[Copyrighted Material Omitted]
2014 Opinion No. 29
Appeal from the District Court of the Third Judicial District of the State of Idaho, Canyon County. Hon. Thomas J. Ryan, District Judge.
The judgment of the district court is vacated and the case is remanded to the district court for further proceedings consistent with this opinion.
Canyon County Prosecuting Attorney's Office, Caldwell, for appellants. Michael K. Porter argued.
James K. Dickinson, Boise, for amicus curiae Idaho Prosecuting Attorneys Association.
Camacho Mendoza Coulter Law Group, Eagle, for respondent. Ronaldo A. Coulter argued.
HORTON, Justice. Chief Justice BURDICK, Justice EISMANN and Justice Pro Tem SCHROEDER CONCUR. J. JONES, Justice, special concurrence.
[156 Idaho 94] HORTON, Justice.
This appeal arises from a Petition for Access to Public Records filed by Jamee Wade seeking the disclosure of investigatory records in the possession of the Canyon County Prosecuting Attorney's Office (CCPA). The district court ordered CCPA to produce the records pursuant to the request, but limited disclosure to Wade and his counsel. CCPA timely appealed. We vacate the judgment of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 22, 2011, Wade was shot twice by a Fruitland police officer (the Officer) in Payette County after an altercation. Intending to file a claim under the Idaho Tort Claims Act, Wade sought copies of investigatory records related to the incident pursuant to the Idaho Public Records Act (IPRA), I.C. § § 9-337 through -350. On March 13, 2012, Wade sent his first request to the Idaho State Police (ISP), requesting all records of ISP's investigation into the shooting. ISP denied Wade's request, citing Idaho Code sections 9-335, 337(6) and 340B, and informed Wade that the investigation was ongoing but that he could request the records from the Payette County Prosecutor.
Wade then made a request to the Payette County Prosecutor, asking for the complete investigation records received from ISP and the Fruitland Police Department. The Payette County Prosecutor denied Wade's request, stating the documents were exempt from disclosure pursuant to Idaho Code section 9-335(1)
[156 Idaho 95] as they were subject to an ongoing investigation, but informed Wade that upon completion of the ISP investigation all materials had been forwarded to CCPA for review. In February, 2012, the Payette County Prosecutor had sent three binders compiled by ISP to CCPA after requesting CCPA to serve as special prosecuting attorney and to determine whether charges should be brought against Wade or the Officer.
Citing Idaho Code sections 9-337 through -347, Wade made a public records request to Bryan Taylor, the Canyon County Prosecutor, on March 23, 2012. The request sought " [t]he complete investigation, to include all reports, and all documentary evidence" compiled by ISP, the Fruitland Police Department, and the Payette County Sheriff's Office regarding the shooting. On March 30, 2012, CCPA, citing Idaho Code section 9-335, denied Wade's request and asserted that the investigation was ongoing and disclosure would interfere with enforcement proceedings and could deprive the parties of their right to a fair trial or impartial adjudication. Wade filed a Petition to Access to Public Records in Canyon County district court on April 19, 2012. CCPA responded to the petition and moved to dismiss citing Idaho Code section 9-335(1)(a) and arguing that disclosure would interfere with enforcement proceedings.
The investigatory records at issue contain Wade's medical records, photocopies of his social security card, debit card, and photo identification, along with police reports regarding the incident, interviews with witnesses, interviews with Wade and the Fruitland Police Officer involved, 911 audio recordings from the night in question and the previous evening, dispatch reports, photographs, and a video of the shooting.
After holding one hearing and giving CCPA additional time to complete its investigation, the district court held a second hearing on May 17, 2012. At that hearing, CCPA informed the district court that CCPA's investigation and review of the documents was still ongoing. The district court determined that an in camera review of the documents was necessary. On June 5, 2012, after reviewing the investigatory records in camera, the district court issued its decision and order, along with a final judgment, granting Wade's public records request and ordering disclosure of the records. The district court concluded that under Idaho Code section 9-335, CCPA failed to show that disclosure would interfere with enforcement proceedings or deprive a person of a right to a fair trial, and therefore, CCPA's refusal to disclose the records was not justified. CCPA moved to alter or amend the judgment. The district court granted this motion and entered an amended judgment, limiting disclosure of the records to Wade and his counsel and prohibiting the records from being " disclosed outside of the pending Tort Claim before Payette County or any subsequent civil litigation."  CCPA filed its notice of appeal on July 11, 2012. Wade moved to alter or amend the judgment on August 2, 2012, and the district court amended the judgment to allow Wade to seek attorney
[156 Idaho 96] fees and costs at the conclusion of this appeal.
Meanwhile, Wade filed a civil rights complaint in the United States District Court for the District of Idaho. On December 11, 2012, the Fruitland Police Department produced reports and records of the shooting incident in response to Wade's request for production. This material was identical to that which was sought in Wade's public records request to CCPA.
II. STANDARD OF REVIEW
When considering an appeal from a public records request, this Court will not set aside the district court's findings of fact unless they are " clearly erroneous, which is to say that findings that are based upon substantial and competent, although conflicting, evidence will not be disturbed on appeal." Bolger v. Lance, 137 Idaho 792, 794, 53 P.3d 1211, 1213 (2002). " This Court exercises free review over questions of law, including the interpretation of a statute." Ward v. Portneuf Med. Ctr., Inc., 150 Idaho 501, 504, 248 P.3d 1236, 1239 (2011).
This case involves the application of the IPRA, specifically whether investigatory records are exempt from disclosure under Idaho Code sections 9-335 and 9-340B(1). We address various aspects of Idaho Code section 9-335 today. First, we conclude that investigatory records under prosecutorial review are active, not inactive, investigatory records. We next determine that under Idaho Code section 9-335(1), the party withholding disclosure has the burden to show a reasonable probability that disclosure of the investigatory records would result in one or more of the harms identified by Idaho Code section 9-335(1)(a)-(f). We also clarify today that when the district court is reviewing a petition to access public records, the district court's inquiry is whether the exemption from disclosure was justified at the time of the refusal to disclose rather than at the time of the hearing. Further, in the event that the request covers both exempt and nonexempt records, the district court has an obligation to distinguish those records that are exempt from disclosure ...