Amends existing law to provide for the filing of a complaint by a person aggrieved and to revise provisions regarding denial of a request for disclosure.

LEGISLATURE OF THE STATE OF IDAHO Sixty-eighth Legislature Second Regular Session - 2026 IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 748 BY WAYS AND MEANS COMMITTEE AN ACT1 RELATING TO THE PUBLIC RECORDS ACT; AMENDING SECTION 74-115, IDAHO CODE, TO2 PROVIDE FOR THE FILING OF A COMPLAINT BY A PERSON AGGRIEVED AND TO RE-3 VISE PROVISIONS REGARDING DENIAL OF A REQUEST FOR DISCLOSURE; AMENDING4 SECTION 74-114, IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE; AND5 DECLARING AN EMERGENCY AND PROVIDING AN EFFECTIVE DATE.6

Be It Enacted by the Legislature of the State of Idaho:7

SECTION 1. That Section 74-115, Idaho Code, be, and the same is hereby8 amended to read as follows:9 74-115. PROCEEDINGS TO ENFORCE RIGHT TO EXAMINE OR TO RECEIVE A COPY OF10 RECORDS -- RETENTION OF DISPUTED RECORDS. (1) A person aggrieved by the de-11 nial or partial denial of a request for disclosure, or the charge for dis-12 closure, may file a complaint in the magistrate court of the county where13 the records of some part thereof are located. The complaint contesting the14 public agency's response to the records request shall be filed within ninety15 (90) calendar days from the date of the response. The complaint shall in-16 clude the full text of the original request, the full text of the response,17 all communications between the requester and agency related to the request18 and response, and the statutory reason the filing party is contesting the re-19 sponse. The filing party shall pay a one-hundred-dollar ($100) filing fee,20 which shall be distributed to the county district court fund and may not be21 waived. The district court clerk shall assign a case number. The filing22 party shall serve the public agency. Within fourteen (14) days of receiv-23 ing the complaint, the public agency in question shall file a response with24 the court that includes the statutory reason for the response to the original25 records request. Parties may attach affidavits to their respective plead-26 ings. Neither party may use discovery for the initial complaint, nor shall27 they summon witnesses. Attorneys are not required to file or respond to the28 complaint. Oral arguments are not permitted. Upon receipt of the agency's29 response, the judge shall review the filings and may request an in-camera re-30 view of the documents in question. The judge shall issue a decision within31 fourteen (14) days after receiving the agency's response. If the parties32 reach an agreement before the judge issues an order, the court shall dismiss33 the complaint. Upon issuance of the decision, either party may initiate an34 appeal in the district court.35 (1) (2) The sole remedy for Regardless of whether a complaint, as pro-36 vided in subsection (1) of this section, has occurred, a person aggrieved37 by the denial of a request for disclosure is to may institute proceedings in38 the district court of the county where the records or some part thereof are39 located, to compel the public agency to make the information available for40 public inspection in accordance with the provisions of this chapter. The41 petition contesting the public agency's decision shall be filed within one42

2 hundred eighty (180) calendar days from the date of mailing of the notice1 of denial or partial denial by the public agency or the issuance of a judi-2 cial decision in an initial public records complaint that was filed pursuant3 to subsection (1) of this section. In cases in which the records requested4 are claimed as exempt pursuant to section 74-107(1) or (24), Idaho Code, the5 petitioner shall be required to name as a party and serve the person or en-6 tity that filed or provided such documents to the agency, and such person or7 entity shall have standing to oppose the request for disclosure and to sup-8 port the decision of the agency to deny the request. The time for responsive9 pleadings and for hearings in such proceedings shall be set by the court at10 the earliest possible time, or in no event beyond twenty-eight (28) calendar11 days from the date of filing.12 (2) (3) The public agency shall keep all documents or records in ques-13 tion until the end of the appeal period, until a decision has been rendered on14 the petition, or as otherwise statutorily provided, whichever is longer.15 (3) (4) Nothing contained in this chapter shall limit the availability16 of documents and records for discovery in the normal course of judicial or17 administrative adjudicatory proceedings, subject to the law and rules of18 evidence and of discovery governing such proceedings. Additionally, in any19 criminal appeal or post-conviction civil action, this chapter shall not make20 available the contents of prosecution case files where such material has21 previously been provided to the defendant nor shall this chapter be avail-22 able to supplement, augment, substitute or supplant discovery procedures in23 any other federal, civil or administrative proceeding.24

