and the courts could not apply a balancing test to determine whether

or not to allow disclosure. Dalton v. Idaho Dairy Prods. Comm'n, 107 Idaho 6, 684 P.2d 983 (1984).

The Idaho dairy products commission's duty, power and authority to take such action

as the commission deemed necessary or advisable in order to stabilize and protect the dairyindustryofthe state andthe health and welfare of the public was clearly limited by the legislature's express statutory language in former section mandating that the public records and other matters be open to the inspection ofthe public; accordingly, the**com~** mission's list ofdairy product producers, who paid the taxes levied by § 25·3117 to dairy product dealers, was subject to disclosure

even though the dealer gave the names ofthe producers to the commission iri confidence, Dalton v. Idaho Dairy Prods. Comm'n, 107 Idaho 6, 684 P.2d 983 (1984).



### 9·339. Response to request for examination ofpublic records.

­ (1) A public agency or independent public body corporate and politic shall either grant or deny a person's request to examine or copy public records within three (3)**wo;r~g** days of the date ofthe receipt ofthe request for examination or copYing. If it is determined by employees of the public agency orindependentpublicbody corporate andpoliticthat a longer period oftime is needed 

### tolocate or retrieve the public records, the public agency

or independent public body corporate and politic. shall so notifY in writing the person requestingto examine or copy the records and shall provide the public records 

### to the person no later than ten (10) working days following the person's request. Provided however, if it is determined the existing electronic record requested will first have to be converted to another electronic format bythe agency orby a thirdparty andthat such conversion
cannotbecompletedwithinten (10) working days, the agency shall so notify inwritiIlg thepersonrequestingto examine or copy the records. The agency shall provide the converted public record at a time mutually agreed upon between the agency and the requester, with.due**consiger~tion** given to any

. <I". ,.- !", limitations thatmay exist due tothe process ofconversion or due to theuse of a third party to m!\ke the conversIon. (2) Ifthe public agenejror independeht public body corporate and politic fails to respond, the request shall be deemed to be denied within ten (10) working days following the request. (3) Ifthe public agency or independent public body corporate and politic denies the person's requestfor examination or copying the public records or denies in part and grants in part the person's request for examination and copying ofthe public records, the person legally responsible for administering the public agency or independent public body corporate and politic or that person's designee shall notifY the person in writing of the denial or partial denial ofthe request for the public record.

.9-340 EVIDENCE 370



### (4) The notice ofdenial or partial denial 

### shall state that the attorneyfor the public agency or independent public body corporate and politic 

### bas reviewed the request or shall state that the public agency or independent public body corporate andpolitic has had an opportunity 

### to consult with an attorney regarding the request for examination or copying ofa record and has chosen not 

### to do so. The notice of denial or partial denial also shall indicate the statutory authority for the denial and indicate clearly the person's right to appeal the denial orpartial denial and the time periods for doing so.

History. § 1, p. 480; am. 2000, ch. 342, § 

### a, p. 1146;

tc., §**9-~a9,** as added by,1990, ch. 213, am. 2006, ch. l()a, § 2, p. 284.

STATUTORY NOTES

Amendment.!. Effective Dates.

The 2000 amendment, bych. 103, addedthe Section 

### aofS.L. 2006, ch. 108 declared an last two sentences in subsection (1). emergency. Approved March 22, 2006.

9-340. Records exempt from disclosure. [Repealed.]

STATUTORYNOTES

Compiler's Notes. § 1, p. 865; am. 1998, ell. 293, § 1, p, 968; am.

This """tion which comprised I.C., § 9-840, 1998,ch.S08,§ 1,p. 1012; am. 1998,ch.411,

as ,!-dded by 1997, ch. 60, § 2, p. 111; am. § 4, p. 1275, was repealed by S.L. 1999, ch. 1998. th, 164, § 1, p, 552; am. 1998, ch. 262, 30, § 1, p. 41, effective July 1, 1999.

9-340A. Records exempt from disclosure

- Exemptions in federal or state law

- Court files of judicial proceedings.

- The 

### following records are exempt from disclosure: (1) Any public record exempt from disClosure by federal or state law or federal regulations to the extent specifically provided for by such law or regulation. (2) Records containedin courtfiles of judicial proceedings, the disclosure ofwhichis

### prohibitedbyorunderrules adoptedby theIdaho supremecourt, but only

## to the extentthat confidentiality is provided under suchrules, and anydrafts orotherworkingmemoranda related

### tojudicialdecision-making, provided the provisioiul of this' subsection making records exempt from disclosure shall not apply to the extent that such rec6r"ds or information contained in those records are necessary for a background check on an individual that is required by federal law regulating the sale offirearms,
guns or ammunition.

History.

I.C., § 9-340A, as added by 1999, ch. 30, § 2, p, 41.

JlJDICIAL DECISIONS

Cited in: Bolger v, Lance, 137 Idaho 792, 53 P.3d 1211 (2002).371 PUBLIC WRITINGS 9-340B



### 9-3408. Records exempt from disclosure

- Law enforcement records, investigatory records of agencies, evacuation and emer· gency resPonse plans, worker's compensation. .- The following records are exempt from disclosure: (1) Investigatory records of a law enforcement agency, as defined in section 9-337(7), Idaho Code, underthe conditions setforth in section 9-335, Idaho Code. (2) Juvenile records ofa person maintained pursuant to chapter 5, title 20, Idaho Code, except that facts contained in such records shall be furnished uponrequestin a mannerdeterminedby the court topersons and governmental and private agencies and institutjons conducting pertinent research studies or having a legitimate interest:in the protection, welfare andtreatment ofthejuvenile who is thirteen (13) years ofage oryounger. If the juvenile is petitioned or charged with an offense which would be a criminal offense if committed by an adult, the name, offense ofwhich the juvenile was petitioned or charged and disposition of the court shall be subject to disclosure asprovided in section 20-525, Idaho Code. Additionally, facts containedin anyrecords ofajuvenilemaintainedunder chapter5, title 20, Idaho Code, shallbefurnished uponrequestto any school district where thejuvenile is enrolled or is seeking enrollment. (3) Records of the custody .review board of the Idaho department of juvenile corrections, includingrecords containingthe names, addresses and written statements of victims and family members ofjuveniles, shall be exempt from public disclosure pursuant to section 20-533A, Idaho Code. (4)(a) The following records ofthe department ofcorrection: (i) Records ofwhich the public interestin confidentiality, public safety, security and habilitation clearly outweighs the public interest in disclosure as identified pursuant to the authority ofthe Idaho board of correction under section 20-212, Idaho Code; (ii) Records that contain any identifying information, or any information that would lead to the identification of any victims or witnesses; (iii) Records that reflect future transportation or movement of a prisoner; (iv) Records gathered during the course ofthe presentence investigation; (v) Records ofaprisoner, as defined in section 9-337(10), Idaho Code, or probationer shall not be disclosed to any other prisoner or probationer. (b) Records ofbuildings, facilities, infrastructures'andsystemsheldby or in the custody of any public agency only when the disclosure of such information would jeopdrdize the sa:mty of persons or the public safety. Such records may include emergency evacuation, escape or other emergency response plans, vulnerability assessments, operation and security manuals, plans, blueprints or securitycodes. For purposes ofthis section "system" shall mean electrical, heating, ventilation, air conditioning and telecommunication systems. (c) Records ofthe commission ofpardons andparole shallbe exemptfrom public disclosure pursuant to section 20-213A, Idaho Code, and section 20-223, Idaho Code. Records exempt from disclosure shall also include those containingthenames, addresses and written statements ofvictims.

### 372 9-340B EVIDENCE



### (5) Voting records of the sexual offender classification board. In accordance with section 18-8315, Idaho Code, the written record ofthe vote to classify an offender as a violent sexual predator by each board member in eaoh case reviewed by that board member shall be exempt from disclosure
to thepublic andshall be made available upon request only tothe governor, the chairman ofthe senatejudiciaryandrules committee, andthe ohairman ofthe house ofrepresentativesjudiciary, rules and administration committee, for all lawful purposes. (6) Records of the sheriff or Idaho state police received or maintained pursuant to sections 18-3302 and 18-3302H, Idaho Code, relating to an applicant or licensee. (7) Records of investigations prepared by the department ofhealth and welfare pursuantto its statutoryresponsibilities dealingwiththeprotection of children, the rehabilitation ofyouth, adoptions and the commitment of mentally ill persons. (8) Records including, but not limited to, investigative reports, resulting from investigations conducted into complaints ofdiscriminationmadeto the Idaho human rights commission unless the public interest in allowing inspection and copying of such records outweighs the legitimate public or privateinterestinmaintainingconfidentialityofsuchrecords. Aperson may inspect and copy documents from an inveStigative file to which he or she is

a named party if 

### such documents are not otherwise prohibited from disclosure by federal law or regulation or state law. The confidentiality of this subsection will no longer apply to any record used in any judicial proceeding brought by a named party to the complaint or investigation, or by the Idaho human rights commission, relating to the complahit of discrimination. (9) Records containinginformation obtainedbythe manager ofthe Idaho
state insurance fund pursuantto chapter 9, iitle 72, Idaho Code, from oron behalfofemployers or employees contained in underwriting and claims for benefits files, (10) The worker's compensation records ofthe Idaho industrial commission provided that the industrial commission shall make such records available: (a) 'Ib 

### the parties in any worker's compensation claim and to the industrial special indemnity fund ofthe state ofIdaho; or (b) 'Ib 

### employers and prospective employers suqject to the provisions of the Americans with disabilities act, 42 U.S.C. 12112,'Clr other statutory limitations, who certify that the information is being requested with respect to a worker to whoW the employer has extended an offer of employment and will be used in accordance with the provisions of the Americans with disabilities act, 42 U.S.C. 12112, or other statutory limitations; or (c) 'Ib 

### employers and prospective employers not subject to the provisions oftheAmericans with disabilities act, 42 U.S.C. 12112, or other statutory limitations, provided the employer presents a written authorization from the person to whom the records pertain; or (d) 'Ib 

### others who demonstrate that the public interest in allowing inspection and copying of such records outweighs the public or private373 PUBLIC WRITINGS 

### 9-340B

interestinmaintainingthe confidentiality ofsuch records, as determined by a civil court ofcompetentjUrisdiction; or (e) Although a claimant's records maintained by the industrial commission, including medical and rehabilitation records, are otherwise exempt from public disclosure, the quoting or discussingofmedical or rehabilitation records contained in the industrial connnission's records during a hearingfor compensation orin a written decision issuedby the industrial commission shallbe permitted; provided further; thetrueidentification of the parties shall not be exempt from public disclosure in any written decision issued and released 

### to the public by the industrial commission. (11) Records of investigations compiled by the connnission on aging involving vulnerable adults, as defined in section 18-1505, Idaho Code, alleged 

### to be abUSed, neglected or exploited. (12) Criminal history records and fingerprints, as defined by sectipn 67-3001, 

### Idaho Code, and compiled by the Idaho state police. Such records shall be released only in**~ccordance** 

### with chapter 30, 

### title 67, 

### Idaho Code. (13) 

### Records furnished or'obtained pursuant to section 41-1019, 

### Idaho Code, regarding**terminatio~** 

### of an appointment, employment, contract or other insurance business reiationship between an insurer and a producer. (14) Records ofa prisoner or former prisoner in the custody ofany state

or local correctional facility, when the request is made by another prisoner in the custody of any state or local correctional facility.**(1~)** 

### Except as**~rovided** 

### in section 72;1007, 

### Idaho Code, records of the Idaho industrial**commi"~sion** 

### relating 

### to compensation for crime victims under chapter 10, 

### title 72, Idaho Code. (16) 

### Records or information identifying a complainant maintained by the department ofhealth and welfare pursuant to section 39-3556, Idaho Code, relating to Certified family homes, unless the complainant consents" in writing to the disclosure or the disclosure ofthe complainant's identity is required in any administrative orjudicial proceeding.

History. 88; am. 2001, ch, 180,.§ 1, p. 608; am, 2001,

I.C., § 9-340B, "" added by 1999, ch. 30, ch.296,§ 1,p. 1044; am. 2002, ch.62,§ l,p. § 3, p. 41; am. 1999, ch. 249, § 3, p. 638; am. 132;aIn. 2002,ch. 136,§ 1,p. 371; aIn. 2003, 1999, ch. 308, § 1, p. 765; am, 2000, ch. 57, ch. 164,§ l,p. 462; arn. 2004,ch.378,§ 1,p. § 1, p. 120; am. 2000,**ch~'** 342, § 4, p. 1146; 1135; am. 2006, ch. 282, § 1, p. '866; am. 2006, am.20oo,ch, 367, § 1,p. 1216; am, 2000,ch. ch. 352, § 2, p. 1071; am. 2009, ch. 202, § 2, p. 469, § 19, p. 1460; am. 2001, ch. 48, § 1, p, 650.

STATUTORYNOTES

Cr"". Refe

....nce

...

