IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 38016
BOB HENRY, an individual, )
) Boise, December 2011 Term
Plaintiff-Appellant, )
) 2012 Opinion No. 4
v. )
) Filed: January 5, 2012
BRYAN F. TAYLOR, a public official, )
CANYON COUNTY PROSECUTING ) Stephen W. Kenyon, Clerk
ATTORNEY’S OFFICE, a public agency, )
and CANYON COUNTY, a public agency, )
)
Defendants-Respondents. )
)
Appeal from the District Court of the Third Judicial District of the State of Idaho,
in and for Canyon County. The Hon. Kathryn A. Sticklen, District Judge.
The judgment of the district court is affirmed.
Erik F. Stidman, Holland & Hart LLP, Boise, argued for appellant.
Carlton R. Ericson, Canyon County Deputy Prosecuting Attorney, Caldwell,
argued for respondents.
EISMANN, Justice.
This is an appeal from a judgment holding that records relating to a contract executed by
a county, a former county prosecuting attorney, and a city under which the prosecuting attorney
would perform prosecutorial services for the city using county employees are not public records
subject to disclosure under the Public Records Act. We hold that such records are public
records, but in this case the Respondents cannot be required to produce the records because they
were not the public official who refused to disclose the records.
I.
Factual Background
In March 2009, the City of Nampa located in Canyon County issued a request for
proposals regarding obtaining services to prosecute city misdemeanors and infractions. Former
Canyon County prosecuting attorney John Bujak desired to contract with Nampa to perform
those services, and on April 16, 2009, the Canyon County commissioners unanimously adopted a
proposal pursuant to Idaho Code section 31-3113 1 permitting him to do so.
Mr. Bujak made a proposal to Nampa, which it accepted. The parties entered into a
contract dated July 9, 2009, under which he agreed to provide prosecutorial services to the city
for the sum of $598,357.88 per year, payable at the rate of $49,863.15 per month, to the county
auditor. The named parties in the contract were “Canyon County,” the “Canyon County
Prosecuting Attorney,” and the “City of Nampa,” and all three parties executed the contract. The
contract provided that its initial term was July 6, 2009 through September 30, 2009.
On September 8, 2009, Mr. Bujak, as Canyon County prosecuting attorney, and Nampa
entered into a written amendment of the July 9, 2009, contract to provide that the city would
make the payments directly to him rather than to the county. By letter to the county
commissioners dated September 11, 2009, the certified public accountant who performed
auditing services for the county objected to the payments going directly from the city to the
prosecuting attorney, stating that it was “a serious departure from standard practices.” By letter
to the commissioners dated September 15, 2009, the county clerk/auditor and county treasurer
agreed that the sums paid by Nampa should be paid to the county auditor, not to the prosecuting
attorney for deposit into a private account. By resolution adopted on October 6, 2009, the county
commissioners agreed that Nampa could pay Mr. Bujak directly for prosecution services and that
the county would bill him for county resources devoted to the prosecution of Nampa
misdemeanors and infractions. By written contract dated November 4, 2009, Mr. Bujak, as
county prosecutor, and Nampa extended the term of the July 6, 2009, contract through
September 30, 2010.
On March 5, 2010, Bob Henry filed a public records request with the county clerk asking
for information regarding the contract with Nampa, including “invoices, etc sent to Nampa by
county for prosecuting svc.” and “an accounting of where those funds are being deposited + how
1
Idaho Code section 31-3113 provides:
Prosecuting attorneys, with the unanimous approval of the board of county
commissioners, and with the consent of the prosecuting attorney, may contract with any city
within the county to prosecute nonconflicting misdemeanors and infractions.
2
they are being dispursed [sic] to Canyon County.” On March 15, 2010, Samuel B. Laugheed, a
deputy prosecuting attorney, submitted a response that provided copies of the contracts and
resolutions regarding the prosecuting attorney’s contract with Nampa. The response stated that
with respect to the other information requested, “No other records meeting the parameters of
your request exist.” The response explained that
periodic payments are tendered from the City to Mr. Bujak in consideration of his
provision of prosecutorial service. Those payments are deposited in a non-County
account, which is then drawn upon to pay for office supplies and other “overhead”
items at the CCPA Nampa annex. After those payments, along with the
Prosecutor’s Office salary adjustments that are funded by the contract, are
subtracted, Mr. Bujak essentially donates the remaining balance to the County for
deposit in its general fund.
