Tanner v. ISP ( 2023 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 49580
STEPHEN A. TANNER, )
) Filed: June 27, 2023
Petitioner-Appellant, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
IDAHO STATE POLICE, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Respondent. )
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. John T. Mitchell, District Judge.
Judgment dismissing petition to compel and award of attorney fees, affirmed.
Stephen A. Tanner, Boise, pro se appellant.
Hon. Raúl R. Labrador, Attorney General; Cheryl Rambo, Deputy Attorney
General, Boise, for respondent.
________________________________________________
HUSKEY, Judge
Stephen A. Tanner appeals from the district court’s judgment dismissing his petition to
compel disclosure of public records and award of attorney fees. Tanner alleges the district court
erred in dismissing his petition. For the reasons set forth below, the judgment dismissing Tanner’s
petition and awarding attorney fees is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On July 3, 2021, Idaho State Police Trooper Klitch stopped a vehicle driven by Tanner for
failure to maintain a lane of traffic, failure to use a turn signal, insufficient mud flaps, and a
registration sticker violation. During the course of the stop, Trooper Klitch suspected Tanner was
under the influence, but after breathalyzer tests returned results of 0.00/0.00 blood alcohol
concentration, Trooper Klitch released Tanner without a citation. On July 5, 2021, Tanner
requested the Idaho State Police (ISP) provide him with the records related to the traffic stop. On
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July 7, 2021, ISP denied Tanner’s request, stating, in part, that producing the records requested
would interfere with enforcement proceedings and the investigation was ongoing. ISP indicated
Tanner would need to submit a new request at a later date when the requested records become
available. On July 8, 2021, Tanner filed a personnel complaint against Trooper Klitch.
On September 27, 2021, Tanner filed another public records request for records related to
the stop, including written reports, audio and video recordings, dispatch records, and various other
items. On September 28, ISP sent an email notifying Tanner that there would be an incident report
and other documentation in the case file, there were no body camera videos, it would provide
electronic copies on a CD or DVD, and it would accept cash or check payments for the copies.
The next day, ISP sent Tanner a letter stating the availability of the records was not known and so
it would need the ten days provided by law to process the request. However, rather than delay
providing all the information requested, ISP attached a copy of the police reports and indicated
that because of technical difficulties with the video redaction software, it needed additional time
to prepare and send the video of the traffic stop.
On September 30, 2021, ISP sent Tanner the information related to Tanner’s previous
request: the reports from the two troopers who were at the scene, the report of Tanner’s
breathalyzer tests, and the dispatch CAD report. That same day, Tanner responded with another
request seeking body camera footage and unredacted copies of the dashboard camera video of the
traffic stop.
On October 28, 2021, ISP provided Tanner copies of two dashboard camera video
recordings and stated that all other records related to the traffic stop had already been provided.
Tanner responded on November 2, indicating he received the DVD with the audio and visual files.
He also stated the sound quality of the videos was poor, asked if the videos had been altered, and
alleged that he had not received all the requested records. Tanner “demand[ed] a certified copy of
all audio and video recordings” of the stop; all written reports related to the stop; dispatch audio
recordings; information on who he believed was another officer riding in Trooper Klitch’s patrol
car during the traffic stop; “any written communication, emails or electronic communications (i.e.,
text message and like) about me, about my wife, or about the conduct of the ISP Officers” at the
stop; and firearm identification of the gun the officers removed from Tanner’s vehicle during the
traffic stop. ISP responded that it would need additional time to respond to Tanner’s new request.
On November 17, 2021, ISP responded, stating that it would provide some of the records Tanner
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requested, but would deny others for various statutory reasons, including that some of the records
did not exist. ISP again sent all the records it had previously provided to Tanner and included an
additional audio recording of the dispatch communications related to the traffic stop.
Tanner did not believe that ISP provided all records from the traffic stop, and on
December 16, 2021, Tanner filed a petition to compel disclosure with the district court, asking the
court to compel ISP to disclose all records related to the traffic stop and show good cause why
these records were not previously disclosed pursuant to Idaho’s Public Records Act (the Act).
Tanner alleged that ISP improperly denied or ignored his records requests and he requested ISP to
disclose all unredacted records related to the traffic stop, including all written reports, electronic
communications, audio and video recordings, investigatory records, and administrative review
reports or documents related to the complaint he filed about Trooper Klitch. Additionally, Tanner
requested a refund of $25.21, an award of reasonable costs, and a civil penalty be imposed for
ISP’s alleged deliberate, improper, and bad faith violation of the Act.
In response, ISP filed a motion to dismiss the petition on the grounds that: (1) it fully
disclosed all records that were subject to release under the Act; and (2) the additional records
Tanner sought did not exist, were not subject to disclosure, or fell outside the scope of the Act and,
as such, there was no further claim that could be made under the Act. ISP requested an award of
attorney fees. In support of its motion to dismiss, ISP included affidavits from three employees.
Each employee outlined her role as it pertained to Tanner’s requests, described work performed in
response to Tanner’s records requests, and asserted Tanner was provided true and accurate copies
of all reports, documents, and audio and video files that related to the traffic stop. The response
and exhibits were mailed to an address provided by Tanner.
Tanner subsequently filed multiple documents, including a request for discovery regarding
ISP’s responses to various interrogatories and production of documents, and asserted he never
received ISP’s response or exhibits. ISP opposed Tanner’s discovery requests on the grounds that
the Act does not permit discovery and Tanner’s requests fell outside the statutory scope of the Act
and should therefore be denied. ISP also noted that Tanner provided two addresses--a post office
box and a street address. Because the exhibits were contained on a thumb drive and because the
United States Postal Service would not deliver a thumb drive to a post office box, ISP sent the item
to Tanner’s physical address. However, the physical address Tanner provided was a “non-USPS”
address and the post office would not deliver the item to that address. As a result, the USB drive
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containing all exhibits could not be delivered to Tanner. Ultimately, Tanner received the response
and exhibits contained on the thumb drive but then filed various declarations asserting concerns
with the accuracy of the reports and videos he received from ISP, objecting to statements made in
the ISP employees’ affidavits, and arguing the audio from the dashboard camera videos was poor.
