IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 33048
STATE OF IDAHO,
Plaintiff-Counterdefendant-Respondent,

v. RICK YZAGUIRRE, Chairman, Ada County Board of County Commissioners, JUDY PEAVEY-DERR, Member, Ada County Board of Commission ers, FRED TILMAN, Member, Ada County Board of County Commissioners,
Defendants-Counterclaimants-Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Boise, May 2007 Term
2007 Opinion No. 85
Filed: May 25, 2007
Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial Distri ct of the State of Idaho, Ada County. Honorable Will iam H. Woodland, District Judge.

The decision of the district court is affirmed in part, reversed in part and remanded

. Patrick D. Furey, Boise, for appellants.
Honorable Lawrence G. Wasden, Attorney General, Boise, for respondent. Deputy Attorney General, Mitchell E. Toryanski argued.
Moore, Smith, Buxton & Turcke, Chtd., Boise, for Idaho Association of Counties,

as amicus curiae . Susan E. Buxton argued.

SCHROEDER, Chief Justice.

This appeal calls upon the Court to determin e the scope of the “li tigation exception” to the open meeting law under I.C. § 67-2345(1)(f). The statute has since been amended, addressing the issue in this case, thereby rendering this decision valueless as precedent on the litigation exception. The subsidiary issue of what constitutes “wri tten minutes” could have been removed from the case by transcribing a recording at little cost compared to the public fundsbeing expended for this litigation. The third issue concerns the question of the inte nt that must be proved to establish a viola tion of the open meeting law.
I. FACTUAL AND PROCED URAL BACKGROUND On June 15, 2005, Ada County Commissioners Rick Yzaguirre, Judy Peavey-Derr, and Fred Tilman met officially in open session as the Ada County Board of Commissioners. Upon commencement of the meeting the Board voted to go into executive sessi on under the “litigation exception,” I.C. § 67-2345(1)(f), to meet with Boise City Councilman Vern Bisterfeldt. The
votes were not recorded in the handwritten notes of the meeting, but they were preserved in an audio recording that was not transcribed but is available to the public. The executive session was not recorded. The public was not permitted to attend the executive session. In the executive session, the Commissione rs and Councilman Bisterfeldt discussed relations between Boise City and Ada County wh ich had become strained over the issue of a potential subdivision approval in the county and the impact of county development on the cost of city services. The meeting did not relate to pending litigation, but the Commissioners claim that the topics discussed were the s ubject of probable future litigation. No lega l counsel was present at the meeting. The State filed suit against the Commissioners, seeking a declaration that the executive session violated the open meeting law and reques ting the imposition of civil penalties against
each of the Commissioners indi vidually. These penalties w ould be a fine of $150.00 against
each Commissioner. The Commissioners answ ered and counterclaimed for a declaratory judgment as to the meaning of I.C. § 67-2345(1)(f). The district court granted the State’s motion for judgment on the pleadings, holding that I. C. § 67-2345(1)(f) applies only when a governing body is meeting with its legal counsel, and that the audio recording failed to satisfy the requirement in I.C. § 67-2345(1) that the vote to enter executiv e session be “recorded in the
minutes.” The Commissioners appeal. The Idaho Associ ation of Counties is before the Court as
amicus curiae on the issues of whether the litigati on exception requires the presence of an attorney and whether there is a good faith exception to the civil penalty provision of I.C. § 67- 2347(2).