The response also stated that the county had not submitted any invoices for county resources
consumed by Mr. Bujak functioning as the Nampa prosecutor and that “neither Mr. Bujak nor his
Chief of Staff accepted any salary increase.”
On March 18, 2010, Mr. Henry filed a second public records request directed to the
prosecuting attorney stating that he had not received the accounting information requested in the
first request. Thus, he asked for “ledgers, copies of bank statements, copies of source documents
that show the flow of payments made from the City of Nampa to any intermediary accounts and,
finally, to the county treasurer” for the period from July 2009 through February 2010. On March
23, 2010, Mr. Laugheed submitted a response to Mr. Henry stating that neither the prosecutor’s
office nor the county commissioners had created or retained “any documentation such as ledgers,
bank statements, or source documents that show the flow of payments from the City of Nampa to
any intermediary accounts and finally to the county treasurer.”
On April 1, 2010, Mr. Henry delivered a third public records request to the Canyon
County commissioners in which he recounted his prior attempts to obtain the information and
specifically requested the following:
1. Copies of all ledgers, bank statements, checks, and all other records
evidencing the transfer of all funds into and out of the “non-county account” into
which Mr. Bujak deposits the prosecuting funds he receives from Nampa from
July 2009 through this letter’s date. I make this request regardless of whether
such records are in the custody or control of Canyon County, Mr. Bujak, or any
third party financial institution.
2. Copies of all ledgers, bank statements, checks, and all other records
evidencing the transfer of all funds into and out of any account or depository of
3
any kind into which the funds paid by Nampa are, or have ever been, deposited
from July 2009 through this letter’s date. I make this request regardless of
whether such records are in the custody or control of Canyon County, Mr. Bujak,
or any third party financial institution.
3. All documentation that sets forth deposits of funds paid by Nampa for
prosecution services into the County’s General Fund from July 2009 through this
letter’s date. Specifically, I would like to see documents evidencing the dates
these payments were received by the County, the source of revenue, the amounts
deposited, and the identity of the individual who deposited the funds.
4. Auditor’s Certificates for the months of July, August, September, and
October of 2009 that reflect payments received into any Canyon County account
in connection with Nampa prosecuting services. Specifically, I would like to see
documents evidencing the dates these payments were received by the County, the
source of revenue, the amounts deposited, and the identity of the individual who
deposited the funds.
5. All documents necessary or relevant to determine the actual figures,
from July 2009 through this letter’s date, that are necessary to calculate the
“mathematical equation” described in Mr. Laugheed letter of March 15, 2010 as
follows: “(Nampa payments) - (CCPA salary bumps + Nampa annex overhead
expenses) = (Amount to general fund).”
In this request, Mr. Henry wrote that it was made to (a) “Canyon County Government
generally, including all County departments, employees, officers, and elected or appointed
officials that have custody or control of any records requested” and (b) “any other public or
private third party individual or entity (including financial institutions) that has custody or
control of any of the records requested.” He also sent copies of the request to the county clerk,
the county treasurer, the prosecuting attorney’s office, Mr. Bujak, and the Association of Idaho
Counties.
On April 1, 2010, the county clerk responded by providing Mr. Henry with copies of bills
submitted by the county to Mr. Bujak (with personal information removed) and copies of
auditor’s certificates showing deposits of money for such billings from August through February
2010. On April 5, 2010, the county treasurer responded by providing copies of auditor’s
certificates for each deposit made by the prosecuting attorney’s office. She stated that she did
not have possession of any other records requested. The prosecuting attorney’s office did not
submit a written response, although Mr. Henry and Mr. Bujak did have a telephone call and
exchanged some emails in which Mr. Bujak questioned Mr. Henry’s motives for seeking the
information.
4
On May 21, 2010, Mr. Henry filed this action against Mr. Bujak, the Canyon County
prosecuting attorney’s office, and Canyon County seeking to compel production of the records
requested. On June 11, 2010, Canyon County filed a motion to dismiss the action as to it on the
ground that the records sought “related to Defendant Bujak’s bank account and documents
needed to calculate a mathematical formula,” that the county was not the custodian of the
records, and that “[t]hose records are in the sole custody and control of Defendant Bujak.” The
district court held that based upon this Court’s opinion in Derting v. Walker, 112 Idaho 1055,
739 P.2d 354 (1987), the records requested were not public records and dismissed the petition.
Mr. Henry then appealed.
