What is Idaho’s Open Meeting Law?
At its core, the Open Meeting Law (OML) is a straightforward concept. The purpose of the Open Meeting Law is to promote transparency in government by ensuring that meetings among public employees and officials are open to the public. According to the Idaho Attorney General, "The OML presumes all meetings are open to the public, except as otherwise provided." Idaho Code § 74-204(1). However, this description belies the complexity of the law in practice.
In Idaho, the Open Meeting Law defines a "meeting" as a "convening or assembling of a majority of the members of the governing body at which they personally discuss, or take action on official business." Idaho Code § 74-204(5). This definition includes most, but not all, of the meetings of the governing body. Significantly, the OML does not apply to a gathering of the governing body for a social or chance gathering—unless the meeting was called or arranged by or at the request of a member of the governing body. See Idaho Code § 74-204(5).
The public policy behind the OML is set forth in Idaho Code § 74-201. It states:
The people of the state of Idaho have a right to expect government of this state and its political subdivisions to be open, and that the deliberations and decisions of the government be conducted openly. Public officials, agencies and public policy in Idaho affect the public at large and it is the intent of the legislature that elected officials, appointed officials, and employees acting in their official capacity are accessible to the citizens of their respective units of government , whether exercising legislative, executive, or administrative functions of public policy.
The OML has a long history, originating in Idaho as early as 1951. The attorney general wrote regarding its purpose: "In setting out these fundamental reasons for the open meeting law, the legislature has clearly indicated that the preferred activity of all government is open, public activity." Whether or not you agree with this statement, the OML reflects Idaho’s public policy in favor of open and public government. In fact, this presumption of openness is required at the federal level as well. The First and Fourteenth Amendments of the United States Constitution are generally applied to the states through the Fourteenth Amendment’s Due Process Clause. See In re Nitec, Inc., 146 Idaho 279, 282, 192 P.3d 1004, 1007 (2008) (decided under the 14th Amendment Due Process Clause). The United States Supreme Court has explained the importance of requiring government meetings to be open to the public:
[T]he public processes of government . . .are meetings among those public officials who make policy and those citizens who are affected thereby. It is through such deliberations on matters of public interest in the forum of public opinion that governmental officials become educated, informed, and acculturated to the obvious consequence that public policy "is discussed and debated" then made. Thus, in addition to serving the end of enlightenment, deliberation increases understanding.
Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 175 (2004) (citations omitted).
Who Does Idaho’s Open Meeting Law Apply To?
Idaho’s Open Meeting Law, or the Sunshine Law, is a broad and flexible law that applies to most public entities and bodies involved in government business. As with many laws, there are some exemptions—but the general rule is that the following must comply:
Idaho statute § 74-203 defines the term "public agency" as:
Any department, commission, board, council, agency, or any other entity of the state or local government, including, but not limited to, the state legislature, state salaries commission, any district, board, …
…task force…(located wholly within the territorial boundaries of Idaho), or similar public or private agency, district, or political subdivision of government.
So, while Idaho’s definition may seem fairly straightforward, it’s also somewhat ambiguous. As a practical matter, then, "public agency" must be interpreted as narrowly as possible to those entities, commissions, and agencies that are involved in government business.
In general, the exclusions to "public agency" are:
Still, this is not an exhaustive list; So if you’re part of an entity that’s not expressly excluded, work for a State agency or local government, or are part of a board, committee, or commission, you’re generally going to be affected by Idaho’s Open Meeting Law.
For example, charter schools are not specifically exempted from the Open Meeting Law. However, in Idaho Charter School Network v. Ada County Highway District No. 4, the Idaho Supreme Court found that a charter school was not a "public agency" subject to open meeting requirements. In that case, the court found that when a charter school contracts with a local government to provide services, it is "acting as a private party in a private capacity to provide a service for compensation."
On the other hand, private nonprofits that perform functions on behalf of a public entity are subject to the requirements of the Open Meeting Law. The Idaho Supreme Court has noted that these entities are "performing a core government function."
The Idaho Attorney General has stated that two types of private entities may be subject to the Open Meeting Law. The first is "public and quasi-public corporations," like the Idaho State Lottery Commission, the Idaho Health Facilities Authority, the Idaho Small Business Development Center and Idaho community college boards. The second is any non-profit organization that is wholly or partially funded by a government agency (this does not include nonprofit entities that receive funds from a single charitable source—such as a private foundation).
Finally, certain political campaigns and political committees that receive public funding must comply with the requirements under the Open Meeting Law.
Keep in mind that Under Idaho Code § 74-203(1) only governing boards are required to comply with § 74-205.
NOTE: The deadlines and other fee payment requirements of the Public Records Law do not apply to private entities, but do apply to governing boards.
