Protecting the public interest in regulated real estate transactions

Public Records Request Policy

I. INTRODUCTION.
II. TYPES OF PUBLIC RECORDS KEPT BY THE COMMISSION.
III. EXEMPTIONS FROM DISCLOSURE.
IV. PROCEDURE FOR MAKING AND RESPONDING TO RECORDS REQUESTS.
V. CHALLENGING THE DENIAL OF A REQUEST TO INSPECT OR AMEND RECORDS.
VI. FEES AND CHARGES FOR PROVIDING PUBLIC RECORDS.

I. INTRODUCTION.  The Public Records Act provides that all "public records" are open to the public for inspection and copying at all reasonable times, unless the information is specifically exempted from disclosure by law. The law also provides each person the right to request the agency to correct inaccurate public records pertaining to that person. The provisions of the Public Records Act are contained in Title 74, Chapter 1 of the Idaho Code .  Title 74 of the Idaho Code may be accessed online at http://legislature.idaho.gov/idstat/Title74/T74.htm.

II. TYPES OF PUBLIC RECORDS KEPT BY THE COMMISSION.  The Idaho Real Estate Commission ("Commission") is the state agency that administers the Idaho Real Estate License Law, Chapter 20, Title 54 of the Idaho Code.  In accordance with this chapter, the Commission is responsible for licensing, educating, and disciplining Idaho real estate brokers and salespersons, and for maintaining a certification program for real estate education.   The Commission also administers the Subdivided Lands Disposition Act (which includes timeshares), Chapter 18, Title 55 of the Idaho Code.  To this end, the Commission keeps and maintains the following general types of records:  licensing records for each individual or entity licensed to do business in Idaho as a real estate broker or salesperson; records relating to Commission­approved real estate providers, instructors and courses; and records concerning complaints, investigations and disciplinary actions taken against licensees for violating the license laws.

The Commission also keeps records pertaining to the open meetings held by the Commission and the Real Estate Education Council, such as their agendas and minutes, and records concerning the general operations of the Commission, such as records relating to its staff, internal agency operations, and fiscal information. The Commission is authorized to promulgate rules and to submit proposals for legislation.  As such, keeps records relating to that law-making process.  Under the Subdivided Lands Act, the Commission keeps registrations, including public offering statements.

III. EXEMPTIONS FROM DISCLOSURE. Certain types of records are specifically exempted by law from the disclosure requirements and will not be made available to the public. The Commission will review all public records requests to determine whether the records falling within such requests are exempt from disclosure pursuant to such laws. The exemptions include, but are not limited to, the following:

A.  Licensing Information:

  • Information and results obtained from an office audit (Idaho Code 74-106(9));
  • Information provided in any application for real estate license or for certification as an education provider or instructor, including information obtained from a petition for special consideration to waive or modify a requirement for licensing or certification;
  • Idaho Code 74-106(9), which specifically exempts any information obtained as part of an inquiry into a person’s fitness to obtain or retain a license or certificate;
  • Personal Information provided to the Commission on any application for license or certification, including home phone numbers and addresses of applicants, licensees or certificate holders (Idaho Code 74-106(8));
  • Any real estate examination, test questions, scoring keys, exam results, etc. (Idaho Code 74-108(5));
  • Computer software programs (Idaho Code 74-107(15));
  • Investigatory records of the Commission, including public complaints, investigative files and reports (Idaho Code 74-106(9) (exempting information gained from inquiry into a person’s fitness for licensure or certification); Idaho Code 74-101(1) (exempting records protected from disclosure under state-law recognized attorney-client privilege or work-product doctrine)
  • The content of any course submitted to the Commission as part of an application for certification or approval by the Commission, to the extent such content contains proprietary information of the applicant (Idaho Code 74-107(1));
  • Any application for registration under the Subdivided Lands Disposition Act, to the extent that such application contains proprietary information of the applicant.  However, the Public Offering Statement of a registered subdivision or timeshare shall be available to the public (Idaho Code 74-107(2)). 

This section does not contain the full text of the statutory exemptions, and the Commission will rely on the full text and all exemptions of the law when determining whether to grant or deny a records request.

B. Personnel Information (Idaho Code 74-106(1) and (2)).  Records of a current or former employee's service or employment history, classification, pay grade and step, longevity, gross salary and salary history, status, workplace and employing agency are public record and MUST be disclosed upon request.  All other personnel information relating to a public employee or applicant for employment, including, but not limited to, information regarding sex, race, marital status, birth date, home address and telephone number, applications, testing and scoring materials, grievances, correspondence and performance evaluations, shall NOT be disclosed to the public without the employee's or applicant's written consent.

