Analysis: Are ethics complaint responses subject to public disclosure?

by Logan Finney, Idaho Reports 

Last week, the House Ethics Committee held a contentious hearing on two complaints against Rep. Priscilla Giddings, R-White Bird. The representative gave testimony defending her actions and asserting her right to free speech, though she spent just as much time — if not more — accusing the committee itself of misconduct. 

Rep. Priscilla Giddings,
R-White Bird

In one exchange, Giddings said she believed the committee had violated state law when fulfilling public records requests because they had not provided written responses from accused lawmakers along with the public complaints. 

“It’s a public record, and so when somebody does a public records request asking for the documents, it should have been released and it was not,” Giddings said. “And that happened in the original [von Ehlinger] case as well, and that’s where this all stemmed from.” 

During the regular legislative session, a staffer referred to as Jane Doe accused then- Rep. Aaron von Ehlinger of sexual assault. Von Ehlinger’s attorney at the time, David Leroy, sent his complaint response to various media outlets; That response was unredacted, and included the accuser’s name.

Giddings printed copies of her own complaint responses and distributed them prior to the start of the hearing. 

“The response in the von Ehlinger case– There was a public records request, and it was not released to the public, so I say that’s a violation of public records request laws,” Giddings said. “Her [Doe’s] name should have been redacted by this committee, by the state, and [the response should have been] released to the public.” 

Giddings backed up her argument by reading an opinion she obtained from Deputy Attorney General Brian Kane. 

Giddings and Rep. Brent Crane discuss the written responses to ethics complaints against her.

In a May email to Kane, Giddings asked, “Is there any provision that requires the written answer from the member complained against to be confidential? At what point is the written answer considered a public document?” 

Kane responded, in part, “it appears that the answer would be treated as confidential since it addresses an ethics complaint that has not yet been made public. It appears that any confidentiality that is attached to the answer would be lifted once the complaint is made public through a finding of probable cause.” 

House Rule 45 states “the written complaint against the member shall no longer be confidential but shall become a public document” if the committee finds probable cause to move forward with a public hearing. 

“I would also advise that based on your questions, Rule 45 likely could use some editing and rewriting for clarity,” Kane wrote. 

In the hearing, committee member Rep. Brent Crane, R-Nampa, stressed that no provision of House Rule 45 requires the committee to publish the written response to an ethics complaint. 

Giddings countered that, regardless of what any rules require of the committee, Kane’s opinion indicates that the responses should become public at the same time as the complaints. 

Crane also contested Giddings’ statement that the committee had received requests for her responses, though he admitted that he didn’t have firsthand knowledge because those requests are handled by the committee chairman and secretary. 

“Maybe we can do a public records request right now, on what public records requests this committee has received,” Giddings suggested. 

So I did. 


Complaints announced 

On July 20, the House Journal noted the Ethics Committee had received two complaints against Giddings and scheduled a public hearing for Aug 2. 

That afternoon, political reporters filed a flurry of records requests: 

  • James Dawson of Boise State Public Radio requested “copies of the materials regarding the complaints against Rep. Giddings” 
  • Audrey Dutton of the Idaho Capital Sun renewed a prior request for “all complaints filed during the 2021 session that involve Rep. Priscilla Giddings and all documents related to the complaint(s)” 
  • Hayat Norimine of the Idaho Statesman requested “any and all ethics complaints filed, interview transcripts, reports, witness lists, and/or other documents related to this complaint” 
  • Ruth Brown of Idaho Reports requested “a copy of the formal complaints filed about Rep. Giddings that the committee has found probable cause to further review” 
  • Joe Parris of KTVB requested “copies of those complaints that were filed” 
  • Rebecca Boone of the Associated Press requested “all materials related to the ethics investigation of Rep. Priscilla Giddings” 
  • Bill Spence of the Lewiston Tribune requested “copies of the Giddings ethics complaint and investigation report” 

On July 22, Betsy Russell of the Idaho Press requested “all publicly releasable documents related to ethics complaints filed since Jan. 1 against state Rep. Priscilla Giddings, R-White Bird, and all public documents related to the upcoming House Ethics Committee hearing on Aug. 2.” 

All eight of those requests were answered with the same six documents: two complaints and four supporting exhibits that are publicly available under the complaint tab on the Ethics Committee webpage

Additional materials 

On July 27, our reporter Ruth Brown requested “any and all interview transcripts the Ethics and House Policy Committee may have in connection to Rep. Priscilla Giddings. Please also include any and all materials the committee may have in connection to the preliminary investigation, following the complaints filed about Rep. Giddings.” Melissa Davlin followed up on July 29 to add herself and myself onto that request for “materials from the preliminary investigation for the upcoming ethics hearing.” 

That request was answered a few days after the hearing with partially redacted transcripts of witness interviews conducted during the preliminary investigation. 

On the first day of the hearing, August 2, I requested “a document [referenced in the hearing] that laid out a timeline of the committee’s various attempts to contact Rep. Giddings…as well as the subpoena for today’s appearance” and “copies of the respondent witness subpoenas that the committee prepared for and delivered to Rep. Giddings.” 

I was provided that timeline document, the subpoena for Giddings to appear, and a cover letter with eleven subpoenas for Giddings’ witnesses. 

Giddings did not serve those subpoenas or call any witnesses during the hearing. 

Citizen requests 

Following the hearing, on August 4, an Idaho citizen requested “electronic copies of all public records that were considered in any meetings and hearings undertaken by the Ethics Committee involving Rep. Priscilla Giddings.” 

On August 9, another Idaho citizen from District 20 sent a request that read, “The committee also appears to have denied Rep. Giddings full disclosure of the actual complaint packet for her review prior to hearing. I would like to see that packet & am requesting a copy of ALL documents pertaining to the complaint ( as per Rule 45, which are now Public Record).” 

Both of those requests were answered with the six aforementioned complaints and exhibits publicly available on the legislature’s website. 


Analysis

Giddings was correct that her written responses were not provided in response to any of these records requests. 

The Idaho Public Records Law states “there is a presumption that all public records in Idaho are open at all reasonable times for inspection except as otherwise expressly provided by statute.”

However, the law also says requesters “shall be as specific as possible when requesting records. A request shall describe records sought in sufficient detail to enable the public body to locate such records with reasonable effort.” 

Certain requests for specific documents by the Idaho Reports team yielded those specific materials. However, it appears that all other records requests were answered with the same set of publicly accessible complaints and exhibits — regardless of whether the requester asked for the complaints themselves, materials regarding the complaints, or any and all materials related to the ethics investigation. 

If a requester believes that public records have been withheld from them unlawfully, their only recourse is to petition the district court in the county where the records are held to compel the public agency to disclose them. 

The Idaho Public Records Law Manual published by the Office of the Attorney General, July 2019 edition, says “the Legislature determined that there should be one uniform appeal procedure regarding public records. The ‘sole remedy’ for denial of a request is the court process described in the public records law.” 

Are ethics complaint responses subject to public disclosure? Perhaps, if the committee changes its practices moving forward. Alternatively, someone could specifically ask for them and — if denied — go to court to obtain the documents that von Ehlinger’s attorney and Giddings released themselves.

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