Tanner also opposed the State’s motion to dismiss. Tanner argued his petition should not be
dismissed because the State never filed an answer to his petition and did not timely provide the
requested documents. Additionally, Tanner argued that the administrative review records he
sought may be disclosed and he should be permitted to conduct discovery under the Act where
such discovery would help him verify whether ISP conducted thorough searches to find documents
related to the traffic stop.
The district court held a hearing on the State’s motion to dismiss. At the hearing, Tanner
asserted he only had notice that the hearing was going to be a scheduling conference, not a motion
to dismiss hearing. However, the district court found Tanner had notice and, therefore, the motion
to dismiss hearing continued. Initially, the court found that it was proper for the State to file a
motion to dismiss instead of an answer pursuant to Idaho Rule of Civil Procedure 12(b)(6).
Thereafter, because the court considered additional documents filed by ISP, it treated the motion
as an I.R.C.P. 56(a) motion for summary judgment. The district court reached the merits of the
State’s motion. The district court held: (1) the court has a very limited role in public records
requests; (2) as set forth in multiple appellate cases, discovery is not allowed in proceedings under
the Act; (3) personnel records are not subject to disclosure under the Act; and (4) ISP properly
provided Tanner all the records related to the traffic stop. Thus, the district court granted the
State’s motion to dismiss. Because the State was the prevailing party and the district court found
Tanner pursued the case frivolously in light of existing law, the court granted the State attorney
fees pursuant to Idaho Code § 74-116(2) in an amount to be determined.
A day later, Tanner filed a declaration asserting again that he did not have notice of the
motion to dismiss hearing. That same day, the State filed a notice of correction stating it appeared
Tanner did not have proper notice of the motion to dismiss hearing because he did not provide an
email service address within Idaho’s electronic file and serve system and the State had not noticed
this mistake. The State included an affidavit from an ISP employee further explaining the notice
issue. Accordingly, the district court scheduled a new hearing on the State’s motion to dismiss.
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Prior to the rehearing, Tanner filed multiple documents, including four personal
declarations, an objection to the State’s affidavit related to Tanner’s service issues, a subpoena for
Tyler Technologies, a motion to reconsider, a declaration of a forensic examiner, and various other
documents. The State responded to some of Tanner’s filings.
At the subsequent hearing, the district court again granted the State’s motion to dismiss.
The district court reiterated its previous findings: Tanner’s petition did not require an answer; the
discovery Tanner sought was not permissible under the Act; and ISP properly provided Tanner the
records that related to the traffic stop. The district court additionally found that because ISP
provided all the documents related to the traffic stop prior to the filing of Tanner’s petition, the
petition and “the many, many, many documents” he subsequently filed were frivolous,
superfluous, and time consuming for ISP. The district court noted that as Tanner had the benefit
of hearing the court’s reasoning at the prior motion to dismiss hearing, he had the opportunity to
voluntarily dismiss the lawsuit and avoid attorney fees, but instead proceeded to file many
documents with unintelligible arguments that had no impact on the court’s decision. Accordingly,
the district court awarded ISP $27,350 in attorney fees. Tanner timely appeals.
II.
STANDARD OF REVIEW
When considering an appeal from a public records request, this Court will not set aside a
district court’s findings of fact unless they are “clearly erroneous, which is to say that findings that
are based on substantial and competent, although conflicting, evidence will not be disturbed on
appeal.” Bolger v. Lance, 137 Idaho 792, 794, 53 P.3d 1211, 1213 (2002). When a trial court’s
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to
determine whether the lower court: (1) correctly perceived the issue as one of discretion; (2) acted
within the boundaries of such discretion; (3) acted consistently with any legal standards applicable
to the specific choices before it; and (4) reached its decision by an exercise of reason. Lunneborg
v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).
III.
ANALYSIS
Tanner alleges the district court erred in dismissing his petition to compel disclosure.
Specifically, Tanner argues that the district court erred because: (1) there was no procedural
mechanism for the court to consider information outside of the pleadings and dismiss his petition
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under the Idaho Rules of Civil Procedure; (2) the finding that ISP provided all documents that he
was entitled to under the Act was clearly erroneous; (3) ISP violated the Act by providing untimely
disclosures of records related to the traffic stop and by providing insufficient explanations to
support its notice of denials of additional documents; (4) it erroneously adopted ISP’s factual
overview of the proceedings; (5) it erroneously found Tanner’s objections to ISP’s motion lacked
merit; (6) it erroneously found Tanner could not conduct discovery under the Act; (7) it did not
timely schedule the hearing and enter its judgment dismissing Tanner’s petition; (8) it did not
address his motion to reconsider; and (9) it erroneously awarded ISP attorney fees. Tanner also
asserts that the district court was biased against him during the proceedings. In response, the State
argues the district court did not err.
A. The District Court Did Not Err in Considering Information Outside the Pleadings
and Dismissing the Petition
Tanner alleges the district court erred in dismissing his petition because I.R.C.P. 12(b)(6)
provides no mechanism for dismissal and the court improperly considered documents outside of
the pleadings in its analysis. We disagree.
Under I.R.C.P. 12(b)(6), a party may seek to have the court dismiss a complaint for “failure
to state a claim upon which relief can be granted.” I.R.C.P. 12(b)(6). “A 12(b)(6) motion looks
only at the pleadings to determine whether a claim for relief has been stated.” Young v. City of
Ketchum, 137 Idaho 102, 104, 44 P.3d 1157, 1159 (2002). However, if a 12(b)(6) movant presents
matters outside the pleadings and the trial court does not exclude them, then the motion must be
treated as one for summary judgment under I.R.C.P. 56. I.R.C.P. 12(d); see also Bennett v. Bank
of E. Oregon, 167 Idaho 481, 485-86, 472 P.3d 1125, 1129-30 (2020). While all parties must be
given a reasonable opportunity to present all the material that is pertinent to the motion,
“[s]ummary judgment is appropriate if the pleadings, depositions, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Lockheed Martin Corp. v. Idaho State
Tax Comm’n, 142 Idaho 790, 793, 134 P.3d 641, 644 (2006).