On September 20, 2010, the Canyon County commissioners accepted the resignation of
Mr. Bujak as county prosecuting attorney, 2 and on October 19, 2010, they appointed Bryan F.
Taylor to serve out the remainder of Mr. Bujak’s term of office. On October 25, 2010, Mr.
Taylor moved to have himself substituted in place of Mr. Bujak in this action. No objection was
filed, and on November 22, 2010, this Court entered an order substituting Mr. Taylor for Mr.
Bujak as a party to this appeal. 3
II.
Are the Records Requested Public Records under the Public Records Act?
The district court held that Mr. Bujak’s records regarding his private bank account would
not be a public record under our opinion in Derting. In that case, a county prosecuting attorney,
2
Mr. Bujak’s resignation would not have insulated him from being required to produce public records in his
possession or control. As we held in Ward v. Portneuf Med. Ctr., Inc., 150 Idaho 501, 505, 248 P.3d 1236, 1240
(2011):
The determination of whether a document qualifies as a public record is based on the
content of the document and surrounding circumstances as they existed at the time the request was
made. It would be irrelevant to make such a determination based on the circumstances that exist
months or years after a request, because agencies could alter the nature of the document or change
its location in order to remove the documents from the ambit of the Act.
3
Idaho Appellate Rule 7 provides:
Upon the death or disability of a party to a proceeding governed by these rules, or upon
the assignment, transfer, or the accession to the interest or office of party to a proceeding governed
by these rules by another person, the representative, or successor in interest of such party shall file
a notification of substitution of party and serve the same on all parties to the proceeding or appeal.
The substitution shall be effective unless an objection thereto is made within fourteen (14) days of
service, by a motion to disallow such substitution, in the manner provided for motions under Rule
32.
5
with the unanimous approval of the county commissioners, entered into a contract with various
cities to prosecute non-conflicting misdemeanors committed in those cities. By resolution, the
county commissioners later required the prosecuting attorney to pay various amounts to the
county for the use of county facilities used in performing his contracts with the cities, to pay to
deputy prosecutors a percentage of all monies collected under the city contracts, and to pay one-
fourth of such monies to the county general fund, beginning on a specified date.
The plaintiffs in Derting filed a complaint against the prosecuting attorney seeking to
require him to account for and pay to the county all monies that he had received under his
contracts with various municipalities. The trial court granted the prosecutor’s motion for
summary judgment and dismissed the action, and the plaintiffs appealed. We affirmed on the
ground that performing prosecutorial services for cities pursuant to contracts with them was not
part of the duties of the prosecutor. Therefore, he received monies under such contracts in his
capacity as a private individual and not as a public official. We stated:
Clearly, the monies collected by Walker and other prosecutors throughout
the state as a result of contracts with municipalities, do not constitute fees in that
context, nor are the monies received for the performance of the “duties” of the
office of prosecuting attorney. Rather, they are personal funds received in his
capacity as a private individual for the performance of contractual obligations not
relating to the duties of the office of prosecuting attorney.
Derting v. Walker, 112 Idaho 1055, 1057, 739 P.2d 354, 356 (1987).
We also said that the legislature did not intend that a county prosecutor’s contract to
prosecute city misdemeanors would make the performance of such contract part of the
prosecutor’s duties. We stated:
If, by voluntarily entering into a contract to prosecute city misdemeanors, the
performance of that contract automatically then became a portion of the “duties”
of the office of county prosecutor, and monies earned therefrom were required to
be turned over to the county, no prosecutor in his right mind would enter into such
a contract to take on additional duties for no compensation. The clear intent of
the legislature is to the contrary.
Id. at 1058, 739 P.2d at 357.
Two years later, the legislature made performing such contracts with cities part of the
official duties of a prosecuting attorney. It amended Idaho Code section 31-2604(2), to provide
that it was a duty of a prosecuting attorney, “when a written contract to do so exists between the
prosecuting attorney and a city, to prosecute violations for state misdemeanors and infractions
6
and violations of county or city ordinances committed within the municipal limits of that city
when the arresting or charging officer is a city employee.” Ch. 292, § 1, 1989 Idaho Sess. Laws
719, 719-720. Thus, after that amendment, once a county prosecutor enters into such a contract
with a city, performing that contract becomes a duty of the prosecutor during the contract’s
existence. It is no longer a private contract between the prosecuting attorney, as an individual,
and the city. Rather, the performance of the contract is a statutory duty of the prosecuting
attorney and it is, therefore, a public contract relating to the duties of the office of prosecuting
attorney.
