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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 31110

KEVIN NATION and LISA NATION,

husband and wife; KLINTON HUST and

NOEL HUST, husband and wife; and

ANGELA GRIGSBY, an individual,

 Plaintiffs-Appellants,

v.

STATE OF IDAHO, DEPARTMENT OF

CORRECTION; J.J. RENTIE JR.;

GEORGE MILLER; GREG FISHER; JEFF

HENRY; AL RAMIREZ; and JOHN DOES

1-5; COUNTY OF ADA; MATT

STOPPELLO; GUS CAHILL,

 Defendants-Respondents.

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Boise, December 2006 Term

2007 Opinion No. 56

Filed: March 29, 2007

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Honorable Kathryn A. Sticklen, District Judge.

District court orders granting summary judgment, affirmed. Order awarding

attorney fees, vacated.

White Peterson, P.A., Nampa, for appellants. Sarah Hart Arnett argued.

Hon. Lawrence G. Wasden, Attorney General and Greg Hollis Bower, Ada

County Prosecuting Attorney, Boise, for respondents. Phillip J. Collaer, Deputy

Attorney General and James K. Dickinson, Deputy Ada County Prosecuting

Attorney argued.

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BURDICK, Justice

Appellants appeal from two district court orders granting summary judgment to

Respondents on the Appellants’ federal civil rights claims and state law claims. We affirm the

grant of summary judgment, but vacate the award of attorney’s fees below.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellants Kevin Nation, Klinton Hust and Angela Grigsby were employed as

corrections officers at the Idaho State Maximum Security Institution (IMSI) by the Idaho
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Department of Corrections (IDOC). On May 3, 2002, these three officers were assaulted by

inmate David Persons. Persons threw an unidentified liquid substance from his cell, hitting the

officers’ bodies and faces. Following this incident, the three officers completed worker’s

compensation forms. The information provided on these forms included the officers’ home

addresses and telephone numbers, marital status, birthdates and social security numbers.

The IDOC conducted an internal investigation into Persons’s assault of the officers and

determined that the matter should be turned over to the Ada County Sheriff (the sheriff’s office)

for further criminal investigation. During the internal investigation, the worker’s compensation

forms were gathered and then forwarded in a package of materials to the sheriff’s office. The

IDOC did not redact the three officers’ personal information when it forwarded the worker’s

compensation forms. Initially, Lieutenant James Joe Rentie, Jr., conducted the internal

investigation and gathered evidence. The results of this investigation were then reviewed by Jeff

Henry, IMSI Captain of Security. At the time of the investigation Greg Fisher served as the

IMSI warden and George Miller served as deputy warden. Ultimately, Fisher decided to refer

the matter to the sheriff’s office.

In turn, the sheriff’s office referred the matter to the Ada County Prosecutor, who filed

criminal charges against Persons. During these proceedings, Ada County Deputy Public

Defender Gus Cahill was appointed to represent Persons. Matt Stoppello, Deputy Ada County

Prosecutor, forwarded the unredacted worker’s compensation forms to Cahill in response to a

discovery request. Cahill then provided these forms to his client, Persons, who disseminated the

personal information in these forms to other inmates.

Appellants Kevin Nation and his wife Lisa Nation, Klinton Hust and his wife Noel Hust

and Angela Grigsby (collectively the corrections officers) then filed suit against the

Respondents: IDOC, Al Ramirez, a supervisor of corrections officers at IMSI, Fisher, Rentie,

Miller and Henry (collectively the IDOC defendants), and Ada County, Cahill and Stoppello.

The complaint alleged violations of the corrections officers’ civil rights under 42 U.S.C. § 1983;

violations of the Idaho State Constitution; negligence; intrusion into the corrections officers’

private affairs; public disclosure of private facts; and intentional and negligent infliction of

emotional distress. Later, the district court allowed the corrections officers to amend their

complaint to include two claims for retaliation.
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The parties stipulated to dismiss Cahill. The district court then granted summary

judgment to the county and Stoppello dismissing all of the corrections officers’ claims. The

district court also awarded costs and attorney’s fees to Cahill, Stoppello and the county. After

the corrections officers filed timely appeals from these two orders, this Court remanded the case

to the district court for determination of the claims against the IDOC and IDOC personnel. The

district court then granted summary judgment for these defendants and awarded them costs, but

not attorney’s fees. Once again, the corrections officers filed a timely notice of appeal.

II. STANDARD OF REVIEW

When reviewing a motion for summary judgment, this Court uses the same standard

employed by the trial court when deciding such a motion. Kolln v. Saint Luke’s Regl. Med. Ctr.,

130 Idaho 323, 327, 940 P.2d 1142, 1146 (1997). “[I]f the pleadings, depositions, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of law” summary

judgment is proper. I.R.C.P. 56(c). The burden is on the moving party to prove an absence of

genuine issues of material fact. Evans v. Griswold, 129 Idaho 902, 905, 935 P.2d 165, 168

(1997). In addition, this Court views the facts and inferences in the record in favor of the nonmoving party. Id.

This Court exercises free review over questions of law. Rahas v. Ver Mett, 141 Idaho

412, 414, 111 P.3d 97, 99 (2005) (citing Kelly v. Silverwood Estates, 127 Idaho 624, 631, 903

P.2d 1321, 1328 (1995)).

