All About the Idaho Open Meeting Law
Idaho’s Open Meeting Law has a long and storied history, dating back over 35 years. It was enacted in the summer of 1987 and codified in Idaho Code § 74-201 through 74-208. Since its enactment, the law has been amended several times, with major changes occurring in 1990, 1991, and 2008. Idaho’s Open Meeting Law, known colloquially as the "Sunshine Law", embodies the right of every citizen to observe the deliberations and decision-making of Idaho’s public officials. The history and implementation of Idaho’s Open Meeting Law has been under the auspices of the Attorney General’s office and the United States Attorney’s office. These agencies have issued Attorney General Opinions and United States Attorney Guidance to assist and advise the public, as well as public officials and entities , the public in complying with the open meeting law. The passage of Initiative 1 in November of 1994 transferred responsibility for insuring compliance from these agencies to the newly created Idaho Open Meetings and Public Records ("PARR") division of the Secretary of State’s office. The purpose of the Open Meeting Law is to ensure that Idaho’s public business is conducted in an open and public manner. Present and future Legislatures are free to alter the Open Meeting Law. However, any attempts to limit or restrict access to public meetings must be conscious of the fundamental principle which the Open Meeting Law embodies. Idaho’s Open Meeting Law balances competing public policies. The power of government derives from the consent of the governed. As such, there is a strong policy in favor of open government. At the same time, the ability of government to make decisions can be hampered by the requirement of notice of every public meeting and public adjournment. To this end the Open Meeting Law contains requirements for public notice of meetings, a clear definition of a "meeting," a time-table for public adjournments, and a process by which decisions of governing bodies who have violated the law may be voided.
Central Principles of the Law
One critical aspect of the Act is the definition of "meeting." The Act broadly defines a meeting as any gathering of a majority of the members of the governing body to conduct business. Furthermore, the Act expressly states that a series of gatherings that cumulatively involve a majority of the members of the public agency, but where less than a majority of members gather at one time, constitutes a meeting. A "majority" is defined as a majority of the members of the public agency. A public agency that has an even number of members has two designated majorities. For example, in the case of a school board with four total members, there are two majorities of two. The reason for this definition is simply that the operative word in the definition of the term "meeting" is "majority."
The Act establishes numerous notice requirements. Generally, written notice is required at least five days prior to the meeting. Written notice must generally be provided to all individuals or organizations that have requested the notice and whose request is currently on record. Additional provisions require specific types of notice, for example, for public hearings, special meetings, and emergency meetings. Notice requirements increase for e-mail notice or when the public meeting involves a land use, zoning, or other development matter.
The Act also requires the keeping of minutes for agency meetings. Minutes must include information such as the time and place of the meeting, the members present, general information regarding matters considered during the meeting and the members’ votes on those matters.
It is also important to note the exceptions to the general rules of the Act. Some of the exceptions include finance and legal matters, mediations, quasi-judicial proceedings, executive sessions and collective bargaining. Each exception has specific requirements and limitations.
Who is Subject to the Law?
The law has a broad reach, applying to what is considered a governmental agency as well as any other public or quasi-public entities set forth in the law. It even requires compliance from organizations acting in an advisory capacity to public agencies and authorities, essentially including any entity using public funds to help set policy, carry out decisions, or provide advice.
In Idaho, the following types of public entities comply with the Open Meeting Law:
Administrative agencies (departments making up the executive branch of the Idaho state government and semi-autonomous agencies outside the executive branch):
Idaho Department of Administration; Department of Agriculture; Department of Commerce; Department of Education; Department of Environmental Quality; Department of Finance; Department of Health and Welfare; Department of Health, Welfare and Family Support; Department of Insurance; Department of Lands; Department of Parks and Recreation; Department of Water Resources; Department of Fish and Game; Department of Lands; Department of Youth Rehabilitation; Division of Financial Management; Industrial Commission; Board of Dentistry; Idaho Board of Accountancy; Board of Professional Engineers; Board of Professional Land Surveyors; Board of Pharmacy; Board of Veterinary Medicine; Division of Human Resources; Idaho Human Rights Commission; Public Employee Retirement System of Idaho; Secretary of State; State Appellate Public Defender; State Controller; State Tax Commission; Department of Labor; Division of Building Safety; Division of Vocational Rehabilitation; Department of Public Works; and the Department of Revenue.
