Cover v. Idaho Board of Correction, 112020 IDSCCI, 47004

Docket Nº47004
Opinion JudgeBRODY, JUSTICE
Party NameALIZA COVER, Petitioner-Respondent-Cross Appellant, v. IDAHO BOARD OF CORRECTION, IDAHO DEPARTMENT OF CORRECTION, and JEFFREY R. RAY, Public Information Officer, Respondents-Appellants-Cross Respondents.
AttorneyLawrence G. Wasden, Idaho Attorney General, for appellants. Jessica Kuehn argued. American Civil Liberties Union of Idaho Foundation, Boise, for respondents. Richard Eppink argued.
Judge PanelChief Justice BURDICK, and Justices BEVAN, STEGNER, and MOELLER CONCUR.
Case DateNovember 20, 2020
CourtSupreme Court of Idaho

ALIZA COVER, Petitioner-Respondent-Cross Appellant,

v.

IDAHO BOARD OF CORRECTION, IDAHO DEPARTMENT OF CORRECTION, and JEFFREY R. RAY, Public Information Officer, Respondents-Appellants-Cross Respondents.

No. 47004

Supreme Court of Idaho, Boise

November 20, 2020

Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Lynn G. Norton, District Judge.

The district court's order is reversed and remanded for further proceedings consistent with this opinion.

Lawrence G. Wasden, Idaho Attorney General, for appellants. Jessica Kuehn argued.

American Civil Liberties Union of Idaho Foundation, Boise, for respondents. Richard Eppink argued.

BRODY, JUSTICE

We decide in this case whether the Public Records Act authorizes the Idaho Department of Correction ("Department") to withhold certain records in response to a public records request. In 2017, Aliza Cover requested records relating to the use of the death penalty in Idaho. The Department provided some records in response, but withheld or redacted others, claiming these records were exempt from disclosure in whole or in part under Board of Correction Rule 135.06 ("Rule 135"). The Department argues Rule 135 was promulgated pursuant to a provision of the Public Records Act that allows the Board of Correction ("Board") to identify records as exempt from disclosure through rulemaking. Because there is no evidence that the Board promulgated Rule 135 as a public records exemption, we reverse the decision of the district court permitting the Department to withhold records from Cover on this basis, and remand with instructions consistent with this decision.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2017, Aliza Cover, a law professor at the University of Idaho College of Law who teaches and writes about the death penalty, sent a request to Jeffrey Ray, Public Information Officer at the Idaho Department of Correction, seeking public records about the death penalty in Idaho. Specifically, Cover requested records relating to: (1) "[t]he most current IDOC protocol for executions," (2) "[t]he drugs that have been or will be purchased/used in future executions (including identifying information about the drugs; drug labels; expiration dates; purchase orders/receipts; paperwork about how the drugs are to be stored; etc.)," and (3) "[t]he use of lethal injection in the Rhoades and Leavitt executions (including paperwork about where IDOC got its drugs from, and communications with drug suppliers or others regarding acquisition of drugs)." Paul Ezra Rhoades was executed by the Department in 2011. Richard Leavitt was executed in 2012.

Though the Department had prepared a "General Packet" containing more than 1, 000 pages of documents to respond to public records requests regarding the death penalty, it did not send the General Packet to Cover. Instead, the initial response to Cover's request consisted of a web link to the most current version of the Department's execution protocol and 49 pages of additional documents.

In February 2018, believing the Department had withheld records she was entitled to receive, Cover filed a petition in district court under the Idaho Public Records Act and Idaho Rule of Civil Procedure 74 ("Rule 74") to compel the Department to release additional records responsive to her request. Per Cover's petition, the district court entered an alternative writ of mandamus pursuant to the Act and Rule 74, which ordered the Department to disclose additional responsive records or show cause why records should not be disclosed. At the same time, it set a briefing schedule and calendared a show cause hearing. On the day the Department's response to Cover's petition was due, the Department disclosed 603 additional pages of records.

At the show cause hearing in April 2018, the Department argued it was permitted to withhold or redact records requested by Cover under Rule 135. At the time of Cover's request, Rule 135 provided, in relevant part, that the Department would not disclose certain information related to executions:

Non-disclosure. The Department will not disclose (under any circumstance) the identity of staff, contractors, consultants, or volunteers serving on escort or injection teams, nor will the Department disclose any other information wherein the disclosure of such information could jeopardize the Department's ability to carry out an execution.