2II. STANDARD OF REVIEW A judgment on the pleadings is reviewed unde r the same standard as a ruling on summary judgment. Trimble v. Engelking , 130 Idaho 300, 302, 939 P.2d 1379, 1381 (1997). Summary judgment is proper where “the pl eadings, depositions, and admissions on file, together with the affidavits, if any, show that ther e is no genuine issue as to any material fact and that the moving party is entitled to a j udgment as a matter of law.” I.R.C.P. 56(c). For purposes of a motion for judgment on the pleadings, the moving party admits all the allegations of the opposing party’s pleadings and also admits the untru th of its own allegations to the extent they have been denied. Sterling v. Bloom , 111 Idaho 211, 212, 723 P.2d 755, 756 (1986) (superseded on other grounds by statute). This Court freely re views the interpretation of a statute and its application to the
facts. VFP VC v. Dakota Co. , 141 Idaho 326, 331, 109 P.3d 714, 719 (2005).
III. THE ISSUES This appeal presents three questions of law. The first is whether the “litigation exception” in former I.C. § 67-2345(1)(f) can apply where no legal counsel is present. The second is whether an audio recording of a vote to enter executive session satisfies the requirement in I.C. § 67-2345(1) th at the votes be record ed in the minutes. A further issue arises as to whether a violation warrants the imposition of civil penalties against the Commissioners under I.C. § 67-2347(2). A. Litigation Exception 1. Idaho Code § 67-2345(1)(f) does not require the presence of an attorney “where there is a general public awaren ess of probable litigation.”
Idaho’s legislature has declared that “the formation of public pol icy is public business
and shall not be conducted in se cret.” I.C. § 67-2340. Idaho’ s open meeting law provides that “all meetings of a governing body of a public agency shall be open to the public and all persons shall be permitted to attend any meeting except as otherwise provided by this act.” I.C. § 67- 2342(1). An exception is provided for “execu tive sessions,” during wh ich a governing body may exclude the public “for deliberation on certain matters.” I.C. § 67-2341(3). Executive sessions are authorized for any of the purposes enumerated in I. C. § 67-2345(1), but “[n]o executive session may be held for the pur pose of taking any final action or making any final decision.” I.C. § 67-2345(3).

3The present dispute concerns the scope of th e “litigation exception” in former I.C. § 67- 2345(1)(f), which provided that a governing body could hold an executive session “To consider and advise its legal representatives in pendi ng litigation or where there is a general public awareness of probable litigation.” I.C. § 67-234 5(1)(f) (2006). 1 The district court held that I.C. §67-2345(1)(f) “can be exercised only when a gove rning body is meeting with its legal counsel to discuss pending litigation orprobable litigation about wh ich there is general public
awareness.” This is an issue of statutory interpretation. The objective of statutory interpretation is to give effect to legislative intent. Robison v.
Bateman-Hall , 139 Idaho 207, 210, 76 P.3d 951, 954 (2003). Because “the best guide to legislative intent is the words of the statute itself,” the interpretation of a statute must begin with
the literal words of the statute. In re Permit No. 36-7200 , 121 Idaho 819, 824, 828 P.2d 848, 853 (1992); accord McLean v. Maverik Country Stores, Inc. , 142 Idaho 810, 813, 135 P.3d 756, 759 (2006). Where the statutory language is unambi guous, the Court does not construe it but simply
follows the law as written. McLean , 142 Idaho at 813, 135 P.3d at 759. The plain meaning of a statute therefore will prevail unless clearly expresse d legislative intent is contrary or unless plain meaning leads to absurd results. Gillihan v. Gump , 140 Idaho 264, 266, 92 P.3d 514, 516 (2004). In determining its ordinary meaning “effect must be given to all the words of the statute if possible, so that none will be void, superfluous, or redundant.” State v. Mercer , 143 Idaho 108, 109, 138 P.3d 308, 309 (2006) (quoting In re Winton Lumber Company , 57 Idaho 131, 136, 63 P.2d 664, 666 (1936)). If the language of the statute is capable of more than one reasonable construction it is ambiguous. Carrier v. Lake Pend Ore ille Sch. Dist. No. 84 , 142 Idaho 804, 807, 134 P.3d 655, 658 (2006). An ambiguous st atute must be construed to mean what the legislature intended it to

mean. Id . To ascertain legislative intent, the Court examines not only the literal words of the statute, but the reasonableness of the proposed in terpretations, the policy behind the statute, and its legislative history. Id

.

