Today, I’m posting the email exchange between the Idaho Freedom Foundation and Owyhee County Prosecutor Douglas Emery. I’ve decided to do that because I want to show people what happens when a county refuses to provide public information. After you read the emails, read my update on what’s happened since the email exchange that got us to this point:
From: Douglas Emery [mailto:[email protected]]
Sent: Wednesday, May 06, 2009 3:24 PM
To: [email protected]
Cc: 'Charlotte Sherburn'
Subject: Formal written public records request needed on county form with signature
Mr. Freeman:
It is my understanding that you recently made an email request for multiple Owyhee County fiscal records. Mr. Freeman, there is an established protocol for such requested under the Idaho Public Records law.
Owyhee County has a prepared hard copy form which is to be completed and signed by the requesting party. Special soft ware will not be generated to glean the requested materials.
Please forward your address with zip code and the necessary request form(s) will be provided for your written completion and signature.
Secondly , the nature of your request for essentially all county budgets, financial documents, vouchers, bank records, warrants, checks, etc for FY 2008 and FY2009 would require the production of hundreds of pages of documents and require extensive clerk time to generate. Additionally one of the county attorneys would be required to review each generated document to determine whether the release of such is required under governing code, as well as to provide a written explanation of the “specific statutory exemption for redaction or denial.” The costs of such documents as determined and redacted (as applicable) would likely come to $650.00, or greater.
Please forward a $650.00 cashier’s check with the specific written details of the requested documents on the Owyhee County Public Record’s Request from, once received. Advanced $650.00 payment must be received and processed before such records can be produced.
Respectfully yours,
Douglas D. Emery
Owyhee County Prosecuting Attorney
Owyhee County Courthouse
P.O. Box 128
Murphy, Idaho 83650
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From: Wayne Hoffman [mailto:[email protected]]
Sent: Wednesday, May 06, 2009 3:47 PM
To: 'Douglas Emery'
Cc: 'Charlotte Sherburn'
Subject: RE: Formal written public records request needed on county form with signature
Mr. Emery, thank you for your response. Could you help me out just a tad, because I’m under an impression that my email request to you for records is valid under the public records law, whether I use your form or not. Therefore, I’m under an impression that today is the fourth day following my records request, which makes me a bit surprised to see an email from you today on this matter. If I am mistaken regarding the statute, please let me know and show me the code section your referencing. That would be a tremendous help.
Second, if you could tell me how you arrived at a figure of $650, that would be useful, also.
Third, every city, county and state agency I’ve contacted has been able to provide me the information I have requested in electronic form, so I’m a little stumped as to why you believe it would require the “production of hundreds of pages of documents.” Could you explain how that can be ?
As I indicated in my meeting with the commissioners, this is not meant to be an adversarial process, so I look forward to dealing with you in cordial and mutual respectful manner that ultimately results in a satisfying outcome for the citizens of Owyhee County.
Wayne Hoffman
Executive Director
Idaho Freedom Foundation
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From: Douglas Emery [mailto:[email protected]]
Sent: Wednesday, May 06, 2009 4:26 PM
To: 'Wayne Hoffman'
Subject: RE: Formal written public records request needed on county form with signature
Thank Mr. Hoffman:
1. The time for response of a public record is generally three to ten days; Idaho Code §9-339;
2. Public Records requests are to be in writing. This county has a formal request form for such, as does Canyon County and as other counties should.
3. The nature of your broad request and the definition of writing under Idaho Code §9-337 is reflective of the fact that much time and effort will be undertaken in attempting to comply with such request (much like a financial audit). As counsel for Owyhee County, I have to be comfortable that all material being released is in compliance with the statute, is not protected, exempt or otherwise privileged. The Idaho Association of Counties has opined that any such request is to be scrutinized pursuant to governing code. Much time and effort would be undertaken in generating such records, well in excess of the 2 hours and 100 pages contemplated under Idaho Code §9-338 (8) (i) (ii) (iii); Idaho Code §9-338 (b) (i) (ii) and potentially contracting with a non agency entity to make such copies pursuant to Idaho Code §9-338 (9). I will not authorize the release of such documents absent legal review, thus relating to the projected $650.00 costs and expenses.
4. My deputy prosecuting, myself and County Clerk met with the Commissioners yesterday and were directed to follow county policy on this and other such requests.
ddemery
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From: Wayne Hoffman [mailto:[email protected]]
Sent: Wednesday, May 06, 2009 4:34 PM
To: 'Douglas Emery'
Subject: RE: Formal written public records request needed on county form with signature
Well, how about we figure out a way that makes this request work. That’s the most important thing. Can you help me carve out this request in such a way as to minimize the cost? I’m not adverse to paying where necessary, but I believe it is possible to handle in a way that avoids the costs. Please let me know. If you can do that, then I can file a records request, rather than play dueling records requests and have paperwork flying back and forth. I suspect you’d agree that’s preferable.