III. ANALYSIS

We will first examine whether the defendants were entitled to summary judgment on the

corrections officers’ section 1983 claims and then whether they were entitled to summary

judgment on the correction officers’ state law claims. Additionally, we will determine whether

the district court erred by awarding attorney’s fees and costs below and then determine whether

we should award attorney’s fees on appeal.

A. Section 1983 Claims

The corrections officers brought suit under section 1983 for violations of their

constitutional right to privacy. 42 U.S.C. § 1983 provides that every person who acts under the

color of state law to deprive another of a constitutional right shall be answerable to that person in
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a suit for damages.1

 The correction officers argue that the district court erred by dismissing

Stoppello and the county and then the IDOC defendants through summary judgment. The

district court found that Stoppello was entitled to absolute immunity and that the county and

IDOC defendants were entitled to qualified immunity. Since different theories underpin

immunity for Stoppello, the county and the IDOC defendants, we will analyze separately

whether each is liable under section 1983.

1. Stoppello

“Section 1983, on its face admits of no defense of official immunity.” Buckley v.

Fitzsimmons, 509 U.S. 259, 268 (1993). This statute, however, “is to be read in harmony with

general principles of tort immunities and defenses rather than in derogation of them.” Imbler v.

Pachtman, 424 U.S. 409, 418 (1976). The Supreme Court of the United States has recognized

that some officials are entitled to absolute immunity from suit under section 1983. Buckley, 509

U.S. at 268-69. The official seeking immunity bears the burden of proving he or she is entitled

to absolute immunity because such immunity is justified by the function in question. Id. at 269.

Absolute immunity is only sparingly recognized for state actors. Forrester v. White, 484 U.S.

219, 224 (1988). It should not be extended “further than its justification would warrant.”

Harlow v. Fitzgerald, 457 U.S. 800, 811 (1982).

Prosecutorial immunity from section 1983 suits was first recognized in Imbler. There,

the Court recognized that the common law rule of immunity was well settled, 424 U.S. at 424,

and was based upon the concern that “harassment by unfounded litigation would cause a

deflection of the prosecutor’s energies from his public duties, and the possibility that he would

shade his decisions instead of exercising the independence of judgment required by his public

trust.” Id. at 423. The Court then held that prosecutors are entitled to absolute immunity for

activities intimately associated with the judicial phase of the criminal process—initiating a

 

1 This statute provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper proceeding for redress, except that in any action

brought against a judicial officer for an act or omission taken in such officer's judicial capacity,

injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief

was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to

the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C § 1983.
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prosecution and presenting the state’s case. Id. at 430-31. This approach focuses on the conduct

for which immunity is claimed, not whether that conduct was lawful or may have caused harm.

Buckley, 509 U.S. at 271. This conduct can include actions away from the courtroom and

includes acts which occur in the course of a prosecutor acting as an advocate for the state. Id. at

272-73.

Finding immunity was error, the corrections officers assert, because Stoppello was not

performing an advocacy role when he disclosed the unredacted forms in discovery, but rather

was performing an administrative role. Stoppello contends that he was acting as an advocate for

the state when he provided discovery to Persons, and therefore he is entitled to immunity. The

issue for this Court to determine, then, is whether disclosing documents during criminal

discovery is an act intimately associated with the judicial phase of the criminal process that

occurs when the prosecutor is acting as an advocate for the state.

Two other state appellate courts have examined a nearly identical issue—whether to

afford prosecutors absolute immunity for discovery actions—and determined absolute immunity

should apply. In Arizona v. Superior Court of the State of Arizona, that state’s court of appeals

determined that a prosecutor was absolutely immune from suit under section 1983 for discovery

violations. 921 P.2d 697, 701 (Ariz. App. 1996). The court reasoned that “absolute immunity

applies, since the conduct of discovery is both quasi-judicial and within the prosecutor’s

authority.” Id. Under a factual situation virtually identical to the instant case, the Minnesota

Court of Appeals held that a prosecutor was immune for releasing information in response to a

discovery request. S.J.S. v. Faribault County, 556 N.W.2d 563, 566 (Minn. App. 1996). There,

a prosecutor released the transcript of a minor relating details of incidents of criminal sexual

conduct. Id. at 565. The transcript contained the minor’s full name, and the criminal defendant

shared this information with his friends and kept the copy provided by his attorney on his coffee

table. Id. The minor brought suit against the prosecutor, arguing that releasing the minor’s

unedited statement in response to a discovery request and complying with a discovery request

was “not a function inherent in initiating or maintaining a criminal action.” Id. at 566. The court

disagreed, reasoning that “[c]omplying with discovery requests is an integral part of the

prosecutor’s adversarial role and a function inherent in maintaining criminal actions.” Id.

We hold that conducting discovery is an activity intimately associated with the judicial

phase of a criminal case and that a prosecutor conducting discovery is acting as an advocate for
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the state. As such, the district court did not err when it afforded Stoppello immunity from the

corrections officers’ section 1983 actions.

2. Ada County

Local governments can be sued directly under section 1983 where a “policy statement,

ordinance, regulation, or decision officially adopted and promulgated by that body’s officers”

deprives an individual of his or her constitutional rights. Monell v. Dep’t of Soc. Servs. of the

City of New York, 436 U.S. 658, 690 (1978). Additionally, governmental entities may be sued if

their unofficial custom works a constitutional deprivation. Id. However, a governmental entity

cannot be held liable under section 1983 for respondeat superior. Id. at 691. Therefore, the

county can only be held liable if the actions conducted pursuant to its official policies or customs

caused a constitutional deprivation. See id. (cited in Limbert v. Twin Falls County, 131 Idaho

344, 347, 955 P.2d 1123, 1126 (Ct. App. 1998)).