Here, although ISP filed a motion to dismiss under I.R.C.P. 12(b)(6), it also submitted
additional materials including three affidavits from ISP employees detailing their actions taken in
response to Tanner’s public records requests and exhibits showing the documents it provided to
Tanner in response to his public records requests. In its oral decision dismissing Tanner’s petition,
the district court stated it had reviewed multiple documents outside the pleadings, including the
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affidavits. The district explicitly stated it was treating the motion to dismiss as a summary
judgment motion. Idaho Rule of Civil Procedure 12(d) permits a trial court to treat an
I.R.C.P. 12(b)(6) motion as an I.R.C.P. 56(a) motion when it relies on information outside the
pleadings. As a result, we will treat the district court’s dismissal of Tanner’s petition as a grant of
summary judgment.
On appeal from a grant of summary judgment, we exercise free review in determining
whether a genuine issue of material fact exists and whether the moving party is entitled to judgment
as a matter of law. Edwards v. Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct.
App. 1986). Summary judgment is proper if the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law. I.R.C.P. 56(c). The movant has
the burden of showing that no genuine issues of material fact exist. Stoddart v. Pocatello Sch.
Dist. No. 25, 149 Idaho 679, 683, 239 P.3d 784, 788 (2010). The burden may be met by
establishing the absence of evidence on an element that the nonmoving party will be required to
prove at trial. Dunnick v. Elder, 126 Idaho 308, 311, 882 P.2d 475, 478 (Ct. App. 1994). Such an
absence of evidence may be established either by an affirmative showing with the moving party’s
own evidence or by a review of all the nonmoving party’s evidence and the contention that such
proof of an element is lacking. Heath v. Honker’s Mini-Mart, Inc., 134 Idaho 711, 712, 8 P.3d
1254, 1255 (Ct. App. 2000). Once such an absence of evidence has been established, the burden
then shifts to the party opposing the motion to show, via further depositions, discovery responses
or affidavits, that there is indeed a genuine issue for trial or to offer a valid justification for the
failure to do so under I.R.C.P. 56(d). Sanders v. Kuna Joint Sch. Dist., 125 Idaho 872, 874, 876
P.2d 154, 156 (Ct. App. 1994). Disputed facts and reasonable inferences are construed in favor of
the nonmoving party. Castorena v. Gen. Elec., 149 Idaho 609, 613, 238 P.3d 209, 213 (2010).
This Court freely reviews issues of law. Cole v. Kunzler, 115 Idaho 552, 555, 768 P.2d 815, 818
(Ct. App. 1989).
B. The District Court Did Not Err in Dismissing Tanner’s Petition
Tanner argues the district court erred in dismissing his petition on multiple bases. Each
argument will be addressed in turn.
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1. Substantial and competent evidence supports the district court’s finding that
ISP provided all public records that Tanner was entitled to under the Act
Tanner alleges the district court erred in finding that ISP provided all public records that
he was entitled to under the Act. Tanner argues the district court’s finding was clearly erroneous
because ISP’s disclosures did not come all at once and, therefore, they were necessarily
incomplete. He also argues that because he did not receive certified copies of the audio and visual
recordings or any administrative review records, despite submitting a conduct complaint against
Trooper Klitch, the disclosures are incomplete.
The Act provides a statutory mechanism by which members of the public may review
public records so that they may be knowledgeable of the operations of their government, the
performance of public officials, and the formulation of public policy. 1 Under the Act, “[e]very
person has a right to examine and take a copy of any public record of this state and there is a
presumption that all public records in Idaho are open at all reasonable times for inspection except
as otherwise expressly provided by statute.” I.C. § 74-102(1). Thus, while the Act explicitly
provides exceptions to disclosure, we narrowly construe these exemptions. Hymas v. Meridian
Police Dep’t, 159 Idaho 594, 601, 364 P.3d 295, 302 (Ct. App. 2015); see also Wade v. Taylor,
156 Idaho 91, 97, 320 P.3d 1250, 1256 (2014).
The Court has authority to order a custodian to show cause why records are being withheld
if it appears the records are being improperly withheld. I.C. § 74-116. When a party seeking
records files a motion to compel disclosure under the Act, the withholding agency carries the
burden of proof as to why it withheld specific records. Wade, 156 Idaho at 100, 320 P.3d at 1259.
If the withholding agency “fails to meet its burden, it has not shown cause for withholding the
records and should be ordered to disclose them.” Hymas, 159 Idaho at 601, 364 P.3d at 302.
Here, the district court held that ISP did not withhold any documents from Tanner and that
ISP “has provided all of its public records that Mr. Tanner is entitled to by law, and they did so
appropriately under the Idaho Code.” The court continued, “Mr. Tanner’s got what he’s entitled
to. If the state police doesn’t have a document, then they don’t have a document. You can’t
manufacture something out of thin air.” Substantial and competent evidence supports the finding
1
A public record includes, but is not limited to, “any writing containing information relating
to the conduct or administration of the public’s business prepared, owned, used or retained by any
state agency, independent public body corporate and politic or local agency regardless of physical
form or characteristics.” I.C. § 74-101(13).
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that ISP provided all records to which Tanner was entitled under the Act and sufficiently
communicated this to Tanner before Tanner filed his petition to compel disclosure. After each
public records request, ISP responded, provided the records that were currently available, and
indicated that any additional records sought by Tanner would be subsequently provided, were not
found, or did not exist. Because Tanner believed additional records were being withheld, he filed
the petition to compel.