1 While this appeal was pending, the legislature amended I.C. § 67-2345(1)(f) to read as follows: To communicate with legal counsel for the public agency to discuss the legal ramifications of and legal options for pending litigation, or controversies not yet being litigated but imminently likely to be litigated. The mere presence of legal counsel at an executive session doe s not satisfy this requirement. S.B. 1085, 59th Leg., 1st Reg. Sess., 2007 Idaho Se ss. Laws ch. 174 (enacted March 26, 2007). The amendment, which becomes effective July 1, 2007, does not affect the outcome of this case.

4Both litigants and the amicus argue thatthe meaning of I.C. § 67-2345(1)(f) can be gleaned from a plain reading of its language. Each of the three parties proposes a different plain reading. The provision, again, reads as follows: An executive session may be held: *** To consider and advise its legal repres entatives in pending litigation or where there is a general public awar eness of probable litigation. I.C. § 67-2345(1)(f). The parties agree that “its le gal representatives” refers to legal counsel for the governing body holding the meeting. The issue is whether a governing body may discuss probable litigation in execu tive session without simultaneously a dvising its legal representatives. The Commissioners argue that the statute should be rea d, in essence, as follows: An executive session may be held to consid er, and advise its legal representatives in, litigation that is (1) pending or (2) sufficiently pr obable as to arouse general public awareness. According to the Commissioners, the word “a nd” does not require that a governing body must conduct both activities at once (“consider and a dvise”), but merely enumerates two separate purposes for which executive session is au thorized in connec tion with litigation.
Amicus Idaho Association of Counties reads the statute somewhat differently: An executive session may be held (1) to consider pending litigation; (2) to advise its legal representatives in pending litig ation; or (3) where there is a general public awareness of probable litigation. According to the amicus, “to” and “where” each be gin a separate clause. The first clause, which
contains the “consider and advi se” language, sets forth several purposes for which an executive
session is authorized. Th e second clause, beginning w ith “where,” identifies a circumstance in
which it is allowed. The State reads the statute thusly:
An executive session may be held to consid er and advise its legal representatives (1) in pending litigation or (2) where there is a general public awareness of probable litigation. According to the State, the only permissible purpos e for an executive session is “to consider and advise its legal representatives. ” The remaining language simply clarifies that the consideration and advice must concern pendi ng or probable litigation. Ambiguity is not established merely because the parties present differing interpretations
to the court. In re Permit No. 36-7200 , 121 Idaho at 823-24, 828 P.2d at 852-53. If the language

5of the statute is reasonably susceptible of only one interpretation, the st atute is unambiguous and there is no occasion to look beyond the text of the statute. See Id . at 822-24, 828 P.2d at 851-53;
Carrier , 142 Idaho at 807, 134 P.3d at 658. The first st ep is to examine the literal words of the statute to determine whether they support the parties’ differing interpretations. A careful reading of the statute reveals th at there is only one grammatically acceptable interpretation. Contrary to the State’s assertion, the statut e does not contemplate that a governing body would “consider its legal representatives.” Plainly the statute allows a governing body to “consider pending litigation.” Thus, a governing body may hold an executive session “to consider, and advise its legal representatives in, pending litigation.” The State’s interpretation would read “consider” to mean “c onsult.” It strains th e ordinary meaning of “consider.” The result urged by the State cannot be reconciled with the text of the statute. It follows that the second part of the statute, “where there is a general public awareness of probable litigation,” constitutes a separate and independent ci rcumstance under which executive sessions may be held. Under the State’s inte rpretation, “in” and “where” are parallel; each subclause (“in pending litigation” and “where th ere is a general public awareness of probable litigation”) specifies an alte rnative condition under which a governing body may “consider and advise its legal representatives.” This inte rpretation, however, only works if “consider and advise its legal representatives” stands by itself, or in other word s if “consider” refers to “its legal representatives.” On th e other hand, if “consider” refers to “pending litigation,” then “where” does not follow grammatically from anyt hing else in (1)(f), but must follow directly from “held.” In other words, “to” and “whe re” each signify independent conditions under which “an executive session may be held.” Thus, An executive session may be held: (1 ) to consider, and advise its legal representatives in, pending litigation; or (2) where there is a general public awareness of probable litigation. This is the only interpretation that makes gra mmatical sense of the provision without requiring a governing body to “consider its legal representatives,” whatever that might mean.
This is not an absurd result. Probable litigation by defi nition involves situations where litigation may or may not occur. The legislatur e chose to rely on a “general public awareness” requirement rather than an attorney presence re quirement to perform the gatekeeping function in such cases. The State’s concerns about a poten tial for abuse were properly addressed to the