C. Access to Records By a Person About the Person (Idaho Code 74-113).  The law provides that a person is entitled to examine, copy, and request amendments to records pertaining to himself or herself, even if the record is otherwise exempted from disclosure to the general public. However, this does NOT include the right to review:

  • Investigatory records of the Commission that are otherwise exempt (e.g., under Idaho Code 74-106(9)), if the investigation is ongoing (Idaho Code 74-113(3)(a));
  • Information that is compiled in reasonable anticipation of litigation and is not otherwise discoverable (Idaho Code 74-113(3)(b)), or;
  • Other records that are specifically exempt from disclosure by statute or court rule (Idaho Code 74-113(3)(d));
  • The Commission will require adequate identification before disclosing otherwise exempt records to a person about that person. 74-102(5)(a)

IV. PROCEDURE FOR MAKING AND RESPONDING TO RECORDS REQUESTS.

A. Request must be in writing. The Commission requires that any request to inspect public records be made in writing and delivered to the "Designated Records Custodian" for the Idaho Real Estate Commission:

Idaho Real Estate Commission
575 E. Parkcenter Blvd., Suite 180
Boise, ID  83706
Fax:  208­334­2050
e­mail:  info@irec.idaho.gov

Written requests may be delivered by mail, fax, e­mail, or in person.  The Requestor's name and address information should be provided for the purpose of enabling the Commission to contact the Requestor with its response.  The Requestor may use the form provided by the Commission, which may be obtained from the Commission's office or through the Commission's website at http://irec.idaho.gov/forms/ree102.pdf

Upon receipt of a written request, the Designated Custodian will record the date and time of the request, and promptly forward it to the appropriate department head or staff person to compile the records.

B. Time, Place and Manner of Inspection (Idaho Code 74-102).  Whenever practicable, the Commission will provide access to or make copies of records immediately upon request.  A Requestor’s examination of records must be done during normal business hours, unless otherwise authorized by the Executive Director.

The custodian may not ask the Requestor why the information is being sought, other than to provide information to help the Requestor narrow the scope of the request or to help the Requestor make the request more specific when the response to the request is likely to be voluminous or require payment.  The custodian also may ask Requestor for information necessary for delivering the requested records, such as the Requestor's name, address and telephone number or email address.   The custodian is not allowed to review, examine or scrutinize the copies, photographs, or notes taken by or provided to the person examining the records, and shall extend to the person examining the records all reasonable comfort and facility for the full exercise of the rights granted under the law. However, the law does not prevent the custodian from maintaining such vigilance as is required to prevent alteration of any public record while it is being examined.

C. Time for Responding to the Request ­ Timing (Idaho Code 74-103).  A request to inspect or copy records must be granted or denied within three (3) working days.  However, if more time is needed to locate or retrieve the requested records, the Commission may take up to ten (10) days to respond, provided the Executive Director first notifies the Requestor, in writing, that additional time is required.  If no response is provided, the request will be deemed to have been denied after ten (10) working days from the request.

D. Exempt and Non­exempt Records to be Separated (Idaho Code 74-112).  If a requested public record contains information that is nonexempt as well as information that is exempt from disclosure, the Commission must separate the nonexempt and exempt information, and provide the nonexempt information, along with a written denial from the Executive Director stating the statutory authority for the denial the right to seek relief from the district court.

E. Denial of a Request to Inspect Records (Idaho Code 74-103).  A request to inspect or copy a public record may be denied in whole or in part only by the Executive Director after having an opportunity to have the request reviewed by legal counsel.  A denial or partial denial of a request must be provided to the Requestor in writing, stating the statutory authority for the denial, and clearly stating that the Requestor has the right to petition the district court for order to compelling disclosure, and the time for doing so (180 days).

The Commission is required to keep all records in question until the end of the challenge period (180 days), or if an action is instituted, until such litigation is concluded, or as otherwise required, whichever is longer.  Therefore, whenever any request is denied, the Records Custodian or staff should make a note on the record in question that it shall not be purged without the approval of the Executive Director or the Designated Custodian.  Idaho Code 74-115(2)

F. Making A Request to Correct a Record (Idaho Code 74-113).  A person may request, in writing, that the Commission make an amendment of any record pertaining to that person.  Such requests are to be immediately referred to the Executive Director.

G. Responding to a Request to Correct a Record (Idaho Code 74-113(2)).  Within ten (10) days of receiving the request for amendment of record, the Commission will either:  (1) make the correction of the portion of the record that the person has established is not accurate, relevant, or complete; or (2) notify the person in writing that the requested amendment has been refused, and the reason why, and inform the person of the right to petition the district court to compel the requested change, and that such petition must be brought in the county where the records are kept and filed within one hundred eighty (180) days of the refusal.  The notice of denial shall be accompanied by a certificate of mailing.