Commission on aging, § 67·5001 et seq. Commission onhuman rights, § 67·5OO1 et seq. ,

Idaho state**poli~,** § 19·4801 at seq. Industrial commission, ,§ 72-501 etseq.**Indu.~rial** special indemnity fund, § 72­ 323 et seq.
Amendments.

This secti.n

## w"" enacted by S.L. 1999, ch. 30, § 3, effective July 1, 1999, and al•• amended by two 1999 acts, ch. 249, § 3, and ch. 308, § 1, botheffectiveJuly 1, 1999, which
appear to be cumpatible and have been compiled together.

.

'):'he**~999** amendment, by ch. 249, added subsection (11).

The 1999 amendment, by ch. 308 added subdivision (S)(b).

'l'b.is section

## w"" amendedhyfour 2000 acts which appear to be compatible andhave been compiled together.

The 2000 amehdment, liy ch. 57, § 1, inthe first sentence of subdivision (3)(b), inserted374 9-340C EVIDENCE

nand security"following "Operation", inserted "plans or codes" preceding 'jof county jails)', and inserted "and buildings owned or leased by Idaho state government, a county or a city"; in the ••cond sentence of subdivision (3)(b), inserted "stategovernmeI!t agency" ful, lowing "documents of any", and inserted 'or city building or" preceding "jail that define', inserted "building or" preceding "jail", and added the last sentence in subdivision (3)(h).

The 2000 amendment, by ch. 342, § 4, substituted "9-337(6)" for "9-337(5)' in subdivision (1).

The 2000 amendment, by ch. 367, § 1, in the.first sentence ofsubdivision (aXa), added "Until Jtriy 1, 2001" at the beginning, made a minor stylistic change, deleted "or the commission ofpardons and parole"following**"de~** partment of correction" near the beginning. deleted "or on parole" following "the department of corr;ection" near the middle, and deleted "or the commission of pardons and**p~­** role" preceding "if the public interest"; and added subdivision (3)(c).

The 2000 amendment, by ch. 469, § 19, substituted "Idaho stats police" for "department oflaw enforcement" in subdivisions (5) and (11).

This .ection was amended by three 2001
acts which appear to b. compatible and .have been compiled together. The 2001 amendment, bych. 48, § 1, added subsection [13J(12).

The 2001 amendment, by ch. 180, § 1, rewrote subsection (3)(a) and added subsections (8)(a)(iJtbrough (3)(a)(v); inaerted

., .vl.sitors or prisoners" in subsection (b),

The 2001 amendment, by ch. 296, § 1, added subsection (12).

Thi

...ection was amendedbytwo 2002 acts which appear to be compatible and have been cOmpiled together.

The 2002.amendment, by ch. 62 ,inserted "evaeuatiotl'and emergency response plans" in the "eetion heading and rewrote subdivision (3)(b).

.

The 2002 amendment, by ch. 136, addad subdivision (14).

This sectionwas amendedby two 2006 acts which appear to be compatible andhave been compiled together.

The 2006 amendment, by ch. 282, added subsection (16).

The 2006 amendment, by ch. 352, substituted "section 9-337(7)" for "section .9-337(6r' in subsection (1) and "section 9-337(10)" for "section 9-337(9)" in subsection (4)(a)(v).

The 2009 amendment, by ch. 202, inserted "and 18-a302H"in subsection (6).

Effective Dates.

Section 2 ofS.L. 2000, ch. 57 provided that the act .hall be in full force and effect on and after July 1, 2000.

JUDICIAL DECISIONS

ANALVSlll
Construction with other law. Exempt records.

Construction With Other Law. inmate during criminsl proceeding discovery,

Section 9-342(3) limits the applicability of the invasion ofprivacy claims failed because § 9-342(1) by excluding "otherwise exempt (1) the public defender and the inmate were investigatory records if the investigation i. entitled to the unradacted·furms in order to ongoing," which. implicitly defers to the ex­ authenticate them and defend against any emption contained in this section; this sec­ testitution claim, (2) the information was an tion, in turn,. defers to § 9-335 for a more investigatory reoord and certain defendants specific definition oftha investigatory records were law enforcement agencies, (3) thes. exemption. Bolger v. Lance, 137 Idaho 792, 53 records were exempt from public disclosure, P.3d 1211 (2002). and (4) none ofthe state defendants publicly disclosed privateinformation. Nationv. State, Exempt Records. 144 Idaho 177, 158 P.3d 953 (2007).

Where forms containingcorrections officers' personal information .were disclosed to en

9·840e. 

### Records exempt from disclosure

- Personnel records, personal information; health records, professional discipline. [Ef· fective untii January 1,2011.]

- The following.records are exempt from disclosure: (1) Except as provided in this subsection, all personnel records of a currentorformer pllblic official otherthanthe public official'spublic service

or employment history, classification, pay grade and step, longevity, gross

### 375 PUBLIC WRITINGS 

### 9-340C

salaryand salaryhistory, status, workplace andemployingagency. All other personnel information relatingto a public employee or applicant ine\uding, but not limited to, information regarding sex, race, marital status, birth date, home address andtelephone number, applications, testing-and scoring materials, grievances, correspondence and performance evaluations, shall
not be disclosed to the public without the employee's or applicant's written
consent. Names ofapplicants to classifiedormeritsystempositions shallnot be disclosed tothepublicwithoutthe applicant'swrittenconsent. Disclosure ofnames as part ofa background check is permitted. Names ofthe five (5) final applicants to all otherpositions shall be available to thepublic. If

### such group is less than five (5) finalists, thenthe entire list of

### applicants shall be available to the public. A public official or authorized representative may inspect and copy his personnel records, except for material used to screen and test for employment. (2) Retired employees' and retired public officials' home addresses, home telephone numbers and other financial and· nonfinancial membership records; activeand inactive member financial and membership records and mortgage portfolio loan documents maintained by the public employee retirement system. Financial statements prepared by retirement system staff, funding agents and custodians concerning the investment ofassets of the public employee retirement system of Idaho are not considered confidential under this chapter. (3) Information and records submitted to the Idaho state lottery for the performance of background investigations of employees, lottery retailers and major procurement contractors; audit records' of lottery retailers, vendors and major proeurement contractors submitted to or performed by the Idaho state lottery; validation and security tests ofthe state lottery for lottery games; business records and information submitted pursuant to sections 67-7412(8) and (9) and 67-7421(8) and (9), Idaho Code, and such documents and information obtained and held for the purposes of lottery security and investigative action as determined by lottery rules unless the public interest in disclosure substantially outweighs the private need for protection from public disclosure. (4) Records of a personal nature as follows: (a) Records of personal debt filed with a public agency or independent public body corporate and politic pursuant to law; (b) Personal bankrecords compiled by a public depQsitor for the purpose ofpublic funds transactions conducted

### pursu~t to law;"

, (c) Records of ownership of financial obligations and instruments of a publi'c agency or indeptndent public Body corporate and politic, such as bonds, compiled by the public agency or independent public body corporate and politic pursuant to law; (d) Records, with regard to the ownership of, or security interests in, registered public obligations; (e) Vital statistics records; and 

### (0 Militaryrecords as describedin andpursuant

### to section 65-301, Idaho Code. (5) Information in an income or other tax.return measured by items of income or sales, which is gathered by a public agency for the purpose ofEVIDENCE 376

administering the tax, except such information to the extent disclosed in a written decision ofthe tax commission pursuant to a taxpayer protest ofa deficiency determination by the 

### tax commission, under the provisions of se.ction 63·3045B, Idaho Code

.

.. {6) Records of a personal nature related directly or indirectly to the application for and provision of statutory services rendered to persons applYing for public care for people who are elderly, indigent orhave mental (Jr· .physical disabilities, or' participation in an environmental or a public health study, provided the provisions of this subsection malting records e;xempt from disclosure shall not apply to the**e~nt** that such records or informationcontainedinthoserecords arenecessaryfor a background check ti)l·an individual that 

## w required by federal law regulating the sale of firearms, guns or ammunition. (7) Employment security information, except that a person may agree, thrOugh written, informed consent, to waive the exemption so that a third partymay obtain information pertainingto theperson, unless access to the information bythe personisrestricted by subsection (3)(a), (3)(b) or (3)(d) of "ection 9·342, Idaho Code. Notwithstandingtheprovisions ofsection 9·342, Idaho Code,aperson'maynotreview identifYinginformation concerning an 'informant who reportedtothe department oflabor a suspected violation by tlie"person ofthe employment securitylaw, chapter 13, title 72, Idaho Code, under an assurance ofconfidentiality. As usedinthis section andin chapter HI; title 72, Idaho Code, "employment security information" means any information descriptive ofan identifiable person or persons thatis received by, recorded by, prepared by, furnished to or collected by the department of 11lbor or theindustrialcommission in the admini,stration ofthe employment security law. (S} Any personal records, other than names, business addresses and ousiness phone numbers, such as parentage, race, religion, sex, height, weight, tax identification and social security numbers, financial worth or medical condition submitted to any public agency or independent public body corporate and politicpursuantto a statutoryrequirementfor licensing, certification, permit or bonding. i9) Unless otherwise provided by agency rule, information obtained as P!!rt ofan inquiry into a person's fitness to be granted or retain a license, certificate, permit, privilege, commission or position, private association
peer review committee records authorized in title 54, Idaho Code. Any llgency which has records exempt from disclosure unde,r, the provisions of this subsection shall annually make available a statistical summary ofthe number and types ofmatters considered and their disposition

. .(10) The records, findings;' determinations and decisions of any prelitigationscreeningpanelformed underchapters 10 and 23, title6, Idaho 

### 000e. (11) Complaintsreceived bytheboardofmedicine andinvestigations and informal proceedings, including informal proceedings of any committee of the. board of medicine, pursuant to chapter 18, title 54, Idaho Code, and rules adopted thereunder.

(12) Records ofthe department ofhealth and welfare or a public health fii'strict that identifY a person infected with a reportable disease.377 PUBLIC WRITINGS 

### 9-340C

(18) Records of hospital care, medical records, including prescriptions, drug orders, records or any other prescription information that specifically identifies an individual patient, prescription records maintained by the board of pharmacy under sections 37-2726 and 37-2780A, Idaho Code, records ofpsychiatric careor treatment andprofessional counselingrecords relating to an individual's condition, diagnosis, care or treatment, provided the provisions of this subsection making records exempt from disclosure shall not apply to the extent that such records or information contained in those records are necessary for a background check on an individual that is requiredbyfederal lawregulatingthe saleoffirearms, guns or ammunition. (14), Information collected pursuant to the directory of new hires act, chapter 16, title 72, Idaho Code. (15) Personal information contained in motor vehicle and driver records that is. exempt from disclosure under the provisions ofchapter 2, title 49, Idaho Code. (16) Records ofthefinancial statusofprisonerspursuantto subsection (2) ofsection 20-607, Idaho Code. (17). Records ofthe Idahostatepolice ordepartmentofcorrectionreceived

or maintained pursuant to section 19-5514, Idaho Code, relating to DNA databases and databanks. (18) Records ofthe department·ofhealth andwelfarerelatingto 

### a survey, resurvey or complaint investigation of a licensed nursing facility shall be exemptfrom disclosute. Suchrecords shall,however, be subjecttodisclosure

as public records as soon as the facility in question has received the report, andno later than the fourteenth day following the date that department of health and welfare representatives officially exit the facility pursuant to federal regulations. Provided however, that for purposes of confidentiality,

no record shall be released under this section which specifically identifies
any nursing facility resident. (l9) Records andinformation contained in theregistry ofimmunizations against childhood diseases maintained in the department of health and welfare, including information disseminated to others from the registry by the department ofhealth and welfare. (20) Records ofthe Idahohousing andfinance association (IHFA) relating
to the following: (a) Records containing personal financial, family, he.alth or similar personal information submitted to or otherwise obtained bythe IHFA; (b) Records submitted to.or otherwise obtained by the· IHFA with regard
to obtaining and servicing mortgage loans and all records relating to the review, approval or rejection by the IHFAof said loans; (c) Mortgage portfolio loan documents; (d) Records of a current or former employee other than the employee's duration ofemploymentwiththe association, position held andlocation of employment. This exemption from disclosure does not include the contracts of

### employment or any remuneration, including reimbursement of
expenses, ofthe executive director, executive officers or commissioners of the association.All otherpersonnel informationrelatingto an association employee or applicantincluding, hutnotlimitedto, informationregarding378 9-340C EVIDENCE

sex, race, marital status, birthdate, home address andtelephone number, applications, testing and scoring materials, grievances, correspondence, retirement plan information and performance evaluations, shall not be disclosed to the public without the employee's or applicant's written
consent.An employee or authorized representative may inspect and copy thatemployee's personnel records, exceptfor material used to screen and
test for employment or materialnot subject

