Rep. Priscilla Giddings, R-White Bird, sits at her desk on the House floor at the Statehouse in Boise, Idaho, on Nov. 15, 2021. (Otto Kitsinger for Idaho Capital Sun)
A Fourth District judge in Ada County dismissed a public records lawsuit against Rep. Priscilla Giddings, R-White Bird, ruling she did not act in bad faith and that there was no need to compel disclosure of records.
District Judge Peter G. Barton dismissed the case with prejudice, meaning the case cannot be refiled in Ada County.
Giddings, who ran for lieutenant governor in the Idaho Republican primary on Tuesday, was the subject of a civil complaint filed by Erika Birch, a Boise attorney who represented the legislative intern who accused former Rep. Aaron von Ehlinger of rape in March 2021. A jury convicted von Ehlinger of the rape charge in April, and he will be sentenced at the end of July.
Birch filed the complaint in mid-January, but Giddings invoked her privilege as a legislator to defer civil suits until after the legislative session.
Birch’s complaint stated she sent a public records request to Giddings on Aug. 19, 2021, for any written or electronic communications between Giddings and von Ehlinger that were related to her client, who is referred to as Jane Doe to protect her identity. Birch’s request encompassed the ethics committee complaint and hearing involving von Ehlinger in March, as well as the ethics complaint and hearing for Giddings in August. Her request also included communications between Giddings and David Leroy, an attorney who briefly represented von Ehlinger during the ethics investigation.
Two days after Birch’s request, Giddings responded to Birch by saying, “My office does not have any public record related to your request that isn’t already public. I have asked the Legislative Services Office to search their databases as well. My office considers this request closed.”
Giddings stated again in court documents that she did not have records responsive to Birch’s request, but also added that she deleted two emails from Leroy earlier in the year that would have been pertinent to Birch’s request. That fact was included in a brief filed on Giddings’ behalf by Deputy Attorney General W. Scott Zanzig.
“Rep. Giddings never had any written communications with Aaron von Ehlinger about the requested topics,” Zanzig wrote. “She had received two emails from Mr. Leroy about the requested topics in March 2021, but she had deleted both emails shortly after she received them, many months before Ms. Birch’s request.”
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No evidence of withholding on Giddings’ part, judge rules
Birch said Giddings’ response to the records request was vague, ambiguous and incomplete, particularly since she did not indicate if she had searched for responsive records beyond her legislative emails. Under Idaho law, written communications extend to text messages, messaging apps and any other platforms where correspondence might have occurred.
“There is no evidence currently before this Court that ‘certain public records are being improperly withheld from a member of the public.’ There is no evidence of withholding or improper withholding,” Barton wrote in his ruling.
Wendy Olson, who represented Birch in the lawsuit, said she and her client think the decision sets a bad precedent for those in public office.
“We are disappointed by the ruling and the clear message it sends to public officials who wish to disregard their obligations under the public records act,” Olson told the Capital Sun. “Responsible public officials and public agencies will continue to take seriously their obligations and understand the importance of transparency to a free and democratic government. Other public officials will be encouraged to obfuscate and to require requestors to file a lawsuit to learn that documents do not exist.”
Giddings could not be reached for comment.
Barton said the fact that the requester filed a lawsuit does not meet the statutory requirements of bad faith or improper withholding of records, nor did it constitute a frivolous refusal on Giddings’ part.
“Ms. Birch’s lawsuit achieved one objective: Ms. Giddings finally was required to answer a public records request made many months earlier,” Olson said. “Absent this lawsuit, we would not have learned that she destroyed emails she had with Mr. Leroy.”
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