6legislature which has act ed, rendering the precedential va lue of this case nominal, and the continued expense of public funds on this defunct legislation wasteful. Under the plain language of the statute the pr esence of legal counsel is irrelevant because
the Commissioners were deliber ating upon probable, not pending, li tigation. According to the pleadings, the matters discussed at the executive session were the subject of probable litigation, and there was a general public awareness of that probability. Although there is disagreement as
to whether the executive session considered ma tters outside the permi ssible scope of such sessions, for purposes of a moti on for judgment on the pleadi ngs, the executive session was authorized under the “probable litig ation” clause of I.C. § 67-2345(1) (f). It is not necessary to decide whether legal counsel must be presen t to deliberate upon pending litigation because no litigation was pending. 2. Whether there was a general public awaren ess of probable litigation is not at issue in this appeal.
Even if an attorney is not required, the St ate contends the statut e was violated because some topics discussed in the executive session did not relate to litigation at all. Both parties
submitted affidavits to the district court in support of their characterization of what was discussed at the meeting, but the district court pr operly did not address the issue in its decision. Whether the subject matter of the meeting qualified under I.C. § 67-2345(1)(f) is a disputed issue
of fact that cannot be resolved in the motion for judgment on the pleadings.
B. Minutes
1. The motion and votes to enter executive session were not recorded in the minutes as required by law.
Under the open meeting law, an executiv e session not only must convene for an authorized purpose but also must comply with procedural requi rements. The Commissioners voted unanimously by roll call vote to enter execu tive session. However, the State alleges that the executive session did not comply with the open meeting law because the minutes do not reflect who made the motion to go into ex ecutive session or who voted on the motion.
The decision to enter executive session mu st be approved by “a two-thirds (2/3) vote recorded in the minutes of the meeting by indivi dual vote.” I.C. § 67-2345( 1). Moreover, I.C. § 67-2344(1) provides as follows: The governing body of a public agency shall provide for the taking of written minutes of all its meetings. Neither a full transcript nor a recording of the

7meeting is required, except as otherwise provided by law. All minutes shall be available to the public w ithin a reasonable time after the meeting, and shall include at least the following information: (a) All members of the governing body present; (b) All motions, resolutions, orders, or ordinances proposed and their disposition; (c) The results of all votes, and upon th e request of a member, the vote of each member, by name. The Commissioners concede that the votes are not recorded in the handwritten notes from the meeting and apparently concluded that litigati ng this issue was of more consequence than the expedient of transcribing the recording for a few dollars. They argue that the statutory requirements are satisfied because the informati on is preserved in an audio recording of the meeting. They argue that the purposes of the statute are better served by an audio recording than by handwritten notes because a summary necessarily omits information whereas a recording preserves a complete and accurate account of the proceedings. They also point to the Public Records Act, I.C. §§ 9-337 et seq. , which defines “writing” to include “every means of recording, including . . . sounds.” I.C. § 9-337(15) (Supp. 2006). That definition is not part of the open meeting law. Legislative definitions of terms included within a statute control and dictate the meaning
of those terms as used in the statute. White v. Mock , 140 Idaho 882, 890, 104 P.3d 356, 364, (2004). Statutory definitions provided in one act do not apply “for all purposes and in all contexts but generally only establish what they mean where they appear in that same act.” Maguire v. Yanke , 99 Idaho 829, 836, 590 P.2d 85, 92 (1978). Where the legislature has not provided a definition in the statute, terms in the statute are given their common, everyday meanings. Landis v. DeLaRosa , 137 Idaho 405, 407, 49 P.3d 410, 412 (2002). The open meeting law does not explicitly defi ne “written.” It does, however, distinguish recording from taking minutes: “the taking of writt en minutes” is mandatory, whereas “neither a full transcript nor a recording of the meeting is required.” I.C. § 67-2344(1). The common, ordinary meaning of the term “written” refers to words or symbols recorded in visual form. See Black’s Law Dictionary 1641 (8th ed. 2004) (defini ng “writing” as “Any inte ntional recording of words in a visual form, whether in the form of handwriting, prin ting, typewriting, or any other tangible form). An audio recording is not a “written” record as th at term is commonly
understood.