Legislative agencies (Agencies within the legislative branch of government; these include committees and boards with members from both legislative chambers):
Internal Revenue Board; Legislative Services Office; Legislative Audits Division; Legislative Council; Legislative Committee of Examiners for the Idaho State Controller; Joint Legislative Oversight Committee; Legislative Oversight Committee; Legislative Research Fiscal Analyst; Revenue Tax Study Committee; Committee on Public Lands Study; State Appellate Public Defender Services; Fiscal Policy and Revenue Sharing Study Committee; Committee to Study Membership in the Idaho Public Employee Retirement System; Office of Performance Evaluations; Redistricting Commission; State Industrial Commission; Board of Tax Appeals; Legislative Legal Support Offices; Capital Budget Oversight Committee; Idaho Electricians Licensing Board; Board of Barbers; Board of Hearing Aid Dealers and Fitters; Board of Pesticide Control; and the Board of Acupuncture.
Judicial agencies (Divisions of the judicial branch of government; essentially, all divisions administrative to the judicial branch):
Judicial Council; Administrative Office of the Courts; Victims Compensation Fund; Judicial Education Committee; and Courts.
State Boards and Commissions (Broadly applies to state boards and commissions created under article IV, section 19 of the state constitution):
State Board of Accountancy; Board of Professional Engineers and Land Surveyors; Idaho Board of Lands; Board of Professional Land Surveyors; Public Utilities Commission; Idaho Public Employees Retirement Board; State Racing Commission; Board of Environmental Quality; Board of Tax Appeals; Commission of Pardons and Parole; Idaho State Police; Emergency Medical Services Idaho State Advisory Board; Department of Insurance; Division of Building Safety; Department of Public Works; Department of Aviation; Idaho Transportation Board; Idaho Board of Health and Welfare; Board of Licensure; Department of Lands; Department of Finance; Department of Public Safety; Industrial Commission; Idaho School for the Deaf and the Blind; and the Human Rights Commission.
Other public and quasi-public agencies:
County & Municipal Police departments (counties and local governments utilize their own governing body or city council); Idaho State Legislature (Idaho Legislature); Board of Corrections; Idaho State Capitol Commission; Board of Parole Hearings; State Lottery Commission; Occupational License Board; Board of Examiners for the Idaho State Controller; Commission on Special Defense Acquisition; Peace Officers Standards and Training Council; Commission on Uniform State Laws; State Board of Accountancy; Building Code Board of Appeals; Board of Land Surveyors; and the Commission for the Purchase of Products and Services of the Blind and Handicapped.
It is even possible for private entities operating under a contract with a public agency to be required to comply with the Open Meeting Law. However, the legal analysis becomes exceedingly complex with regards to private entities, and the law’s application to a private entity would require an extensive, fact-intensive inquiry.
