Federated Publications, Inc. v. Boise City

SCHROEDER, Justice,

dissenting.

I dissent from that portion of part II of the Court’s opinion which holds that the résumés of the applicants are not exempt from disclosure and from that portion of part III which requires disclosure of the evaluation of the officers’ conduct.

Initially it should be noted that of the five persons whose résumés will be released, four should not be considered applicants, and their personal materials should not be subject to disclosure. One withdrew his name after he discovered he lived outside the city limits. One did not submit a résumé and did not intend to apply for a vacant city council position. His résumé was submitted by another person without approval. Two who submitted résumés withdrew their names from consideration. The parties to this action have stipulated that the résumés are public records. However, the individuals actually involved are not parties, and the stipulation would not bind them in the surrender of any privacy rights they might have. To *464have joined the action would have identified them, which is the thing they sought to avoid. These persons, who are not applicants, should not have their résumés disclosed.

The Court notes in dealing with these non-applicants that none of the exemptions of I.C. § 9-8401(36) would apply. That conclusion misses the threshold point. These persons’ résumés are not public records. Part of the definition of a public record is that it is “any writing containing information relating to the conduct or administration of the public’s business ...” I.C. § 9-337(10). There is no way that these résumés relate to conduct of the public’s business, since these persons are not seeking a public position. Most notable is the person who did not submit a résumé. That person’s personal information is treated by the Court as a public record as the result of the act of another person who had no authorization to submit the information in the first place. Essentially the Court’s decision elevates to public record status any document that comes into the possession of a public entity, regardless of source, and irrespective of the fact that it in no way relates to the conduct of public business. The legislature has reflected an essential public policy of disclosure in the adoption of the public record’s law. But the purpose of that law was to make public that which has or will relate to public business, not to breach the rights that individuals have to privacy when the details of their lives have nothing to do with the conduct of government.

The Court treats the résumés as public records. In light of this I adopt the reasoning of the district court which is set out in its memorandum filed February 28, 1994, which gives a coherent explanation consistent with the legislation.

A “public 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 or local agency regardless of physical form or characteristics.” I.C. § 9-337(10). The parties agree that the list of council applicants and their résumés maintained by the City of Boise come within the definition of a public record.

There is a general right to examine and copy a public record. I.C. § 9-338(1). A court may not uphold non-disclosure of a public record merely because the agency obtained the information in the record in confidence or because disclosure would be against the best interests of the state or because disclosure would interfere with the public interest in having public business carried on efficiently and without undue interference. Dalton v. Idaho Dairy Products Commission, 107 Idaho 6, 684 P.2d 983 (1984) (interpreting a statute subsequently repealed). A court may uphold non-disclosure only when “expressly provided by statute.” I.C. § 9-338(1).

The city contends that the requested information is exempt from disclosure under I.C. § 9-340(36), which provides

9-340 Records exempt from disclosure. — The following records are exempt from disclosure:
# # * * # *
(36) 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, birthdate, 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. A public official or authorized representative may inspect and copy his personnel records, except for material used to screen and test for employment.

A “public official” is defined as “any state, county, local district or governmental official or employee, whether elected, appointed or hired.” I.C. § 9-337(9) (emphasis supplied). A “public employee” is not specifically defined. Nevertheless in the context in which it is used, *465public employee appears to be synonymous with the defined term “public official.” “Official” is referred to three times and “employee” is referred to twice in the exemption statute without any apparent differentiation. If the legislature intended to give a special meaning to public employee that is different than the meaning of public official, it would have provided such a definition, as it did with many other terms in the Public Writings Chapter. See, I.C. Section 9-337.

In any event it is clear that the legislature recognized that public employment does not totally divest a public official of the privacy rights enjoyed by citizens not in public employment. By exempting certain aspects of personnel records from public disclosure, the legislature attempted to achieve a logical and rational balance between the public’s right to know and a public official’s right to privacy.

