Commentary and information about public safety and security, intelligence and counterintelligence, open government and secrecy, and other issues in northern Idaho and eastern Washington.

Location: Coeur d'Alene, Idaho, United States

Raised in Palouse, WA. Graduated from Washington State University. US Army (Counterintelligence). US Secret Service (Technical Security Division) in Fantasyland-on-the-Potomac and Los Angeles. Now living in north Idaho.

Friday, January 04, 2008

Heed the Warning

The Coeur d'Alene Press online posted a story on January 2, 2008, headlined Planner won't face criminal charges. The story by staff writer Marc Stewart reported that a former Kootenai County senior planner would not face criminal charges for allegedly ordering the destruction of an audio tape recording of a County Planning Commission meeting.

This newspaper story was pitifully short on the facts supporting and refuting the allegation and the laws that may have been violated. Consequently, it is difficult for readers to conclude if the decision to not prosecute her was appropriate.

With no more information about the facts than anyone else, we can only speculate on what laws may have been involved and allegedly violated.

It seems most likely that the planner may have been accused of violating Idaho Code 18-3201 - Officer Stealing, Mutilating, or Falsifying Public Records. That law says:
Any public officer, law enforcement officer, or subordinate thereof, who wilfully destroys, alters, falsifies or commits the theft of the whole or any part of any police report or any record kept as part of the official governmental records of the state or any county or municipality in the state, shall be guilty of a felony and is punishable by imprisonment in the state prison for not more than fourteen (14) years.

Obviously the planner was a public officer or a subordinate thereof. Obviously there was the destruction of a county government record. The questions of interest are:

  • What part, if any, did the planner play in the destruction of the recording?
  • Who was the custodian of the recording? Was it the planner or someone else?
  • Was the destruction "wilful" [sic]?
  • Did the planner know that the audio recording was required to be preserved as part of the public record? If not, why not? How could she not know?

The Press story says the planner was accused of ordering the destruction. It does not further explain exactly what form that order took, nor does it identify who actually destroyed the recording. Innocent casual remarks, even humorously uttered, can sometimes be misinterpreted by subordinates or unwitting employees as orders or strong suggestions.

To be chargeable as a crime under IC 18-3201, the destruction had to be "wilful" [sic]. Black's Law Dictionary, 8th ed., defines "willful" as "Voluntary and intentional but not necessarily malicious." If that is the applicable definition here, then it would be difficult for the planner to argue that ordering someone else to destroy the recording was involuntary and unintentional. Notice that the statute does not explicitly require criminal intent, only that the destruction have been "wilful" [sic] .

That raises the next question: Did the planner know, or should she have known, that the recording was in fact part of the record of the meeting and that it had to be preserved intact? Logically, any public officer ought to be expected to know what is and is not part of the record of meetings in which the officer regularly participates. To relieve a public officer from that obligation is to allow intentional ignorance as a blanket defense in prosecutions for alleged violations of IC 18-3201. Here are the critical definitions from Idaho Code 9-337:

(13) "Public record" includes, but is not limited to, any writing containing information relating to the conduct or administration of the public's business prepared, owned, used or retained by any state agency,independent public body corporate and politic or local agency regardless of physical form or characteristics.
(15) "Writing" includes, but is not limited to, handwriting, typewriting, printing, photostating, photographing and every means of recording, including letters, words, pictures, sounds or symbols or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums or other documents.
(3) "Custodian" means the person having personal custody and control of the public records in question. If no such designation is made by the public agency or independent public body corporate and politic, then custodian means any public official having custody of, control of, or authorized access to public records and includes all delegates of such officials, employees or representatives.
Given the clarity of the statute, the planner could reasonably have been expected to know that the recording was part of the public record and that it must be preserved intact. That is even more true if she was the custodian of the recording. If she was not the custodian of the recording, then the designated custodian should never have allowed the recording's destruction.

Because the Press did not address these issues and report the relevant facts in detail, it is unfair to presume the planner violated IC 18-3201. It is likewise unfair to presume the Coeur d'Alene Chief Criminal Deputy Prosecutor made an improper decision to not prosecute.

But now that the criminal investigation has ended, the Press should obtain the investigative reports to the extent allowed by the Idaho Public Record Law. The Press should analyze and fully report the basis for the decision to not prosecute. It is appropriate for the public to review the facts of the case and decide if the prosecutor's decision to not prosecute was reasonable. The public is entitled to hold prosecutors, even appointed ones, accountable.

Regardless of what the Press does, every public official in Kootenai County should heed this warning: The public record must not be destroyed, altered, or falsified in violation of the law no matter how noble or innocent the purpose might seem. Law enforcement officers and prosecutors should also understand that the public expects its public officials to know their obligations to preserve the public record intact. Ignorance of that obligation, and especially intentional ignorance, must never be allowed to excuse its violation. To allow that is to render the Idaho Public Record Law meaningless.


Anonymous Anonymous said...

While I certainly agree that such reporting should be more complete, clear and objective I believe this article did state that the recording was of a meeting that also had minutes taken. As such the tape was not the only record of the event. I also understood from the article that the meetings are taped only to quality control the written minutes and once that process is completed then those tapes are routinely erased. In any case the investigation did not find enough fault to level charges and that I can presume was accurately reported.

What I find more interesting about this episode is the depth of effort taken to investigate and ultimately to exonerate the accused. While perhaps a violation of a law the purported offense was miniscule compared to the seriousness of others offenses evident in our leadership. In fact a citizen accusation stands open and unresolved against outgoing Councilwoman Dixie Reid for conflict of interest, etc. The powers in control of opening a formal investigation are turning a blind eye to this accusation.

So while a relatively minor violation by a low level planner was thoroughly scoured for an illegality a major offense by a elected official is being allowed a free pass. It is more likely that the planner was less of a "go along" team player and was unduly harassed out of her position whereas the dirty hands of the team player gets nothing.

Regardless it would be incredibly refreshing if one of the local newspapers had enough spinal grist to actually muckrake the system.

11:46 AM, January 05, 2008  
Blogger Bill McCrory said...


In response to your comment, "I also understood from the article that the meetings are taped only to quality control the written minutes and once that process is completed then those tapes are routinely erased." Consider this situation: During an open council meeting, a councilmember makes damaging verbal admissions acknowledging an offense was committed. The written minutes do not reflect the admissions and, in fact, do not even reflect the councilmember made a statement. Has the public record (the written minutes) been falsified when the person keeping the minutes knowingly excluded incriminating admissions by the council member? Is the audio recording of the meeting not the best evidence of the admissions? If the written minutes exclude the admissions and are later approved as correct by other councilmembers in the succeeding meeting, that does not make the minutes correct, only approved. Idaho Code 50-207 requires the minutes to be correct. Destroying the tape destroys the evidence showing a violation of that law.

My opinion is that if the government body regularly makes an audio recording during the course of a meeting, that recording is a public record and must be preserved as a public record.

1:04 PM, January 05, 2008  

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