Also, am I to understand correctly that you won’t accept emailed records requests or you just won’t accept it on anything other than the form the county provides? Canyon County and all the other entities I have been working with, except you, have accepted my email request without problem.
Thanks again
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From: Douglas Emery [mailto:[email protected]]
Sent: Thursday, May 07, 2009 9:22 AM
To: 'Wayne Hoffman'
Cc: 'Charlotte Sherburn'
Subject: RE: Formal written public records request needed on county form with signature
Mr. Hoffman:
We have a standard Public Records form which is by policy to be completed and signed by the requesting party. All county departments have been directed to submit the properly completed Records Request to me in this office, prior to releasing any documents. That likewise was the standard when I worked in Canyon County’s civil legal dept.
The Owyhee County departments are not to accept e-mail records requests. Owyhee County is within its right to require uniformity in the request process and that our form be used and signed.
I am happy to send the necessary form to your physical address.
ddemery
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From: Wayne Hoffman [mailto:[email protected]]
Sent: Thursday, May 07, 2009 9:26 AM
To: 'Douglas Emery'
Cc: 'Charlotte Sherburn'
Subject: RE: Formal written public records request needed on county form with signature
OK, I need to chew on that for a bit. How about the other part of my request? Are you (meaning the county) willing to help me narrow my request so that we can minimize the expense? I would appreciate that.
wayne
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From: Douglas Emery [mailto:[email protected]]
Sent: Thursday, May 07, 2009 9:48 AM
To: 'Wayne Hoffman'
Cc: 'Charlotte Sherburn'
Subject: RE: Formal written public records request needed on county form with signature
Mr. Hoffman:
The present “email exchange” is abnormal to the standard public records request process and fairly time consuming. This is part of the very reason that we have the policy in place of requiring that such requests be set out in written form and signed on our standard form.
In brief, I indicate that if you are just looking for a “budgetary overview” for the last two years (i.e. the budgets approved in advance of the given fiscal year and an overall registry of the total spent in the departments) the research effort would be minimal. If however, you are requesting a line item of all county expenditures over the past two years with all supporting vouchers, statements and documentation, the search will be very involved and costly.
I am aware that the formality of such requests, is consistent with the position of the Idaho Association of Counties. If you wish to make a formal public records request, we will send you the necessary form for completion and signature.
Respectfully,
ddemery
OCPA
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From: Wayne Hoffman [mailto:[email protected]]
Sent: Thursday, May 07, 2009 9:53 AM
To: 'Douglas Emery'
Cc: 'Charlotte Sherburn'
Subject: RE: Formal written public records request needed on county form with signature
My point is that I have not asked for and have never asked for the supporting vouchers, statements and documentation. I have only asked for the line items. That’s all. Would the research in that case be minimal, or are you still thinking the cost would be $650 or so? Thanks for responding
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From: Douglas Emery [mailto:[email protected]]
Sent: Thursday, May 07, 2009 10:22 AM
To: 'Wayne Hoffman'
Cc: 'Charlotte Sherburn'
Subject: RE: Formal written public records request needed on county form with signature
Mr. Hoffman:
If the actual request calls for only summaries and does not require special research and extensive review time of 100+ copies, the costs should be minimal.
ddemery
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From: Wayne Hoffman [mailto:[email protected]]
Sent: Thursday, May 07, 2009 10:53 AM
To: 'Douglas Emery'
Cc: 'Charlotte Sherburn', ‘Brenda Richards’
Subject: RE: Formal written public records request needed on county form with signature
Does this need to be physically mailed to you, or is emailing sufficient? Let me know please
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From: Douglas Emery [mailto:[email protected]]
Sent: Thursday, May 07, 2009 11:44 AM
To: 'Wayne Hoffman'
Cc: 'Charlotte Sherburn'
Subject: RE: Formal written public records request needed on county form with signature
Mr. Hoffman: I have received the request and have printed off the same. Due to the nature of the request, it is anticipated that ten (10) days will be required in which to respond from this date of the formally request.
I will route the same to the necessary depatments for an estimation of the total pages of copies which will need to be generated. If there is a cost anticipated, I will advise.
ddemery
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From: Wayne Hoffman [mailto:[email protected]]
Sent: Friday, May 29, 2009 9:15 AM
To: 'Douglas Emery'
Cc: 'Charlotte Sherburn'; 'Brenda Richards'
Subject: RE: Formal written public records request needed on county form with signature
Mr Emery, what is the status of my records request?