Among the matters exempted from public disclosure in public official personnel records are employment “applications.” Typically, but not invariably, the employment application process includes preparation and submission of a résumé. In this case, the invitation to interested persons to apply included a specific direction to submit a résumé; for all practical purposes the résumé was the application. Consequently, the exemption applies, and the Statesman is not entitled to obtain the résumés without permission from the applicants.

The names of the applicants, however, are different matters. The personnel records exemption is not absolute. It does not exempt from disclosure such items as “public service or employment history, classification, pay grade and step, longevity, gross salary and salary history, status, workplace and employing agency.” For personnel information that is subject to disclosure to have any meaning at all, the name of the involved officials and applicants also must be disclosed. The names of applicants for public employment are not protected from disclosure; the city must disclose its list of applicants for the city council vacancies regardless of permission from the applicants.

It has been suggested that the exemption statute should have no application whatsoever, since its literal terms apply only to “personnel records of a current or former public official”, and none of the persons withholding consent are current or former public officials. Nevertheless, the exemption prohibits disclosure “without the employee’s or applicant’s written consent.” The plain meaning of the statute is to provide a modicum of privacy both to persons obtaining public employment and to persons who fail to obtain public employment.

PART III

Those portions of the administrative review that evaluate the conduct of the officers in light of their training, department policies, the law and the circumstances of the case should be exempt from disclosure under section 9-340(36) as performance evaluations. This is a typical employee performance evaluation when there has been an extraordinary event. It outlines the facts, the policies of the department, the law, and then assesses the conduct of the officers in light of those facts and policies. The fact that non-exempt material is included is irrelevant to a determination that the assessment is a personnel evaluation. The non-exempt material — the law, Boise Police Department’s (BPD) policies, and BPD training — is subject to disclosure. The facts surrounding the event were properly disclosed as part of the police reports. What remains is a personnel evaluation of the officers involved.

There is a significant reason to conduct such reviews: 1) they establish a framework to determine if disciplinary action should take place; 2) they establish a framework to determine if the training within the department is adequate for future situations. It is essential to outline the policies to evaluate the employee conduct. Disclosure of those policies is required, but evaluation of the employees’ conduct is exempt under I.C. § 9-340(36). It must be emphasized that the actions of the officers were disclosed, so nothing about policy or fact has been kept from the public.

*466There is great value to the public in such reviews being conducted in order to assess 1) whether the particular officers are acting within the proper bounds of their training; and 2) to determine if the policies and training of the department are adequate. Confidentiality of the personnel evaluations will likely lead to an honest assessment of the conduct of the officers in relation to the policies of the department and their training. Disclosure will more likely lead departments to do non-critical, whitewash reports, that cannot be used against them. In light of the Court’s decision it is less likely that departments will conduct the critical evaluations that are essential to improvement of operations.

The question must be addressed as to whether there is danger to the public by protecting these personnel evaluations. There are protections: 1) the facts of the event are already known; 2) the policies of the department are public; 3) an in camera inspection by an impartial judge protects against cover-up. The public and the press are free to draw their own conclusions as to the propriety of the officers’ conduct. If protected by confidentiality, the personnel evaluation will be free to be favorable or critical without the evaluation turning into a public-relations vehicle or a defense to civil lawsuit.

There is no great warpage to the law by the Court’s decision, because it simply says that the administrative review is not a personnel evaluation, premised on the fact that almost all of the review consists of nonexempt material. But the Court does not recognize that such material is essential to frame a context to make a personnel evaluation. Jobs don’t exist in a vacuum-. Evaluations must take place within a framework. The fact that the framework is outlined as a part of the review should not destroy the exempt status of the personnel evaluation that occurs within that framework. In short, most of the administrative review is not exempt and should be disclosed — the law, policies, training, and facts — but the evaluation of the officers’ conduct within that context should not be disclosed, because it is an exempt personnel evaluation under I.C. § 9-340(36).

TRANSTRUM, J. Pro Tern, concurs, as to dissent from part II.