In response to Tanner’s petition, ISP submitted a motion outlining the actions it took in
response to Tanner’s public records requests and included affidavits from three ISP employees. In
the first affidavit, Katrina Ramey stated that she is an employee of ISP and is responsible for
assisting in responding to public records requests and ensuring compliance with records
management procedure. In response to Tanner’s requests, Ramey attested that she “made true and
accurate copies of all reports (found in ISP’s files/databases) as requested by Steve Tanner” and
the attached exhibits contained all information, correspondence, documents, and reports related to
the requests. Ramey indicated she also redacted personal identifying information from some of
the records provided. In the second affidavit, Lisa Correia stated that she maintains electronic
records for ISP patrol evidence and ensures compliance with records management procedure.
Correia attested that in response to Tanner’s public records requests, she reviewed the video
evidence of the traffic stop and, after making required redactions to remove personal identifying
information of any third parties not related to the stop, she made true and accurate copies of the
original videos and audios and provided these copies to Ramey to send to Tanner. Correia attested
that State’s exhibit 2 was a true and accurate copy of the documents she compiled. Finally, in the
third affidavit, Melissa Stroh stated that she maintains electronic audio records for ISP’s
communications center and ensures compliance with records management procedure. Stroh
attested that in response to Tanner’s public records requests, she pulled the dispatch records
pertaining to the traffic stop, made a true and correct copy of these records, and provided them to
Ramey to send to Tanner. ISP filed exhibits of all the documents it provided to Tanner in response
to his public records requests.
At the motion to dismiss hearing, ISP reiterated that it had provided Tanner all records
related to the traffic stop prior to the filing of Tanner’s petition to compel, stating:
Mr. Tanner has been given everything he has asked for, everything that is allowed
by law. ISP gave Mr. Tanner its records twice before he filed the motion to compel.
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He has since obtained the records once again during the course of this action. There
is nothing more that he can receive under Idaho Code Section 74-115.
The district court found ISP’s assertions credible. In light of the record in this case, there is
substantial and competent evidence to support the district court’s finding that ISP provided all
records that Tanner was entitled to under the Act.
While Tanner believes that more documents should exist--specifically administrative
review records in response to Tanner’s complaint against Trooper Klitch and certified copies of
the audio and visual recordings--these assertions do not make the district court’s finding that ISP
provided all the records to which Tanner was entitled clearly erroneous. First, although Tanner
may have sought administrative review records related to the stop, ISP responded to Tanner’s
public records requests by providing all documents that Tanner was entitled to and stated that the
other documents Tanner sought did not exist. Nothing in the record indicates ISP withheld
personnel records regarding Tanner’s complaint about Trooper Klitch; instead, ISP indicated such
records did not exist at the time of the request. Tanner’s assertion that it is “absurd that no records
exist whatsoever” of the personnel complaint is not evidence that the records existed at the time of
the request. Thus, substantial and competent evidence supports the district court’s finding that ISP
provided Tanner all records to which he was entitled under the Act.
Second, although Tanner expressed various issues with the sound and playback quality of
the audio and video recordings and requested that certified copies be provided, the affidavits from
ISP’s employees provide substantial and competent evidence that the recordings provided were
true and accurate copies of the redacted dashboard camera videos and audio recordings. While
I.C. § 74-102(3) requires the custodian to give “the person, on demand, a certified copy of it if the
record is of a nature permitting such copying or shall furnish reasonable opportunity to inspect or
copy such record,” I.C. § 74-124(1)(c) exempts from disclosure law enforcement investigatory
records compiled for law enforcement purposes by a law enforcement agency that “constitute an
unwarranted invasion of personal privacy.” ISP provided an affidavit that indicated, “Any
redactions made, were to protect the privacy and personal identifying information (being aired
over radio traffic) of the person involved and any third parties not related to this traffic stop.”
Thus, although Tanner requested certified copies of unredacted dashboard camera videos and
audio, any information regarding Tanner or third parties that may have been on the video was
required to be redacted pursuant to I.C. § 74-124(1)(c) and, thus, ISP could not legally provide a
certified copy of an unredacted video or audio. Instead, what ISP could and did provide was a true
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and accurate copy of videos which were redacted to remove personally identifying information
about Tanner or third parties.2 Because Tanner was not legally entitled to unredacted copies of
the original dashboard camera videos or audios, and because substantial and competent evidence
shows he received true and accurate copies of the redacted videos, his claim is without merit. That
Tanner wishes the videos and audio recordings were of higher quality is irrelevant to concluding
that substantial and competent evidence supports the district court’s finding that ISP provided
Tanner all records to which he was entitled under the Act.
2. Timeliness of ISP’s disclosures and notice of denial
Tanner argues the district court erred in dismissing his petition because ISP provided
untimely responses to his records requests and failed to meet its burden under the Act to show that
a statutory exception applied to the documents which it withheld because it did not provide enough
specificity in its notices of denial. We disagree.
The Act requires an agency to respond to a public records request within three working
days of receiving the request. I.C. § 74-103(2). If an agency determines it will need more time to
locate or retrieve responsive records, it may, upon written notice to the requestor, extend the time
to fulfill the request to ten days from its receipt. Id. If the requestor has asked for electronic
records and those records will first have to be converted to another electronic format and the
conversion cannot be completed within ten working days, the agency shall so notify in writing the
person requesting to examine or copy the records and then shall provide the converted records at
a mutually agreeable time. Id.; see also Cover v. Idaho Bd. of Correction, 167 Idaho 721, 731,
476 P.3d 388, 398 (2020). Accordingly, an agency violates the Act if it provides untimely
disclosures or no notice of the statutory reason for a denial of a public records request.