Thanks
wayne
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From: Douglas Emery [mailto:[email protected]]
Sent: Friday, May 29, 2009 9:39 AM
To: 'Wayne Hoffman'
Cc: 'Charlotte Sherburn'
Subject: RE: Formal written public records request needed on county form with signature
I routed the records to the clerk for mailing.
I will touch base with her.
ddemery
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From: Douglas Emery [mailto:[email protected]]
Sent: Friday, May 29, 2009 9:57 AM
To: 'Wayne Hoffman'
Subject: RE: Formal written public records request needed on county form with signature
The packet of over 200 pages is in mailing. You should receive it by the first part of next week.
ddemery
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From: Wayne Hoffman [mailto:[email protected]]
Sent: Sunday, May 31, 2009 6:19 PM
To: 'Douglas Emery'
Subject: public records
Importance: High
Mr. Emery, I am in receipt of your response to my public records request. I have some questions. First of all, I see no accounting of expenditures from the sheriff’s office or the prosecutor’s office. Perhaps you can explain that to me.
Second, while your letter contains an explanation for redacting payroll entries, there are other entries that have been redacted without explanation and appear to not be payroll in nature. Furthermore, in some cases, the dollar amount has been redacted, which is puzzling to me.
As I asked in my original and subsequent records request, please indicate the exact statutory reason for the redaction of line-item entries in the following cases:
Page 2: ISTARS entries
Page 4: Current expense claim for $1,200
Page 6: ISTARS entry
Page 10: current expense entry for $850
Page 11: Current expense and tort entries
Page 16: Current expense claims
Page 18: Please provide the dollar amount for Warrant No. 735
Page 28: $800 current expense claim
Page 35: Current expense claim of $1,200
Page 36: Current expense and tort claims
Page 43: Current expense claim of $1,200
Page 48: Current expense claim $325
Page 54: Current expense and tort claims
Page 58: current expense and tort claims
Page 67: Current expense claim
Page 76: current expense and tort claims
Page 88: current expense and tort
Page 90: current expense
Page 93: current expense and tort
Page 114 : current expense and tort
Page 126 : current expense and tort
Page 138 : current expense
Page 139 : tort
Page 152 : current expense and tort
Page 170 : current expense and tort (please also indicate dollar amounts as they should not have been redacted in any case)
Page 182: current expense and tort
Page 195: current expense and tort
Page 206: current expense and tort
Page 227: current expense and tort
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From: Douglas Emery [mailto:[email protected]]
Sent: Monday, June 01, 2009 9:03 AM
To: 'Wayne Hoffman'
Subject: RE: public records
Mr. Hoffman:
Please do the following:
1) Forward a check in full payment for the expenses incurred by this county to date for your public records request.
2) In that mailing with full payment, please make any subsequent request (for clarification and additional requests) in writing using the Owyhee County Public Records Request form.
As indicated previously you will be required to make formal, signed written requests like all others.
ddemery
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From: Wayne Hoffman [mailto:[email protected]]
Sent: Monday, June 01, 2009 9:26 AM
To: 'Douglas Emery'
Subject: RE: public records
Mr. Emery, my pending public records request specifically says “if this request is denied in whole or in part, or if information is redacted from the information provided to me, please provide a specific statutory exemption for this redaction or denial.” The pending request – the one that is still before you – contains a request to explain the reason for your partial denial. I’m asking that you satisfy the original request by answering the questions and providing the detail that I have asked for. I do not see the need to restate in another records request that which I have already asked for.
I never asked for a paper copy of the public records request, nor did I ask for the county to send it “priority mail” on May 29 even though the request was prepared on May 14. However, I’m willing go ahead and forward to you the total amount the county has requested once I have received the full details of the data I requested on April 30 and again on May 6.
Thank you
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From: Douglas Emery [mailto:[email protected]]
Sent: Monday, June 01, 2009 10:23 AM
To: 'Wayne Hoffman'
Subject: RE: public records
Mr. Hoffman:
I have formally responded to your request. Due to the existing County data base, the nature of your request required the generation of hard copies and was very time consuming. The county incurred out of pocket expenses which it is entitled to payment for. The requested documents were not/are not available for general public dissemination on .csv. or similar format. As outlined in my formal response of May 14th, the basis for the redacted material and denial is contained in Idaho Code §9-340C (4) (6) 13) and (20) et. seq.
You may challenge such denial by filing an action in district court, within 180 days of the May 14th response.
If you are requesting additional documents, you are required to go through the same formal public records request process and pay any and all pertinent charges associated with the request, as anyone else.