The corrections officers argue that the district court erred when it granted Ada County

immunity from suit under section 1983 because there was a genuine issue of material fact as to

whether the county had an unwritten policy of releasing unredacted victim statements. Instead,

the corrections officers argue, the court should have recognized that the county having released

another correction officer’s unredacted information in an unrelated case created an issue of fact

precluding summary judgment.

However, all the evidence before us indicates that the county has a policy of redacting

victim information to protect that person’s privacy. While the corrections officers assert that the

release of unredacted forms here and in a prior instance show that that county’s policy is actually

the opposite, examples of instances when the county’s policy was breached do not lead to the

conclusion that the county had a policy of releasing unredacted victim statements. Indeed, the

evidence of this instance of disclosure and only one other instance of releasing this type of

information leads to the conclusion that the county had a policy to redact information.

Therefore, there is no genuine issue of material fact that the county had an official policy causing

a constitutional deprivation, and we hold that the district court did not err when it determined the

county cannot be liable under section 1983.

3. IDOC Defendants

The corrections officers also argue that the district court erred in ruling that the IDOC

defendants were immune from suit. They contend that the court erroneously ruled that the
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corrections officers did not have a constitutional right to privacy and erroneously ruled that the

IDOC defendants acted reasonably.

The contours of qualified immunity are the same under both Idaho and Federal law; generally

government officials performing discretionary functions are shielded from civil liability as long

as their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known. Harlow, 457 U.S. at 818-19; Lubcke v. Boise City/Ada

County Housing Authority, 124 Idaho 450, 462-63, 860 P.2d 653, 665-66 (1993). The issue of

whether an official should have known that he or she acted unlawfully is a question of law.

Saucier v. Katz, 533 U.S. 194, 197 (2001); Lubcke, 124 Idaho at 462, 860 P.2d at 665. In order

to determine whether an individual is entitled to qualified immunity, the Court must undertake a

three-part analysis. Saucier, 533 U.S. at 201-206; Arnzen v. State, 123 Idaho 899, 904, 854 P.2d

242, 247 (1993). First, taken in the light most favorable to the party asserting immunity, did the

alleged conduct violate a constitutional right? Next, did the conduct of the party asserting

qualified immunity violate a clearly established right of the party claiming the violation?

Finally, was the conduct of the party asserting qualified immunity reasonable? Saucier, 533 U.S.

at 201-06; see also Farnworth v. Femling, 125 Idaho 283, 285-86, 869 P.2d 1378, 1380-81

(1994). We will examine each of these steps to determine if the IDOC defendants are entitled to

qualified immunity.

We must first determine whether the corrections officers had a constitutional right to privacy.

The constitutional right to a zone of privacy has been established in certain areas. Griswold v.

Connecticut, 381 U.S. 479, 483 (1965). However, the exact contours of this right are uncertain

even in the cases which may implicate a constitutional right against the indiscriminate public

disclosure of social security numbers. See In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999).

There is no clear constitutional consensus on whether the indiscriminate public disclosure of

social security numbers when accompanied by names and addresses infringes the right to

informational privacy. However, in this case we do not need to reach whether there is this

constitutional right since there was no indiscriminate public disclosure. We hold that the IDOC

defendants’ actions did not implicate a constitutional right and therefore, the district court did not

err when it granted them qualified immunity. Nonetheless, we recognize the serious potential for

great harm when certain personal information is indiscriminately released to the public.
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B. State Law Claims

The corrections officers argue that the district court erred by extending immunity to

Stoppello and the county on their state law claims. They also argue that the district court erred in

granting the IDOC defendants’ motion for summary judgment on the state law claims. We will

first address whether immunity should extend to protect Stoppello and the county from suit. We

will then discuss whether the district court properly dismissed the state law claims against the

IDOC defendants.

1. Prosecutorial immunity

On summary judgment, the district court ruled that the absolute prosecutorial immunity

from suit applicable to the section 1983 claims against Stoppello should extend to protect him

and the county against the corrections officers’ state law claims. On appeal Stoppello and the

county assert that the same absolute prosecutorial immunity which protects Stoppello from suit

under section 1983 also protects them from the corrections officers’ state law claims.

Idaho has never recognized absolute prosecutorial immunity, but absolute prosecutorial

immunity was recognized at common law. See Imbler, 424 U.S. at 423-24. This absolute

immunity is based on public policy. Fear of harassment by “unfounded litigation” could cause a

“deflection of the prosecutor’s energies from his public duties, and the possibility that he would

shade his decisions instead of exercising the independence of judgment required by his public

trust.” Id. at 423. Therefore, in order to have unimpeded prosecutors who administer their duties

with “courage and independence” we afford them absolute immunity for their quasi-judicial

functions. Id.

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Since Idaho recognizes the common law when it is not “repugnant to, or inconsistent

with” constitutional or state law, I.C. § 73-116, this Court now explicitly recognizes absolute

prosecutorial immunity for activities intimately associated with the judicial phase of the criminal

process. We hold, therefore, that Stoppello and the county are immune from the corrections

officers’ state law claims because responding to discovery is a quasi-judicial function.