However, in Cover, the Idaho Supreme Court held that the remedy for an untimely
disclosure is limited and, further, a generalized notice of the agency’s statutory reasons supporting
its denial does not violate the Act. There, Cover sought thousands of pages of records related to
lethal injections in death penalty cases in Idaho. Cover, 167 Idaho at 726, 476 P.3d at 393. On
appeal, Cover made several arguments, including that the Department of Correction provided late
2
We note that in his opening brief, Tanner objects to the exhibits provided by ISP to the
district court because the exhibits did not properly redact his personal identifying information. In
the same brief, Tanner argues ISP improperly redacted audio and video files to remove personal
identifying information about third parties.
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disclosures and deficient notices of denial. Specifically, Cover alleged the Department’s
disclosures were untimely because it did not provide all documents within the ten-day statutory
time requirement and its notices of denial were insufficient because they covered hundreds of
pages of requests with each denial notice, cited to multiple bases for exemption, did not indicate
which exemption was claimed for each individual record, and for one disclosure, cited no basis for
exemption at all. Id. at 732, 476 P.3d at 399. Cover argued that because of these untimely
disclosures and alleged inadequate notices, the Department should be forced to disclose all records
requests, even if exceptions applied. Id. at 731-32, 476 P.3d 388-99.
The Idaho Supreme Court disagreed. First, the Court found the Act did not contain a
separate remedy for the failure to timely respond. Id. at 732, 476 P.3d 399. Instead, it held that
under the Act, a failure to timely respond is deemed a denial of the request and a party may seek
attorney fees and costs for bad faith and frivolous denials under the Act. Id. Second, the Court
held the Act “offers no guidance on how specifically an agency must indicate a basis for a denial,
but that what comprises adequate notice is likely to vary with the scope of each request, the nature
of the records requested, and the exemptions claimed in each case.” Id. The Court acknowledged
that while nonspecific claims of exemption may impair the usefulness of the notices, such notices
did not violate the Act and, furthermore, the Act provides no separate remedy for non-complying
notices. Id. Instead, the Act “only provides remedies for bad faith and frivolous denials, of which
non-complying notices may be evidence.” Id.Here, Tanner asserts that ISP provided late disclosures of certain records because it did not
provide all records within ten days of his requests and, therefore, the district court should not have
dismissed his petition. However, Tanner does not argue the late disclosures were frivolous or
made in bad faith, and a review of the record does not support such a finding. For example,
although ISP did not provide copies of the dashboard camera videos within ten days, it nonetheless
complied with I.C. § 74-103(1) by timely providing Tanner notice of why the videos were delayed
(the problem with the redaction software) and provided the redacted records when the software
issues were resolved. In this circumstance, there is no evidence the delays were the result of ISP’s
frivolous or bad faith actions. Further, Tanner did not request any remedy beyond the ultimate
disclosure of the records in question, which he previously received. Because, as discussed above,
Tanner received copies of the redacted videos, there is no further remedy to which Tanner is
entitled.
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Tanner argues that ISP’s notices denying aspects of his public records requests amounted
to “checking the box” that a statutory exception applies and therefore were “unlawful.” However,
as the Idaho Supreme Court held in Cover, the Act does not prohibit generalized notices like the
ones Tanner received and provides no remedy for non-complying notices. While such notices may
be evidence that ISP’s denials were frivolous or made in bad faith, this did not occur here. ISP
provided all the records Tanner was entitled to under the Act prior to Tanner filing his petition to
compel in the district court. Additionally, in response to each of Tanner’s discovery requests, ISP
provided the documents to which it believed Tanner was entitled and then communicated that any
additional documents related to the traffic stop fell within an enumerated statutory exception, were
not found, or did not exist. As such, ISP’s non-specific notice of disclosures did not render the
district court’s judgment dismissing Tanner’s petition erroneous.
3. The district court did not err in adopting the State’s factual overview
When making its oral decision granting ISP’s motion to dismiss, the district court stated,
“the background that’s contained in--and the sequence of events that [ISP] recites at pages two and
three and four of her brief are accurate, they check out, and all of that are what happened prior to
Mr. Tanner filing his verified petition on December 16th, 2021.” Tanner alleges the district court
erred in finding that ISP’s factual overview was accurate and points to several statements from
ISP’s motion to dismiss which he believes “are false, void of many relevant facts, misleading and
unsupported.” For example, Tanner alleges that ISP omitted the following facts: (1) the thumb
drive containing a voicemail message which Tanner left for ISP on July 6, 2021, was not disclosed
until January 2022; (2) in November 2021, ISP provided audio dispatch recordings related to the
traffic stop that were not previously disclosed in response to Tanner’s public records request;
(3) ISP did not complete service of its motion to dismiss until January 21, 2022; (4) ISP did not
provide proper service of its notice of hearing on the first motion to dismiss; and (5) ISP did not
provide proper service of State’s exhibit 16 (a copy of Tanner’s tort claim against the State in
relation to the traffic stop). Tanner also alleges that certain facts provided by ISP, like that he filed
a tort claim against the State in relation to the traffic stop and left a voicemail, were irrelevant and
prejudicial.
While Tanner lists what he believes are factual omissions or inaccuracies, Tanner never
explains how his articulation of the facts at issue would have created a genuine issue of material
fact that would render the district court’s dismissal of his petition erroneous. A party waives an
13
issue on appeal if either argument or authority is lacking. Powell v. Sellers, 130 Idaho 122, 128,
937 P.2d 434, 440 (Ct. App. 1997). Accordingly, Tanner has waived consideration of this issue.
Additionally, I.R.C.P. 61 provides that, “at every stage of the proceeding, the court must
disregard all errors and defects that do not affect any party’s substantial rights.” Accordingly, a
party must provide argument explaining how an alleged error or defect prejudiced a substantial
right. See Cedillo v. Farmers Ins. Co., 163 Idaho 131, 136, 408 P.3d 886, 891 (2017). Tanner
provides no argument that the district court’s adoption of the factual overview provided in ISP’s
motion to dismiss impacted a substantial right and, as such, Tanner’s claim regarding the various
alleged omissions and inaccuracies as outlined above fails.