SECTION 2. That Section 74-114, Idaho Code, be, and the same is hereby25 amended to read as follows:26 74-114. ACCESS TO AIR QUALITY, WATER QUALITY AND HAZARDOUS WASTE27 RECORDS -- PROTECTION OF TRADE SECRETS. (1) To the extent required by the28 federal clean air act, the federal clean water act and the resource conser-29 vation and recovery act for state primacy over any delegated or authorized30 programs, even if the record is otherwise exempt from disclosure under this31 chapter, any person may inspect and copy:32 (a) Air pollution emission data;33 (b) The content of any title V operating permit;34 (c) The name and address of any Idaho pollutant discharge elimination35 system (IPDES) applicant or permittee;36 (d) The content of any IPDES permit;37 (e) IPDES permit applications, and information required to be submit-38 ted by IPDES application forms, whether the information is submitted on39 the application forms themselves or in any attachments used to supply40 information required by the application forms;41 (f) Effluent data or a standard or limitation, as defined in 40 CFR42 2.302;43 (g) The name and address of any applicant or permittee for a hazardous44 waste treatment, storage, or disposal facility permit pursuant to chap-45 ter 44, title 39, Idaho Code; and46 (h) Any other record required to be provided to or obtained by the de-47 partment of environmental quality pursuant to the federal clean air48 act, the federal clean water act and the resource conservation and re-49

3 covery act, and the implementing state statutes, federal regulations1 and state rules, unless the record is a trade secret.2 (2) For purposes of this section, a record, or a portion of the record,3 is a "trade secret" if the information contained in the record is a trade se-4 cret within the meaning of the Idaho trade secrets act, sections 48-801, et5 seq., Idaho Code, including commercial or financial information which, if6 disclosed, could cause substantial competitive harm to the person from whom7 the record was obtained.8 (3) Any record, or portion of a record, provided to or obtained by the9 department of environmental quality and identified by the person providing10 the record as a trade secret shall not be disclosed to the public and shall be11 kept confidential according to the procedures established in this section.12 (4) Nothing in this section shall be construed as limiting the disclo-13 sure of a trade secret by the department of environmental quality:14 (a) To any officer, employee, or authorized representative of the state15 or the United States, under a continuing claim of confidentiality, as16 necessary to carry out the provisions of state or federal law, or when17 relevant to any proceeding thereunder;18 (b) As determined necessary by the director of the department of en-19 vironmental quality (under a continuing confidentiality claim) to pro-20 tect the public health and safety from imminent and substantial endan-21 germent;22 (c) As required by state or federal law, including section23 74-115(3)(4), Idaho Code, under a continuing claim of confidentiality24 and subsection (1) of this section; or25 (d) With the consent of the person from whom the record is obtained.26 (5) It shall be the responsibility of any person providing a record to27 the department of environmental quality to give notice of the existence of a28 trade secret on each page or other portion of information at the time of sub-29 mittal, and such person shall have the burden of demonstrating that the in-30 formation is a trade secret.31 (6) Notwithstanding the time frames set forth in section 74-103(2),32 Idaho Code, when a request is made to the department of environmental quality33 pursuant to the provisions of this chapter for the disclosure of information34 for which a trade secret claim has been made, and the information has not35 been demonstrated to be a trade secret to the satisfaction of the director36 of the department of environmental quality, within three (3) working days of37 receipt of the request for the disclosure of the information, the department38 of environmental quality shall provide a written request for substantiation39 to the person making the confidentiality claim. A response shall be submit-40 ted to the department of environmental quality by the person claiming the41 trade secret protection within ten (10) working days after receipt of the42 request for substantiation, or the information subject to the claim shall be43 disclosed without further notice. Upon receipt of a timely response to the44 request for substantiation, the director of the department of environmental45 quality shall determine whether the information is a trade secret subject to46 protection.47 (a) If it is determined that the information, or any portion of the in-48 formation, is a trade secret, within three (3) working days after re-49 ceipt of the response, the director of the department of environmental50

4 quality shall notify the person requesting the information that the re-1 quest is denied pursuant to subsections (4) and (5) of section 74-103,2 Idaho Code.3 (b) If it is determined that the information, or any portion of the4 information, is not a trade secret and is, therefore, subject to dis-5 closure, within three (3) working days after receipt of the response,6 the director of the department of environmental quality shall inform7 the person making the confidentiality claim of the determination. The8 decision shall be a final agency action directly appealable, de novo, to9 the district court of the county where the records or some part thereof10 are located. An appeal contesting the decision of the director of the11 department of environmental quality to release information claimed to12 be a trade secret shall be filed within ten (10) working days from the13 date of receipt of the written notice of decision. The information14 claimed to be a trade secret shall not be disclosed until the period15 for appeal has expired with no appeal being taken, or a court order has16 been issued finding that the information is not a trade secret and all17 appeals of that order have been exhausted.18 (7) In any appeal taken pursuant to this section, the court may award19 reasonable costs and attorney's fees to the prevailing party if it finds the20 claim of confidentiality or the decision of the director of the department of21 environmental quality to provide records was frivolously pursued.22 (8) The department of environmental quality shall adopt rules which in-23 clude:24 (a) Appropriate measures to safeguard and protect against improper25 disclosure of trade secrets, including procedures to train all employ-26 ees on the proper handling of trade secrets; and27 (b) Any other provisions necessary to carry out this section.28 (9) As it relates to the department of environmental quality, or to29 agents, contractors, or other representatives of the department, the immu-30 nity created in section 74-118, Idaho Code, shall apply only when disclosure31 of a trade secret is made consistent with this section.32

SECTION 3. An emergency existing therefor, which emergency is hereby33 declared to exist, this act shall be in full force and effect on and after34 July 1, 2026.35