ID Opinion 85-9 1985-12-31

Did Idaho's Open Meeting Law require the Commission of Pardons and Parole to hold its parole and pardon hearings in public, and did it allow voting in private?

Short answer: Yes to public hearings; no to private voting. The AG concluded the Commission was a 'public agency' under Idaho Code § 67-2341 and had to open all meetings except those properly conducted in executive session. Only documents excluded from public inspection by clear statute could be considered in executive session, and final voting could not be done in secret ballot.

Disclaimer: This is an official Idaho Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Idaho attorney for advice on your specific situation.

Opinion 85-9: The Commission of Pardons and Parole is bound by Idaho's Open Meeting Law

Plain-English summary

The Director of the State Board of Corrections asked whether the Commission of Pardons and Parole had to hold its meetings in public, what records could be considered in executive session, and whether the Commission could vote in private. The Attorney General concluded that the Commission was a public agency within the Open Meeting Law (Idaho Code § 67-2341 et seq.) and had to open all meetings except those properly conducted in executive session. The opinion rejected the argument that quasi-judicial proceedings were exempt, drawing on Canney v. Board of Public Instruction (Fla. 1973) and similar holdings from Pennsylvania, Indiana, and Illinois. Only documents made confidential by a clear statute (such as preliminary hearing transcripts under § 19-813, grand jury proceedings under § 19-1112, special inquiry judge proceedings under § 19-1123, and presentence investigations under § 19-2515(d)) could be reviewed in executive session. And final voting had to occur in public; § 67-2342(1) prohibits secret ballots, and § 67-2345(3) bars final action in executive session.

Currency note

This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The Idaho Commission of Pardons and Parole is a statutory body appointed by the Board of Corrections under Idaho Code § 20-210, with rulemaking authority under § 20-233. It also has constitutional authority to grant commutations and pardons under article 4, § 7 of the Idaho Constitution. The Commission meets at least four times a year (§ 20-213) and holds parole hearings with a quorum of three commissioners.

The Open Meeting Law applies to "governing bodies" of public agencies created by statute or constitution, including state boards and commissions. "Governing body" means the members of any public agency consisting of two or more members with authority to make decisions or recommendations. "Meeting" means convening of a governing body to make a decision or deliberate toward a decision.

What the AG concluded at the time

The Commission is a public agency

A statutorily and constitutionally created body that decides paroles, pardons, and commutations falls squarely within the Open Meeting Law's coverage. The opinion drew parallels to Missouri's Board of Pardons and Parole and Oklahoma's Board of Corrections, both held subject to their state open-meeting laws.

Quasi-judicial functions are not exempt under Idaho's law

The exclusion in § 67-2341(1)(a) covers courts, judicial council, and district magistrates commission, but not all quasi-judicial bodies. The AG cited Cooper v. Board of County Commissioners and Raaf v. State Board of Medical Examiners for the definition of quasi-judicial functions and acknowledged that many of the Commission's activities fit. Other states have addressed this directly by statute (excluding or including quasi-judicial bodies expressly), but Idaho's silence on the issue meant the general rule of openness applied.

The leading case, Canney v. Board of Public Instruction (Fla. 1973), held that legislative delegation of quasi-judicial powers does not strip the legislature of its prerogative to require public meetings. The AG followed Canney and similar holdings from City of Harrisburg v. Pickles (Pa. 1985), Citizen Action Coalition of Indiana (Ind. 1981), and an Illinois AG opinion. Article 4, § 7 of the Idaho Constitution expressly authorizes the legislature to "prescribe the sessions of said board," reinforcing the openness conclusion.

Executive session is narrow

Section 67-2345(1)(d) allows executive session only to consider records exempt from public inspection. Section 9-301 codifies the right to inspect public writings except as expressly provided by statute. The Idaho Supreme Court in Dalton v. Idaho Dairy Products Commission read this expansively in favor of disclosure. The AG identified specific records that fit the exemption: criminal preliminary hearing transcripts (§ 19-813); grand jury proceedings (§ 19-1112); special inquiry judge proceedings (§ 19-1123); and presentence investigations (§ 19-2515(d) and Idaho Criminal Rule 32(g)).