V. CHALLENGING THE DENIAL OF A REQUEST TO INSPECT OR AMEND RECORDS.

A. Right to Petition the District Court (Idaho Code 74-113(b) and 74-115).  The sole remedy for a person aggrieved by the Commission's denial of a request for disclosure, or by the Commission's refusal to amend a record, is to bring an action in the district court to compel the Commission to make the requested record available or make the requested change.  The action must be filed within one hundred eighty (180) calendar days of the notice denying the request, and must be brought in the county in which the records, or some portion of them, are located.

B. The court will determine whether the Executive Director's decision to refuse the request was justified, and the court will issue an order accordingly.

Costs and Attorney Fees ­ Additional Penalty for Bad Faith Refusal (Idaho Code 74-116 and 74-117).  If the court concludes that the request or its refusal was pursued frivolously, the court will award reasonable costs and attorney fees to the prevailing party. If the court finds that the Executive Director deliberately and in bad faith improperly refused a legitimate request for inspection or copying, the court shall impose a civil penalty not to exceed one thousand dollars ($1,000). 

C. Immunity for Release of Records (Idaho Code 74-118).  Neither the Commission, the Executive Director, nor records custodian shall be liable for any loss or damage based upon the release of a public record so long as such person acted in good faith in attempting to comply with the public records law.

VI. FEES AND CHARGES FOR PROVIDING PUBLIC RECORDS.  The following is the Commission’s copying fee schedule, pursuant to Idaho Code 74-104(10):

Type of Work Involved

Charges

Photocopying less than 100 pages on standard 8 ½ x 11 paper where no redacting of confidential information is required

No charge

Photocopying on paper other than standard 8 ½ x 11 paper (e.g. blueprints, maps, etc.)

Actual copying cost, varies depending on size

Retrieval of archived information

$3 per box, or actual out of pocket cost

Photocopying more than 100 pages on standard 8 ½ x 11 paper

$12 per hour plus $.10 per page

Request includes records from which non-public information must be redacted

$12 per hour plus $.10 per page

Where actual labor associated with locating and photocopying/printing hard copy and/or electronic documents equals or exceeds two (2) person hours

$12 per hour plus $.10 per page

Where the Commission incurs out of pocket costs required for providing the requested records

Actual out of pocket cost

Where the Commission has a standard charge for selling information in the form of a publication

Standard cost for selling information in the form of the publication

If the Commission determines that circumstances reasonably require, it may use a commercial copying service to photocopy public records in response to a public records request.  In such cases, the Requestor shall be responsible for the amounts charged by the commercial copying service if the cost is $5.00 or more.  The Commission will make reasonable efforts to inform the Requestor beforehand that it will use a commercial copying service and provide a reasonable estimate of the anticipated costs to the Requestor.  The Requestor may be required to pay such charges prior to the Commission arranging for the commercial copying service to copy the public records responsive to the request.

If the Commission has reason to believe that a Requestor or group of Requestors is attempting to break down a large request for copies of public records into a series of smaller requests for the purpose of avoiding the imposition of charges, the Commission will aggregate such requests for the purpose of determining appropriate charges and will impose charges accordingly.

When copies or printouts are duplexed, each side of a sheet of paper on which print appears shall be treated as a separate copy for the purposes of charges due.

Idaho sales tax shall be assessed to the Requestor on all charges payable to the Commission for copying fees and other costs incurred by the Commission in responding to a public records request.

A Requestor is not responsible for payment of charges incurred by such request, if the Requestor demonstrates:  (a) the inability to pay; or (b) the public’s interest or the public’s understanding of the operations or activities of government or its records would suffer by the assessment or collection of any fee (Idaho Code 74-104(10)(f)).  Any request to waive otherwise chargeable costs and fees made by a Requestor must be supported by the demonstration referenced in Idaho Code 74-104(10)(f).

Shipping and Mailing Fees

Where copies of public records provided by the Commission in response to a public records request are mailed or shipped to the Requestor, and the cost is $5.00 or more for such mailing or shipping, the Requestor shall be responsible for reimbursement to the Commission of the actual mailing or shipping cost incurred by the Commission.  The Commission may require that the Requestor pay such charges in advance of the mailing or shipping of the public records responsive to the request.

Advance Notice to Requestor of Charges Due for Public Records

When it appears to the Commission that its response to a public records request will subject the Requestor to charges of $5.00 or more, the Commission may provide a reasonable estimate of the expected charges to the Requestor prior to preparing the public records to be provided to the Requestor.  Once such reasonable estimate has been provided to the Requestor, the Commission may require prepayment by the Requestor prior to preparation of the public records.

The failure of the Commission to provide a reasonable estimate to the Requestor and to require prepayment of the charges due, will not excuse the Requestor from the responsibility to pay to the Commission the appropriate charges after the response to the request for public records has been provided.

Return to the top of the page