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Bob Henry, An Individual v. Bryan F. Taylor

January 5, 2012

BOB HENRY, AN INDIVIDUAL, PLAINTIFF-APPELLANT,
v.
BRYAN F. TAYLOR, A PUBLIC OFFICIAL, CANYON COUNTY PROSECUTING ATTORNEY'S OFFICE, A PUBLIC AGENCY, AND CANYON COUNTY, A PUBLIC AGENCY, DEFENDANTS-RESPONDENTS.



Appeal from the District Court of the Third Judicial District of the State of Idaho, in and for Canyon County. The Hon. Kathryn A. Sticklen, District Judge.

The opinion of the court was delivered by: Eismann, Justice.

2012 Opinion No. 4

Stephen W. Kenyon, Clerk

The judgment of the district court is affirmed.

This is an appeal from a judgment holding that records relating to a contract executed by a county, a former county prosecuting attorney, and a city under which the prosecuting attorney would perform prosecutorial services for the city using county employees are not public records subject to disclosure under the Public Records Act. We hold that such records are public records, but in this case the Respondents cannot be required to produce the records because they were not the public official who refused to disclose the records.

I.

Factual Background

In March 2009, the City of Nampa located in Canyon County issued a request for proposals regarding obtaining services to prosecute city misdemeanors and infractions. Former Canyon County prosecuting attorney John Bujak desired to contract with Nampa to perform those services, and on April 16, 2009, the Canyon County commissioners unanimously adopted a proposal pursuant to Idaho Code section 31-3113*fn1 permitting him to do so.

Mr. Bujak made a proposal to Nampa, which it accepted. The parties entered into a contract dated July 9, 2009, under which he agreed to provide prosecutorial services to the city for the sum of $598,357.88 per year, payable at the rate of $49,863.15 per month, to the county auditor. The named parties in the contract were "Canyon County," the "Canyon County

Prosecuting Attorney," and the "City of Nampa," and all three parties executed the contract. The contract provided that its initial term was July 6, 2009 through September 30, 2009. On September 8, 2009, Mr. Bujak, as Canyon County prosecuting attorney, and Nampa entered into a written amendment of the July 9, 2009, contract to provide that the city would make the payments directly to him rather than to the county. By letter to the county commissioners dated September 11, 2009, the certified public accountant who performed auditing services for the county objected to the payments going directly from the city to the prosecuting attorney, stating that it was "a serious departure from standard practices." By letter to the commissioners dated September 15, 2009, the county clerk/auditor and county treasurer agreed that the sums paid by Nampa should be paid to the county auditor, not to the prosecuting attorney for deposit into a private account. By resolution adopted on October 6, 2009, the county commissioners agreed that Nampa could pay Mr. Bujak directly for prosecution services and that the county would bill him for county resources devoted to the prosecution of Nampa misdemeanors and infractions. By written contract dated November 4, 2009, Mr. Bujak, as county prosecutor, and Nampa extended the term of the July 6, 2009, contract through September 30, 2010.

On March 5, 2010, Bob Henry filed a public records request with the county clerk asking for information regarding the contract with Nampa, including "invoices, etc sent to Nampa by county for prosecuting svc." and "an accounting of where those funds are being deposited how they are being dispursed [sic] to Canyon County." On March 15, 2010, Samuel B. Laugheed, a deputy prosecuting attorney, submitted a response that provided copies of the contracts and resolutions regarding the prosecuting attorney's contract with Nampa. The response stated that with respect to the other information requested, "No other records meeting the parameters of your request exist." The response explained that periodic payments are tendered from the City to Mr. Bujak in consideration of his provision of prosecutorial service. Those payments are deposited in a non-County account, which is then drawn upon to pay for office supplies and other "overhead" items at the CCPA Nampa annex. After those payments, along with the Prosecutor's Office salary adjustments that are funded by the contract, are subtracted, Mr. Bujak essentially donates the remaining balance to the County for deposit in its general fund.

The response also stated that the county had not submitted any invoices for county resources consumed by Mr. Bujak functioning as the Nampa prosecutor and that "neither Mr. Bujak nor his Chief of Staff accepted any salary increase."

On March 18, 2010, Mr. Henry filed a second public records request directed to the prosecuting attorney stating that he had not received the accounting information requested in the first request. Thus, he asked for "ledgers, copies of bank statements, copies of source documents that show the flow of payments made from the City of Nampa to any intermediary accounts and, finally, to the county treasurer" for the period from July 2009 through February 2010. On March 23, 2010, Mr. Laugheed submitted a response to Mr. Henry stating that neither the prosecutor's office nor the county commissioners had created or retained "any documentation such as ledgers, bank statements, or source documents that show the flow of payments from the City of Nampa to any intermediary accounts and finally to the county treasurer."

On April 1, 2010, Mr. Henry delivered a third public records request to the Canyon County commissioners in which he recounted his prior attempts to obtain the information and specifically requested the following:

1. Copies of all ledgers, bank statements, checks, and all other records evidencing the transfer of all funds into and out of the "non-county account" into which Mr. Bujak deposits the prosecuting funds he receives from Nampa from July 2009 through this letter's date. I make this request regardless of whether such records are in the custody or control of Canyon County, Mr. Bujak, or any third party financial institution.

2. Copies of all ledgers, bank statements, checks, and all other records evidencing the transfer of all funds into and out of any account or depository of any kind into which the funds paid by Nampa are, or have ever been, deposited from July 2009 through this letter's date. I make this request regardless of whether such records are in the custody or control of Canyon County, Mr. Bujak, or any third party financial institution.

3. All documentation that sets forth deposits of funds paid by Nampa for prosecution services into the County's General Fund from July 2009 through this letter's date. Specifically, I would like to see documents evidencing the dates these payments were received by the County, the source of revenue, the amounts deposited, and the identity of the individual who deposited the funds.

4. Auditor's Certificates for the months of July, August, September, and October of 2009 that reflect payments received into any Canyon County account in connection with Nampa prosecuting services. Specifically, I would like to see documents evidencing the dates these payments were received by the County, the source of revenue, the amounts deposited, and the identity of the individual who deposited the funds.

5. All documents necessary or relevant to determine the actual figures, from July 2009 through this letter's date, that are necessary to calculate the "mathematical equation" described in Mr. Laugheed letter of March 15, 2010 as follows: "(Nampa payments) - (CCPA salary bumps Nampa annex overhead expenses) = (Amount to general fund)."

In this request, Mr. Henry wrote that it was made to (a) "Canyon County Government generally, including all County departments, employees, officers, and elected or appointed officials that have custody or control of any records requested" and (b) "any other public or private third party individual or entity (including financial institutions) that has custody or control of any of the records requested." He also sent copies of the request to the ...


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