No private voting

Section 67-2342(1) prohibits secret-ballot decisions. Section 67-2345(3) prohibits final action in executive session. So even matters discussed in a properly noticed executive session must be voted on in public. Failure to follow these rules can render any action null and void under § 67-2347.

Common questions

Could the Commission discuss a parole candidate's psychiatric record in executive session?

Yes, if the record was excluded from public inspection by statute (such as a presentence investigation under § 19-2515(d) or a confidential medical record). The opinion did not list every exemption category but pointed to the categories that clearly fit.

Did the Commission have to allow public testimony at parole hearings?

The opinion answered the questions presented (public access, executive session, voting). It did not address public testimony rights specifically, although the Open Meeting Law is about access, not necessarily a right to be heard.

What happened if the Commission voted on a parole in executive session?

Under § 67-2347, action taken in violation of the law is null and void. The vote would not stand.

Citations

Idaho Code § 67-2341 et seq. — Open Meeting Law definitions and scope.
Idaho Code § 67-2345(3) — bar on final action in executive session.
Idaho Code § 67-2347 — invalidity of actions taken in violation.
Idaho Code §§ 20-210, 20-213, 20-233 — Commission of Pardons and Parole framework.
Idaho Constitution art. 4, § 7 — pardon and commutation power.
Canney v. Board of Public Instruction of Alachua County, 278 So.2d 260 (Fla. 1973) — leading case rejecting quasi-judicial exemption from open meetings.
Dalton v. Idaho Dairy Products Commission, 107 Idaho 6, 684 P.2d 983 (1984) — broad reading of public-records access.

Source

Landing page: https://www.ag.idaho.gov/office-resources/opinions/
Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP85-09.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

JIM JONES
ATTORNEY GENERAL
BOISE 83720
TELEPHONE (208) 334-2400

ATTORNEY GENERAL OPINION NO. 85-9

TO: Mr. A. I. Murphy
Director
Idaho State Board of Corrections

Per Request for Attorney General Opinion

QUESTIONS PRESENTED:

Are the meetings of the Commission of Pardons and Parole subject to the Open Meeting Law, Idaho Code § 67-2341, et seq.?
What records are exempt by law from public inspection and may be considered in executive session pursuant to Idaho Code § 67-2345(d)?
May a vote of the Commission of Pardons and Parole be taken in private?

CONCLUSIONS:

As a statutory entity with authority to make decisions concerning paroles, pardons and commutations, the Commission of Pardons and Parole is subject to the Open Meeting Law and is required to open all meetings to the public except those conducted in executive session.
Only documents which are excluded from public inspection by statute are to be considered in executive session. Idaho Code §§ 67-2342(1) and 67-2345(3).
The Commission of Pardons and Parole may not vote in private.

ANALYSIS

Question No. 1

The Idaho Commission of Pardons and Parole is appointed by the Board of Corrections under authority of Idaho Code § 20-210. The Commission has the power to establish rules, regulations, policies and procedures under which parole may be granted. Idaho Code § 20-233. A quorum of three commissioners holds regular parole hearings. Idaho Code § 20-210.

The Commission also has the authority to grant commutations and pardons. Idaho Code § 20-210, Idaho Const., art. 4, § 7. The Commission meets at least four times a year to consider applications for pardon and commutation of sentence. Idaho Code § 20-213.