Whether or not other counties require this formality, is not at issue here.
Respectfully,
ddemery
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From: Wayne Hoffman [mailto:[email protected]]
Sent: Wednesday, June 03, 2009 5:42 PM
To: 'Douglas Emery'
Subject: RE: public records
Mr. Emery, when I was a reporter, I made it a point to never surprise people. I didn’t believe in writing stories to which the subject of the story would wake up and be genuinely caught unaware of what I was writing. I thought important and reasonable to give everyone the opportunity to respond and understand what I contemplate to say in my writing.
So, while traveling to Olympia this week, I found myself writing my weekly column, of which you and Owyhee County are the subject. It would be unfair of me if I didn’t tell you everything that I know, and offer you a chance to respond.
1. I don't know all the details of what has been redacted from the 240 pages, but I do know two of them:
a. Payments to you, in the amount of at least $6,000 from when you were a deputy prosecutor.
b. Payments to a consultant on a project that I don’t know. Most of the money that’s redacted went to the contractor.
2. In your letter to me, you cite (and I’m seeking to be brief in my descriptions here) 9-340C(4), records of a personal nature; 9-340C(6), (basically indigent records); 9-340C(13), medical records; and 9-340C(20), records of the Idaho Housing and Finance Association.
My questions are as follows:
1. I still can’t understand why you would redact records pertaining to you nor to the contractor. None of the 4 code sections seem to fit.
2. I can’t understand the application of the IHFA citation at all. Perhaps you used the wrong number? If so, that would explain a lot and perhaps help me understand the answer to my previous question.
Finally, in the email you sent me on 5/7, you said “ I will route the (records response) to the necessary depatments for an estimation of the total pages of copies which will need to be generated. If there is a cost anticipated, I will advise.” Thus, naturally my surprise when I received a bill for $66. I don’t want to ignore payment. I believe Owyhee County should, in this case, waive the fee. I’m asking you to do that.
I can imagine that you’re getting tired of dealing with me. I fully intended this process would be as easy for you as it has for all the other agencies that have responded to my request. I merely ask that you please answer this (hopefully) last set of questions.
wayne
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From: Douglas Emery [mailto:[email protected]]
Sent: Thursday, June 04, 2009 9:25 AM
To: 'Wayne Hoffman'
Cc: 'Charlotte Sherburn'
Subject: RE: public records
Mr. Hoffman:
There is no secret that I worked for the Owyhee County as a deputy prosecutor under Matt Faulks the former OCPA at $50.00 per hour approximately one day per week and performed such work for a number of months. My prior position with the county and rate of pay is a matter of public record and likewise published in the Owyhee Avalanche. Details of personal withholdings and personal payroll information, however, is not.
Any materials which are subject to release are governed by the provisions of Idaho Code Title 9, following a formal public records request through the use of the proper request form and payment of any applicable fee.
If you desire further records or additional follow up, please complete and sign the proper written Public Records form and submit payment for the expenses incurred todate.
ddemery
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From: Wayne Hoffman [mailto:[email protected]]
Sent: Thursday, June 04, 2009 9:31 AM
To: 'Douglas Emery'
Subject: RE: public records
I was under the impression that you were a contractor, not an employee. Is that correct? What about the other contractor?
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From: Douglas Emery [mailto:[email protected]]
Sent: Thursday, June 04, 2009 9:35 AM
To: 'Wayne Hoffman'
Subject: RE: public records
If you desire further records or additional follow up, please complete and sign the proper written Public Records form and submit payment for the expenses incurred todate.
ddemery
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Update
I returned from a trip out of town on Saturday to find a letter from Owyhee County Prosecuting Attorney Douglas Emery. Emery’s one-sentence letter says, “Dear Mr. Hoffman: Enclosed are Vendor payments History; Invoice Date and Detail provided in the addition to the approximate 240 pages previously provided with the letter of May 14th.”
The letter provides an accounting of payments made to the county’s consultant on the Owyhee Initiative and the payments made to Emery when he was working as a consultant to the county. This information was previously withheld from the 240 pages.
But Emery’s newest response raises yet new questions. First off, in the county’s original request for the county’s spending record, the Idaho Freedom Foundation very plainly requested not only vendor payment information, but also a “description” of what was paid to whom. In the 240 pages we received, there was no description. Now there is. Why?
And why did Emery contend that the county’s payments to him were top secret because they would reveal non-public payroll information when that is clearly not the case?
And why did Emery cite healthcare and Idaho Housing and Finance Association exemptions to the state public records law when, again, based on this new letter that is not the case? We continue to pursue the answers.