 

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 Additionally, many of our sister states which have considered the issue have determined that absolute prosecutorial

immunity applies when prosecutors act in a quasi-judicial manner. See State v. Superior Court of Arizona, 921 P.2d

697, 700-701 (Ariz. App. 1996); Holsey v. Hind, 377 S.E.2d 200, 200-201 (Ga. Ct. App. 1988); Whirty v. Lynch,

539 N.E.2d 1064 (Mass. App. 1989); Smith v. Butte-Silver Bow County, 878 P.2d 870, 873 (Mont. 1994); MussoEscude v. Edwards, 4 P.3d 151, 158-59 (Wash. App. 2000); Blake v. Rupe, 651 P.2d 1096, 1100-01 (Wyo. 1982).
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2. Invasion of privacy

The corrections officers argue that the district court erred when it dismissed their

invasion of privacy claims. In their second amended complaint, the corrections officers allege

that the Respondents (except Ramirez) violated their right to privacy by public disclosure of

private facts. The district court concluded that there was no evidence that any of the defendants

made a public disclosure of personal facts.

Idaho recognizes the tort of invasion of privacy with four different categories, including

public disclosure of private facts. Jensen v. State, 139 Idaho 57, 62, 72 P.3d 897, 902 (2003). In

order to make out a claim for public disclosure of private facts “there must be a public disclosure

[and] the facts disclosed must be entitled to be private.” Hoskins v. Howard, 132 Idaho 311, 317,

971 P.2d 1135, 1141 (1998). Additionally, “the matter made public must be one which would be

offensive and objectionable to a reasonable man of ordinary sensibilities.” Baker v. Burlington

N., Inc., 99 Idaho 688, 691, 587 P.2d 829, 832 (1978) (quoting Peterson v. Idaho First Nat.

Bank, 83 Idaho 578, 583, 367 P.2d 284, 287 (1961)). There is no dispute that the unredacted

worker’s compensation forms contained private information and a reasonable person would not

want those facts made public. It is left for this Court to decide, then, whether there was a public

disclosure of these private facts.

In Baker, we noted that a public disclosure did not occur when the record indicated that

only a limited number of persons received the private information and those persons had a right

to know the information. 99 Idaho at 691, 587 P.2d at 832.3

 It is clear from the record, and the

parties agree that the unredacted forms were collected by IDOC and then disclosed to the

sheriff’s office. In turn, the sheriff’s office turned these forms over to the Ada County

Prosecutor and then deputy prosecutor Stoppello disclosed them to Cahill pursuant to a discovery

request. Cahill then shared this information with Persons, his client. Persons, in turn,

disseminated the private information contained on the forms to the public, other inmates at IMSI.

As in Baker, the parties who received copies of the unredacted forms were all entitled to

the information. Only the inmates who received the private information from Persons were not

entitled to the information. IDOC and the Idaho Industrial Commission were entitled to collect

identifying information because worker’s compensation claims were being filed. In turn, the

 

3 This Court, however, assumed that public disclosure existed because the case was before them on a motion for

summary judgment. 99 Idaho at 692, 587 P.2d at 833.
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sheriff’s office and the Ada County Prosecutor were entitled to have the identifying information

for investigatory and prosecutorial purposes. Likewise, Cahill and Persons were entitled to the

unredacted forms in order to authenticate them and defend against any restitution claim.

Moreover, under the Idaho Public Records Act, title 9, chapter 3, Idaho Code, these records are

exempt from public disclosure. I.C. §§ 9-340B(1); 9-335. The information here was an

investigatory record, I.C. § 9-337(6), and the IDOC, sheriff’s office and Ada County Prosecutor

are law enforcement agencies, I.C. § 9-337(7). Therefore, none of the IDOC defendants publicly

disclosed private information and the corrections officer’s claims for invasion of privacy must

fail since they cannot establish a prima facie element of that tort.

We affirm the district court’s dismissal of the corrections officers’ invasion of privacy

claim. However, we also note that disclosing this type of identifying information is not the best

practice. Rather, investigatory agencies should redact this type of information, and if it becomes

evidence in a prosecution the attorneys should request in camera reviews of the evidence for

authentication purposes.

3. Negligence

The corrections officers argue that the district court erred in dismissing their negligence

claims. A cause of action for common law negligence in Idaho has four elements: “(1) a duty,

recognized by law, requiring the defendant to conform to a certain standard of conduct; (2) a

breach of that duty; (3) a causal connection between the defendant's conduct and the resulting

injury; and (4) actual loss or damage.” O’Guin v. Bingham County, 142 Idaho 49, 52, 122 P.3d

308, 311 (2005) (quoting Black Canyon Racquetball Club, Inc. v. Idaho First Natl. Bank, N.A.,

119 Idaho 171, 175-76, 804 P.2d 900, 904-05 (1991)). The corrections officers argue that the

IDOC defendants (except Ramirez) breached the duty of care owed the corrections officers. The

source of this duty, they contend, comes from IDOC’s internal policies, the Idaho Public Records

Act, and the foreseeability of harm from releasing unredacted records. Whether a duty exists is a

question of law over which this Court exercises free review. Turpen v. Granieri, 133 Idaho 244,

247, 985 P.2d 669, 672 (1999). We will address each of the alleged sources of duty in turn.

First, the corrections officers insist that IDOC policy 225 creates a duty in IDOC. IDOC

policy 225 provides that information in the employee’s personnel file, including “marital status,

birth date, address, [and] home telephone number . . . shall remain confidential.” However,

certain persons are allowed access to an employee’s personnel file. The corrections officers
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insist that by adopting this policy, IDOC recognized it had a duty to protect employees against

invasion of privacy and other unreasonable, foreseeable risks of harm created by the disclosure

of personal information. The IDOC defendants contend that these internal policies cannot create

a duty in tort.