IDAPA 06.01.01.135.06 (2017). In particular, the Department argued it was entitled to withhold records relating to the sources of execution drugs used in the Rhoades and Leavitt executions because disclosure of these records "could jeopardize" the ability of the Department to acquire execution drugs in the future. Cover argued that Rule 135 was invalid as a public records exemption, but even if it was valid, the Department could not establish that disclosure of records about acquiring drugs in the past would hamper the ability of the Department to carry out executions in the future.

The district court took the matter under advisement and-without any additional proceedings-issued a written order in May 2018. The district court ruled that Rule 135 was valid, but nevertheless found the Department was required to disclose records relating to the sources of execution drugs it had claimed were exempt under the Rule. In reaching this decision, the district court considered not only Rule 135, but section 74-105(4)(a)(i) of the Act, which authorizes the Board to exempt public records from disclosure through rulemaking. Under section 74-105(4)(a)(i), the Board is permitted to exempt records where the public interest in disclosure is clearly outweighed by public interest in "confidentiality, public safety, security[, ] and rehabilitation[.]" While the district court found the relevant public interests favored an exemption to shield the names of individuals involved in carrying out executions, it found that the public interests did not favor withholding records related to the sources of execution drugs. Thus, the court entered a peremptory writ of mandamus compelling the Department to turn over records responsive to Cover's request, but allowing for the redaction of information identifying individuals involved in executions.

Though Cover maintained that Rule 135 was invalid throughout the litigation below, she did not oppose the withholding of information that identified individuals involved in carrying out executions. Cover has reiterated on appeal that she does not seek such information.

Following the show cause hearing, the Department filed a motion to reconsider issuance of the peremptory writ. The Department contended that the district court was prohibited from issuing the peremptory writ under Rule 74 without first holding a trial, and that it had offered only "limited factual support" at the show cause hearing because it believed that a trial would follow if Cover's petition was not dismissed. In response, Cover argued the Department was playing a "cat and mouse game" to avoid compliance with its obligations under the first peremptory writ. Further, Cover argued that the writ was properly issued because the Public Records Act does not require a trial after a show cause hearing, and to the extent the Act and Rule 74 conflict, the statute should control.

The district court agreed with the Department. It ruled it had erred by granting the peremptory writ and that the Department was justified to have relied on Rule 74 as the controlling procedural rule. It also found the Act and Rule 74 were not inconsistent because the Act only set out "general requirements" for procedure, but offered little further analysis on this point. Thus, the district court granted the motion, withdrew the peremptory writ, set a trial date, and entered an amended alternative writ of mandate. The amended writ reiterated that the Department was required to disclose responsive records, but in addition to allowing for the redaction of names, it allowed redactions related to drug sources, pending trial.

In a halting series of disclosures between the granting of the Department's motion to reconsider and trial eight months later, the Department released nearly 2, 000 more pages to Cover, many of them redacted. In notices accompanying roughly 1, 300 pages, the Department explained the basis for these redactions by generally referencing multiple authorities, including Idaho Code sections 74-104 and 74-105, and Rules of the Board of Correction 108 and 135. For the redactions contained in an additional 600 pages, the Department cited no authority at all. After trial, and more than a year after Cover's request, the Department ran a keyword search of key employees' emails and hard drives-apparently for the first time-and turned up still more responsive records, which it then disclosed to Cover. The Department was in possession of all the disclosed documents at the time of Cover's initial public records request.

The trial was held over five days, beginning in January 2019, after which the district court entered the second peremptory writ of mandate appealed from here. In its findings of fact and conclusions of law accompanying the writ, the district court detailed which records and redacted information it found were exempt from disclosure, and those that must be disclosed. The district court found hundreds of pages of records were properly subject to withholding or redaction because they contained information exempt from disclosure under Board of Correction Rule 108 and Idaho Code section 74-104, such as prison operational plans, a social security number, and inmates' pre-sentence investigation records. The court also found certain documents were exempt from disclosure under Rule 135, namely, a...

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