8Neither the Public Records Act nor the ca ses from other jurisdictions cited by the Commissioners are applicable. The interpretati on urged by the Commissioners contradicts the statutory text: if “ every means of recording” constitutes wr iting, as the Commissioners argue, then nothing is accomplished by specifying that mi nutes must be in written form, and the term “written” becomes superfluous. The Commissioners’ argument about the superi ority of an audio r ecording over a written summary presupposes issues of po licy. Recording meetings is a commendable practice, but as the district court noted, there are also advantages to having the information in written, summarized form. In any event, policy cons iderations are irrele vant to whether the Commissioners complied with the statute. The legi slature clearly expressed its intent to require
written minutes. The executive session did not comply with th e open meeting law. The handwritten notes in the record, which are the only written record of the meeting, do not reflect who voted to go into executive session as required by I.C. § 67-2345(1). C. Civil Penalty 1. The Commissioners may assert a good-fai th defense to the im position of civil penalties under I.C. § 67-2347(2).
There are two consequences where the open m eeting law is violated. First, any action taken at a meeting that violates the open mee ting law is null and void. I.C. § 67-2347(1). This provision does not apply in this case because no action or decision is being challenged. The other remedy, added by amendment in 199 2, provides for a civil penalty against any member of a governing body “who knowingly conduc ts or participates in a meeting which violates the provisions of this act.” I.C. § 67-2347(2). The Comm issioners argue that even if there was a violation, they are entitled to dismissal because th ey believed the meeting complied
with the statute. The State contends that the Commissioners’ beliefs are irrelevant because there is no good faith defense under the statute. Acco rding to the State, liability attaches upon a showing that (1) the Commissione rs participated in the meeting, (2) they knew they were participating in the meeting, and (3) the m eeting violated the open meeting law. The mental state necessary to impose a ci vil penalty under the statute depends on the language of the statute. State v. Fox , 124 Idaho 924, 925-26, 866 P.2d 181, 182-83 (1993) (quoting State v. Sterrett , 35 Idaho 580, 583, 207 P. 1071, 1072 (1922)) (“[W]hether a criminal

9intent is a necessary element of a statutory offens e is a matter of construction, to be determined from the language of the statut e in view of its manifest purpose and design . . . .”). In interpreting statutory language, all the words of the statute must be given effect if possible, and
the statute must be c onstrued as a whole. In re Permit No. 36-7200 , 121 Idaho at 822-23, 828
P.2d at 851-52. The legislature’s inclusion of the word “knowingly” in th e statute indicates that it
intended to condition the availabili ty of a civil penalty on the de fendant’s mental state. The State’s interpretation would make the Commissioners strictly liable for a ny violation of the open meeting law simply for having conducted or particip ated in the meeting. If the legislature had intended this result, there woul d have been no need to refe rence a mental state because conducting and participating are in tentional acts. “Knowingly” im plies something more than a voluntary act; under the State’ s interpretation it become s surplusage. In orde r to give meaning to every term, the statute must be interpreted to require knowledge that the meeting violated the open meeting law. The State argues that a mistake of law is not a defense, relying on this Court’s opinion in
State v. Fox . The defendant in Fox was convicted of possessing ephedrine, a controlled substance, without a pres cription. Fox claimed he lacked the necessary mens rea because he did not know ephedrine was a controlled substance. The Court rejected his argument, holding that the relevant statute did not require an intent to commit a crime, but merely the intent to perform the prohibited act. 124 Idaho at 926, 866 P.2d at183. The question was whether he knowingly possessed ephedrine without a prescription, not whether he knew it was illegal to do so. Id