The IDOC defendants are correct. In order to support a private cause of action in Idaho,

an agency’s internal policies must have been adopted pursuant to the Idaho Administrative

Procedures Act. Service Employees Intern. Union, Local 6 v. Idaho Dept. of Health & Welfare,

106 Idaho 756, 759, 683 P.2d 404, 407 (1984); see also Mallonee v. State, 139 Idaho 615, 620,

84 P.3d 551, 556 (2004). As this Court explained in Service Employees International Union, an

agency’s internal handbook must be construed as internal guidelines if not adopted under the

procedures set out in IDAPA; it does not have the “force and effect of law” and does not give

rise to a “cause of action based on an alleged violation.” 106 Idaho at 759, 683 P.2d at 407.

Here, the corrections officers presented no evidence that IDOC’s internal policies were

adopted under the procedures set out in IDAPA. Thus, an alleged breach of these IDOC policies

cannot give rise to a private cause of action because the policy is not a source of duty. We

conclude, therefore, that the district court properly determined that IDOC policy 225 could not

support the corrections officers’ negligence claims.

Second, the corrections officers also assert that the IDOC defendants violated the Idaho

Public Records Act and such a violation constitutes negligence per se. They assert that I.C. § 9-

340C(1) requires government agencies protect their employees’ information from public

disclosure.4

 

4 This subsection provides:

The following records are exempt from disclosure:

(1) Except as provided in this subsection, all personnel records of a current or former public

official other than the public official's public service or employment history, classification, pay

grade and step, longevity, gross salary and salary history, status, workplace and employing

agency. All other personnel information relating to a public employee or applicant including, but

not limited to, information regarding sex, race, marital status, birth date, home address and

telephone 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 of applicants to classified or merit system positions shall not be disclosed

to the public without the applicant's written consent. Disclosure of names as part of a background

check is permitted. Names of the five (5) final applicants to all other positions shall be available

to the public. If such group is less than five (5) finalists, then the 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.
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“[I]n Idaho, it is well established that statutes and administrative regulations may define

the applicable standard of care owed, and that violations of such statutes and regulations may

constitute negligence per se.” Sanchez v. Galey, 112 Idaho 609, 617, 733 P.2d 1234, 1242

(1986). In order to replace a common law duty of care with a duty of care from a statute or

regulation, the following elements must be met: (1) the statute or regulation must clearly define

the required standard of conduct; (2) the statute or regulation must have been intended to

prevent the type of harm the defendant’s act or omission caused; (3) the plaintiff must be a

member of the class of persons the statute or regulation was designed to protect; and (4) the

violation must have been the proximate cause of the injury. Ahles v. Tabor, 136 Idaho 393, 395,

34 P.3d 1076, 1078 (2001) (citing Sanchez, 112 Idaho at 617, 733 P.2d at 1242. “The effect of

establishing negligence per se through violation of a statute is to conclusively establish the first

two elements of a cause of action in negligence....” Slade v. Smith's Mgmt. Corp., 119 Idaho

482, 489, 808 P.2d 401, 408 (1991). “Negligence per se lessens the plaintiff's burden only on

the issue of the ‘actor’s departure from the standard of conduct required of a reasonable man.’”

Ahles, 136 Idaho at 395, 34 P.3d at 1078 (quoting Restatement (Second) of Torts § 288B cmt. B

(1965)). “Thus, the elements of duty and breach are ‘taken away from the jury.’” Id. (quoting

Prosser and Keeton on Torts 230 (5th ed.1984)).

Here, the Public Records Act does not create a duty in negligence because it was not

intended to prevent the type of harm the defendants’ actions caused. The Idaho Public Records

Act does not create a substantive right to bring a negligence suit. Instead, it creates the

procedure by which third parties may request public information. Additionally, while the

legislature did exempt certain information from the Public Records Act, it is clear that the

legislature did not intend to create a cause of action. Idaho Code § 9-345 allows for a penalty to

be assessed against a public official who “deliberately and in bad faith improperly refuses a

legitimate request” for information under the act. However, the penalty is to be paid into the

general account. Likewise, I.C. § 9-343 provides that the sole remedy for a “person aggrieved by

the denial of a request for disclosure” is to institute proceedings to compel disclosure. Clearly,

the legislature created the act to allow public access and did not intend to prevent harm caused

by public disclosure of private information. Thus, I.C. § 9-340C(1) cannot be used to establish

negligence per se.
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Third, the corrections officers assert that the disclosure of private information by the

IDOC created a “foreseeable unreasonable risk of harm” which established a duty owed by the

IDOC defendants to the corrections officers. The corrections officers insist that the IDOC

defendants “were well aware of the risks presented by disclosure of IDOC employees’ personal

and confidential information to IDOC inmates.” They also insist that the IDOC defendants

“knew the risks generally associated with automatically disclosing corrections officers’ personal

and confidential information to be used as prosecution’s evidence.”