4. The district court did not err in finding Tanner’s objections lacked merit
When making its oral decision granting ISP’s motion to dismiss, the district court stated
that “there are a variety of objections that were voiced by Mr. Tanner today. There’s a variety of
objections that are set forth in the first three pages of his brief in opposition. I’ve read those. No
objection has any merit.” Tanner alleges this finding was in error.3 Specifically, Tanner raises
various procedural objections including that ISP: (1) failed to serve proper notice of the first
motion to dismiss hearing; (2) did not serve other, unspecified documents; (3) failed to answer and
timely serve its responsive pleadings; (4) should have electronically filed various exhibits instead
of mailing him a thumb drive with the exhibits; (5) presented a factual overview in its responsive
pleading that was “prejudicial, untruthful and misleading”; and (6) provided affidavits to which
Tanner had meritorious objections. However, while Tanner asserts that the district court erred in
finding these objections lacked merit, he provides no argument to support claims (2)-(6).
Accordingly, he waives his claim of error in relation to these objections. See Powell, 130 Idaho at
128, 937 P.2d at 440.
Tanner does, however, provide argument to support his first objection--that the district
court erred in finding his assertion that ISP did not provide proper service lacked merit. Tanner
alleges that ISP provided him with various documents including its motion to dismiss, three
affidavits from ISP employees, proposed order to seal exhibits, objection to Tanner’s discovery
requests, motion to shorten time, and notice of court correction through the “courtesy copy” feature
3
Tanner cites to a similar finding the district court made in its order on attorney fees in his
appellant’s brief. Because Tanner alleges the district court erred in finding his objections lacked
merit as part of his argument that the district court erred in dismissing his petition, we will use the
finding the district court made in its oral decision granting ISP’s motion to dismiss.
14
of the electronic file and serve portal, which he alleges does not constitute proper service under
the Idaho Rule of Electronic Filing and Service. Additionally, Tanner alleges that he received no
service of ISP’s first notice of hearing for its motion to dismiss or its notice of filing of State’s
exhibit 16. Accordingly, Tanner alleges he did not receive valid legal service of any of these
documents and, therefore, his objection related to improper service had merit.
The doctrine of invited error applies to estop a party from asserting an error when his or
her own conduct induces the commission of the error. Thomson v. Olsen, 147 Idaho 99, 106, 205
P.3d 1235, 1242 (2009). One may not complain of errors one has consented to or acquiesced in.
Id. In short, invited errors are not reversible. Id.The Idaho Rules of Electronic Filing and Service provide:
A party who electronically appears in the action by filing a document
through the File and Serve electronic filing system, that the court has accepted, is
deemed to have given consent to accept electronic service of any document filed
by any other registered filer in this action or the court, except for any document that
requires personal service, pursuant to Idaho court rules. Service by electronic
means upon this filer through their designated service contact is thereafter
mandatory unless exempted by rule or court order.
....
At the time of preparing the party’s first electronic filing in the action
through File and Serve, a party must enter the name and service email address
designated as a service contact on behalf of the party in the action. This service
contact must be utilized for service between the parties through the electronic filing
system. If an attorney represents more than one party, it is permissible to designate
a service contact(s) for a single party to be utilized for service upon all parties
represented by that attorney. Service through the system is accomplished through
the party’s designated service contact. Valid legal service is not accomplished by
utilizing the system’s “Courtesy Copy” feature.
I.R.E.F.S. 17.
Once Tanner electronically appeared in the case by filing his petition to compel through
the file and serve electronic filing system, it was his responsibility to input his contact information
to receive the mandatory electronic service of subsequent documents by ISP. The record indicates
that Tanner did not enter an email address for service purposes into the file and serve system.
Instead, Tanner simply included his email address at the top of his pleadings. This did not fulfill
his requirement to provide a “service contact” under I.R.E.F.S. 17 and, accordingly, Tanner invited
the error of which he now complains. As a result, this claim fails on appeal.
Tanner’s claim is also unsuccessful because he does not explain how his substantial rights
were affected by receiving courtesy copies of the documents. As previously articulated, at “every
15
stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s
substantial rights.” I.R.C.P. 61. Tanner concedes that “to his knowledge, [he] has received the
documents filed by the Respondents, excepting the Respondent’s Notice of Hearing (filed
1/13/2022) and State’s exhibit 16 (filed 1/31/2022).” While Tanner alleges that because he
received the documents through the courtesy copy feature, he was not properly served, Tanner
provides no argument explaining how receiving the documents through the courtesy copy feature
instead of having them emailed to him through the service feature affected a substantial right.
Tanner’s claim fails as it relates to all the documents Tanner received through the courtesy copy
feature of the electronic file and serve system.
When reviewed on the merits, Tanner’s claim regarding the two documents, ISP’s notice
of the hearing for the first hearing on its motion to dismiss and State’s exhibit 16, similarly fails.
First, because of the service issues concerning ISP’s notice of motion to dismiss hearing, the
district court conducted a new hearing after Tanner received proper service. This cured any error
from the initial lack of service of ISP’s notice. Second, State’s exhibit 16 was a copy of the tort
claim which Tanner filed against the State in relation to the traffic stop. By its very nature, exhibit
16 was a document to which Tanner had access. Third, Tanner provides no argument or authority
to explain how ISP’s failure to serve either of these documents affected a substantial right.
Accordingly, the district court did not err by finding that Tanner’s objections lacked merit and
dismissing his petition.
5. The district court did not err in denying Tanner’s discovery requests
Tanner alleges the district court erred by holding that his discovery requests were not
within the scope of the Act because, without discovery, he is not able to determine the accuracy of
ISP’s explanations of why it did not provide additional records.