. This case is distinguishable from Fox . The holding in Fox was based on the text of the applicable statute; its reasoni ng applies only in “the absen ce of specific language to the contrary.” Id . The statute in Fox did not set forth any mental state as an element of the offense, and thus only a general criminal intent was required. Id . Idaho Code § 67-2347(2) specifies that the individual must act “knowingly.” By its pl ain language, the statute imposes a civil penalty only where the participant was aware that the meeting violated the open meeting law. The Commissioners are not subj ect to civil penalties unless, when they held the executive session, they knew it was not in compliance with the open meeting law. Knowledge of a violation may be inferred, but it is a prerequi site to liability under I.C. § 67-2347(2). The Commissioners claim they honestly believed the executive session complied with the open

10meeting law. Taking the Commissioners’ allegati ons to be true, the St ate is not entitled to judgment as a matter of law. However, the me ntal state of the Commissi oners or any individual Commissioner is a question of fact to be determined.
IV. CONCLUSION Idaho Code § 67-2345(1)(f) allows a governing body to meet in executive session “where there is a general public awareness of probable litigation.” The statute does not require that an attorney be present at such meetings. However, the executive session violated th e open meeting law because the motion and
votes to enter executive session were not recorded in the written minutes as required under I.C. §§ 67-2344(1)(b) and 67-2345(1). Although there was a violati on, the Commissioners are not subject to a civil penalty unless they were aware of the violation when th ey held the meeting. Because the Commissioners denied any knowledge of a violation, judgment on the pleadings is not proper. A factual
determination of their state of mind remains.
The decision of the district court is revers ed in part, affirmed in part, and remanded for further proceedings. Justices TROUT, EISMANN and BURDICK CONCUR

. JONES, J., concurring in pa rt and dissenting in part. I concur in the Court’s opinion, save the c onclusion in Part III.A.1. that the litigation exception in the Open Meeting Law (Idaho C ode §§ 67-2340, et seq.) does not require the presence of legal counsel. I dissent from that conclusion because the language employed in the litigation exception does not admit to just one pl ausible interpretation and when the exception is construed in the light of legisl ative history and public policy it is clear that it was intended to narrowly apply to attorney-client communications regarding ongoing or anticipated litigation. The language at issue in I.C. § 67-2345(1)(f) (2006) seems fairly straightforward on an initial reading. It allows for an executive sess ion of a governing body “[t]o consider and advise its legal representatives in pendi ng litigation or where there is a general public awareness of probable litigation.” The provi sion contemplates give and ta ke between the governing body and its counsel regarding pending or threatened litigation. The language indicates the exception applies to a unitary process wh ere the governing body receives lega l advice on the litigation from its attorney and gives instruc tions on how to proceed. “Cons ider” and “advise” are not only

