People and news organizations often ask me how government goes about hiding information about police activities. I’ve written about it fairly extensively, but here’s a pretty good example how Idaho Attorney General Lawrence Wasden’s office does it. I sent a bunch of emails, but in this first battle, the government won in its illegal behavior, not with a bang, but with a whimper that trails off to silence. It’s a practice and method that often works against journalists and the public because we simply don’t have the time to deal with public servants who neither care about the law or serving the public.

I’m sorry this post starts out a little slow, but I want people to have all the information so they can draw logical conclusions. The first responses by Idaho’s government bureaucrats are documents, so I’ll just link to them.

Here is the boilerplate public records request that was mailed to all the state and local law enforcement agencies with addresses in Ada County, Idaho, according to the Fatal Encounters law enforcement agency database.

Dear Public Records Administrator:

Under the Idaho Public Records Law Idaho Code §§ 9-337 through 9-350, I am requesting copies of reports that show details regarding incidents of fatal encounters between people and your agency between Jan. 1, 2000 and today’s date. Please also include the results of any investigations your department conducted of other agencies regarding these types of incidents.

The specific information I’m looking for includes: decedent’s name; age; gender; race; date of death (month/day/year); location of death (address, city, state, zip code, county); agency(s) responsible for death; cause of death (e.g. gunshot, vehicle, Taser); a brief description of the circumstances surrounding the death; official disposition of death (justified or other); and whether the decedent exhibited symptoms of mental illness. I do understand that some information, such as symptoms of mental illness may not be explicitly stated, and I don’t ask that anyone try to decide or discern that information. I believe most of the information will be included in a final report for each incident or investigation. Also, I’m willing to recast the request in a way that minimizes work for your agency; just let me know what’s appropriate.

If there are any fees for searching or copying these records, please inform me if the cost will exceed $50. However, I would also like to request a waiver of all fees in that the disclosure of the requested information is in the public interest and will contribute significantly to the public’s understanding of the different outcomes as related to the differing policies and training of law enforcement officers in different jurisdictions. This information is not being sought for commercial purposes.

If the records I am requesting will take longer than a “reasonable” amount of time, please contact me with information about when I might expect copies or the ability to inspect the requested records.

If you deny any or all of this request, please cite each specific exemption you feel justifies the refusal to release the information and notify me of the appeal procedures available to me under the law.

Thank you,
D. Brian Burghart
Editor/publisher, Reno News & Review

Here’s the first response from Kristy Albrecht, Administrative Assistant, Idaho State Police Headquarters. It’s just a boilerplate telling me they’re going to take up to the 10 days allowed by law to respond to my request.

Here’s the second response to my request, again from Kristy Albrecht. For irony’s sake, please note that while the date is March 31, I received it on April 1. In it, I’m told that my public records request is denied in its entirety because no record was found. Also note, none of the exceptions to the state public records law were checked off–presumably because there was no exception in Idaho State law relevant to my request.

To which I replied, assuming what she put in writing was true:

from: D. Brian Burghart
to: “Albrecht, Kristy”
date: Tue, Apr 1, 2014 at 10:56 AM
subject: Re: Idaho State Police Public Records Request NOC

Thank you!

At this point, to make the reading easier, I’m going to stop including most of the header and footer information. I’ll occasionally include dates, but I’ll make complete documentation available to anyone who wants it. By the way, most of the emails contain this specious confidentiality notice as a footer.

CONFIDENTIALITY NOTICE: This e-mail is intended only for the personal and confidential use of the individual(s) named as recipients (or the employee or agent responsible to deliver it to the intended recipient) and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521. It may contain information that is privileged, confidential and/or protected from disclosure under applicable law including, but not limited to, the attorney client privilege and/or work product doctrine. If you are not the intended recipient of this transmission, please notify the sender immediately by telephone. Do not deliver, distribute or copy this transmission, disclose its contents or take any action in reliance on the information it contains.

