We Won't Tell

How Idaho open records law might have been dangerous


As the Attorney General's Office prepares to move out of the State Capitol during the building's renovation, all manner of tales of yesteryear are surfacing.

Take a certain letter to the Idaho Department of Environmental Quality, which made what might have seemed like a routine information request:

"I would be so indebted if you would kindly helped [sic] me by sending me any CD's, disc or copies of papers, researches, programs or references that are within your touch," the letter writer asked. The area of research, he wrote, was about "wastewater treatment systems for hospitals, hotels and hostels."

Simple enough. Except that the letter was written by one Ammar Salman Dawood. His address? The University of Basrah, Iraq. The date of his letter? September 12, 2001.

"Given the timing of it, and where it came from, there was some concern about it," said Deputy Attorney General William von Tagen, a master of understatement.

At the time, the dust was still settling at the World Trade Center where the day before, terrorists had flown two planes into the Twin Towers. By the time they'd received the letter, on October 2, the drumbeat had already begun in Washington, D.C. about the nature of the attacks and where they might come from. Although Iraq's connection to the incident has since become tenuous, to say the least, it was still enough of a hair-raising note that the state's staff did something they tell state officials never to do: not respond.

"This was a case, frankly, where government decided not to be helpful," von Tagen said. "We just simply didn't tell him."

The reason for that odd course of action was, he said, because Idaho's Open Records Law didn't have an exemption for such things as requests for wastewater treatment.

"The overriding theory is that unless there's a specific exemption, it's open," said Allen Derr, an attorney with extensive experience in public records law.

When the law was first put on the books, Derr said, it was a much simpler thing. Now, 26 exemptions, fill Idaho's law books.

"At first, it had very few exceptions," Derr said. "It has just exploded."

Exploding wasn't exactly the concern at the time of the letter from Iraq, von Tagen said, but there were still plenty of raised eyebrows at the Idaho DEQ and in his office.

"There were a couple of people that said, 'Absolutely, this guy's a terrorist,'" von Tagen said. "We didn't know what it was. This was something where we wanted to err on the side of caution."

Shortly after this situation, von Tagen and others approached the Legislature to see about tacking yet another exemption onto the law. The new language exempted "records containing vulnerability assessments of buildings or facilities when the disclosure of such records would have a likelihood of threatening public safety."

As it was, a bland letter was sent to Ammar Salman Dawood's address, directing him to a Web site of the Idaho DEQ. According to the DEQ, there was no further record of correspondence from a curious Iraqi student.