Bolger v. Lance

• Decision Date: 03 June 2002
• Docket Number: No. 27475.,27475.
• Citation: 53 P.3d 1211,137 Idaho 792
• Parties: David F. BOLGER, Petitioner-Appellant, v. Honorable Alan G. LANCE, Idaho State Attorney General, Respondent.
• Court: Idaho Supreme Court

53 P.3d 1211

137 Idaho 792

David F. BOLGER, Petitioner-Appellant, v. Honorable Alan G. LANCE, Idaho State Attorney General, Respondent.

No. 27475.

Supreme Court of Idaho, Boise, March 2002 Term.

June 3, 2002.

Westberg, McCabe & Collins, Boise, for appellant. Paul L. Westberg argued.

Hon. Alan G. Lance, Attorney General; Michael S. Gilmore, Deputy Attorney General, Boise, for respondent. Michael S. Gilmore argued.

KIDWELL, Justice.

This case involves a public records request made by David F. Bolger (Bolger) upon the Office of the Attorney General (AG). The AG denied the request, and this action ensued. The district court denied Bolger's petition for disclosure of the records, finding that they were exempt from disclosure as investigatory records of a law enforcement agency. Bolger appealed, challenging the procedures employed by the AG and the district court related to the hearing on his petition and the district court's finding that the documents were exempt.

I. FACTS AND PROCEDURAL BACKGROUND

On October 6, 2000, Bolger, through his attorney, made a written request to examine and/or copy public records (the request) maintained by the AG. The request asked for disclosure of several fairly broad categories of records, "including, pursuant to Section 9-342(1), Idaho Code, those records pertaining to David F. Bolger even if the record is otherwise exempt from public disclosure." Bolger's request was directed at gaining access to records that might disclose whether the AG was conducting an investigation of him or whether the AG had received requests to conduct an investigation of him.

The AG denied the request by a written letter to Bolger's attorney, which stated: "Your Public Records Request dated October 6, 2000, on behalf of your client, David F. Bolger, is hereby denied pursuant to Idaho Code § 9-340B." On October 20, 2000, Bolger filed his Verified Petition to Enforce Right to Examine and Copy Records (the petition) with the district court, which initiated this case. On that same day, Bolger filed a Motion for Order to Show Cause. The district court signed an order requiring the AG to turn over to Bolger the records that had been previously withheld or, alternatively, to file responsive pleadings and appear at a hearing to show cause why the requested records had not been turned over and why Bolger should not be awarded attorney fees. Four days before the show cause hearing, the AG turned over a substantial number of the requested documents to Bolger. The remaining requested documents were submitted to the court under seal, along with the AG's responsive pleadings. One of the documents under seal was an affidavit explaining how the other documents under seal were exempt from disclosure (first affidavit). That affidavit was executed by George Breitsameter, an Assistant United States Attorney, and presumably was submitted under seal in order to prevent Bolger from learning that a federal agency was involved in an investigation centering on him. The documents submitted under seal were never disclosed to Bolger prior to the district court's decision on his petition.

On November 29, 2000, after reviewing in camera the documents submitted under seal and hearing oral arguments, the district court signed an order and judgment denying Bolger's request to examine and copy the records submitted under seal. On December 14, 2000, Bolger moved the district court for an order directing disclosure of the first affidavit and for additional findings of fact and conclusions of law. In response, the AG filed an ex parte Affidavit of Counsel (second affidavit), describing the documents submitted under seal in more detail than it had in its pleadings in response to the order to show cause. The second affidavit was not disclosed to Bolger, and the court reviewed it in camera. At that point, the AG also provided Bolger with a copy of the first affidavit, which had previously been submitted under seal. On March 26, 2001, the district court entered its Findings of Fact, Conclusions of Law and Amended Judgment, explaining that the issue of disclosure of the first affidavit was mooted by the AG's voluntary disclosure and further explaining its reasons for denying Bolger's petition as to the other documents submitted under seal. Bolger has appealed from the district court's decision, arguing that the court erred in viewing the affidavits in camera; that his due process rights were violated when he was not given access to a detailed index of the nature and content of the documents submitted under seal; that the court erred in considering the second affidavit submitted by the AG in making its Findings of Fact, Conclusions of Law and Amended Judgment; and that there was not substantial and competent evidence to support the court's ruling that the documents were exempt from disclosure.