Obligations and Procedures Under Idaho’s Open Meeting Law
The Open Meeting Law and associated case law require that public entities adhere to certain requirements in holding meetings. The law requires the following: In addition to the above, an entity must publish minutes of meetings and maintain them "as a public record" which must be made available for public inspection during normal business hours.
Public notice of a meeting must be provided to the media at least 48 hours in advance of the meeting. The notice must contain the time, place and agenda of the meeting. The agenda must be made available to the public in advance of the meeting. Case law has held that the agenda must be made available two (2) days in advance of the meeting. The case law establishes the requirement for the specific information that must be included in the agenda. These requirements are: The standard procedures that must be followed to ensure compliance with the requirements of the Open Meeting Law are to provide written notification to the media, post a public meeting notice at the public entity’s office and on the official website, maintain and provide access to meeting agendas and minutes of meetings, and follow the agenda for the meeting. Compliance with these requirements is generally adequate for complying with the law since no person has the right to go into court to enjoin the meeting or remove an officer or employee of the body complying with the statute.
What Happens If You Violate Idaho’s Open Meeting Law?
In the event a public body violates the Open Meeting Law, there are a number of potential penalties that may be imposed. First, an open meeting that does not comply with the legal requirements may be voided. Furthermore, the Open Meeting Law does contain provisions related to potential civil penalties. These civil penalties are largely limited to fines, which are paid to the state, but the penalties have decreased overall since the time the current Open Meeting Law was passed.
A key first step for enforcement for many entities is for a member of the public to make a written request for the entity to hold a special meeting . If the entity refuses, then that refusal can be the basis for enforcement. In addition, a complaint may be filed with the Idaho Association of Counties or anyone may seek a writ of mandamus to compel compliance.
Citizens may also sue for damages. If the Court finds that the public body violated the Open Meeting Law knowingly and willfully, recovery against the individual members of the public body is potentially available. The Court may award actual damages or $500 per person bringing an action, whichever is greater. Depending upon the circumstances of the violation, the Court may award attorney fees against the public body as well.
Recent Changes and Updates to Idaho’s Open Meeting Law
The Idaho legislature has made several amendments and updates to the law in the past two years that have significant impacts on compliance practices and public engagement. While focusing on these changes, one may also want to take a moment to review the recent change on the new age of retirement for Supreme Court justices and judges in general. First is the change in when an email is considered a meeting. Approval of minutes by e-mail or electronic transmission is not a meeting. A quorum can be used in emails in order to establish a record for the minutes. It was also clarified that to be a meeting requiring notice to the public under the law, a gathering of any number of members of the same body or any number of members of two (2) or more bodies must require a quorum of at least one of those entities and address a matter it or they have supervision or control. This allowed for city councils and selection boards to gather in the same meeting for a specific purpose without it being a meeting of all of the convening bodies. The law for public records was amended to allow government agencies to directly implement fees for providing a description or copying of and providing public records. This eliminates having to go through an attorney. This is much easier for parties seeking documents and for the government to provide these documents. The requirements for posting notices were amended to allow use of social media. However, emails are still not an acceptable form of notice. The requirement was also eliminated that the location of each meeting of a public agency on a single agenda to avoid confusion when there are multiple places. Also of interest, while now rescinded, the new exemption for public agency bodies meeting individually so that the number of attendees are less than a quorum, but all of them talking and discussing the same subject, would not be a meeting. This was one where you have a quorum of all of the members attend but are not required to notice the intent. While there were many other changes, these were the items where I believe there will be the most impact on your compliance practices or how you interact with your public.
How Do Citizens Interact with Idaho’s Open Meeting Law
To engage with the Open Meeting Law, citizens should take a proactive approach in observing, speaking at and understanding the purposes of open meetings. Whenever possible, citizens should review public notices and agendas prior to the meeting to ensure an opportunity to participate. Active participation at a meeting may be accomplished by simply attending, or in some instances, by speaking during a meeting. Much like the opportunity that is given to the public to observe a meeting, Idaho’s Open Meeting Law also gives the public the right to testify in an open meeting. Agendas and public notices typically contain information on the time and location of the meeting, as well as the proper protocol to testify before the decision-making body . Furthermore, citizens may also participate in the legislative process by petitioning their legislators to sponsor new legislation or amendments to the Open Meeting Law.
Opportunities to participate may arise in response to public comment periods, proclamations, requests for a variance, budgets, and other opportunities to make presentations, provide information, or testify in regard to an issue. These opportunities for citizen participation are set forth in public notices or agendas prior to a meeting. Establishing rapport with decision-makers and applying pressure on them can also prove to be a useful and successful strategy for citizen involvement in the Open Meeting Law.