Idaho Public Records Act Cost/Fee Dispute With IDOC

E-mail to IDOC Attorney General Mark Kubinski:

Mr. Kubinski:

Once again I have been faced with the issue of the IDOC not providing me public records (documents) without cost despite qualifying for receiving these records without cost for copying/fees pursuant to Idaho Code §74-102 (10) (f) (i) which provides that the public agency shall not charge fees for copies or labor when the requester's examination and/or copying of public records is likely to contribute significantly to the public's understanding of operations or activities of the government.

As you are aware, I have a website devoted exclusively to activities of the IDOC (idahoprisonblog.org / idahoprisonblog.blogspot.com). In that my public records requests are, as clearly indicated in those request(s), likely to contribute significantly to the public's understanding of operations or activities of the government as such records will be used for source and verfication data used in articles posted on that site, fees/costs cannot be charged by law.

IDOC/ISCC Records Custodians have attempted to justify charging fees/costs by interpreting I.C. §74-102 (10) (f) as requiring that I meet all three (3) of the criteria set forth in that section §74-102 (10) (f) (i), (ii) and (iii). While sections (ii) and (iii) are conjunctive (requiring both sections to be applicable), section (i) is disjunctive from the other two (2) sections of code, meaning that those requests meeting that standard alone will not be charged. This is most clearly realized by the fact that the statute does not use the word "and" between sections (i) and (ii) as is used between sections (ii) and (iii).

This issue was brought to you/your office in a past dispute on this subject, and the documents were then provided to me without costs/fees. As the matter has once again arisen, I would request an official position paper from your office in this matter so as to avoid the problem again in the future.

Alternatively, I would expect this matter to be litigated in the courts. My argument would include, but not be limited to the fact that the inability of prisoners to electronically review public records within the time set forth by statute for disclosure violates the Idaho Public Records Act (IPRA) due not only to the inability to access the internet, but that state officials interfere with the statutory right to timely inspect the documents disclosed.

When Custodians do provide records electronically, there is a significant delay between the due date and the date the records are provided to the facility, thus the disclosure is not timely. Someone at the facility must then locate a computer to download the records to, then find the time to allow me to review the records. Further, when I ask to review the record(s) for a second time, my requests are denied. Were the IDOC to provide the disclosed records via JPay email within a timely manner, this issue would be moot.

Further, the Warden at the ISCC has (in official documents) declared my website "political" in nature, giving rise to specific protections under the state and federal constitutions. This, and articles published on my site since 2018 supports the argument that my site is a legitimate political media outlet specifically designed and geared to contribute significantly to the public's understanding of operations or activities of the government - specifically, the IDOC.

At the moment, I am awaiting public records from the ISCC Custodian of Records Erika Dansereau. In a conversation with her on this date (4/26/21) regarding a pending disclosure, she was unclear on the matter of charging me for the printed version of the records (as requested in my original PRR). She did offer me a spreadsheet version of the records which would (as I understood it) not involve any costs or fees, but stated that the spreadsheet would not in and of itself be as complete as the non-spreadsheet version. I opted for the disclosure of the full record as requested, and while I will pay the (Hobson's choice) costs and fees for the records if invoiced, I will seek reimbursement of these costs in that the records are a timely matter, necessary for source and verification data in an article destined to be published on my site in the near future.

Of course, if the costs are paid and not reimbursed, it will likely come to litigation, not only for the costs, but for a Declaratory Judgment regarding the issue. As one of the very few IDOC prisoners who has an established political web/blog site officially recognized by IDOC administrators, this matter should be relatively painless for the state.

Thank you for your consideration, and if there is anything I can clarify, please do not hesitate to contact me.

THIS COMMUNICATION IS NOT ATTORNEY/CLIENT PRIVILEGED - TO BE PRINTED ON WEBSITE.

/s/ Dale C. Shackelford
Dale C. Shackelford
#64613/ISCC/Unit F
P.O. Box 70010
Boise, ID 83707
daleshackelford1@gmail.com (Messages only)