A month and a half down the road after the initial denial based on there being no record, on June 20, in doing my regular research, I discovered an incident in which a person was killed by the Idaho State Police, so I sent this message to Ms. Albrecht:

Hi, Kristy,
I’m afraid I can’t figure out how it’s possible that you have no records related to this incident: http://www.spokesman.com/stories/2013/oct/23/idaho-trooper-justified-in-shooting-armed-man/
Would you please explain this?
Thanks,
Brian

Mr. Burghart,
Your original public records request asked for ‘copies of reports that show details regarding incidents of fatal encounters between people and your agency.’ It is impossible for us to compile information on such a broad request. If you have a request regarding a specific case, please resubmit your public records request with information specific to that case and I will be happy to assist you.
Kristy Albrecht
Administrative Assistant
Idaho State Police
Headquarters

Hello Ms. Albrecht,
I don’t think this reply complies with Idaho law, and since some 120 other law enforcement agencies, including several in Idaho, have been able to respond to the request, and not one has claimed “impossibility,” I respectively have trouble understanding how it is impossible for yours. Perhaps if you will describe what’s impossible about it, we can come to some agreement. The point of the request is to determine what incidents and with whom they happened. It’s not a fishing expedition, I’m asking for specific information. Your saying, “You tell us whom we’ve had fatal encounters with and we’ll tell you about them,” is a de facto refusal to provide information.
Thanks, I appreciate your help in this matter,
Brian

On June 26, Kristy Albrecht sent me this new refusal to make public records available. It’s another document, but this time, she claims she’s refusing the request based on the public records exception Idaho Code 9-340C(1). She also cc’d Captain Charlie Spencer, Office of Professional Standards in the Idaho State Police Headquarters, and Stephanie Altig, Lead Deputy Attorney General in Idaho Attorney General Lawrence Wasden’s office.

To which I replied:

Hello Ms. Albrecht, Captain Charlie Spencer, and Deputy Attorney General Stephanie Altig,
At the risk of seeming impertinent and aware of my right to appeal this finding, I’d like request everyone on this email list take a look at the reason stated for the denial of my request for public documents, Idaho Code 9-340C(1). Nowhere on my request did I ask for personnel information, which is the reason listed for its denial. I’ll also attach a copy of the original request, but after the section of the applicable Idaho code, I’ll include the bones of the request. [Editor’s note, read the entire request above.] I’m sure you’ll agree I’m only asking for what the law allows. Incidentally, all other law enforcement agencies headquartered in Ada County were able to satisfy the request with personnel information redacted in accordance with the law.
Thanks,
D. Brian Burghart
9-340C(1) 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, birth date, 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. Names of applicants to classified or merit system positions shall not be disclosed to the public without the applicant’s written consent. Disclosure of names as part of a background check is permitted. Names of the five (5) final applicants to all other positions shall be available to the public. If such group is less than five (5) finalists, then the entire list of applicants shall be available to the public. A public official or authorized representative may inspect and copy his personnel records, except for material used to screen and test for employment.
Dear Mr. Burghart:
Perhaps I can help clarify. If an ISP officer is involved in an incident that results in a death, the matter is criminally investigated by a different and independent law enforcement agency. That criminal investigation is not in ISP’s possession and should be available through the agency that conducted the criminal investigation, assuming the criminal investigation is closed and any information subject to redaction. See Idaho Code 9-340B(1) and Idaho Code 9-335. After the criminal investigation is completed, and pending resolution of any criminal charges that might have been filed, ISP conducts its own internal investigation to determine whether the officer violated any of the state of Idaho’s statutes and/or administrative rules that govern the conduct of state employees and ISP’s own agency procedures and conduct expectations that apply to ISP employees specifically. This internal investigation is a personnel matter because it could result in some form of discipline being imposed under the Idaho state personnel system, Idaho Code 67-5309(n) and IDAPA 15.04.01.190. Under Idaho’s public records act, personnel information “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” is exempt from disclosure to the public unless the employee consents in writing. Idaho Code 9-340C(1).
Stephanie A. Altig
Lead Deputy Attorney General
Idaho State Police