### to disclosure elsewhereintlie Idaho public records act. (21) Records of the department of health aflSl. welfare related to child support services in cases in which there is reasonable evidence ofdomestic violence, as defined in chapter 63, title 39, Idaho Code, that can be usedto locate anyindividuals iii'thechild support case except in response

### to a court order. (22) Records ofthe Idaho state bar lawyer assistance program pursuant to chapter 49, title 54, Idaho Code, unless a participant in the program authorizes the release pursuant to subsection (4) ofsection 54-4901, Idaho Code. (23) Records andinformation containedinthetraumaregistrycreatedby chapter 20, title 57, Idaho Code, together with any reports, analyses and compilations created from such information and records. (24) Records containedinthe courtfiles, orotherrecords preparedaspart ofproceedings forjudicial authorizationofsterilizationprocedurespursuant 

### to chapter 39, title 39, Idaho Code. (25) 

### The physical voter registration card on file in the county clerk's office; however, a redacted copy of said card shall be made avaIiable consistentwith the requirements ofthis section. Information from thevoter registration card maintained in the statewide voter registration database, including age, will be made available except for the voter's driver's license number, date ofbirth and, upon showing ofgood cause by the voter 

### to the county clerk in consultation with the county prosecuting attorney, the physical residence address ofthe voter. For the purposes ofthis subsection good cause shallinclude the protection oflife alid property and protectionof victims ofdomestic violence and similar crimes. (26) File numbers, passwords and information in the files ofthe health

care directive registry maintained by the secretary of state under section 39-4515, Idaho Code, are confidential and shall not be disclosed to any person other than to the person who executed the health care directive or the revocation thereofandthat person's legalrepresentatives, to the person who registered the health care directive or revocation thereof, and 

### to physicians, hospitals, medical personnel, nursinghomes, and otherpersons who have been granted file number and password access to the documents within that specific file. (27) Records in an address confidentiality program participant's file as provided for in chapter 57, title 19, Idaho Code, other than the address designated by the secretary of state, except under the following circumstances: (a) If requested by a law enforcement agency, to the law enforcement
agency; or

### 379 PUBLIC WRITINGS 

### 9·340C

(b) If

### direeted bya court order, to a person identified in the order. (28) Except as otherwise provided by law relating to the release of information to a governmental entity or law enforcement agency, any personal information including, but not limited to, names, personal and business addresses and phone numbers, sex, height, weight, date ofbirth, social security and driver's license numbers, or any other identi:tYfug numbers and/or information related to 

### any Idaho fish and game licenses, permits and tags unless written consent is obtained from the affected person. [(29)](28) Documents and records related to continuing education and recordkeeping violations that are maintained by the Idaho board ofveteri· nary medicine under the provisions of section 54·2118(1)(b), Idaho Code, provided the requirements set forth therein are met.

History.

I.e., § 9-34OC, as added by 1999, cb. 30, § 4, p. 41; am. 1999, ch. 347, § 2, p. 926; am. 1999, ch: 395, § 3, p. 1096; am. 2000, ch. 58, t 1,p. 122; am. 2000, ch. 189, § 3, p,465; am. 2000, ch. 194, § 2, p. 479; am. 2000, eh. 293, § 1, p. 1011; am. 2000, ch. 332, § 6, p. 1112;
am. 2000, ch. 342, § S,p. 1146; am. 2000, ch. 469, § 20, p. 1450; am. 2002, ch. 329, § 3, p. 928; am. 2002, eh. 363, § 2,p. 1023; am. 2003, ch. 16,§ 1,p. 48; am. 2003,ch. 26,§ 2,p. 95;

am. 2003, ch. 189, § 3, p. 511; am. 2004, ch. 163,§ l,p. 529; am. 2006, ch. 38,§ 3,p. 105;

am. 2006, ell. 67, § 1, p. 199; am. 2006, ch. 175, § 1, p. 535; am. 'Z006, ch. 352, § 3, p. 1071; am. 2007, ch. 360, § 11, p. 1061; am. Z008, ch. 99, § 5, p. 278; am. 2008, ch. 232, § 2, p. 706; am. 2010, ch. 104, § 2, p. 201; am. 2010, ch. 235, § 3, p. 542; am. 2010, ch. 245, § 1, p. 629.

STATUTORY NOTES

Cross References.

Public employe. reti!"ament system, § 59­ 1aOIst seq.

Idaho housing and finance association, § 67-6201 at seq.

I<!aho state lottery, § 67-7401 ot seq. Registry of immunizations against child· hood diseases, § 9-34OC.

State tax com.mission, Idaho Const. art. VII, § 12 and § 63·101.

PriorLaWs.

Fonner § 9-3400, which comprised I.C" § 6·3HB, as added by 1974, ch. 308, § 6, p. 1803, was repealedbyS.L. 1996, ch. 169, § 2.

Amendments.

ThiB section was enacted by S.L. 1999, ch. 30, § 4, effective July'1, 1999 which wasthen amended by two 1999 acts, ch. 3!1;7, § 2, and ch. 395, § 3,botheffiictive July 1;1999,which appear to be compatible and have been com· piled together.

The 1999 amendment, by ch. 347, edded present subsection (19).

The 1999 amendment, by ch. 895, in sub· section (i0), substituted "chapters 10 and 23" for "chapter 10"; and added subsection (18).

ThiB section was amended by seven 2000
acts

- ch. 58, § 1, effective July 1, 2000, ch. 189, § 3, effective July 1;2000, ch. 194; § 2, effective April 4, 2000, ch. 294, § 1, effective July 1, 2000, ch. 332, § 6, effective July 1, 2000, ch. 342, § 5, effective July 1, 2000, and ch. 469, § 20, effective July 1, 2000, which contained a minor conilict that has been re· solved by the Code Commission' and have been compiled together.

The 2000 amendment, by ch. 58, § 1, in subdivision (18), substituted. "as soon as the facility in question has received the report, and no later than" for "on and after"; and redesignated former subdivision (18) as present subdivision (19).

Tbe 2000 amendment, by ch. 189,· §. 3, in suhdivision (13), inserted. ''including**pre~p** tiona, drug orders, records or any other prescription information that specifically identifies anindivid1p!l**p~tient,"** preceding"records ofpsychiatric care"; and redesignated. foriner subdivision (18) as present subdivision (19),

'the 2000 amendment, by ch. 194, § 2, in subdivision (13), inserted "prescription records maintained.bythe board ofpharmacy under section 37-2730A, Idaho Code:preced· ing "':retards ofpsychiatric care or,treatment"; and**~ignated** ronner subdivision OS) as present subdivision (19); and made minor stylistic changes.

The 2000 amendment, by ch. 294, § 1, redesignated former subdivision (18) as present subdivision (19); and added a subdi· vision (20); andmademinor stylisticchanges.

The 2000 amendment, by ch. 332, § 6, rewrote subdivision (11) which formerly read:9-340C EVIDENCE 380

(13oard of professional discipline reprimands by informal admonition pursuant to subsection (6)(1) of section 54-180SA, Idaho Code."; and redesignated former subdivision (18) ali present subdivision (19); and made minor stylistic cbanges.

The 2000 amendment, by ch, 342, § 5, in subdivision (4)(.), insetted "or independent public body oorporate and politic" preceding "pursuant t9 law", in**sp.bd~yi~on (4)(c)~**  inserted "or independent public body corporate and politie" preceding "such as bonds")**jn~** serted "nr independent public body corporate and politic" 'preceding "pursuant to law"; in Bubdivisio:n (8), inserted "o,r independent**pub~** lic body corporate and politic" preceding "pursuant to a statutory"; redesignated former subdivision (18) as present subdivision (19); and addeda subdivision (20); sndmademinor stylistic changes.

The 2000 amendment, by cb. 469, § 20, in subdivision (17), substituted "Idaho state pelice"fur "departmentoflawenforcement"; and redesignated former subdivision (18) as present subdivision (19).

This section was amended by three 2003
acts

- eh. 16, § I, effective February 12, 2003, ch. 26, § 2, effective July 1, 2003, and ch. 189, § 3, effective July 1, 2003

- which appear to be compatible and have been compiled together.,

The 2003 amendment, by cb. 16, § 1, substituted «section**54~490** 1" for usection 54­ 4801" in subsection (22), and renumbered the following subsection to (23),

The 2003 amendment,byth. 26, § 2, added subsection (4Xfl, substituted "section &4­ 4901"for "section 54-4801"in subsection (22), and renumbered the following subsection to (23).

The 2003 amendment, by eh, 189, § 3, substituted "section 54-4901" for "section 54­ 4801" in subsection (22), renumbered the following subsection to (23), and added a subsec· tion (24).

'This sectionwas amendedbyfour 2006 acts which appear to be compatible and have been compiled together,

The 2006 amendment, by ch. 38, added the language beginning "uuless aWlSS to the information bythe parties

..." in subsection (7).

The 2006 amendment, by cb. 67, added subeection (26),**~**

The 2006 amendment, hy ch. 175, inserted "37-2726"in subsection WI).

The 2006 amendment, hy cb. 352, inserted the third, fourth and fifth sentences in sub· section (1).

The 2007 amendment, by ch. 360, twice deleted "commerce and" following**"depart~** ment of)' in subsection (7).

This sectionwas amended by two 2008 acts which appearto be compatible andhaveheen compiled together, The 2008 amendment, by ch. 99, in subsection (7), rewrote the first ,sentente, which formerly read: "Employment security information and unemployment insurance benetit information, exceptthat allinterested parties may agree to waive the exemption**unle~** acceSs to the information by the parties is restricted by subsection (3)(.l, (3)(b) or (3)(d) ofsection 9-342, Idaho Code," and added the chapterreference in the last sentence.

The 20GS amendment, by ch. 232, added subsection (27).

This sectilln was amended by three 2010
acts which appear to be compatible and have been compiled together.

The 2010 amendment, by th. 104, added subsection [(29)1(28),

The 2010 amendment, by ch. 235, substi· tuted "public care for people who are elderly, indigent or have mental or physical disabilities» for "public care for the elderly. indigent,

or mentally or physically handicapped" in subsection (6).

The 2010 amendment, by eh. 245, added subsection (2S). Compiler'. Notes,

Section 5 of S.L. 2002, eh. 329 provides: "The provisions ofthis act shall be null, void and ofno force and effect on and after January I, 2008," However, § 5 of S.L. 2002, eh. 329 was repealed by S.L. 2007, eh. 242, § 1, effective July I, 2007.

Forths section as effective January 1,.2011,

see the following section, also numbered § 9­ 340C.

Effeetive Dates.

Section 7 of S.L. 2000, eh. 332, provides: "This aCt shall be in full force and effect on and after July I, 2000, and the Board of Medicine i. directedtobegin rulemakfngpur· suant to Chapter 62, Title 67, Idaho Code, as required by Section 54-1806(2), Idaho Code. Until such rules are tinal, the Idaho Rules of Administrative Procedure of the Attorney General to tlie extent they are not incoru;istent with rules already adopted by the Board ofMedicine, shall be the rules ofpractice and procedure for the Boa.r{l,ofMedicine,"

Section 4 of S,L, 2002, eh. 329 provides: "This act shall be in full force and effect on and after JanUary 1, 2003, provided that for purposes ofpromulgationofrules as provided in section 57-2003, Idaho Code, this act shall bein full force and effect on and after July I, 2002."

Section 7 ofS.L. 2006, ch, 67 provided "An
emergency existing therefore, which**emer~** gency i. hereby declared to exist, Section 6 of this act [§ 39-4515] shall be in full force and effect on and after its passage and approval [March 15, 2006] and Sections 1 through 5 of this act [§§ 9-34OC, 39-4509, 39-4510, 39­ 4511, 49-4513, and 39-45151 shan he in full

### 381 PUBLIC WRITINGS 

### 9-340C

force and effect on and afterJuly I, 2006. The Secretary of State will acoept registration applications pursuant to this act on or after January I, 2007."

Section 18 ofB.L. 2003, th. 16 declared an emergency. Approved February 12, 2003. Section 5 of S.L. 2006, ch. 38 declared an emergency. Approved March 11, 2006.

Section (; ofS.L. 2010, th. 245'declared an emergencY- Approved April 8, 2010.

JUDICIAL DECISIONS

ANALYSIS

Disclo.able information. E-mail•.

Dlsclosable Information.

thenames ofpublic employees of Iihospital

were not exempt from disclosure to an inquir

.. ing newspaper when those names were**con~** nectad with informatian regarding the em· ployees' gross salary, were obtainable from public reoords, and did not constitute an invasion ofprivacy; Magic Valley Newspapers, Inc. v. MagicValley Reg'! Med. Ctr., 138 Idaho 143, 59 P.3d 814 (2002). E·Mails. E-mail correspondence between a county employee and the county pro_utor were public records and not exempt from disclosure,**wher~** the a-mails were informal communications between all employee and her supervisor, unrelated to personnel administration. Cowles Publ'gCo. v.Knotenai County Bd. of County Comm'rs, 144 Idaho 259, 159 P.3d 896 (2007).