Under the Idaho Open Meeting Law, governing bodies of public agencies created by statute, as well as those created by the Idaho Constitution, are required to open their meetings to the public. Idaho Code § 67-2341(3)(a); Idaho Att'y Gen. Op. No. 77-30 (1977). "Governing body" is defined as "the members of any public agency which consists of two or more members with the authority to make decisions for or recommendations to a public agency regarding any matter." Idaho Code § 67-2341(4). "Public agency" includes any state board or commission. Idaho Code § 67-2341(3)(a). Thus, the Commission of Pardons and Parole, a statutorily created public agency, having both statutory and constitutional powers to make decisions concerning paroles, pardons and commutations, is subject to the provisions of the Open Meeting Law. All of the Commission's meetings, except those conducted in an executive session, must be open to the public. Similar conclusions have been reached in other states. See, Missouri Att'y Gen. Op. No. 32-83 (1983) (Board of Pardons and Parole subject to Missouri's Open Meeting Law); and Sanders v. Benton, 579 P.2d 815 (Okla. 1978) (Board of Corrections, by reason of its statutory origin, comes within the purview of the Oklahoma Open Meeting Law).

Furthermore, "meeting" is defined in Idaho Code § 67-2341(5) as "the convening of a governing body of a public agency to make a decision or to deliberate towards a decision on any matter" (emphasis added). Therefore, deliberations by the Commission must be conducted publicly. See, Idaho Att'y Gen. Op. No. 77-13 (1977).

It could be argued that as to the deliberative processes by which the Commission arrives at its decisions, its function is judicial or quasi-judicial, and as to that phase of its activities, the Open Meeting Law should not apply under Idaho Code § 67-2341(1)(a) which excludes "court and their agencies and divisions, and the judicial council, and the district magistrates commission." Such an argument fails, for the reasons that follow.

In Idaho, quasi-judicial functions have been defined as those acts which entail the application of "general rules or policies to specific individuals, interests, or situations," Cooper v. Board of County Commissioners of Ada Co., 101 Idaho 407, 416, 614 P.2d 947, 950 (1980), and those acts involving "investigation, judgment and discretion," Raaf v. State Board of Medical Examiners, 11 Idaho 767, 717 (1906) (quoting People v. Dental Examiners, 110 Ill. 180). When these definitions are applied to the Commission of Pardons and Parole, many of the Commission's functions are quasi-judicial: The Commission conducts hearings, considers evidence, makes a determination affecting only a specific individual, and comes to a decision in much the same manner as a court of law. (See also Missouri Att'y Gen. Op. No. 32-83 (1983), which states that the Missouri Board of Probation and Parole has rulemaking and quasi-judicial powers.)

Unlike Idaho, the statutes of several states address the issue of whether their Open Meeting Laws apply to quasi-judicial functions, and/or boards of pardons and paroles. Such statutes may be grouped into the following three categories: (1) by specifically excluding quasi-judicial bodies from the scope of the Open Meeting Law (Ky.Rev.Stat.Ann. § 61.805(2); Wash.Rev.C.A.; N.Y.Pub.Off.L. § 108) or by permitting such bodies to deliberate in private (Alaska St. § 44.62.310(d)(1); Wis.Stat.Ann. § 19.85(1)(a); Kans.Stat.Ann. § 75-4318(a)); (2) by specifically including quasi-judicial bodies within the scope of the Open Meeting Law (Tex.Rev.Civ.Stat.Ann. art. 6252-17(c); Ariz.Rev.Stat.Ann. § 38-4-31(6); Mo.Ann.Sta. § 610.010(2)); or (3) by specifically excluding parole and/or pardon boards from the scope of the Open Meeting Law (N.J.Stat.Ann. § 10:4-8(a); Ohio Rev.C.Ann. § 121.22(D); Alaska Stat. § 24.62.310(d)(3)).

However, Idaho's Open Meeting Law, like the open meeting laws of many other states, does not specifically address quasi-judicial functions or quasi-judicial bodies. In a few of these states like Idaho, courts have been asked to determine whether quasi-judicial functions come within the Open Meeting Law.

The leading case on this issue is Canney v. Board of Public Instruction of Alachua Co., 278 So.2d 260 (Fla. 1973). In Canney, the Florida Supreme Court held that the quasi-judicial proceedings of a school board were not excluded from Florida's open meeting law:

Once the legislature transforms a portion of a board's responsibilities and duties into that of a judicial character so that the board may exercise quasi-judicial functions, the prerogatives of the legislature in the matter do not cease . . . If the legislature may delegate these quasi-judicial powers to the School Board and regulate the procedure to be followed in hearings before the board, it follows as a matter of common logic that the legislature may further require all meetings of the board at which official acts are to be taken to be public meetings open to the public.