Idaho Code section 9-337(13) states that a “ ‘[p]ublic record’ includes, but is not limited
to, any writing containing information relating to the conduct or administration of the public’s
business prepared, owned, used or retained by any state agency, independent public body
corporate and politic or local agency regardless of physical form or characteristics.” The statute
states two criteria for determining what constitutes a public record, although the wording
“includes, but is not limited to,” means that other records not meeting that definition may also be
public records. Cowles Publ’g Co. v. Kootenai County Bd. of Comm’rs, 144 Idaho 259, 263, 159
P.3d 896, 900 (2007).
The first criterion is that the record “contain[s] information relating to the conduct or
administration of the public’s business.” I.C. § 9-337(13). Because of the statutory change, the
opinion in Derting no longer applies. Once Mr. Bujak entered into the contract with Nampa, the
performance of the contract became one of his statutory duties as Canyon County prosecuting
attorney. Therefore, the contract was a public contract, and his performance of that contract was
the public’s business. The payments under the contract were for work to be performed by the
“FIRM,” which the contract with Nampa defined as the “CANYON COUNTY PROSECUTING
ATTORNEY.” Although the contract provided that the payments due under the contract were to
be paid to the county auditor, the county commissioners later agreed to permit the payments to
be sent directly to Mr. Bujak. 4 That did not convert the payments into his personal funds
received in his capacity as a private individual for the performance of contractual obligations
unrelated to the duties of the office of prosecuting attorney.
4
The record does not reflect whether Mr. Bujak advised the county commissioners in writing that they should seek
independent legal advice before agreeing to permit the payments to be made directly to him. See Rule 1.8(a) of the
Idaho Rules of Professional Conduct.
7
Entering into the Nampa contract required the unanimous consent of the county
commissioners. I.C. § 31-3113. Because Mr. Bujak would be using county resources to perform
the contract, the commissioners could condition their approval as they desired. They certainly
could require that county resources not be used for the personal financial gain of the prosecuting
attorney. Under the initial contract, the payments were to be made to the county auditor.
Obviously, the commissioners considered those payments public funds. Mr. Bujak later
convinced Nampa that the payments should be made directly to him, and he and Nampa executed
an amendment to the contract to so provide. That amendment was not binding upon the other
party to the contract, Canyon County. He then convinced the county commissioners to permit
the payments to be made directly to him. The record indicates that in doing so, the
commissioners were not agreeing to change the payments into Mr. Bujak’s personal funds.
As Resolution No. 09-211 recites:
WHEREAS, Mr. Bujak agreed with each and every of his County staff,
save himself and his Chief of Staff, in writing, to provide them a salary “bump”
wholly dependent upon the City of Nampa’s payment under the prosecution
contract, commensurate with a number of factors including the scope of the
increased demands upon their professional lives, their years of service, cumulative
salary, and other factors; and
WHEREAS, Mr. Bujak agreed with this Board to reimburse, by generous
annual estimate, the County for its expenditure of those minimal resources
devoted to his commingled provision of prosecution services to both City and
County so that a zero sum equation would necessarily result: (payment under
contract) - (salary adjustments + reimbursement to County) = 0.00; and
....
WHEREAS, Mr. Bujak, who could himself realize no financial advantage
from his provision of prosecutorial service to the City, advised this Board that the
above-described extra-legal issues threatened the continued existence of this
mutually beneficial, legal, cooperative joint City-County arrangement, and
WHEREAS, Mr. Bujak and the City of Nampa executed an Amendment
to the Prosecution Services Term Agreement on September 8, 2009 to provide
that the City’s payment under the contract would be paid directly to the City
Prosecuting Attorney, and
WHEREAS, Mr. Bujak and this Board agreed that the County would
invoice Mr. Bujak for the salary adjustments and benefits for his staff, as well as
to cover the expenditure of any county resources used in furtherance of the City’s
prosecution needs.
(Emphases added.)
8
The recitals stated that Mr. Bujak would give all of his staff a salary increase, “save
himself and his Chief of Staff”; that Mr. Bujak agreed to disburse the payments under the Nampa
contract to pay the salary increases for his staff and to remit any balance remaining to the county,
“so that a zero sum equation would necessarily result”; and that Mr. Bujak, “himself could
realize no financial advantage from his provision of prosecutorial service to the City.”