### 9-340C. Records exempt from disclosure

- Personnel records, personal infonnation, health records, professional discipline. [Effective January I, 2011.]

- The following records are exempt from disclosure: (1) Except as provided in this subsection, all personnel records of a current orformer public official otherthanthepublic official's public service

or employment history, classification, pay grade and stop, longevity, gross salaryand salaryhistory, status,workplace andemploying agency.All other personnel information relating to a public employee or applicantincluding, but not limited to, information regarding sex, race, marital status, birth date, home address and telephone number, applications, te$tjngand scoring materials, grievances, correspondence and performance evaluations, shall
not be disclosed 

### to the public without the employee's or applicant's written
consent. Namesofapplicantstoclassifiedormerit systempositions shallnot be disclosed to thepublicwithoutthe applicant's writtenconsent Disclosure ofnames as part ofa background check is permitted. NaI,lles ofthli five (5) final applicants 

### to allother positions shall be available to thepublic. Ifsuch groupis less thanfi,ve (5) finalists, thenthe entire list ofapplicants shall be available to th!'J public. A,public official or authorized representative may inspect and copy hill persunnel records, except for**~aterial** 

### used to screen and test for employment. (2) Retired employees' and retired public officials' home addresses, home telephone numbers and other financial and nonfinanci.al membership records; active and inactive memberfinancilll and**membersh~p** 

### records and mortgag!'J portfolio loan documents maintained by the public employee retirement system. Financial statements prepared by retirement system staff, funding agents and custodiaI),s concerningthe investment ofassets.of the public employee retirement system of Idaho are not cousidered confidential under this chapter.382 9-340C EVIDENCE

(3) Information and records submitted to the Idaho state lottery for the performance of background investigations of employees, lottery retailers and major procurement contractors; audit records of lottery retailers, vendors and major procurement contractors submitted to or performed by the Idaho state lottery; validation and securitytests ofthe state lottery for lottery games; business records and information submitted pursuant to sections 67-7412(8} and (9) and 67-7421(8) and (9), Idaho Code, and such documents and information obtained and held for the purposes of lottery security and investigative action as determined by lottery rules unless the public interest in disclosure substantially outweighs the private need for protection from public disclosure. (4) Records ofa pers6flal nature as follows: (a) Records of person81 debt filed with a public agency or independent public body corporate and politic pursuant to law; (b) Personal bank records compiled by a public depositor for the purpose ofpublic funds transactions conducted pursuant to law; (c) Records of ownership of financial obligations and instruments of a public agency or independent public body corporate and politic, such as bonds, compiled by the publicagency or independent public body corporate, and politic pursuant 

### to law; (d) Records, with regard to the ownership of, or security interests in, registered public obligations; (e) Vital statistics records; and (0 Militaryrecords as described in andpursuantto section 65-301, Idaho Code. (5) Information in an income or other tax return measured by items of income or sales, which is gathered by a public agency for the purpose of administering the tax, except such information to the extent disclosed in a written decision ofthe tax commission pursuant to a taxpayer protest ofa deficiency determination by the tax commission, under the provisions of section,63-3045B, Idaho Code. (6) Records 

# of a personal nature related directly or indirectly to the application for and provision of statutory services rendered to persons applying for public Care for people who are elderly, indigent or have mental

or physical disabilities, or participation in an environmental or a public health study, provided the provisions of this subsection making records exempt from disclosure shall not apply to the extent that such records or informatIon containedinthoserecords arenecessaryfor a backgroundcheck

on an individual that is required by federal law regulating the sale of firearms, guns or**ammunition~** (7) Employnient security information, except that a person may agree, through written, infornied consent, to waive the exemption so that a third party may obtain information pertaining 

### to theperson, unless access to the informationbythepersonis restrictedby subsection (3)(a), (3)(b) or (3)(d) of section 9-342, Idaho Code. Notwithstandingthe provisions ofsection 9-342, Idaho Code, a person maynot review identifyinginformation concerning an informantwho reported 

### to the department ofIabor a suspected violation by theperson ofthe employment securitylaw, chapter 13, title 72, Idaho Code,383 PUBlJC WRITINGS 9-340C

under an assurance ofconfidentiality.As used in this section andin chapter 13, title 72, Idaho Code, "employment security information" means any information descriptive ofan identifiable person orpersons thatis received by, recorded by, prepared by, furnished 

### to or collected by the department of labor ortheindustrial commission in the administration ofthe employment security law. (8) Any personal records, other than names, business addresses and business phone numbers, such as parentage, race, religion, sex, height, weight, tax identification and social security numbers, financial worth or medical condition submitted to any public agency or independent public bodycorporate andpoliticpursuantto a statutoryrequirementfor licensing, certification, permit or bonding. (9) Unless otherwise provided by agency rule, information obtained as part ofan inquiry into a person's fitness to be granted or retain a license, certificate, permit, privilege, commission or position, private association
peer review committee records authorized in title 54, Idaho Code. Any
agency which has records exempt from disclosure under the provisions of this subsection shall annually make available a statistical summary ofthe number and types ofmatters considered and their dispositioll

. (10) The records, findings, determinations and decisions of any prelitigation screeningpanelformed underchapters 10 and23, title 6, Idaho Code. (115 Complaintsreceived by theboard ofmedicine andinvestigations and informal proceedings, including informal proceedings of any committee of the board of medicine, pursuant to chapter 18, title 54, Idaho Code, and rules adopted thereunder. (12) Records ofthe department ofhealth and welfare or a public health district that identify a person infected with a reportable disease. (13) Records of hospital care, medical records, including prescriptions, drug orders, records or any other prescription information that specifically identifies an individual patient, prescription records maintained by the board of pharmacy under sections 37-2726 and 37-2730A, Idaho Code, records ofpsychiatric care ortreatment andprofessional counseling records relating to an individual's condition, diagnosis, care ortreatment, provided the provisions of this subsection making records exempt from disclosure shall not apply to the extent that such records or information cOAtained in those records are necessaryfor a background check on

## an: individual thatis required byfederal law**re~ating** the saleoffirearms, guns or ammunition. (14) Information collected pursuant

# to the directory of new hires act, chapter 16,title 72, Idaho Code. (15) Personal information contained in motor vehicle and driver records that is exempt from disclosure under the provisions of chapter 2, title 49, Idaho Code. (16) Records ofthefinancial statusofprisoners pursuanttosubsection (2) ofsection 20-607, Idaho Code. (17) Records ofthe Idaho statepolice or departmentofcorrection received

or maintained pursuant to section 19-5514, Idaho Code, relating 

### to DNA databases and databanks.

### 384 9-340C EVIDENCE



### (18) Records ofthedepartment ofhealth and welfare relating

### to a survey, resurvey or complaint investigation ofa licensed nursing facility shall be exemptfrom disclosure. Suchrecords shall, however, be 

### subjectto disclosure

as public records as soon as the facility in question has received the report, and no later than the fourteenth day following the date that department of health and welfare representatives officially exit the facility pursuant 

### to federal regulations. Provided however, that for purposes ofconfidentiality,

no record shall be released under this section which specifically identifies
any nursing facility resident. (19) Records and information contained in the registry ofimmunizations against childhood diseases maintained in the department of health and welfare, including info'rmation disseminated 

### to others from the registry by the department ofhealth and welfare. (20) Records oftheIdahohousingandfinance association (IHFA) relating
to the following: (a) Records containing personal financial, family, health or similar personal information submitted 

### to or otherwise obtained by the IHFA; (b) Records submitted to or otherwise obtained by the IHFAwith regard


### to obtaining and servicing mortgage loans and all records relating

### to the review, approval or rejection by the IHFA ofsaid loans;

. (c) Mortgage portfolio loan documents; (d) Records of a current or former employee other than the employee's duration ofemploymentwiththe association, position held andlocationof employment. This exemption from disclosure does not include the contracts of employment or any remuneration, including reimbursement of expenses, ofthe executive director, executive officers or commissioners of the association. All otherpersonnelinformation relatingto an association employee orapplicantincluding, butnotlimitedto, informationregarding
sex, race, marital status,birthdate, home address andtelephone number, applications, testing and scoring materials, grievances, correspondence, retirement plan information and performance evaluations, shall not be disclosed to the public without the employee's or applicant's written
consent. An 

### employee or authorized representative may inspect and copy that employee's personnelrecords, except for material used to screen and
testfor employment or material not subject 

### to disclosure elsewhere in the Idaho public records act. (21) Records of the department of health and welfare related to child support services in cases in which there is reasonable evidence ofdomestic violence, as defined in chapter 6S, title 39, Idaho Code, that can be used 

### to locate any individuals inthechild supportcase except inresponse to a court order. (22) Records ofthe Idaho state bar lawyer assistance program pursuant 

### to chapter 49, title 54, Idaho Code, unless a participant in the program authorizes the release pursuant to subsection (4) ofsection 54-4901, Idaho Code. (23) Records andinformation contained inthetraumaregistrycreatedby chapter 20, title 57, Idaho Code, together with any reports, analyses and compilations created from such information and records.

### 385 PUBLIC WRITINGS 

### 9-340C

(24) Records containedinthe courtfiles, orotherrecords prepared aspart ofproceedings forjudicial authorization ofsterilizationprocedurespursuant to chapter 39, title 39, Idaho Code. (25) The physical voter registration card on file in the county clerk's office; however, a redacted copy of said card shall be made available consistentwiththe requirements ofthis section. Information from thevoter registration card**~aintained** 

### in the statewide voter registration database, including age, will be made 'available except for the voter's driver's license number, date ofbirth and, upon a showing that the voter comes within the provisions of subsection [(30)](26) ofthis section oTupon showing ofgood

cause by the voter to the county clerk in .consultation with the cOunty prosecuting attorney, the physical residence address of the voter. For the purposes ofthis subsectiongood cause shalliticlude theprotectionofHfe and property and protection ofviCtilllB ofdomestic violence and similar crimes. (26) File numbers, passwords and infomation in the files ofthe health

care directive registry maintained by the secretary of state under section 39-4515, Idaho Code, are confidential and shall not be disclosed to any person other than to the person who executed the health care directive or therevocation thereofandthatperson's legalrepresentatives, totheperson who registered the health care directive or revocation thereof, and to physicians, hospitals, medical personnel, nursinghomes, and other persons who have been granted file number and password access to the documents within that specific file. (21) Records in'an address confidentiality program. participant's file as provided for in chapter 57, 

### title 19, 

### Idaho Code, other than the address designated by the secretarY of state, except under the following circumstances; (a) If 

### requested by a law enforcement agency, to the law enforcement agency; or (b) Ifdirected by a court order, to a. person identified in the order. (28) Except as otherwise provided by law relating to the release of information 

### to a governmental entity or law enforcement agency, any personal information including, but not limited to, names, personal and business addresses and phone numbers, sex, height, weight, date ofbirth, social seCurity and driver's license numbers, or any other identifying numbers and/or information related 

### to any Idaho fish and game licenses, permits and tagS uruess written consent is obtaine,d from the affected person. [(29)](28) DocUments and recordS' related to continuing education and recordkeeping violations that are maintained by the Idaho board ofveterinary medicine under the provisions of section 54-2118(1)(b), Idaho Code, provided the requiremente set forth therein are met. [(30»)(28) The Idaho residential street address and telephone number of

an eligible law enforcement officer and such officer's residing· household member(s) as provided for in chapter 58, title 19, 

### Idaho Code; except under thefollowing circumstances) (a) Ifdirected by a court order, to a personidentified in the court order; (b) Ifrequested by a law enforcement agency,. to the law enforcement
agency;9-340D EVIDENCE 386



### (c) If requested by a financial institution or title company for business
purposes, 

### to the requesting financial institution or title company; or (d) Ifthe law enforcement officer provides written permission for disclosure ofsuch information.

History. ch. 16,§ 1,p.48;arn.2003,ch.26,§ 2,p.95;

I.e., § 9·340C, as added by 1999, ch. 80, am. 2003, ch. 189, § 3, p. 511; am. 2004, ch. 9 4, p. 4;1: am. 1999, ch. 347, § 2, p. 926; am. 163, § 1, p. 529; am. 2006, ch. 38, § 3, p. 105; 1999, ch. 3915, § '3, p. 1095; am. 2000, th. 58, am. 2006, ch. 67, § 1, p. 199; ani. 2006, ch. § 1, p. 122; am. 2000, ch. 189, § 3, p. 465; am. 175, § 1, p. 535; am. 2006, ch. 352, § 3, p. 2000, ch. 194, § 2, p. 479; am. 2000, ch. 293, 1071; am. 0007, ch. 360, § 11, p. 1061; am. § l,p. 1011; am. 2000, ch. 332, § 6, p. 1112; 2008, ch. 99, § 5, p. 278; am. 2008, ch. 232,

am. 2000, ch. 342, § 5, p. 1146: am. 2000, ch. § 2, p. 706; am. 2010, ch. 104, § 2, p. 201; am. 469, § 20, p. 1450; am. 2oo2,.ch

. 329, § 3, p. 2010, ch. 225, § 1, p. 501: am. 2010, ch. 235, 928;am.2002,ch.363,§ 2,p.1023:arn.200a, § 3,p, 542; am. 2010,ch. 245, § l,p. 629.

