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Editor’s note: Many Idaho Statesman journalists are members of the Idaho Press Club. Opinion Editor Scott McIntosh is a Press Club board member and chairman of the First Amendment Committee. He was a signer of the original public records lawsuit in this case.
An Idaho deputy attorney general advised Lt. Gov. Janice McGeachin’s office to release public records pertaining to her education task force to an Idaho Capital Sun reporter “as soon as possible” on June 7, and told McGeachin’s chief of staff that only one exemption could likely survive a lawsuit: redacting the names of minors.
The advice came more than a month before the Idaho Press Club sued McGeachin over the records related to her panel’s investigation of “indoctrination” in Idaho schools. Jordan Watters, McGeachin’s chief of staff, released the email to the Idaho Statesman on Sunday night in response to a public records request.
At a press conference last week, McGeachin and attorney general candidate Art Macomber both said the Idaho Attorney General’s Office was to blame for McGeachin’s court loss. A judge ordered McGeachin to pay the Press Club’s legal costs, and McGeachin is now asking taxpayers to cover those costs.
The June 7 email shows legal advice the AG’s office provided on a public records request filed by reporter Audrey Dutton. Deputy Attorney General Rachel Kolts recommended that McGeachin’s office review records for any redactions and provide them to Dutton “as soon as possible and no later than the end of the business day tomorrow.”
Kolts also told Watters that the only exemption that applied would be one to protect a minor’s name. She wrote that a legislative exemption had been discussed previously but was “no longer applicable” because of the makeup of the task force.
“If you disagree with our advice, you may wish to seek a second opinion from other counsel,” Kolts wrote.
McGeachin on Thursday displayed a piece of paper that she said was the June 7 email. She said it showed that the AG’s office “would no longer defend their position because of the composition of the task force, which had been publicly known for more than one month,” and that the office “welcomed” her to seek a second opinion.
After the press conference last week, she did not share the document and didn’t take questions from reporters.
The initial list of task force members was released May 20. The AG office’s letter indicates that its previous analysis on public records and a legislative exemption was provided “prior to the task force being named and convened.” The group, which had over a dozen members, wound up with just one legislator on it, Rep. Priscilla Giddings.
Macomber blamed AG Lawrence Wasden for McGeachin’s loss and said she was given “bad advice.” He also said McGeachin could lose 60% of her office’s budget paying the legal fees and said the attorney general should be responsible for the costs. Macomber didn’t immediately respond to a request for comment Tuesday.
AG spokesperson Scott Graf said last week that the lawsuit, lieutenant governor’s loss in court and resulting costs were all a result of “independent decisions made by the lieutenant governor in consultation with her chosen attorney after June 7.” The AG’s office declined additional comment this week.
“This entire matter is an excellent demonstration of why government should seek legal counsel that it needs to hear instead of what it wants to hear,” Graf said last week.
Legislative exemption does not apply, AG’s office said
In the denial of Dutton’s records request in May, Watters told the Idaho Capital Sun that state law exempts from disclosure “personal identifying information relating to a private citizen contained in a writing to or from a member of the Idaho Legislature.”
Kolts referred to a prior legal analysis by the AG that included a legislative exemption, though it’s unclear when the prior legal analysis was issued or what it specifically said about the exemption. McGeachin said last week that communications with the AG’s office began April 26, which was shortly after she announced her task force on “indoctrination” in schools. McGeachin said she acted on the AG’s advice through June 6.
“Based on what we now understand to be the construction and makeup of the task force, it does not appear to meet the criteria of the legislative exemption,” Kolts wrote. She indicated that it was unlikely such an exemption “could survive a challenge.”
The Idaho Press Club sued McGeachin on July 19. Her office didn’t release the records until Sept. 30, more than a month after the court ruling and shortly after the attorney for the Idaho Press Club filed a petition against her for contempt of court.
McGeachin was charged nearly $30,000 for the Idaho Press Club’s legal fees, according to the Press Club. She has requested an additional $50,000 in taxpayer money for her budget to cover legal costs associated with the suit. It’s unclear how much her own attorneys have cost.
Judge Steven Hippler also ordered McGeachin to pay a $750 civil penalty for denying the records “deliberately and in bad faith.”
“No fees, costs or fines would have been incurred had the lieutenant governor simply released the records when requested, as the law requires,” the Idaho Press Club said in a statement last week.
Does attorney-client privilege apply after McGeachin’s press conference?
Watters released the June 7 email in response to a records request of all communications between McGeachin’s office and the AG’s office regarding public records inquiries. It was the only communication released to the Statesman.
Communications between a client and attorney are exempt from public records laws, but that privilege sometimes no longer applies once the client discusses those communications publicly.
Watters said in an email that the lieutenant governor “is not now, nor has she ever waived her attorney-client privilege regarding communication between her office and that of the attorney general.” Watters didn’t respond to a follow-up question about whether that privilege applies after a press conference discussing those communications, or after releasing a part of the communications.
In response to the same question, Graf said the lieutenant governor “has invoked attorney-client privilege for other communications on this particular subject, and our office will honor her decision to do so.”