Exemptions from the Open Meeting Law
Exceptions to Idaho’s Open Meeting Law
There are instances when a meeting may be exempt from the requirements of Idaho’s Open Meeting Law. Executive Sessions. Under the Open Meeting Law, there is a broad exception for a meeting to be held in "executive session." An "executive session" means "a meeting from which the public is excluded, although the law does not require that any member of the public be excluded, for consideration of certain matters. The following matters are exceptions to the definitions of "meeting" and "public," and therefore may be discussed in an executive session but only pursuant to a motion and a roll call vote of two-thirds of those members present at an open meeting:" (1) "To consider and advise on personnel matters." A second exception is "To consider records that are exempt from disclosure under Chapter 1, Title 74, Idaho Code (the Public Records Act)." "…The following governmental records are exempt from disclosure: … personal information in files maintained for personnel purposes, such as race, color, religion, marital status, gender, national origin, age, and disability of the employee." (Idaho Code § 74-106(1)(b)). This means any "information requests" submitted to a governmental entity are subject to public inspection and may not be withheld because of the "exemptions" listed above. In Idaho, there is a total exemption from disclosure of "personal information in files maintained for personnel purposes." (Idaho Code § 74-106(1)(b)). So if the salary of an employee is requested, this is considered not a public record. In the "real world", a local newspaper would need to go to court to compel the release of that information (which is not helpful to the employee who wants the increase) and anything related to those personnel records is also exempt from disclosure (e.g. evaluations, history of employee). What information must be disclosed? All of the following information must be disclosed and even though there is an exception for personnel records, the name of the employee is considered a public record. (Idaho Code § 74-107). A third exception is "To communicate with a labor negotiator." (Idaho Code § 74-206(1)). In Idaho, a "Labor negotiator may hold an executive session for the sole purpose of discussing the terms or conditions of a potential or existing collective bargaining agreement." (Idaho Code § 74-206(1)(a)(iii)). A fourth exception is "To consider documents that are prepared, owned, controlled by, produced, drafted or received by a public agency and contain estimates, values, costs or prices regarding a public fund for public projects regarding the acquisition of public supplies, equipment or personal property or contracting for a public project or service." (Idaho Code § 74-206(1)). This exception excludes (emphasis added): (a) Consideration of wages; (b) Consideration of salary guidelines; (c) Consideration of professional fees; (d) Consideration of grants; (e) Consideration of contracts for the purchase of public supplies, equipment or personal property; or (f) Consideration of contracts for the construction or repair of a public project, or any other similar expenditure of public funds. (Idaho Code § 74-206(1)(b)). Live Streaming of Executive Session A question that often arises is whether it is permissible to broadcast an executive session without breaching the Open Meeting Law. The Kootenai County Prosecuting Attorney, on November 30, 2010, opined that "All members of a public body must be able to hear the entire deliberation." The Kootenai County opinion stated that "In its opinion, the Idaho Supreme Court has indicated that the public body must justify its action by stating the specific reason for closure, as shown by the public body’s report as to where the reason was noted (e.g. I.C. § 72-212). The supreme court has concluded that a public body must articulate the factual basis for closure which is separate and distinct from its legal conclusions. It is our opinion that in the context of executive sessions the rationale for closure must be disclosed as part of the process of closure, in open meeting. Finally, the rationale must be included in the minutes and must be specific."
Penalties for Non-Compliance
Lawsuit against public agency. A violation will generally make the agency’s actions voidable. If the governmental agency violates the open meeting law in the process of adopting an official action, the court may either: (1) void the action, or (2) declare that the action be implemented with the requirement to re-do the action according to the rules. If a violation is apparent to the public after the meeting has occurred, the agency should examine whether it can correct the violation after the meeting has occurred and the action has been completed , without nullifying the action.
Injunction against public agency. If a body or individual violates the open meeting law, then any individual citizen or group may bring an action to enjoin the body from continuing the violation. It is designed to prevent future violations. Note, however, that the Open Meeting Law does not allow this type of suit against a private individual or group.
Banning from holding office. The Idaho Attorney General may petition to remove a member of a governing body from office after a violation of the law, although this is now rare. This remedy effectively strips that individual of the right to serve on a public board.
Important Recent Changes and Case Law
Most recently in the 2018 session, the Idaho Legislature approved new provisions intended to strengthen enforcement of the OMA. These amendments are primarily targeted at public officials who have been found in violation of the OMA through a judicial decision. The law now provides additional circumstances for enhanced attorney’s fees. The law also provides an enhancement in the penalty for a knowing or willful violation of the OMA from $500.00 to $5,000.