From: D. Brian Burghart [mailto:d.brianburghart@gmail.com]
Sent: Thursday, June 26, 2014 2:07 PM
To: Albrecht, Kristy
Cc: Spencer, Charlie; Altig, Stephanie
Thank you, Ms. Altig, for acknowledging that the public has a right to access to some of these documents. I would appreciate copies of any independent investigations conducted by the ISP, as I asked in the original public records request. I would also like copies of the results of any completed external investigations of ISP incidents provided to the ISP.
I get the feeling that somebody over there thinks I’m playing some kind of gotcha journalism strategy. I’m not. All I’m looking for is data by which protocol and results can be compared. If you’d like to see how other Idaho agencies responded to the request–or even how Nevada agencies responded to the same request, since in broad terms our public records laws are very similar, go to http://www.fatalencounters.org/people-search/ and search Idaho and Ada or, for Nevada, Nevada and Washoe or Clark.
In Ada County, if you’ll look at the additional info links, you’ll see that the Ada County Sheriff’s office, for example, chose to create a record that only answered the specific attributes asked for in the records request. https://docs.google.com/file/d/0B-l9Ys3cd80fSTN0UzhoREh1dFBDUVR6U2tnYkVWYjNWZ0hz/edit
The Boise Police Department provided redacted whole documents, which was fine, if somewhat expensive: https://docs.google.com/file/d/0B-l9Ys3cd80fNlp0dVRtNy04d2c/edit
Meridian did as you suggested and provided the outside investigations with redactions. https://docs.google.com/file/d/0B-l9Ys3cd80fRDROZmZwajNwdVU/edit
Neither Garden City nor Fish & Game had incidents to report.
The whole purpose of this is to provide the public with factual information. I’ve collected in the neighborhood of 3,000 of these incidents, although only a bit more than 900 have made it to the database so far. As you can imagine, I find media reports filled with inaccuracies and bias. I’m trying to get the most accurate information, but sometimes for practical purposes, I’m stuck with less.
I don’t have the database searchable by reporting agency yet, but for comparison’s sake, I think the Nevada Department of Public Safety reported nine fatal encounters, although to be accurate, one was a car wreck that had four decedents.
Thank you,
D. Brian Burghart

Altig, Stephanie
Jun 30
Dear Mr. Burghart:
Thank you for your response on Friday, June 27. I met with Capt. Spencer this morning, who in turn met with ISP’s case file database manager. Here is the information Capt. Spencer was able to obtain.
It appears that ISP has responded to 42 (+-) officer-involved shootings since approximately Jan. 1, 2008. That’s as far back as the database tracks cases. There is no indication from the way information is entered whether these shootings were fatal, and it does not identify cases where there may have been some other cause of a fatality, such as a vehicle crash. Capt. Spencer also said that some of ISP’s involvement in these officer-involved shooting were assists to other law enforcement agencies. For enforcement purposes, ISP divides the state of Idaho into six Districts for its patrol and investigations functions. Most of the actual records of these incidents (2008-present) are spread throughout those six districts. Capt. Spencer estimates that it would take approximately two hours to retrieve and review each case file for information that is subject to redaction. The actual time will vary, of course, depending on the size of the files – some of them will have multiple supplements. So, the total number of estimated hours of labor is 84 hours. Under Idaho law, the agency can charge the requestor for the labor to respond to a public records request in excess of two hours (at the hourly rate of the lowest paid employee who is qualified to respond to the request – in this case $15.36 per hour) and may also charge for copies in excess of 100 pages (ISP charges a copy fee of 5 cents per page). Idaho Code 9-338(10). If the agency requires the assistance and/or review by a deputy attorney general, that time will also be charged (first two hours are not charged). Idaho Code 9-338(10)(e). The lowest paid ISP deputy attorney general hourly rate is $29.17. The agency can and will require payment in advance. Idaho Code 9-338(12). Capt. Spencer also advised that some of these files may be stored in Idaho’s historical archives. It is very difficult to estimate how much time it would take to retrieve those files from state archives, examine them to see if they are responsive to your request, redact exempt information, and make the necessary copies.
I want you to know that ISP is absolutely not trying to stonewall you. The problem is that this agency does not keep its files in a way that makes the information you seek readily accessible. The bottom line is that each file would have to be individually identified and examined, redactions done, and copies made – all of which will have to be done manually. If there was any way to make this information available to you short of the manual work that will have to be devoted, I assure you ISP would do so.
Stephanie A. Altig
Lead Deputy Attorney General
Idaho State Police