Idaho Code § 74-115(1) provides, in relevant part:
The sole remedy for a person aggrieved by the denial of a request for disclosure is
to institute proceedings in the district court of the county where the records or some
part thereof are located, to compel the public agency to make the information
available for public inspection in accordance with the provisions of this chapter.
In Henry v. Taylor, 152 Idaho 155, 161, 267 P.3d 1270, 1276 (2012), the Idaho Supreme
Court interpreted this section4 as providing very limited relief to an aggrieved party. The Court
4
This section was previously identified as Idaho Code § 9-334. The Act has subsequently
been recodified; however, the relevant statutory language at issue remained unchanged.
16
held that the only relief the court can grant is to order the public entity to make the records available
for inspection. During oral argument before the Idaho Supreme Court in Henry, the appellant’s
counsel acknowledged that his client had been provided the records he was seeking, but counsel
“stated that there was additional discovery his client would like to conduct regarding the records
and the existence of any emails regarding this transaction.” Henry, 152 Idaho at 161, 267 P.3d at
1276. In the opinion, after summarizing the relevant statutory law, the Court concluded the
appellant was not “entitled in this proceeding to conduct further discovery regarding information
that may be contained in the records that were produced” because the appellant had “received the
relief to which he [was] entitled with respect to examining the public records requested.” Id. In
short, the action available to a party under I.C. § 9-343 is for a limited purpose: the action may
seek to compel a public entity to disclose public records it is improperly withholding but not to
perform further discovery over the proceedings. Id. Accordingly, discovery is not an available
remedy under the Act and, as such, the district court did not err in finding Tanner could not seek
discovery through his petition.5
6. The district court did not err in its scheduling and timing of the judgment
dismissing Tanner’s petition
Tanner alleges the district court erred by not setting responsive pleadings and a hearing on
his petition within twenty-eight days. He also argues the district court erred by not timely entering
the judgment dismissing the case. The district court did not err.
First, Tanner has waived any claim of error related to scheduling the responsive pleading
and a hearing for his petition. It is true that the Act provides that responsive pleadings and a
hearing “shall be set by the court at the earliest possible time, or in no event beyond twenty-eight
(28) calendar days from the date of filing.” I.C. § 74-115. However, the civil rules require the
petitioner to file a notice of hearing to set hearing dates for civil proceedings. Specifically,
I.R.C.P. 7(b)(3)(A) provides:
A written motion, affidavit(s) supporting the motion, memoranda or briefs
supporting the motion, if any, and, if a hearing is requested, the notice of hearing
for the motion, must be filed with the court and served so as to be received by the
parties at least 14 days prior to the day designated for hearing.
5
A request under the Idaho Public Records Act is not a substitute for discovery. Tanner is
able to seek discovery through his civil tort lawsuit he has filed against the State.
17
Tanner filed his petition on December 16, 2021, but did not file a notice of hearing related
to the petition as required by I.R.C.P. 7(b)(3)(A). ISP responded by filing its motion to dismiss
nineteen days later, on January 4, 2022, and complied with I.R.C.P. 7(b)(3)(A) by filing a notice
for a hearing with its motion. The district court accordingly scheduled the hearing on ISP’s motion
on January 31, 2022, which was within twenty-eight days of the State’s filing. Thus, the record
shows ISP complied with the time constraints required by the Act by filing its responsive pleading
within twenty-eight days, and the district court complied with the Act by scheduling a hearing
within twenty-eight days of the request for hearing. If Tanner wanted a hearing on his petition,
the burden was on Tanner to request a hearing on his petition and, without such notice, there was
no hearing for the district court to set. Accordingly, Tanner invited any claim of error related to
the timing of the hearing and therefore his claim fails on appeal. See Thomson, 147 Idaho at 106,
205 P.3d at 1242.
Second, Tanner has not shown error in the district court’s filing of the judgment dismissing
his petition. While Tanner alleges the district court “delayed entry of judgment, thus delaying the
lawful appeal process,” Tanner provides no argument or authority explaining why the district
court’s judgment was untimely or prejudiced his appeal. Accordingly, Tanner waives
consideration of the issue. Powell, 130 Idaho at 128, 937 P.2d at 440. Further, he failed to assert
the court’s untimeliness prejudiced a substantial right. See Cedillo, 163 Idaho at 136, 408 P.3d at
891 (declining to address appellant’s discovery issues on appeal because appellant failed to support
claims with argument demonstrating prejudice). Because Tanner provides no argument explaining
how either of these alleged errors affected his case, he has waived consideration of these claims
on appeal.
C. The District Court Did Not Err by Not Considering Tanner’s Motion to Reconsider
Tanner alleges the district court erred by not considering his motion to reconsider the
court’s dismissal of his petition. Tanner argues that he did not receive proper service of the State’s
notice of the first motion to dismiss hearing and, thus, the district court should have addressed
Tanner’s motion to reconsider.
However, the district court did not address Tanner’s motion to reconsider because it
granted Tanner the relief he sought; the court refrained from entering an order dismissing the
petition and held another hearing on the motion to dismiss stating:
18
We’re here, first of all, on the rehearing on the defendant’s motion to
dismiss, and let me just cover what I have read. We had a hearing on this motion
back on January 31st, 2022. I heard argument. I found that the defendant had
served its motion to dismiss on the plaintiff. A couple days later it was pointed out
by [the State] that wasn’t accurate and--so at that hearing I granted the motion to
dismiss, but I did not at any time sign the proposed order dismissing.
There has also been motions to reconsider. I’ve read all the briefing
regarding the motions to reconsider, but I don’t know that we really need to hear
the motion to reconsider filed by Mr. Tanner since I have not entered my order on
the motion to dismiss, so we’re here today to rehear the motion to dismiss brought
by the defendant, and I’ll hear argument on that.
Although Tanner objected, the hearing continued and the parties again presented argument relating
to the State’s motion for dismissal. Accordingly, Tanner received the relief he requested and the
only relief available to him--the court reconsidered the State’s motion to dismiss. Because Tanner
does not articulate how consideration of his motion to reconsider may have yielded a different
outcome, he waives the issue on appeal. Powell, 130 Idaho at 128, 937 P.2d at 440.