There have been a number of notable cases which have helped clarify the OMA in Idaho over the years. First, a case called State v. Elmore County stated that the OMA requires a school district to comply with its own rules. In that case, a school district admitted to violating its own rules when it did not take minutes of a meeting. As explained by the Idaho Supreme Court, "Elmore County School Board adopted a written policy allowing it to dispense with recording minutes of certain portions of board meetings. A parent of a special-needs student objected when the School Board failed to take minutes of a committee meeting. Elmore County School Board argued that the policy it adopted permitting dispensing with minutes was binding, and the court agreed." In a more recent case, The Idaho Supreme Court required strict compliance with the OMA, State v. Hayworth. The Court addressed whether a board, the Board of County Commissioners of Bonner County, was required to comply with the OMA’s open meeting requirements when meeting one-on-one with citizens. It held that the Board had violated the OMA by not allowing the public to observe its deliberations and hearings (even when done on a one-on-one basis).
Helpful Hint About the Law
To safeguard against potential violations of the Open Meeting Law, governmental organizations should take practical steps to ensure compliance. Consider the use of a senior staff or committee member as a "check and balance" for Open Meeting Law compliance, whose sole responsibility is to review or oversee compliance before and during meetings. In addition, such a compliance officer could be tasked to verify meeting agendas and minutes, prepare notice of meetings, and to timely post or otherwise distribute meeting agendas as required by law. The compliance officer will also provide an invaluable resource to other members who have questions about the specifics regarding notice, agendas, minutes, or the Open Meeting Law in general. All members of the governing body, and possibly the compliance officer, should be provided a contact telephone number or email address to report any questions and to receive Open Meeting Law advice. The governing body may also designate one or two members of its governing body to be responsible for regularly receiving information about the Open Meeting Law, such as changes in the law, new advice from the Attorney General’s office, and important case law decisions. Many organizations routinely assign the responsibility of "revising" meeting agendas, minutes and ordinances to a staff member or committee member. The government entity should review the adequacy of those agendas, minutes and ordinances for Open Meeting Law compliance prior to the time such items are acted on by the governing body. Another best practice would be to provide all the members of the governing body and the entity’s compliance officer with a copy (or compact disk) of the Idaho Open Meeting Law Manual issued by the Attorney General’s office. If the organization does not have enough copies or disks to go around, it should consider purchasing another one or two copies of the manual. Most governmental and quasi-governmental organizations publish their meeting agendas in a newspaper of general circulation. Even if the government entity does not regularly publish its agenda in the newspaper, at the beginning of each fiscal year or whenever a substantial change occurs, the government entity could choose to publish a public notice in the newspaper regarding how the public can access the entity’s meeting agendas. The public access notice could list other sources for obtaining meeting agendas, such as a website or posting place at the headquarters where meetings are held or the Secretary of State’s website. Providing such notice up front for the public may relieve pressure or stress when the public asks how it can obtain information about the governing body’s agendas.
Where to Find More Information About the Law
If you are looking for resources to better understand and/or understand how to comply with Idaho’s Open Meeting Law, there are a number of excellent ones. The following are just a few:
This is the definitive book on Idaho’s Open Meeting Law. I have been strongly recommending this book since its release a number of years ago. It distills the whole of Idaho’s Open Meeting Law, and puts it in context with Idaho’s constitution and other related laws.
This is by far the best short guide provided by a local government association I have ever read. It is written as a practice guide to walk you step-by-step through the basic requirements of Idaho’s Open Meeting Law. The authors, however, have more than given it enough depth to be a good single-guide to the law. Too often local government associations put out pamphlets or booklets on the Open Meeting Law that are confusing, give the wrong impression , or are simply aimed at only the most basic of requirements. This guide is the exception to that trend. If I could write this guide myself, I would closely follow the approach taken here.
It does not matter what side of the "local government" versus "private citizen" equation you fall on. The law is what it is. With that said, I would be a little remiss if I did not point out that there may be some criticism on the title of this handbook. The final title of the handbook was "Idahoans for Open Government Handbook on the Idaho Open Meeting Law." With that said, being a nonprofit created for the purpose of ensuring open government, Idahoans for Open Government has produced one of the better single-reference materials available for the public on Idaho’s Open Meeting Law. If you are a private citizen who spends any significant time at public meetings, or finds yourself having to interpret whether public officials or agencies are complying with the Open Meeting Law, this handbook is a must for you.