Every person has a “duty to exercise ordinary care to ‘prevent unreasonable, foreseeable

risks of harm to others.’” Turpen, 133 Idaho at 247, 985 P.2d at 672. When asked to recognize a

duty not previously recognized, this Court must consider:

[T]he foreseeability of harm to the plaintiff, the degree of certainty that the

plaintiff suffered injury, the closeness of the connection between the defendant's

conduct and the injury suffered, the moral blame attached to the defendant's

conduct, the policy of preventing future harm, the extent of the burden to the

defendant and consequences to the community of imposing a duty to exercise care

with resulting liability for breach, and the availability, cost, and prevalence of

insurance for the risk involved.

Id. (quoting Rife v. Long, 127 Idaho 841, 846, 908 P.2d 143, 148 (1995) (quoting Isaacs v.

Huntington Meml. Hosp., 695 P.2d 653, 658 (1985)).

The IDOC defendants argue that the Court should recognize a strong public policy

favoring cooperation with criminal investigations, recognize that the decision to institute a

criminal prosecution (and make the records subject to discovery) lies with the prosecutor, and

recognize that because of this the IDOC defendants had no control over the disclosure of the

records to the public. Additionally, the IDOC defendants assert that when the records were

forwarded to the sheriff’s office it was not foreseeable that, ultimately, the unredacted forms

would be “produced to attorney Cahill in violation of the Prosecutor’s Office’s own internal

policy.”

Here, we hold that IDOC did not have a duty. To begin, there was little forseeability of

harm to the corrections officers. The IDOC defendants released the unredacted forms to the

sheriff’s office. At that time the forms were not subject to public release. Moreover, the IDOC

had no way to foresee whether the sheriff’s office would forward the investigation records on to

the prosecutors, whether the prosecutor would decide to file criminal charges, and whether the

unredacted forms would then be released in discovery. Next, there is a distant connection
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between the IDOC defendants’ actions and the injury. The unredacted forms were disclosed at

least three more times after the IDOC defendants forwarded them to the sheriff’s office and

before Persons disclosed the records to other inmates.

Additionally, the disclosure took place in the context of a criminal investigation and

criminal prosecution. Until Persons released the information to his fellow inmates, every person

with access to the information had a legitimate need to know the information. Therefore, while

the ultimate harm to the corrections officers was great, we hold that the IDOC defendants did not

have a duty in negligence to not release the unredacted forms to the sheriff’s office in this

instance.

4. Negligent infliction of emotional distress

The corrections officers argue that the district court incorrectly relied on Thomas v.

Medical Center Physicians, P.A., 138 Idaho 200, 61 P.3d 557 (2002), to support its decision to

dismiss the negligent infliction of emotional distress claims. The district court reasoned: “Since

no independent legal duty has been demonstrated, the claims for negligent infliction of emotional

distress also fail.”

We affirm the district court’s dismissal of these claims. While Idaho recognizes the tort

of negligent infliction of emotional distress, the trial court correctly recognized that there must

be a breach of a recognized legal duty in order to support a claim for negligent infliction of

emotional distress. Since, as discussed supra, there was no duty in negligence in this instance,

the corrections officers cannot support a claim for negligent infliction of emotional distress.

5. Intentional infliction of emotional distress

The corrections officers argue that the district court erred when it decided as a matter of

law that the IDOC defendants’ conduct was not extreme and outrageous. Instead, the corrections

officers contend, the fact that the IDOC defendants released the unredacted forms “despite the

foreseeable unreasonable risk of harm” and without notifying the sheriff’s office that the form

contained confidential information raises a genuine issue of material fact for the jury to decide.

Under Idaho law, a claim for intentional infliction of emotional distress has four

elements: “(1) the conduct must be intentional or reckless; (2) the conduct must be extreme and

outrageous; (3) there must be a causal connection between the wrongful conduct and the

emotional distress; and (4) the emotional distress must be severe.” Edmondson v. Shearer
15

Lumber Prods., 139 Idaho 172, 179, 75 P.3d 733, 740 (2003) (citing Curtis v. Firth, 123 Idaho

598, 601, 850 P.2d 749, 751 (1993)). As we have previously explained,

“[a]lthough a plaintiff may in fact have suffered extreme emotional distress ... no

damages are awarded in the absence of extreme and outrageous conduct by a

defendant.” Edmondson, 139 Idaho at 179, 75 P.3d at 740 (quoting Brown v.

Fritz, 108 Idaho 357, 362, 699 P.2d 1371, 1376 (1985)). “Courts have required

very extreme conduct before awarding damages for the intentional infliction of

emotional distress.” Edmondson, 139 Idaho at 180, 75 P.3d at 741. “Even if a

defendant's conduct is unjustifiable, it does not necessarily rise to the level of

‘atrocious’ and ‘beyond all possible bounds of decency’ that would cause an

average member of the community to believe it was ‘outrageous.’” Id. (quoting

Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987)).

Estate of Becker v. Callahan, 140 Idaho 522, 527, 96 P.3d 623, 628 (2004). Whether a

defendant’s conduct is so extreme and outrageous as to permit recovery is a matter of law.

Edmondson, 139 Idaho at 180, 75 P.3d at 741.

Here, summary judgment was appropriate because the IDOC defendants’ conduct was

not so extreme or outrageous that the corrections officers should be awarded damages.

Conducting a criminal investigation and releasing pertinent documents to other law enforcement

agencies is not “atrocious” or “beyond all possible bounds of decency.” This conduct is not so

extreme as to allow the claim to go forward. As such, we affirm the district court’s dismissal of

this claim.