The second criterion is that the record was “prepared, owned, used or retained by any
state agency, independent public body corporate and politic or local agency regardless of
physical form or characteristics.” I.C. § 9-337(13). “ ‘Local agency’ means a county, . . . or any
agency thereof . . . .” I.C. § 9-337(8). Thus, a local agency would include the county and an
agency of the county. The word “agency” is not defined, but “ ‘[l]aw enforcement agency’
means any state or local agency . . . which has authority to investigate . . . [or] prosecute . . .
violations of state . . . criminal statutes, ordinances or regulations.” I.C. § 9-337(7). Because the
county prosecuting attorney has the authority to investigate or prosecute violations of state
criminal statutes, ordinances, or regulations, the prosecutor would be an agency of the county.
Both the county and the office of the county prosecutor would be a “local agency” under
the Public Records Act. The records at issue were prepared, owned, used, or retained by Mr.
Bujak as Canyon County prosecuting attorney. In response to Mr. Henry’s first public records
request, Mr. Laugheed, as a deputy prosecuting attorney, wrote that the payments from Nampa
under the contract “are deposited in a non-County account.” Mr. Laugheed explained that
monies from that account are used to pay overhead and salary adjustments for employees of the
prosecutor’s office, with the balance being paid into the county for deposit into its general fund.
That Mr. Bujak used a “non-County account” into which to deposit monies received as the
prosecuting attorney under the contract and from which to pay various office expenses and salary
enhancements does not prevent the records of that account from being public records. He could
not shield the records from examination by the public by using a private bank account rather than
a county bank account. There is no contention that any of the records requested were exempt
from disclosure under the Public Records Act. Therefore, the records requested by Mr. Henry
were public records that were required to be provided for examination and/or copying.
III.
Can Canyon County, the Current Prosecuting Attorney, or His Office
9
Be Required to Produce the Requested Records?
During oral argument before the district court, counsel for Mr. Henry stated that the
records at issue were those described as items 1, 2, and 5, in Mr. Henry’s last request. Such
documents would be:
1. Copies of all ledgers, bank statements, checks, and all other records
evidencing the transfer of all funds into and out of the “non-county account” into
which Mr. Bujak deposits the prosecuting funds he receives from Nampa from
July 2009 through this letter’s date. . . . .
2. Copies of all ledgers, bank statements, checks, and all other records
evidencing the transfer of all funds into and out of any account or depository of
any kind into which the funds paid by Nampa are, or have ever been, deposited
from July 2009 through this letter’s date. . . . .
....
5. All documents necessary or relevant to determine the actual figures,
from July 2009 through this letter’s date, that are necessary to calculate the
“mathematical equation” described in Mr. Laugheed letter of March 15, 2010 as
follows: “(Nampa payments) - (CCPA salary bumps + Nampa annex overhead
expenses) = (Amount to general fund).”
During oral argument on appeal, counsel for Respondents stated that on May 4, 2011, the
county received through Mr. Bujak’s bankruptcy proceedings the financial records requested,
and that it provided them to Mr. Henry the following day. Mr. Henry’s counsel stated that there
was additional discovery his client would like to conduct regarding the records and the existence
of any emails regarding this transaction between the county and Mr. Bujak. Idaho Code section
9-343(1) provides that the sole remedy for a person aggrieved by the denial of a request to
examine or copy public records is to institute an action in the district court “to compel the public
agency or independent public body corporate and politic to make the information available for
public inspection in accordance with the provisions of sections 9-337 through 9-348, Idaho
Code.” Mr. Henry is not entitled to an order compelling inspection of public records not
requested, nor is he entitled in this proceeding to conduct further discovery regarding
information that may be contained in the records that were produced. Therefore, at this point he
has received the relief to which he is entitled with respect to examining the public records
requested.
IV.
Is Mr. Henry Entitled to an Award of Costs and Attorney Fees?
10
Respondents asserted during oral argument that this case was now moot because they had
produced the documents at issue. However, it is not moot because Mr. Henry requests an award
of attorney fees pursuant to Idaho Code sections 9-344(2), 12-117, and/or 12-121. Since the
requested documents were provided after this lawsuit was instituted to compel their production,
the issue of attorney fees remains an issue to be resolved.