STATUTORY NOTES

Amendments.

This sectionwas amendedbyfour 2010 acts which appear to b. compatible andhave been compiled together.

The 2010 amendment, by th. 104, effective July 1, 2010 added subsection [(29)](28).

The 2010 amendment, by ch. 225, effective January I, 2011, in the second sentence in sub••ction (25), inserted "upon a showing that the voter comes within the provisions of subsection [(30)](28) of this section or"; and addad suhseetion [(30)J(28).

The 2010 amendment, by ch. 235, effective July 1, 2010, subetituted "public care for people who are elderly, indigent or have men· tal

## or physical disabilities" for "public care for theelderly,indigent, ormentallyorphysically handicappad"in subsection (6).

The 2010 amendment, by eh. 245, April S, 2010, added sUDsection (28). Compiler's Notes.

Forthis section as effective WltilJanuary 1, 2011, see the preceding section, also numbered § 9·340C.

Effective Dates.

Section 5 ofS.L. 2010, ch. 245 decl""ed an emergency. ApprovedApril 8, 2010.

9·840D. Records exempt from disclosure

- Trade secrets, production records, appraisals, bids, proprietary information.

- The 

### following records are exempt from disclosure: (1) 

### Trade secrets including those contained in response to public agency

or indElpenp.ent public body corporate and politic requests for proposa,l, requests for clarification, requests for information and similar requests. "Trade secrets" as used in this section means information, including a formula, pattern, compilation, program, computerprogram, device, method, technique, process, or unpUblished orin progress research that: (a) Derives independent economic value, actual or potential, froUl not being generally knQV\'ll 

### to, and not being readily ;'lScertainable by proper

means byotherpersonswho CIill**~btain** 

### economic value from 

### its disclosure

or use; and (b) Is the subject ofefforts that arereasonableunderthecircmnst!l4ces 

### to maintain its secrecy. (2) 

### Production records, housing production, rental andfinancing records, sale or purchase records, catchrecords, mortgage portfolio loan documents,

or similar business records of a private concern or enterprise required by law 

### to be submitted 

### to or inspected by a public agency or'submitted to or otherwise obtained by an independent public body corporate and politic. Nothing in this subsection shall limit the use which can be made of such387 PUBLIC WRITINGS 9-340D



### information for regulatory purposes or its admissibility in any enforcement proceeding. (3) Records relating to the appraisal ofreal property, timber or mineral rightspriortoits acquisition, saleor leasebya public agency orindependent public body corporate and politic. (4) Any estimate prepared by a public agency or independentpublic body corporate and politic thatdetails the cost ofa public project until such time

as disclosed or bids are opened, or upon award ofthe contract for construction ofthe public project. (5) Examination, operating or condition reports and all documents relating thereto, prepared by or supplied to any public agency or independent public body corporate and politic responsible for the regulation orsupervision offinancialinstitutions including; but not limited to, banks, savings and loan associations, regulated lenders, business and industrial development corporations, credit unions, and insurance companies, or for the regulation or supervision ofthe issuance ofsecurities. (6) Records gathered by a local agency or the Idaho department of
commerce, as described in chapter 47, title 67, Idaho Code, for the specific
purpose of assisting a person to locate, maintain, invest in, or expand business operations in the state ofIdaho. (7) Shipping and marketing records of commodity commissions used to evaluate marketing and advertising strategies and the names and addresseS' ofgrowers and shippers maintained by commodity commissions. (8) Financialstatementsandbusiness information andreports submitted by a legal entity to a.port·district organized under title 70, 

### Idaho Code, in connection with a business agreement, or with a development proposal or with a financing application for any industrial, manufacturing, or other business activity within a port district. (9)**Nam~** 

### and addresses ofseed companies, seed crop growers, seed crop consignees, locations, of seed crop fields, variety name and acreage by variety

.. Upon the request of the owner of the proprietary variety, this inforlllation shall be 

### released to the owner. Provided however, that ifa seed crop has been identified as diseased or has been otherwise identified bythe Idaho departmentofagriculture, other state departments ofagriculture, or the United States department of agriculture to represent a tlrreat to that particular seed. or commercial crop industry**or~, i~dividual**  

### lP:0wers, information as to test results, location, acreage involved and disease symptoms of that particular seed crop, for that growing season, shall be available for public inspedlon and coPYing. This exemption shall not supersede ·the provisions of section 22-436, Idaho Code, nor shall this exemption apply to informationregardingspecific propertylocations subject
to an open burning ofcrop residue pursuant to section 39-114, 

### Idaho Code,

names ofpersons responsible for the open burn, acreage andcrop type to be burned, and time frames for burning. (10) Information obtained from books, records and accounts required in chapter 47, title 22, Idaho Code, 

### to be maintained by the Idaho oilseed commission and pertaining 

### to the individual production records ofoilseed
growers.

### 388 9-340D EVIDENCE

(11) Records ofany riskretention or self-insurance program prepared in anticipation of litigation or for analysis of or settlement of potential or actual money damage claims against a public entity and its employees or againstthe industrial special indemnityfund except as otherwise discoverable under the Idaho or federal rules ofcivil procedure. These records shall include, .but are not limited to, claims evaluations, investigatory records, computerized reports of losses, case reserves, internal documents and correspondence relating thereto. At the time any claim is concluded, only statistical data and actual amounts paid in**s~ttlement** shall be deemed a public record unless otherwise ordered to be sealed by a court ofcompetent jurisdiction. Provided however, nothing in this subsection is intended to limit the attorney client privilege or attorney work product privilege otherwise available to any public agency or independent public body corporate and politic. (12) Records of laboratory test results provided by or retained by the Idaho food quality assurance laboratory. Nothing in this subsection shall limit the use·which can be made, or availability ofsuch information ifused, for regulatory purposes or its admissibility in any enforcement proceeding. (13) Reports required to be filed under chapter 13, title 62, Idaho Code, identifYing electrical or natural or manufactured gas consumption data for

an individual customer or account. (14) Voluntarily prepared environmental audits, and voluntary disclosures of information submitted on or before December 31, 1997, to an environmental agency as defined in section 9-803, Idaho Code [now null and void), which are claimed to be confidential business information. (15) Computer programs developed or purchased by or for any public
agency or independent public body corporate and politic for its' own use. As used in this subsection, "computer program" means a series ofinstructions

or statements which permit the functioning of a computer system in a

manner desigued to provide storage, retrieval and manipulation of data from the computer system, and any associated documentation and source material that explain how to operate the computer program. Computer program does not include:

. (a) The original data including, but not limited 

### to, numbers, 

### text, voice, graphics and images; (b) Analysis, compilation and other manipulated forms of the original data produced by use'ofthe program; or (c) The mathematical or statistical formulas that would be used if the manipulated forms ofthe original data were to be produced manually. (16) Active investigativerecords andtrademarkusage auditsoftheIdaho potato commission specifically relating to the enforcement of chapter 12, title 22, Idaho Code, until the commencement of formal proceedings as provided by rules of the commission; purchase and sales information submittedto the Idaho potato commission during a trademark usage audit, and investigation or enforcement proceedings. Inactive investigatory records shall be disclosed unless the disclosure would violate the standards
set forth in subsections (l)(a) through (f) of section 9-335, Idaho Code. Nothing in this subsection shall limit the use which can be made, or389 PUBLIC WRITINGS 9-340D



### availability of such information if 

### used, for regulatory purposes or its admissibility in any enforcement proceeding. (17) All records copied or obtained by the director ofthe department of agriculture or his designee as a result ofan inspection pursuant to section 25-3806, 

### Idaho Code, except: (a) Records otherwise deemed to 

### be public records not exempt from disclosure pursuant to this chapter; and (b) Inspection reports, determinations of compliance or noncomI1liance and all other records created by the director or his designee pursuant to section 25-3806, 

### Idaho Code. (18) All 

### data and information collected by the division of animal indu!!­ triesorthe state brand board pursuanttotheprovisions ofsection 25-207B, 

### Idaho Code, or rules promulgated thereunder. (19) 

### Record!! disc1o!!ed to'a, county official by the state t/ilX 

### commission pursuant to subsection (4)(c) 

### ofsection 63-3029B, 

### Idaho Code. (20) 

### Records, data, information and materials collected, developed, generated, ascertained ordiscovered during the course ofacademic research at public institutions of higher education if the disclosure of such could reasonablyaft'ect theconduct or outcome oftheresearch, orthe ability ofthe public institution 

### Of'higher education to patent or copyright the research or protect intellectual property. (21) 

### Records, data, information and materials collected orI:.!tilized during the course of academic research at**~)Ublic** 

### institutions ofhigher edUCation provided by anypetson or entity other than the public institution ofhigher education or a public agency. (22) 

### The exemptions from disclosure providedin subsections (20) 

### and (21) 

### of this section shall apply only until the academic research is 

### publicly released, copyrighted or patented, or until the academic research is 

### completed or terminated. At 

### such time, the records, data, information, and materials shall be subject to public disclosure unless: (a) anotherexemption in this chapter applies; (b) such information was provided to the iIlStitution subject to a written agreement of confidentiality; or (c) public disclosure would pose a danger to persoris or property. (23) 

### Theexemptionsfrom disclo.sure providedinsubsections (20) 

### and (21) 

### ofthis section do not incIl:.!de basic information about a particular researCh project that is 

### otherwise subject to publi,c disclosure, such as the nature of the academic research, the name of the researcher, and the amount and

source ofthe fundi,ng provided for the project. (24) 

### Records of a county assessor containing information showing the income and expenses ofa taxpayer, whiCh information was provided to the

assessor by the taxpayer to permit the assessor 

### to determine the value of property ofthe taxpayer. (25) 

### Results oflaboratory tests which have no known adverse impacts to human health conducted by the Idaho state department of agriculture animal healthlaboratory, related 

### to diagnosis ofanimal diseases ofindivid" ual animals or herds, on samples submitted by veterinarians or animal

owners unless: (a) Thelaboratorytestresults indicatethe**pre~ence** 

### ofa stateorfederally reportable or regulated disease in animals;390 9-340D EVIDENCE

(b) The release ofthe test results is required by state or federal law; or (c) The test result is identified as representing a threat to animal or human health or to the livestock industry by the Idaho state department ofagriculture or the United States department ofagriculture. Nothingin this subsection shall limit the use which can be made, or availability of such information ifused, for regulatory purposes or its admissibility in any enforcement proceeding, or the duty of any person to report conta. gious orinfectious diseases as required by state or federal law. (26) Results oflaboratorytests conducted bytl:)e Idaho state department of agriculture seed laboratory on samples submitted by seed producers or seed companies. Nothinginthis subsection shall limitthe use which can be made, or availability orsuch information pursuant to the provisions of subsections (9) and (10) ofsection 22-418, Idaho Code. (27) For policies that are owned by private persous, and not by a public agency ofthestateofIdaho,records ofpolicies, endorsements, affidavits and
any records that discuss policies, endorsements and affidavits that may be requiredto 

### be filed with orby a surplus line association pursuantto chapter 12, title 41, Idaho Code.

(28) Individual financial statements ofa postsecondary educationalinsti· tution or a proprietary school submitted to the stateboard ofeducation, its director or a representative thereof, for the purpose of registering the postsecondary educational institution or proprietary school pursuant to section 33-2402 or 33-2403, Idaho Code, or provided pursuant to an administrative rule ofthe board adopted pursuant to such sections.

History.

I.C., § 9-340D, as added by 1999, ch. 30, f 5, p.41: am. 2000, ch. 342, § 6, p. 1146; am. 2001,ch.383,§ 2,p. 1340; am. 2oo4,ch. 204, § 2, p. 621; am. 2004, ch. 205, § 2, p. 627; am. and redesig. 2005, ch. 25, § 12, p. 82; am. 2005, ch. 58, § 1, p. 213; am. 2005, ch. 276, § I, p. 848; am. 2006, ch. 16, § 1, p. 42; am. 2007. ch. 60, § 15, p. 143; am. 2007, ch. 88, § 1, p. 240; am. 2007, ch. 205, § 1,p. 628: am. 2007, ch. 206, § 1, p. 632; am. 2006, ch. 27, § 3, p. 41; am. 2008, ch. 71, § 2, p. 187; am. 2010, ch. 222, § 1, p. 495.

STATUTORY NOTES

Cross References.

Food quality assurance institute, § 67­ 8301 at seq.

Industrial special indemnity fund, § 72­ 323 et seq.
Amendments.

This section was amendedbytwo 2004acts which appear to becompatible andhave been oompiled together.

..

The 2004 amendment, by ch. 204. § 2, added subsection (19).