11bound together by an “and,” but also by considerati on of how things work in an attorney-client relationship. The district court appears to have read the litigation exception in this manner, determining as follows: In reading the statute as a whole, incl uding all of the authorizing circumstances set forth in section 2345, it is clear that (1)(f) can be exercised only when a governing body is meeting with its legal counsel to discuss pending litigation or probable litigation about wh ich there is general public awareness. That interpretation does not require presence of counsel at all meetings, nor does it require counsel to be at meetings whenever there are meetings at which conflicts are discussed. But, it does require counsel’s presence when the governing body wants to go into executive session to disc uss matters which traditionally would be privileged communications or would be c onsidered work produc t. Contrary to Defendants argument, this requirement does not burden governing bodies in small communities or governing bodies that may not have regular access to counsel. It simply means that when they wish to i nvoke (1)(f) and go into executive session, they must do so only to discuss pending or future litigation with their legal representative. That exception is limited to when counsel is present (and could be present telephonically) but even then, the executive session is only to discuss pending or probable litigation about which there is a general public awareness. This interpretation is consistent with the purpose of the Idaho Open Meeting Law and apparent from the plai n reading of that provision.

Thus, the district court found the litigation exception language to be unambiguous, to be designed to protect attorney-cli ent communications, and to necessarily require the presence of legal counsel in order to be invoke d. I agree with that reading. However, I would certainly concede thatthe language employe d in the litigation exception is somewhat awkward when subjected to word-by-word microscopic scrutiny. Where
I would read “consider and advice ” as acts to be performed in ta ndem with the presence of legal counsel, the Court reads them to be acts that can be performed se parately – the consideration to be allowable with or without the presence of le gal counsel so that only the advising of legal representatives requires their presence at an executive session. While I prefer the reading advanced by the attorney genera l and adopted by the di strict court, I would concede that the Court has put forth a plausible reading of the statute. Indeed, three different readings of the statutory language were presented to the Cour t by the parties and amicus. Although the amicus reading is somewhat questionable in my opinion, it appears that my reading and the reading of the Court are both plausible and reasonable. T hus, I would find the statutory language to be

12ambiguous and employ the rules of statutory construc tion to determine the legislative intent. “If it is necessary for this Court to interpret a statut e, the Court will attempt to ascertain legislative intent, and in construing a stat ute, may examine the language used, the reasonableness of the proposed interpretations, and th e policy behind the statute.” Gillihan v. Gump , 140 Idaho 264, 266, 92 P.3d 514, 516 (2004). In determining the mean ing of a statute the “overall scheme and intent of the legislation must not be overlooked.” Idaho State Tax Comm’n v. Haener Bros., Inc.
, 121 Idaho 741, 744, 828 P.2d 304, 307 (1992). We start with the proposition of openness in government. The framers of the Idaho Constitution wanted proceedings of the State Legisl ature to be conducted in public view. As one delegate put it, “I want the el ectric light of publicity turned upon every act that they do.” II Proceedings and Debates of the Constitutional Convention of Idaho 1889 , 1217 (I.W. Hart ed. 1912) (State of Del. A.F. Parker). There is no reason to believe that the constitutional framers would have expected less of county and city gov ernments. Indeed, the Legislature has provided for openness, both with regard to meetings of governmental bodies and records of those bodies. Idaho Code § 9-338 presumes that all public records in Idaho are open for inspection by the public. This Court presumes that all public records are open to disc losure and that all exemptions are narrowly construed. Federated Publications, Inc. v. Boise City , 128 Idaho 459, 463, 915 P.2d 21, 25 (1996). In Idaho Code § 67-2340, the Legislature “finds and declares that it is the policy of this state that the formation of public policy is public business and shall not be conducted in secret.” The Legislature implemented this policy mand ate through Idaho Code § 67-2342(1), which requires all meetings of a governing body of a pub lic agency to be open, with certain specified exceptions for executive sessions. Gardner v. Evans , 110 Idaho 925, 929, 719 P.2d 1185, 1189 (1986). The exceptions for executi ve sessions should, like exceptio ns for the public records law, be narrowly construed. See Norman J. Singer, Sutherland Statutes and Statutor y Construction, § 47:11 (6 th Ed. 2002) (“where a general provision in a statute has certain limited exceptions, all doubts should be resolved in favor of the ge neral provision rather than the exceptions”). With regard specifical ly to counties, the Le gislature has provided in Title 31, the code title pertaining to counties and county law, that all meetings of a board of county commissioners “must be public.” Idaho Code § 31-710(4). The Legislature provides for no exceptions in the county law. In 1985 the Court of Appeals fo und a clear and definite conflict between this