From: D. Brian Burghart
Sent: Friday, June 27, 2014 12:41 PM
To: Altig, Stephanie
Cc: Spencer, Charlie; Albrecht, Kristy
Thank you, Ms. Altig. Believe me, I don’t think you’re trying to stonewall me. I get that everyone is understaffed and overworked. This type of discussion has happened with almost every agency that I’ve talked to, and Idaho agencies have generally been pretty helpful, especially in comparison to some of the metros I’ve talked to.
My thought is, just a printout of the 42(+-) results from the database query, which I’m guessing would have at least the person injured’s name, date and location of officer-involved shootings would give me enough to work with to further refine my request. Also, it seems most reports I have seen have a summary section, usually 2 or 3 pages that covers pretty much everything I’m looking at. Sometimes it’s all just in the narrative section.
It’s funny. I was just looking at the database to see how close our numbers were, and I noticed that there were two entries for Ross McAbee. One included the information from a news report and the other the information from Ada county. They read like two different incidents, even down to mental state. I guess this illustrates pretty well why I believe it’s important to go to the source documents.
Thanks, for your help on this. I’m sure you didn’t need the headache.

Jun 30
Dear Mr. Burghart:
If ISP has such a list, I assure you it will be sent to you. But please don’t be too disappointed if such a list doesn’t exist short of going through the files manually as I described. I’ll find out and get back to you soon. Thank you for understanding.
Stephanie A. Altig
Lead Deputy Attorney General
Idaho State Police

I guess it should be said, in the face of such stunning intransigence against her legal requirement to provide the documents I asked for, I allowed the ball to drop. I’m supposed to pay her thousands of dollars in advance? I went from a certainty that the Idaho State Police would eventually follow the law to the lead deputy attorney general telling me, “Here is the information Capt. Spencer was able to obtain.
It appears that ISP has responded to 42 (+-) officer-involved shootings since approximately Jan. 1, 2008” to saying “If ISP has such a list, I assure you it will be sent to you,” and then acting as though she didn’t understand her own words and doing nothing.

It’s nothing short of Orwellian. First, the Idaho State Police said I couldn’t have any documents because they didn’t exist. Then, the Idaho State Police said I couldn’t have the documents because they were impossible to retrieve. Then, the Idaho State Police said that I couldn’t have the documents because I’d asked for personnel documents that were an exception to Idaho’s public records laws (despite the fact, I had specifically written in my request that I wasn’t looking for officers’ information). Then, the Idaho State Police said that I could have 42 (+-) documents, which had suddenly become not an exception to Idaho’s public records laws, but only if I was willing to pay more than I’d paid for all records related to officer-involved homicides in the state of Nevada. Then, I was ignored.

I’d suggest that if this is how the Idaho State Police respond to legal requests for information—with the backing of Attorney General Lawrence Wasden’s office—then I wouldn’t expect a lot of transparency from any level of government in Idaho. The funny thing is, with the exceptions of Idaho State Police and the Idaho Attorney General, all the city, county and state agencies in Ada County were totally willing to work with me to modify the request and get the information out to the public. You can see it for yourself by going to the database and searching “Idaho” then “Ada County.”