The 2004 amendment, by ch. 205, § 2, added subsection (18).

This section was amended by three 2005
acts which ':ppear to be compatible and have been compiled together.

The 2005 amendment, by ch. 25, § 12, redesignated a second subsection (18) as (19).

The 2005 amendment, hy ch. 58, § I, added subeection (24). The 2005 amendment, by ch. 276, § 1, added subeections (20) to (23).

The 2006 amendment, by ch. 16, redesignatedthelastparagraph,whichwas added as
a second subsection (20) by S.L. 2005, ch. 58, § 1 as subeection (24).'

,

The section was amendedby four 2007 acts which appear to be compatible andhave been compiled together.

The 2007 amendment, by ch. 60, substituted 'Ioilseedff for "canola and rapeseed"**pre~** ceding "commission"andsubstituted "oilseed" for "canola or rapeseed" precding "gl'OWers" in subsection (10).

The 2007 amendments, by chs. 88, 205, and 206, each purported to add a subeection (25)
to this section. The provisions added by S.L. 2007, ch. 206, § 1 wereretained as subeection (25). The provisions added by S.L. 2007, ch. 205, § 1 and by S.L. 2007, ch. 88, § 1 were391 PUBLIC WRITINGS 9-340D

redesignated as subsections (26) and (27) by S.L. 2008, ch. 71, § 2.

This sectionwas amended by two 2008 acts which appearto be compatible and have been compiled together,

The 2008 amendment, by ch. 27, corrected
two sUhaeetion designations.

The 2008 amendment, by ch. 71, in subsection(9), added"nor shallthis exemption apply
to information regarding specific property locations subject to' an open burning of crop residue pursuant to section 39-114, Idaho Code, names of persons responsible for the
open burn, acreage and crop type to be burned, and time frames fur burning.'

The 2010 amendment, by ch. 222, added suhaection (28). CODlpiler's Notes.

Section 9-803, referred to in subdivision (14), became null and void December 31, 1997. The previous text ofthat section is set out 

### .s follows:

"9·803. Definitions. [Null and void De· cember 31, 1997.I-As usedin this chapter:

"(1) 'Document,' as used in this legislation, include$}**writings~** drawings, graphst charts, photographs, phone records and other data compilations. including electronic, from which information can be'obtatoed or trans· lated.•

"(2) 'Environmental agency' shall mean any department or division ofthe state, local government orhealthhoardwith authorityto enforce any state environmental law.

"(3) 'Environmental audit' means an internal evaluation done pursuant to a plan or protocol that is designed to identii;r and pre· vent noncompliance and to improve compliance with statutes, regulations, permits and orders. An environmental audit may be can· ducted by an owner or operator, by an owner
oroperator'. employees or by an independent
contractor. An environmental audit may in· clude:

"(a) One (1) or more facilities; "(b) Any activity at one (1) or more facilities;

"(c) Impacts 00 one (1) ar more environ· mental media at a facility or facilities; or

"(d) Management systems related to a fa· cility, anactivity oranimpact on&'vironmen· tal media.

"(4) 'Environmental audit report' means a set ofdocuments, each labeled 'Environmen· talAudit Report'(or a substantive equivalent label), andprepared as a result ofan environ· mental audit. An environmentsl audit report may inclnde field notas, records of observa· tions, findings, opinions, suggestions,**imple~** mentation plans, conclusions) drafts,**memo~** randa, drawings, photographs, computar. generated or electronically recorded infonnation, maps, data, charts, graphs and surVeys, provided such supporting informa· tion is collected or developed for tha primary purpose and in the course ofan**environmen~** tal audit.An environmental audiheport may include memoranda and documents**analyz~** ing portions or all ofthe audit report.

"(5) 'Environmental law' means ruly federal, state or local law, regulation, rUle,**ordi~** nance or permit term. and conditions designed to protect or enhance the quality of land, wateror airfor thaprotectionofhuman health, wildlife, other biota, or the environment.**~j(6)** 'Person) means any individual, firm, association, partnership,jointstock company, trust, estate, local governinentalentity, public

or private corp.oration, or: any other legal entity which is recognized by the law as the subject of rights and duties, but does not include any state or. federal governmental entityoritsc,!ntractors and/or subcontractors in the**performh:nce~** operationormanagement of governmental activities, programs, funetions, facilities or s:ites,

"(7) 'In camera review' means a hearing Or review in a courtroom,hearingroom orchambers, to which the general public is not admitted. After suchhearingor review, the content ofthe oral andother evidence and statements ofthejudge, hearing officer and conose! shall beheld io confidence by thoseparticipating io

or present at. the hearing or review, ,and any transcript of tha hearing or review shall be sealed and not Considered a publiciecord until orunless its contenta are disclosedby a court having juriBdiCtiQn over the.**~atter.** [I.e., § 9-603, as addedby 1995, ch. 359, § 1, p. 1218; am. 1996, ch. 414, § 1, p. 1376.1"

Effective Dates.

Section 3**of'!i~L.** 20M, ch. 204 aeelared an emergency retroactively to January 1, 2003. Approved March 23, 2004.

..

"Section 2 of S.L. 2005, ch. 276 declared an emergency. Approved April 5, 2005:

Section 6 of S.L. 20OS, rh. 71 declared an emergency. Approved March 7, 2008.

JUDICIAL DECISIONS

SettlementAgt-eements. ented io order to conclude any potential

Settlement agreement between a county claims between the employee and the county. employee and the county's insurer was prop­ Only statistical data \Uld tha actual amount erly sealed, wbere the settlement was exe- paid to the employee were public records.392 9·340E EVIDENCE

Cowles Publ'g Co. v. Kootenai County Bd. of CountyComm'rs, 144 Idaho 259, 159P.3d 896 (2007).

9-840E. Exemptions from disclosure

- Archaeological, endangered species, libraries, licensing exams.

- The following records are exempt from disclosure: (1) Records, maps or other records identifYing the location ofarchaeological or geophysical sites or endangered species, ifnot already known to the general public. (2) Archaeological and geologic records concerning exploratory drilling, logging, mining and ot:q(;lr excavation, when such records are required to be filed by statute for the time provided by statute. (3) The records of a library which, when examined alone, or when examinedwith otherpublic records, would reveal theidentityofthe library patron checking out, requesting, or using an item from a library. (4) The material ofa library, museum or archive which has been contributed by a private person, to the extent ofanylimitation that is a condition ofthe contribution. (5) Test questions, scoring keys, and other data used to administer a licensing examination, employment, academic or other examination or testingprocedurebefore theexamination is given ifthe examination is tobe used again. Records establishing procedures for and instructing persons administering, grading or evaluating an examination or testing procedure

are included in this exemption, to the extent that disclosure would crei)lte a risk that the result might be affected.

History.

I.C., § 9-340E, as added by 1999, ch. 30, § 6, p. 41.

9-340F. 

### Records exempt from 

### disclosure

- Draft legislation and supporting materials, tax commission, petroleum clean water trust fund.

- The following records are exempt from disclosure: (1) Records consisting of draft legislation and documents specifically related to such draft legislation or research requests submitted to the legislative services office by a member of the Idaho legislature for the
purpose ofplacingsuchdraftlegislation into a form suitablefor introduction

as official proposed legislation ofthe legislature ofthe state ofIdaho, unless the individual legislator havin,.g submitted or requested such records or research agrees to waive the provisions of confidentiality provided by this subsection. (2) All papers, physical and electronic records and correspondence or other supporting.materials comprisingthe workpapers in the possession of the legislative services office or the director of legislative performance evaluationspriortorelease oftherelatedfinal audit and all otherrecords or materials inthe possession ofthe legislative services office or the directorof legislative performance evaluations thatwould otherwise be confidential or exempt from disclosure.393 PUBLIC WRITINGS 9·340G



### (3) Records consisting ofdraft congressional and legislative redistricting plans and documents specifically related to such draftredistricting plans or research requests submitted to 

### the commission staffby a member of the commission for reapportionment for the purpose of placing such draft redistrictingplanintoform suitablefor presentationto thefull membership of the commission, unless the individual commission member having submitted or requested such plans or research agrees to waive the provi· sions ofconfidentiality provided by this subsection. (4) .Records that identify the method by which the Idaho state tax commission selects tax returns for au.dit review. (5) Underwriting and claims records ofthe Idaho petroleum clean water trust fund obtained pursuant to section 41-4905, 41-4909, 41·491IA, 41· 4912 

### or 41·4912A, 

### Idaho Code. Providedhowever, thatthis subsection shall

. -

. . 

### not prevent the Idaho petroleum clean water trust fund's submittal to the Idaho department ofenvironmental quality, or other regulatory agencies of information necessary to satisfy an insured's corrective action requirement under applicable federal orstate standardsintheeventofa release intothe environment from a petroleum storage tank; and provided further that nothing in this subsection shall prevent the Idaho petroleum clean water trust fund from providing auditing, reporting, or actuarial information as otherwise required of it pursuant to section 41·4919, 41-4925A, 41·4928, 41.4930, 41·4932, 41·4937 

### or 41.49313, 

### Idaho Code.

History. 2001, ch. 103, § 1, p. 253; am. 2003, ch. 96,

I.C., § 9·840F, as added by 1999, th. 30, § 1, p. 281. § 7, p. 41; am. 2000, ch. 229, § 1, p. 643; am.

STATUTORY NOTES

Cross References. Legislative services oifu:e, § 67·701 et seq.

Commission for reapportionment, Idaho State tax commission, Idaho Const., art. Const., art. ill, § 20 and § 72-1501 at seq. VII, § 12 and § 63·101.

Director oflegislative performance evalua· tions, § 67·457.

9-340G. 

### Exemption from disclosure Records ofcourt proceed. ings regarding judicial authorization of abortion procedures for minors.

- In accordance with section l8·609A, 

### Idaho Code" the following records are exempt from public disclosurEl: all records contained in court files ofjudicial proceedings arising under section 18-609A, 

### Idaho Code, are exempt from disclosure.

History.

I,C., § 9·840G, as addedby2000, ch. 7, § 9, p. 10; arn.2007, ch. 193, § 2,p. 565.

STATUTORY NOTES

Amendment•. closure: records contained in court files of

The 2007 amendment, by ch. 193, r.wrota j1!dicial proceedings regardingjudicial autho· the section, which formerly read: "In a<;c<>r· rization ofaminor's consent to an abortion or dance with

## s.etion IS.609A, Idaho Code, the the performance ofabortion procedUres upon foDowing records are exempt from public dis- a minor who would otherwise have to obtain394 9-340H EVIDENCE

consent for the procedure from 3: parent or Effective Dates_ guardian, in additionto 1;'ecords ofanyjudicial Section 8 ofS.L. 2007, ch. 193 declared an proceedings filed under section 18-609A(3), emergency. Approved March 27, 2007. Idaho Code."

9-340H. Exemption from disclosure

- Records related to the uniform securities act.

- Except as otherwise determinedbythe director ofthe department offinance pursuant to section 30-14-607(c), Idaho Code, the following records are exempt from disclosure: (1) A record obtained or created by the**dire~or** of the department of finance or a representative of the director in connection with an audit or inspectionunder section 30-14-411(d), Idaho Code, or aninvestigationunder section 30-14-602, Idaho 

# --

Code; (2) A part of a record filed in connection with a registration statement under section 30-14-301, Idaho Code, and sections 30-14-303 through 30-14-305, Idaho Code, or a record under section 30-14-411(d), Idaho Code, that contains trade secrets or confidential information if the person filing the registration statement or report has asserted a claim ofconfidentiality

or privilege that is authorized by law; (3) A record that is not required to be provided to the director of the department offinance or filed under chapter 14, title 30, Idaho Code, and is provided to the director only on the condition that the record will not be subject to public examination or disclosure; (4) A nonpublic record received from a person specified in section 30-14­ 608(a), Idaho Code; and (5) Any social security number, residential address unless used as a business address, and residential telephone number unless used as a business 'telephone number, contained in a record that is filed pursuant to chapter 14, title 30, Idaho Code.

History.

I.C" § 9-340H, as added by 2004, ch. 45, § 3, p. 169.

STATUTORY NOTES

Prior Laws. Compiler's Notes.

Former § 9-340H, which comprised I.C. Pursuant to S.L. 2004, ch. 45, § 8, this § [9-340Hl 9-340G, as addedby 2000, ch. 194, section took effect on September 1, 2004. § 3, p. 483, was repealedby S.L. 2002, ch. 27, § 1.

9·341. Exempt and nonexempt public records to be separated.

­ If any public record contains material which is not exempt from disclosure

as well as material which is exempt from disclosure, the public agency or independent public body corporate and politic shall, upon receipt of a request for disclosure, separate the exempt and nonexempt material and make the nonexempt mllterial available for examination, provided that a denial ofa request to copy nonexempt material in a public record shall not be based upon the fact**tha~** such nonexempt material is contained in the

same public record as the exempt material.395 PUBLIC WRITINGS 9-342

HI.tory.