II. STANDARD OF REVIEW

A trial court's findings of fact will not be set aside unless clearly erroneous, which is to say that findings that are based upon substantial and competent, although conflicting, evidence will not be disturbed on appeal. DeChambeau v. Estate of Smith, 132 Idaho 568, 571, 976 P.2d 922, 925 (1999). However, when the issue is one of law this Court exercises free review of the trial court's decision. Bouten Constr. Co. v. H.F. Magnuson Co., 133 Idaho 756, 760, 992 P.2d 751, 755 (1999).

III. ANALYSIS

Title 9 of the Idaho Code is entitled "Evidence." Chapter 3 of that Title is entitled "Public Writings." Section 9-338 provides the basic right of a citizen to view public records:

Public records—Right to examine

(1) Every person has a right to examine and take a copy of any public record of this state and 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.

I.C. § 9-338(1). Section 9-342 provides individuals a more specific, although limited right to examine records about themselves:

Access to records about a person by a person

(1) A person may inspect and copy the records of a public agency or independent public body corporate and politic pertaining to that person, even if the record is otherwise exempt from public disclosure.

....

(3) The right to inspect and amend records pertaining to oneself does not include the right to review:

(a) Otherwise exempt investigatory records of a public agency or independent public body corporate and politic if the investigation is ongoing; ....

(d) Information which is otherwise exempt from disclosure by statute or court rule; ....

I.C. § 9-342(1), (3). Sections 9-340A through 9-340H specify records that are exempt from the general rights granted in sections 9-338 and 9-342. Section 9-340B provides:

The following records are exempt from disclosure:

(1) Investigatory records of a law enforcement agency, as defined in section 9-337(6), Idaho Code, under the conditions set forth in section 9-335, Idaho Code. I.C. § 9-340B(1). This general exemption refers to section 9-335, which more specifically sets forth the exemption with regard to investigatory records:

(1) Notwithstanding any statute or rule of court to the contrary, nothing in this chapter nor chapter 10, title 59, Idaho Code, shall be construed to require disclosure of investigatory records compiled for law enforcement purposes by a law enforcement agency, but such exemption from disclosure applies only to the extent that the production of such records would:

(a) Interfere with enforcement proceedings;

(b) Deprive a person of a right to a fair trial or an impartial adjudication;

(c) Constitute an unwarranted invasion of personal privacy;

(d) Disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement agency in the course of a criminal investigation, confidential information furnished only by the confidential source;

(e) Disclose investigative techniques and procedures; or

(f) Endanger the life or physical safety of law enforcement personnel. ....

Section 9-335 also provides the following definitions:

(2).... Investigatory record as used herein means information with respect to an identifiable person or group of persons compiled by a law enforcement agency in the course of conducting an investigation of a specific act or omission....

....

As used herein, the term "law enforcement agency" means the office of the attorney general, the office of the state controller, the Idaho state police, the office of any prosecuting attorney, sheriff or municipal police department.

Section 9-337 also provides definitions of "investigatory record" and "law enforcement agency," for the purposes of sections 9-337 through 9-347.

A. The District Court Properly Held That The Documents Submitted Under Seal Are Exempt From Disclosure.

Bolger argues that the district court erred in exempting the records because the AG is not a law enforcement agency and because the AG failed to meet its burden of demonstrating that the records are exempt from disclosure under all of the other requirements of I.C. §§ 9-335 and 9-337.

In support of his argument, Bolger points to this Court's holding in Newman v. Lance, 129 Idaho 98, 922 P.2d 395 (1996), for the proposition that the AG has no independent or primary power to prosecute criminal violations, outside the context of assisting other agencies. Consequently, Bolger argues, the AG is not a "law enforcement agency" under the definition contained in I.C. § 9-337(5). Similarly, he argues that the AG has no independent authority to investigate criminal violations and that the records therefore cannot be "investigatory records" under I.C. § 9-337(4).

Bolger's arguments overlook the fact that the definitions contained in I.C. § 9-337 do not control the analysis. As noted above, section 9-337 limits its own applicability to I.C. §§ 9-337 through 9-347. Also, a basic tenet of statutory construction is that the more specific statute or section addressing an issue...