6. Retaliation

Kevin Nation and Grigsby each brought a retaliation claim against IDOC and certain

IDOC personnel.5

 Grigsby alleges that she was removed from the IMSI hostage negotiation

team, wrongly criticized on employment evaluations and that her work schedule was changed;

this retaliation, she maintains was a result of her choice to exercise “her rights under state and

federal law.” As a result of this, Grigsby alleges, she suffers emotional distress and seeks

$50,000 in damages. Likewise, Kevin Nation alleges that he was removed from the IMSI

tactical team, wrongly criticized on employment evaluations and that his work schedule was

changed. He also alleges that this was retaliation for exercising his rights and that he has

suffered emotional distress. He also seeks $50,000 in damages.

 

5 Grigsby brings her retaliation claims against IDOC, Fisher, Miller, Henry and Ramirez. Kevin Nation brings his

retaliation claims against IDOC, Fisher, Miller and Henry.
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The district court dismissed these claims on summary judgment. It reasoned that Grigsby

and Kevin Nation had failed to exhaust their administrative remedies because they did not pursue

any grievance procedure under I.C. § 67-5315. It also found that the retaliation claims did not

sound in tort, but were the types of claims the state administrative grievance procedures were

designed to address.

On appeal, Grigsby and Kevin Nation argue that they are not required to exhaust their

administrative remedies because, as the Court of Appeals recognized in Pounds v. Denison, 115

Idaho 381, 766 P.2d 1262 (Ct. App. 1988), the Idaho Personnel Systems Act, title 67, chapter 53,

Idaho Code, does not apply to tort claims. Since their retaliation claims sound in tort, they argue,

it was proper to bring them to district court and the claims should not have been dismissed. The

IDOC defendants rely on Peterson v. City of Pocatello, 117 Idaho 234, 786 P.2d 1136 (Ct. App.

1990), to argue that the corrections officers were required to exhaust their administrative

remedies because the administrative agency has the jurisdiction to change the adverse

employment decisions.

“Before a court will hear an appeal from an agency adjudication, a litigant must normally

exhaust the administrative remedies that agency makes available.” Owsley v. Idaho Indus.

Commn., 141 Idaho 129, 135, 106 P.3d 455, 461 (2005) (citing Dept. of Agric. v. Curry Bean Co.

Inc., 139 Idaho 789, 792, 86 P.3d 503, 506 (2004)). If an administrative remedy is provided by

statute, “relief must first be sought by exhausting such remedies before the courts will act.”

White v. Bannock County Commrs, 139 Idaho 396, 401, 80 P.3d 332, 337 (2003) (citing McKart

v. United States, 395 U.S. 185 (1969); Pounds, 115 Idaho 381, 766 P.2d 1262). “No one is

entitled to judicial relief for a supposed or threatened injury until the prescribed administrative

remedy has been exhausted.” Id. (citations omitted). With exceptions, the doctrine of exhaustion

generally requires that the case run the full gamut of administrative proceedings before an

application for judicial relief may be considered. Id. Dismissal of a claim is warranted if a

claimant fails to exhaust administrative remedies. Id. The purpose of this rule “is simple; it

provides the administrative body with the opportunity to mitigate or cure personnel grievances

without judicial intervention.” Peterson, 117 Idaho at 236, 786 P.2d at 1138.

Here, the district court correctly dismissed the retaliation claims for failure to exhaust

administrative remedies. The law in Idaho is clear: in employment actions tort claims must first

be pursued through the administrative body. Id. at 236-38; see Arnzen v. State, 123 Idaho 899,
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901, 906-07, 854 P.2d 242, 244, 249-50 (1993). In both Peterson and Arnzen, the employee

sought damages for allegedly tortious conduct. Peterson, 117 Idaho at 236, 786 P.2d at 1138

(“Peterson alleged that his termination . . . constituted tortious interference with his employment

contract.”); Arnzen, 123 Idaho at 901, 854 P.2d at 244 (“Arnzen prayed for damages for violation

of his civil rights, wrongful discharge, and failure to give notice and an opportunity to be

heard.”). In both cases, the district court properly dismissed the actions for failure to exhaust

administrative remedies even though the actions complained of were tortious. The actions in

those instances were closely tied to the adverse employment actions, and therefore the plaintiffs

were required to exhaust their administrative remedies before they could seek judicial

intervention.

Here, Grigsby and Kevin Nation seek damages for allegedly tortious conduct. However,

this conduct is closely tied to the adverse employment action. Allowing their claims to go

forward in district court would deprive the administrative body of “the opportunity to mitigate or

cure personnel grievances.” Peterson, 117 Idaho at 236, 786 P.2d at 1138. Therefore, we affirm

the district court’s dismissal of the retaliation claims on summary judgment.

C. Attorney’s Fees and Costs Below

The corrections officers argue that the district court’s award of attorney’s fees to the

county, Stoppello and Cahill should be reversed. The district court awarded attorney’s fees

pursuant to 42 U.S.C. § 1988. Prevailing defendants are entitled to attorney fees under this

section only where the action is “unreasonable, frivolous, meritless, or vexatious.” Legal Servs.

of N. California v. Arnett, 114 F.3d 135, 141 (9th Cir. 1997). “Generally, awards of attorney

fees pursuant to 42 U.S.C. § 1988 are reviewed under an abuse of discretion standard.” Miller v.

Ririe Joint Sch. Dist. No. 252, 132 Idaho 385, 387, 973 P.2d 156, 158 (1999) (citing Shields v.