I.e., § 9-341, as added by 1990, ch. 213, § 1,p. 480; arn. 20OO,ch.342, § 7, p. 1146.



### 9-342. Access to records about a person by a person. - (1) A person mayinspect and copy the records ofa public agency or independent public body corporate and politic pertaining 

### to that person, even if the record is otherwise exempt from public disclosure. (2) A person may request in writing an amendment of any record pertainingto thatperson. Within ten (10) days ofthereceipt ofthe request, the public agency or independent public body corporate and politic shall either: (a) Make any correction of any portion of the record which the person establishes is not accurate, relevant, or complete; or (b) Inform the person in writing of the refusal to amend in acCordance with the request and the reasons for the refusal, and indicate clearly the person's right to appeal the refusal and the time period for doing so. The procedures for appealinga refusalto amendshallbe the same as those set forth in sections 9-343 and 9-344, Idaho Code, and the court may award reasonable costs and attorney's fees to theprevailingparty orparties, ifit finds 

### thattherequestfor amendment orrefusalto amend wasfrivolously pursued. (3) The righttoinspect and amendrecords pertainingto oneselfdoes not include the right to review: (a) Otherwise exempt investigatory records of a public agency or independent public body corporate and politic ifthe investigation is ongoing; (b) Information that is compiled in reasonable anticipation of a civil action or proceeding wbich is not otherWise discoverable; (c) The information relates to adoption records; (d) Information which is otherwise exempt from disclosure by statute or**co~** rule; (e) Records ofa prisoner maintained by the state or local agency having custody ofthe prisoner or formerly baving custody ofthe prisoner or by the commission ofpardons and parole.

History. 2000,ch. 342,§ 8,p. 1146; arn. 2000,ch. 368, 1.0., § 9-342, as added by 1990, ch. 213, § 2, p. 1219; aDl. 2001, ch.48,§ 2, p. 88. § 1, p.480; _.1992, ch. 200, § 2, p. 618; am.

STATUTORYNOTES**Am\>~<Qnents.** , This section was amended by two 2000 acts which appearto be compatible andhave been compUed together.

The 2000 amendment, by ch. 342, § 8, jn sUbeection (I), inserted "or mdependent public bodycorp<>rate arid politic"preceding "pertaining to that person"'; in subsection (2), inserted. "or**indepilll~e,,~** public body corporate and politic"**~.f~qing** #shall either"; in subdivision (2)(b), SUbstituted "attorrtey's"for "attorney";' and in subsection (3) (noW subdivision (3)(a), inserted "or independent public body corporate and politic" preceding "ifthe investigation is 'ongoing",

The 20QO amendment, by ch. 868, § 2, in the last sentence ofsubdivision (2)(b), substituted fjattorney's" for ';attorney'J; divided'**sub~** division (3) into the introductory language of subdivision (3) and subdivisions (3)(a) through (3)(d); ill present subdivision (3)(d), added "or cow:! rule" following "discloBure by statute", added subdivision (3)(e); and made minor stylistic and punctuation changes;396 9-342A EVIDENCE

JUDICIAL**DECI~IONS**

ANALYSIS Applicability. Construction.

ApplicablUty. byexcluding "otherwise exemptinveetigatory

Section9·335 controls overprovisions, such records

.,. if the investigation is ongoing,"

as § 9·342(1), that might otherwise provide which implicitly defers to the exemption con· for disclosure ofinvestigatoryrecords, Gibson tained in § !I.340B; which, in turn, defere to
v. Ada County, 138 Idaho 787, 69 P.3d 1048 § 9·335 for a wore speciiie definition of the (2003). investigatory records exemption. Bolgar v. Lance, 137 Idaho 792, 53 P.3d 1211 (2002). Construction.

Subsection (3) of this secUQJV limits the applicability of subsection (1) of tbis section

9·342A. Access to air quality and hazardous waste records

­ Protection oftrade secrets.

- (1) To the extent required by the federal clean air act and the resource conservation and recovery act for state primacy over any delegated or authorized programs, even ifthe record is otherwise exempt from disclosure under chapter 3, title 9, Idaho Code, any person may inspect and copy: (a) Air pollution emission data; (b) The content ofany title V operating permit; (c) The name and address ofany applicant or permittee for a hazardous
waste treatment, storage, or disposal facility permit pursuant to chapter 44, title 39, Idaho Code; and (d) Any other record required to be provided to or obtained by lJJ.e departmentofenvironmentalqualitypursuantto thefederal clean air 

### act and the resource conservation and recovery act, and the implementing
state statutes, federal regulations and state rules, unless the record is a trade secret. (2) For purposes ofthis section, a record, or a portion ofthe record, is a "trade secret" ifthe information contained in the record is a trade secret within the meaning ofthe Idaho trade secrets act, sections 48-801, et seq" Idaho Code, including commercial or financial information which, if disclosed, could cause substantial competitive harm to the person from whom the record was obtained. (3) Any record, or portion of a record, provided to or obtained by the department ofenvironmentalquality andidentified bythe p8rson providing the record as a trade secret shall not be disclosed to the public and shall be kept confidential according to the .procedures established in this section. (4) Nothingin this section shallbe construed aslimitingthe disclosure of

a trade secret by the department ofenvironmental quality: (a) 

### To any officer, employee, or authorized representative ofthe state or the United States, under a continuing claim of confidentiality, as necessaryto carryouttheprovisions ofstateorfuderallaw, orwhenrelevant to any proceeding thereunder; (b) As determined necessary by the director ofthe department ofenvironmentalquality(under a continuingconfidentialityeltrlm)toprotectthe public health and safety from imminent and substantial endangerment;397 PUBLIC WRITINGS 9-342A

(c) As required by state or federal law, including section 9-343(3), Idabo Code, under a continuing claim of confidentiality and subsection (1), of this section; or (d) With the consent ofthe person from whom the record is obtained'. (5) It shall be the responsibility of any person providing a record to the department of environmental quality to give notice of the existence of a trade secret on each page or other portion of information at the time of submittal and such person shall have the burden ofdemonstratingthat the' information is a trade secret. (6) Notwithstanding the time frames set forth in section 9-339(1), Idaho Code, when a request is made to the department ofenvironmental quality pursuant to the provisions ofthis chapter for the**di~closure** ofinformation for which a trade secret claim has been made, and the information has not been demonstrated to be a trade secret to the satisfaction ofthe director of the department ofenvironmenta:l quality, within three (3) working days of receipt oftherequestfor the disclosure oftheinformationthe department of environmental quality shall provide a written request for substantiation to the person making the confidentiality claim. A response shall be submitted
to the departmentofenvironmentalqualitybytheperson claimingthetrade
secretprotectionwithiIiten (10) workingdays afterreceipt oftherequestfor substantiation or**th~** information subject to the claim shall be disclosed without further notice. Upon receipt ofa timely response to the request for substantiation, tlie director of the departmllnt of .environmental quality shall determine whether the information is 

### Ii trade secret subject to protection. (a) If it is determined that the information, or any portion of the information, is a trade secret, within thtee(3) working days after receipt ofthe response, the director ofthe department ofenvironmental quality shall notify the person requesting the information that the request is denied pursuant to sections 9-339(3} and (4), Jdabo Code. (b) If it is determined that the information, or any portion of the information, is not a trade secret and is, therefore, subject to disclosure, withinthree (3) working days afterreceipt ofthe response, the director of the department ofenvironmentalquality shalkinform the person making the confidentialityclaim of the determination. Thedecision shallbe a final
agency action directly appealable, de novo, to_the district court of the county where the records or some part thereof are located. An·appeal contestingthe decisionefthe director,ofthe department ofenvironmental quality to release information claimed to be a trade secret shall be filed withinten (10) working days from the date ofreceipt ofthe written notice of decision. The information claimed to be a trade secret· shall not be disclosed until the period 'for appeal has expired· with no appeal being taken, or a court orderhas beenissuedfinding thatthe information isnot

a trade secret and all appeals ofthat order have been exhausted. (7) In any appeal taken pursuant to this section, the court may award reasonable costs and attorney's fees to the prevailing party if it finds the claim ofconfidentiality or the decision ofthe director ofthe department of environmental quality to provide records was frivolously pursued.398 9-343 EVIDENCE

(8) The department of environmental quality shall adopt rules which include: (a) Appropriate measures to safeguard and protect against improper di:sclosure oftrade secrets, includingprocedurestp train all employees on the proper handling oftrade s!lcrets; and (b) Any other provisions necessary to carry out this section. (9) As it.relates to·the department ofenvironmental quality, orto agents,**contr!lcto~s,** ,or**()th~rrepresentatives** of the department, the immunity created in section 9-346, Idaho Code, shall apply qply when disclosure ofa trade secret is ,made**con~istent** with this section.

History.**lC~,** § 9-342A, as added ];Y i998, ch. 125, §. 1, p. 461; am. 2001, ch. 103, § 2, p. 2.53.

STATUTORY NOTES

Cross References. The "titleV operating permit," refeiTed to

Department 'ot environmental**quality~** in paragraph {l)(b), is 

### a permit tinder the

0 § 39-104

..**fede~!!I** clean 

### ,ur act; see 42 U.S.C.S. §§ 7661 to 7661f. Federitl**Referen~e** •. CODlPiler's Notes.

The fed'eral clean' air act, which is referred The. words enclosed in parentheses so ap­ to in**sub.~ctiori** (1), is codified at 42 U.S.C.s. peared

## in the law a's enacted. §. 7401 et seq.

The**reso~ce** conservation"and'recovery act, Effective D'Ites. which is also -referred to

## m subsection'U), is Section 5 ofS.L. 1998, ch. 125 declared an codified at 42·U.&;C.S. §·6901 et seq. emergency. EffectiveMarch 19, 1998.

"-343. Proceedings to,Im,t'orce right to examine or to receive a copy of record.s

....,.. Jl.etention of disputed rell.Qrds.

- (1) The sole remedy for a person aggrieved by the denial ofa requestfor disclosure is to institute·proceedingsin the district court ofthe countywhere the records or

some part thereof are located, to. compel the public agency or inde.pendent public body corporate and politic to make the information available for public inspection 'in accordance with the provisions of sections 9'337 through 9.-348, Idaho Code.· The petition contesting the public agency's or i,n.dependent publicbody corporate andpolitic's.decision shallbefiled. within

one hundred

.eighty (180) calendar days from: the date of mailing of the notice ofdenial or partial denialbythe.public agencY.or independen.t public body,corporate and politic. The tillle for r.esponsive p1.,eadings and for hearings in such·proceedings shallbe'setbythe court atthe earliest·possible time, orinno eventbeyond twenty-eight (28) calendardays from the date of filing. (2) The public agency or independent public body'corporate and politic**~ha11** keep all documents,or:records in question untilthe end ofthe appeal period, until a decision .has .b!lenrendered on, the petition, or as otherwise statutorily provided, whicheveds longer. \, (3) Nothing_containedin sections 9-337 through 9-348, Idaho Code, shall limit the availability ofdocuments and recordsfor discovery in the,normal

c.ourse of judicial'or administrative adjudicatory proceedings, subject to the law and rules of evidence and of discovery governing such proceedings.399 PUBLIC WRITINGS 9-344



### Additionally, in any criminal appeal or post-conviction civil action, sections 9-335 

### through 9-348, 

### Idaho Code, shall not make available the contents of prosecution case files where such material has previonsly be,en provided to the defendant nor shall sections 9-335 

### through 9-348, 

### Idaho Code, be available to supplement, augment, substitute or supplant discovery procedru:es in any other federal, civil or administrative proceeding.

History. 2000, ch. 342, § 9, p. 1146; am. 2001, 00. 101,

I.C., § 9-343, as added by 1990, 00. 213, § 1, p. 251. § 1, p. 480; am. 1992,00. 200, § 3, p. 61B; am.

JUDICIAL DECISIONS

Negligence. Idabo public records actwas created to allow

Whereforms containing corrections officers' public ace

...andwas notintended to prevent personal information were dillclosed to an harm caused by public disclosure of private inmate during criminal proceeding discovery, infurmation. Nation v. State, 144 Idabo 177, there was no negligence per se, because the 158 P.3d 953 (2007).

OPINIONS OFATTORNEY GENERAL

Refusal to providerecords or documenta on Public "",.rda tbot are exempt mm public the grounds that such records or documents disclosure are nevertheless subject to disclo·

are exempt from disclosure pursuant to the sure in a judicial or administrative proceed

.. Idaho public records act does not constitute ing, jftheyare subjectto disclosure underthe reaSQnable cause orlegal excuse for failing to laws or rules of evidence and discovery go

.... comply with the Department of health and erning those proceedings. OAG 95-6. welfare's .dmipiatrativesubpoena. OAG 95-6.



### 9·344. Order of 

### the court

- Court costs and attorney fees.