Idaho Code section 9-344(2) provides a standard for the awarding of “reasonable costs
and attorney fees” to the prevailing party in actions to compel disclosure of public records for
examination and/or copying under the Public Records Act. It states, “In any such action, the
court shall award reasonable costs and attorney fees to the prevailing party or parties, if it finds
that the request or refusal to provide records was frivolously pursued.” In Roe v. Harris, 128
Idaho 569, 917 P.2d 403 (1996), we held that after the enactment of Idaho Code section 12-117
setting forth the standard for awarding attorney fees against a state agency, the private attorney
general doctrine was no longer a basis for such an award. Id. at 573, 917 P.2d at 407. Likewise,
in Lake CDA Investments, LLC v. Idaho Dept. of Lands, 149 Idaho 274, 285, 233 P.3d 721, 732
(2010), we held that Idaho Code section 12-117(1) is the exclusive basis for awarding court costs
and attorney fees in an action between a person and a state agency, where that statute entitled the
prevailing party in such action to “reasonable attorney’s fees, witness fees and other reasonable
expenses” when the court finds that “the nonprevailing party acted without a reasonable basis in
fact or law.”
Idaho Code section 9-344(2) sets forth the standard for awarding reasonable costs and
attorney fees in actions pursuant to the Public Records Act. To base an award on some other
statute would be contrary to the legislature’s intent in including in the Act an attorney fee
provision with a specified standard for awarding attorney fees in proceedings to enforce
compliance with the Act. That statute is the exclusive basis for such an award. Therefore, Idaho
Code sections 12-117 and 12-121 do not apply.
Idaho Code section 9-343 authorizes a person aggrieved by the denial of a request to
examine or copy public records to institute an action “to compel the public agency or
independent public body corporate and politic to make the information available for public
inspection in accordance with the provisions of sections 9-337 through 9-348, Idaho Code.” “In
any such action, the court shall award reasonable costs and attorney fees to the prevailing party
11
or parties, if it finds that the request or refusal to provide records was frivolously pursued.” I.C.
§ 9-344(2).
Because a public record is one “prepared, owned, used or retained by any state agency,
independent public body corporate and politic or local agency,” I.C. § 9-337(13), a particular
agency cannot be required to produce records that it had not prepared, owned, used, or retained. 5
Respondents did not refuse to produce any public record that they had prepared, owned, used, or
retained.
Mr. Henry contends that because the county commissioners of Canyon County had the
authority under Idaho Code sections 31-802 and 31-809 to require the prosecuting attorney to
make reports, to present his books and accounts for inspection, and to audit them, the county
should have exercised that authority to obtain the requested public records from Mr. Bujak.
Although the county commissioners could have exercised their authority under those statutes,
they did not do so. These statutes are not part of the Public Records Act. That act does not
require an agency to obtain records that it had never prepared, owned, used, or retained.
In his third public records request, Mr. Henry stated, with respect to the records identified
in categories 1 and 2, “I make this request regardless of whether such records are in the custody
or control of Canyon County, Mr. Bujak, or any third party financial institution.” A party
making a public records request cannot unilaterally modify the Public Records Act. The
inclusion of that wording did not require Respondents to produce records that they had never
prepared, owned, used, or retained.
Likewise, Mr. Taylor, as prosecuting attorney after Mr. Bujak resigned, had not prepared,
owned, used, or retained any of the requested records. The office of the prosecuting attorney, as
distinct from Mr. Bujak, had also never prepared, owned, used, or retained the records. Only Mr.
Bujak had access to the records, and there is no indication that they could have been located
somewhere in the office of the prosecuting attorney after he resigned.
Idaho Code section 9-344(2) states, “If the court finds that the public official’s decision
to refuse disclosure is not justified, it shall order the public official to make the requested
disclosure.” Mr. Bujak was the public official who refused to produce the records for
5
“The word ‘or’ is a disjunctive particle used to express an alternative.” Doe I v. Doe II, 148 Idaho 713, 715, 228
P.3d 980, 982 (2010). Therefore, a record that was either prepared, or owned, or used, or retained by a state agency
would be a public record. It need not be prepared, owned, used, and retained.
12
examination and/or copying and whose decision to refuse to disclose the records was not
justified.
Respondents’ failure to produce the public records at issue was not frivolous. Therefore,
Mr. Henry is not entitled to an award of attorney fees against any of the Respondents. Because
Mr. Bujak is not a party to this appeal, we need not address whether his refusal to provide the
records was frivolous.
V.
Conclusion
We affirm the judgment of the district court, although on alternative grounds. We do not
award costs on appeal.
Chief Justice BURDICK, Justices J. JONES, W. JONES, and HORTON CONCUR.
13