Id. at 263.

The reasoning of Canney v. Board of Public Instruction has been followed in court opinions from other states (City of Harrisburg v. Pickles, 492 A.2d 90, 96 (Pa. 1985); Citizen Action Coalition of Indiana, Inc. v. Public Service Commission of Indiana, 425 N.E.2d 178 (Ind. 1981); Ill. Att'y Gen. Op. 83-004 (1983)), and is harmonious with the statutory and constitutional provisions of Idaho. Of special significance is Idaho's constitutional provision that, "the legislature shall by law prescribe the sessions of said board [i.e., Board of Pardons] and the manner in which application shall be made, and regulate proceedings thereon." Article 4, § 7, Idaho Constitution.

Until the Idaho legislature provides to the contrary, this public agency is bound by the Open Meeting Law like all other public agencies. To hold otherwise would be to ignore the express words of the statute, "[a]ll meetings of a governing body of a public agency shall be open to the public and all persons shall be permitted to attend any meeting except as otherwise provided by this act." Idaho Code § 67-2342(1). Where a statute is neither ambiguous nor uncertain, the clearly expressed intent of the legislature must be given effect and there is no occasion for interpretive construction. Swensen v. Buildings, Inc., 93 Idaho 466, 468, 463 P.2d 932, 934 (1970).

Furthermore, failure to conduct its business pursuant to the Open Meeting Law may be a source of great and untoward mischief: action taken at any meeting which fails to comply with the provisions of [this law] shall be null and void. Idaho Code § 67-2347.

Therefore, it is our opinion that, except for those meetings properly conducted in executive session, Idaho's statutes require that the Commission of Pardons and Parole deliberate in public.

Question No. 2

Idaho Code § 67-2345(1)(d) of the Open Meeting Act states that executive sessions may be held for the purpose of considering records that are exempt by law from public inspection. This section must be read in conjunction with Idaho Code § 9-301, which states that "[e]very citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statutes." The wording of these two statutory provisions clearly indicates that only certain documents which have been excluded from public inspection by clear statutory provision may be considered in executive session.

Furthermore, the Idaho Supreme Court has stated that it would not create an exception to the rule of disclosure where exception has not been explicitly provided by statute: "[s]uch language clearly evidences an intent by the legislature to create a very broad scope of government records and information accessible to the public." Dalton v. Idaho Dairy Products Commission, 107 Idaho 6, 11, 684 P.2d 983 (1984).

Records that are exempt by law from public inspection and would, therefore, be appropriately considered in executive session include: Criminal preliminary hearing transcripts, Idaho Code § 19-813; record of grand jury proceedings, Idaho Code § 19-1112; special inquiry judge proceedings, Idaho Code § 19-1123; and presentence investigations, Idaho Code § 19-2515(d), Idaho Criminal Rules 32(g).

Question No. 3

The Open Meeting Law requires that all voting on a public agency's decisions must be conducted in public. "No decision at a meeting of a governing body of a public agency shall be made by secret ballot." Idaho Code § 67-2342(1). "Decision" is defined as "any determination, action, vote or final disposition upon a motion, proposal, resolution, order, ordinance or measure on which a vote of a governing body is required, at any meeting at which a quorum is present." Idaho Code § 67-2341(1).

The requirement that voting must be conducted in public cannot be circumvented by retiring into executive sessions. "[N]o executive session may be held for the purpose of taking any final action or making any final decision." Idaho Code § 67-2345(3). See, Atty.Gen.Op. 77-13. Thus, matters discussed in executive session must still be voted upon in public.

DATED this 30th day of December, 1985.

ATTORNEY GENERAL
State of Idaho

ANALYSIS BY:
D. MARC HAWS
Deputy Attorney General
Chief, Criminal Justice Division