­ (1) Whenever 

### it appears that certain public records are being 

### improperly withheld from a member of the public, the court shall order the public official charged withwithholdingthe records 

### to disclose the public record or shovvcause why he should not do so. The court shall deci4e.the case after examining the pleadings filed by the parties and such oral 8rgtm;\ents and additional eyidl)nce as the court lllay allow. The court may examine the record in call1era .in its discretion. (2) Ifthe court-finds that the public official's decision to.refuse disclosure is not justified, it shall order the public official 

### to make the requ,est¢ disclosure. If 

### the court determines that the publie official wasjustified in refusing

### to makethe requested record available, he shall return theitem

### to the public official withoqj; disclosing**i~** 

### content and shall enter an order supporting the decision refusing disclosure. In any such action, the court shall aWllrd reasonable costs and attorney fees to the prevailing party or parties, if 

### it finds that the request or refusal to provide. records was frivolously pursued.

.
History.

I.C., § 9-344, as added by 1990, 00. 213, § I, p. 480.

### 400 9-345 EVIDENCE

JUDICIAJ. DECISI!)NS

Irrel",vantIssue."

, an assoclatiOll's role as an**~~enol7,** it was.­

Because the IiI:ilw state department ofago not awarded such fees. Idaho**Conservatfo~'** ricUlture 

## focusea Iii. an irrelew1nt iSsue In League, Inc.v. IdahoStateDep't**of~c.,** 143 appealing a determinatiOn that.it was re­ Idaho 366, 146 RBd 632 (2006). quired to**disclose.c~ain** nutritilj\l,man.age.
mentplans to a cOnservationleague: attorney· Cited in: Bolger·v. Lke, 137 Idaho 792, fees were awarded on'appeal;**h~wever,** dueto 53 P.3d 1211 (2002),

RESEARCH REFERENCES



# ...

A.L.R.

- Construction and application Qf. concerning award ofattorney's fees and other
state freedom of informati<ill; act provisions litigation costs. 118 A.L.R.5th L**f1~345. Additio.n~l**  

### peljalty.

- If**th~** 

### court fin,ds that a public official has deliberatelyandinbadfaith improperlyrefused a legitimaterequestfor inspection or coPYing,a civil penalty**sh~** 

### be assess'ed against the public official in an amount not to exceed one thousand dollars ($1,000), which shall be paid into the general account.

History.

I.e., § 9-345, as added by 1990, ch, 213, § 1,p:'480:

JUDICIAL DECISIONS

NegligenCe. Idaho public records act was Created

### "1 allow

Whereforms containingcorrectionsofficers' public aectlS8 andwas notintended toprevent personal'inful'Dlation weh>, disclosed to an harm 'caUSlld by pnblic <liselo.urc of private inmate during crimiJlalproeeeding discovery, information,**Natio~,v.** State. 144I<laho 177, there waS no**·neg1igen~ _~**  se, because the 158 P'gd 953(2007).**9~346.** 

### Immunity;

- No public agency or independent public body corporate and'ptilitil!, public official,' or custodian shall be liable, nor shall a

cause of action eXist, for any loss or damage based upon the release of a public record governed by the provisions ofthis chapterifthti public agency

orindependentpublicbody corporate andpolitic, public officialllr custodian acted'in good'faith in attempting to comply with the provisions of this chaJite'r.

History.



### I.e., §!1.-346,**~s** addeq, by, 1990, ch. 213, § 1,. p. 480; am. 2000, ch. 342, § 10, p. 1146.



### 9·847. Agency guidelines.

- By January 1, 1991, every state agency or'independentpublic bOdy corporate andpolitic shall adoptguidelines that identifY thegeneral subject matter ofall public records kept or lliaintained by the state agency or independent public body corporate and politic, the custodian, and the physical location ofsuch documents.

History.

[C., § 9.347, as added by 1990, ch. 213, § 1, p. 460; am. 2000, ch. 342, § 11, p. 1146.401 PUBLIC WRITINGS 

### 9-348

9·348. 

### Prohibitionondistributionor sale ofmailingortelephone number lists

- Penalty.

- (1) 

### Except as provided in. subsections (2), (3), (4), (5), (6), (7), 

### (8) and (9) ofthis section, in order to protect the privacy of thosewho dealwithpublic agencies oranindependentpublicbody corporate and politic: (a) No agency or independent public body corporate and politic may distribute or sell for use as a mailing list or a telephone number list any list ofpersons without first securing the permission ofthose on the list; and (b) 

### No list ofpersons preparedby the agency orindependentpublic body corporate andpolitic maybe used as a mailing list or a telephone number listexceptby the agency or indep!lndentpublic body corporate and politic

or another agency without first securing.the permission of

### those on the list. (2) Except as may**b~** 

### otherwiseprovided in this chapter, this section does
not prevent an individual from compiling a mailing "list or a telephone numberlistby examination or copying ofpublic records, original documents

or applications which are otherwise opentQ 

### public inspectiOn. (3) The provisions of this section do not apply to the.lfsts of 

### registered electors compiledpursuantto title 34, Idaho Code, or to lists ofthe names of employees governed by chapter 53, title 67, Idaho Code. (4) The provisions ofthis section shall not apply to agencies which issue occupational or professional licenses. (5) This section does not apply to the right of access either by Iclaho law enforcement agencies or, by purchase or otherwise, ofpublic records dealing with motor vehicle registration. (6) This sectiQn does not apply 

### to a corporate information list developed by the office of the secretary of state containing the name, address, regiStered**age~t,** 

### officers and directors of corporations authorized to do business in this state or to a business information iist developed by the department ofcommerce containing the name, address, telephone number

or oth,er relevant information ofIdahobusinesses or individuals requesting information regarding the state. ofIdaho or 

### to business lists developed by the departmentofagriculture, diVision ofmarketing anddevelopment, used
to promote food and agricultural products produced in Idaho. (7) This section does not apply to'lists to be 1,lsecl for ordinary utility purposes which are requested by a person who supplies utility**~ervices** 

### in this state. Ordinary utility purposes, as used in this, chapter only, do 

### not include marketing or maheting reseai'ch.

. (8) This section does hota.pply to'liststo be used to give notice required by**anyst~tute,** 

### ordinance, ruie, 

### law or by any governing agency. (9) This section does not apply tostu<ll!lnt directory information provided by collegesi universities, secondary schools and school districts to, military recruiters for militaryrecruiting purposes pursuant to the requirements of federai 

### laws.

. (10) 

### Ifa courtfinds that a person Or

### public official has deliberately and in bad faith violated the provisions of subsection (l)(b) 

### of this section, the
person or public official shall be liable for a civil penalty assessed by the402 9-349 EVIDENCE

court in an amount 'notOln excess of one'thousand dollars ($1,000) which shall be paid into the general account.**Hi~l>ry.** 1994, ch. 398, § 1, p. 1261; am. 1997, ch. 152,

te., § 9.348, as added by 1992, ch. 279, § 2, p. 432; am. 2000, ch. 342, § 12, p. 1146; § 1, p. 856; am. 1993, ch. 117, § 1, p. 294; am. am. 2003, ch. 310, § 1, p. 851.

STATUTORY NOTES

ComplIer'sNotes.

Fo,=",er. §: g...348 W'!B atl\ended and radesig­ nated as.§ '9-349 by § 2 ofS.L. 1992, ch. 279.

.**,'~** 9-349. 

### 'Confidentiality language required in 

### this chapter.

- On and afterJanuary 1,1996, any statutewhichis added to theIdaho Code and pro"ides for the confidentiality or closure of any public record or class of publicrecords shall

### be' placed inthis chapter.Any statutewhichis added to the Idaho Code on and after January 1, 1996, and which prcwides for confidentialitY 

### Or closure'ofa public record or class ofpublic records and is' located at a place'6ther than this chapter shaIl be null, void and ofno force and 

## effeCt regarding the confidentif!ljty or closure ofthe public record and suchpublic'record shall be open andavailable 

### to the publicfor inspection as provided in this chapter.

History.

I.C., §Jl-349, as added. by 1996, ch. 122, § l,p. 437.

.
9-S49A. Severability.

- The provisions of this act arehereby declared
to be severable and 

### if any provision ofthis act or the application of such provision to any person or circumstance isdeclared invalid for anyreason, such declaration shall not affect the validity ofremaining portions ofthl.s
act.

History. § 2, p. 856; am. and redosig. 1996, ch. 122,

[c.,

### .t· 9-348, ;as added by 1990, ch. 213, § 2, p. 437; am. and rodesig. 2005, elf. 25, § I, p. 480; an;t. and fedesill. 1992, ch. 279, § 13, p. 82.

STATUTORY NQ'l'ES**Compll"l'~~.** Notes. ;

. ''this chapter," meaning chapter .3, title 9, This section, which was ofiginallycompiled Idaho Code

.. as § 9·348 and was amended and redesignated JlS § 9-34Rby § 2 ofS.L. 1992;'ch. 279,

. Effectiv"nates.

. was sUbsequently redesig,;ate<j.as § 9-.S!lO by Section 111 of S.L. 1990, ch. 213 provided § 2ofS.L. 1996, ch. 122. HoWever, since there 'that §§ 1 and'2 ofthe act should'take'.«ect

was already·it § 9·350in 

### existenc.,

.. b'iack- July 1,1990. ated designation "[9,349AJ"'was**il:\s~** py Sect,ion 2 ofSL. 1993, cb. 389 declared an the compiler. The redl;Signl',tion as § 9-349A "Illetgency. ApprovedApril 1, 1993.

was fuaiie'permanent by·S.L. 2005, ch. 25, Section 3 ofS.L. 1996, cb. 122 declarad an § 13. emergency and provided that tlieact sbould

'''Thisaet''rl'ferstoS.L.1990,cb.213w hich be in full force and ef'feeton and after its i.codified a., oyer 100 sectionsthroughQ\lt**th~** p,!ssage and approval and retroactive to Jancode. 

### Heiethe reference should probablybe to nary 1, 1996. Approved January 1, 1996.**~** . ,.

### 403 PUBLIC WRITINGS 

### 9·350

9·350. 

### Idaho Code is property of the state of Idaho.

- (1) 

### The Idaho Code is the property ofthe state ofId!lho, and the state ofIdaho and the taxpayers shall be deemed 

### to have a**co~ftiifiton** 

### the Idaho Code. Ifa person reproduces or distributes the Idaho Code for thepurpose ofdirect or indirect commercial advantage, the person shalLpwe to 

### the Idaho code commission, astheagentofthe stateofIdaho, a royaltyfee inadditionto

### the fee charged fotc,opying the Idaho Code. 

### }.ny person.**whor~produces** 

### or distributes the**Idali!"l~ode** 

### inviolation oftheprovisi()ns ofthisI!ection, shall be deemedtobe aninrongerofthestateofIdaho's copyright. TheIdaho code commission, through the office of the**attorri~y gen~iEtI,**  

### is entitled to institut.e an action 

## for.'any infringement ofthat particular right committed while the Idaho code commission or its designated agenthas custody ofthe Idaho Code. (2) A court havingjUrisdiction ofa civil action arising under this section
maygrant s1'\ch 

### reHtidEi it deems appropriate. At any time while an action under this section .is pending, the court mayorder theimpounding, on aueh
terms as it 

### deems reasonable, of all copies 'claimed'

### to ·have been made or used**i~** 

### violation q{tJJ:hldlilio code commission's copyright pursuant 

### to this section. ' .

. . (3) An 

### infringer ofthe state ofIdaho's copyright pursuant to this section is liable for any profits the infringer has incurred by obtaining the Idaho Code for commercial.purposes oris liable for statutory damages asprovided in subsection (4) 'ofthis section.

(4) 

### ,The Idaho code commission, as agent of the copyright owner, may elect, al:'i'my time before finaljudgment is rendered, to recover, instead of actual damages and profits, an award ofstatutorydamages for all infring&­
ments involved in

### the action, with respect 

### to theIdaho Code for which any

one (1) infringer is liable individually, or for which any two (2) or more infringers are liable jointly and severally, in a sum of not less than two hundred fifty dollars ($250) ormore than tenthousand dollars ($10,000), as the court considersjust. (5) In any civil actionunderthis section, the courtmay allowtherecovery of full costs by or against any party and may also award reasonable attorney's fees 

### to the prevailing 'party as Part ofthe costs. (6) The Idaho code commission is hereby authorizedtolicense andcharge

• • •**~** ,"' :. oM'

.... , .' " 

### fees for the use oithe Idaho Code. The Idaho.code'commission may grant a license for the use 

### of the Idaho Code 

### to a public agency in 

### the state and waive all or a portion ofathll fees. Ali 

### fees recovered by the Idaho code commission shall be 

### deposited in the general account.

History.

I.e., § 9-350, as added bY,1993"ch. 389, § 1, p. 1444.

STATUTORYNOTES

Effective Dates.

Section'2 of S.L. 1993, ch'. 389declared an emergency. Approved April 1, 1993.