Martin, 109 Idaho 132, 141, 706 P.2d 21, 30 (1985)). “Any elements of legal analysis which

figure in the district court's decision are, however, subject to de novo review.” Id. (citing Corder

v. Brown, 25 F.3d 833, 836 (9th Cir. 1994)). In this instance, the corrections officers’ action was

not unreasonable, frivolous, meritless or vexatious. As such, the district court erred in awarding

attorney’s fees.

The corrections officers also contend that the district court’s award of costs pursuant to

I.R.C.P. 54(d)(1) to the IDOC defendants, the county, Stoppello and Cahill was an abuse of

discretion because the award of summary judgment was erroneous. Rule 54(d)(1) provides for
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the award of costs as a matter of right to the prevailing party. Since we affirm the district court’s

award of summary judgment, we also affirm the court’s award of costs as a matter of right.

D. Attorney’s Fees on Appeal

On appeal the corrections officers, Ada County and Stoppello all seek attorney’s fees

pursuant to 42 U.S.C. § 1988 and I.C. §§ 6-918A, 12-117, 12-120, 12-120(3) and 12-121. We

will address the award of attorney’s fees under each of these statutes in turn.

To begin, 42 U.S.C. § 1988 allows courts to award the prevailing party attorney fees in

actions seeking to enforce section 1983 claims. Since the corrections officers do not prevail on

their civil rights claims, they are not entitled to attorney fees. See Farner v. Idaho Falls Sch.

Dist. No. 91, 135 Idaho 337, 342, 17 P.3d 281, 285 (2000). However, their appeal was not

“unreasonable, frivolous, meritless, or vexatious,” see Legal Servs. of N. California, 114 F.3d at

141, so Ada County and Stoppello are not entitled to attorney’s fees.

Next, I.C. § 6-918A allows the Court to award “appropriate and reasonable attorney fees”

to the “claimant, the governmental entity or the employee of such governmental entity, as costs,

in actions under this act, upon petition therefore and a showing, by clear and convincing

evidence, that the party against whom or which such award is sought was guilty of bad faith in

the commencement, conduct, maintenance or defense of the action.” Here, there is no evidence

that either party commenced, conducted, maintained or defended the action in bad faith. As

such, we decline to award attorney’s fees under this section of the Idaho Code.

Both I.C. § 12-117 and § 12-121 permit the award of attorney’s fees to the prevailing

party if the court determines the case was brought, pursued or defended frivolously,

unreasonably or without foundation. Karr v. Bermeosolo, 142 Idaho 444, 449, 129 P.3d 88, 93

(2005) (discussing I.C. § 12-117); Mutual of Enumclaw Ins. Co. v. Pedersen, 133 Idaho 135,

139, 983 P.2d 208, 212 (1999) (discussing I.C. § 12-121). Here, since the corrections officers do

not prevail on appeal, they are not entitled to an award of attorney’s fees under either of these

statutes. However, because the corrections officers did not bring this appeal unreasonably or

without foundation neither the County nor Stoppello is entitled to attorney’s fees.

Finally, I.C. § 12-120 simply does not support the award of attorney’s fees in this action.

It provides for the award of attorney’s fees where “the amount pleaded is twenty-five thousand

dollars ($25,000) or less.” Since the amount pleaded far exceeds this limit ($75,000 for the civil

rights claims alone), I.C. § 12-120 is not a statutory basis to award fees in this instance.
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IV. CONCLUSION

We affirm the district court’s award of summary judgment and costs as a matter of right.

We vacate the district court’s award of attorney’s fees. We decline to award attorney’s fees on

appeal. Costs to Respondents.

Justices TROUT, EISMANN and KIDWELL, Pro tem, CONCUR.

Chief Justice SCHROEDER DISSENTING.

I respectfully dissent from the Court’s conclusion in part III, 3 that the Idaho Department

of Correction is immune from liability because there was no indiscriminate public disclosure of

its employees’ private information. According to Webster’s II New Riverside University

Dictionary “indiscriminate” includes “not properly restrained.” The degree of restraint

necessary should be governed by the type of information disclosed, the steps taken to assure that

the information does not pass into improper hands and the potential consequences to the

employees if it does.

 The information in this case included the officers’ home addresses, telephone numbers,

marital status, birthdates and social security numbers. This is very personal and mostly

irrelevant to the criminal investigation. If the prosecutor or sheriff needed to know a social

security number, a home address, or marital status he should have been called upon to request

that information with guarantees of proper protection. How this information is relevant to

whether Persons threw an unidentified liquid (perhaps urine?) in the officers’ faces escapes the

simple mind.

 There is no showing the Department took any steps to assure that the information did not

pass into improper hands. Reliance on somebody else doing the job of maintaining privacy does

not excuse its default.

 The consequences are grave. There are few groups that need the protection of privacy

more than correction officers. The potential for harassment at best, at worst physical harm to

themselves or their children or spouses is significant. The threat of identity theft hangs over their

financial lives.

 Against this background is total disregard by the Department of its employees’ physical

and financial safety. Despite the terrible consequences of this case, the Department’s attorney at

oral argument stated no remedial action had been taken to avoid such future consequences. In

fact the Department will continue to disclose irrelevant personal information in exactly the same
20

way as it did in this case regardless of the possible harm to its employees, their children and

spouses. Perhaps it is time for the legal splash of cold clear water in the Department’s face to

wake it up to the indecency of its conduct in the past, and as it assures us, its irresponsible

conduct in the future.