13provision and the executive session provisions of I.C. § 67-2345, holding that the latter govern
because it was the later-enacted. Nelson v. Boundary County , 109 Idaho 205, 208, 706 P.2d 94, 97 (Ct. App. 1985). This Court has not had occasion to rule on this particular issue and it is not necessary to do so at this time in light of the le gislative history, which indicates that the litigation exception was not intended to apply in the circumstances of this case. What is important to draw from the county law is the st rong public policy in favor of open public meetings of county
commissions. The Open Meeting Law was enacted in 1974 “to provide for more open meetings of governing bodies in Idaho” a nd to combat the attitude of many governing bodies “that the public’s business is non e of the public’s business.” H. B. 602, Statement of Purpose, 42 nd Leg.
2 nd Sess. (Idaho 1974). As enacted in 1974, the legislation did not contain a litigation exception. 1974 Idaho Sess. Laws, Ch. 187, p. 1492. In 1978, the Legislature enacted H.B. 582, which established the litigatio n exception in subsection (1)(f) to “allow governing bodies to go into
executive session to consider and advise its legal representative s on pending litigation.” H.B. 582, Statement of Purpose, 44 th Leg., 2 nd Sess. (Idaho 1978); 1978 Ida ho Sess. Laws, Ch. 302, p. 759. The legislative history is instructive. Representative Ingram was the sponsor of the legislation, which was proposed by the Associati on of Idaho Cities. A ccording to the record developed in the House State Affairs Committee when the legislation was first considered: Rep. Ingram spoke to the committee on this proposed legislation and said this amendment would allow governing bodies like city councils and county commissioners, etc., to go into executive session to consider and advise its legal representatives on pending litigation. He said the Association of Idaho Cities had asked that he bring this to committee si nce he was the author of the original meeting law. Mr. Marty Peterson from th e Association of Idaho Cities spoke to the committee and said this amendment will allow city councils to meet with legal counsel in matters concerning litigati on in an attorney-client relationship.

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Rep. Winchester felt we have a good opening meeting law already and the wordage in this bill would a llow the public to be shut out of the meetings. He felt this was contrary to the open meeting law. Rep. Ingram said he had been a little concerned about the wordage himself, howev er, when a suit had been filed he felt it would be legitimate for a governing body to meet with their attorney. He asked Mr. Peterson if his association would object to a change. Mr. Peterson said they would prefer the bill go through in its present form. He said it was their

14understanding that unless a suit had actually been filed and was proceeding through the court system, the open meeting law would not allow the retention of an attorney-client relationship.

Hearing on RS 3438 [H.B. 582] before the House State Affairs Committee, 44 th Leg., 2 nd Sess., pp. 2-3 (Idaho Feb. 21, 1978). Thus, the entity reque sting the legislation and the legislative sponsor intended to allow governin g bodies “to meet with legal counsel in matters concerning litigation in an attorney-client relationship.” With no exception for confidential attorney-client communications in the 1974 enactment, the governi ng body and its attorney would have had to discuss litigation strategy in open session, there by defeating the attorney-client privilege. The 1978 amendment was designed specifica lly to keep the attorney-clien t exchange confidential. It should not be more broadly construed. Although this case has been somewhat moot ed by the Legislature’s 2007 amendment of I.C. § 67-2345(1)(f), it is worthwhile to make mention of the long-standing policy in Idaho of maintaining openness in government. That requires narrow construction of any exception to the openness rule, including openness at meetings of governing bodies. Thus, while I support the Court’s opinion in all other respect s, I dissent with regard to th e conclusion in part III.A.1. and
would affirm the district court’s ruling on that issue.

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