D. The District Court Did Not Err by Awarding Attorney Fees
Tanner concedes “the determination that the Petitioner’s actions are frivolous is in the
court’s discretion” but argues the action and accompanying documents he filed were not frivolous
and, accordingly, the district court erred in awarding ISP attorney fees.
Awarding attorney fees and costs is a discretionary decision for the trial court. Treasure
Valley Home Sols., LLC v. Chason, 171 Idaho 655, 660, 524 P.3d 1272, 1277 (2023). When a trial
court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered
inquiry to determine whether the lower court: (1) correctly perceived the issue as one of discretion;
(2) acted within the boundaries of such discretion; (3) acted consistently with any legal standards
applicable to the specific choices before it; and (4) reached its decision by an exercise of reason.
Lunneborg, 163 Idaho at 863, 421 P.3d at 194. On appeal from an award of attorney fees, the
burden is on the party opposing the award to demonstrate that the trial court abused its discretion.
Treasure Valley, 171 Idaho at 670, 524 P.3d at 1277.
Idaho Code Section 74-116(2) authorizes the award of reasonable attorney fees to the
prevailing party in a public records case if the trial court finds the request or refusal to provide
records was frivolously pursued. The district court found that ISP was the prevailing party and
Tanner pursued the action frivolously; accordingly, the court awarded ISP attorney fees pursuant
to I.C. § 74-116(2). Tanner does not establish this was an abuse of discretion.
19
Tanner argues the district court erred in awarding attorney fees pursuant to
I.R.C.P. 54(e)(2) and I.C. § 12-121 because the district court did not issue written findings.
However, the district court did not award attorney fees pursuant to the above authority, but instead,
awarded attorney fees pursuant to I.C. § 74-116(2). Tanner does not provide argument or authority
explaining how the district court abused its discretion in awarding attorney fees pursuant I.C. § 74-
116(2) beyond his conclusory allegation that he did not believe his filings were frivolous. Tanner
asserts “his conduct in this case and every document filed is supported in fact, law, and reason
with good faith arguments, and is the antithesis of frivolous” and “[p]roof of this assertion is
presented in the Verified Petition to Compel Disclosure of Public Records, and every filing of the
Petitioner in this Court Record.” This argument is conclusory and, as such, Tanner waives
consideration of the claim on appeal. Powell, 130 Idaho at 128, 937 P.2d at 440.
Moreover, as previously articulated, Tanner received all the documents he was entitled to
under the Act before he brought this petition to compel production. Despite this, and throughout
the action, Tanner repeatedly requested the production of records that he already had (police
reports, dashboard camera footage, and dispatch audio files), did not exist (body camera footage
of the traffic stop), or were outside the scope of the Act (interrogatories and other discovery
requests). When provided with the district court’s findings that supported the dismissal of his
petition during the first motion to dismiss hearing, Tanner filed additional declarations, subpoenas,
and other documents that did not meaningfully pertain to or address the court’s stated concerns.
Accordingly, the district court did not err in finding Tanner’s petition seeking more documents
was frivolous and the order of attorney fees is affirmed.
E. Tanner’s Claim of Judicial Bias Is Unpreserved and Unsupported
Tanner alleges the district court was biased against him as a pro se petitioner and in favor
of the State. Specifically, Tanner argues the district court violated the Idaho Code of Judicial
Conduct and the Idaho Constitution by “committing misconduct when having clear and convincing
facts, evidence and law before him as described in the forgoing issues on appeal” and
“adjudicat[ing] this case in favor of the Idaho State Police, dismissing Tanner’s efforts to compel
the disclosure of unlawfully withheld public records as frivolous.” We are not persuaded.
Tanner did not raise his allegations of bias to disqualify the district court in the proceedings
below. As such, Tanner is precluded from raising this issue on appeal. Sanchez v. Arave, 120 Idaho
321, 322, 815 P.2d 1061, 1062 (1991) (holding that, generally, issues not raised below may not be
20
considered for first time on appeal); see also Owen v. Smith, 168 Idaho 633, 647, 485 P.3d 129, 143
(2021) (holding because appellant did not move to disqualify district court judge, appellant was
precluded from raising claim of judicial bias on appeal); Zylstra v. State, 157 Idaho 457, 468, 337
P.3d 616, 627 (2014) (in absence of motion for disqualification, appellate court will not review
allegations of judicial bias on appeal).
Further, beyond his general assertions of prejudice and unhappiness with the district court’s
rulings, Tanner provides no citations to the record that demonstrate any specific acts of bias or
prejudice by the district court. Idaho Appellate Rule 35(a)(6) requires that “the argument shall
contain the contentions of the appellant with respect to the issues presented on appeal, the reasons
therefor, with citations to the authorities, statutes and parts of the transcript and record relied
upon.” This Court will not search the record on appeal for error. Suits v. Idaho Bd. of Prof'l
Discipline, 138 Idaho 397, 400, 64 P.3d 323, 326 (2003). Where an appellant fails to assert his
assignments of error with particularity and to support his position with sufficient authority, those
assignments of error are too indefinite to be heard by the Court. Randall v. Ganz, 96 Idaho 785,
788, 537 P.2d 65, 68 (1975). A general attack on the findings and conclusions of the district court,
without specific reference to evidentiary or legal errors, is insufficient to preserve an issue.
Michael v. Zehm, 74 Idaho 442, 445, 263 P.2d 990, 993 (1953). Consequently, to the extent that
an assignment of error is not argued and supported in compliance with the Idaho Appellate Rules,
it is deemed to be waived. Suitts v. Nix, 141 Idaho 706, 708, 117 P.3d 120, 122 (2005).
Moreover, judicial rulings, standing alone, do not constitute a valid basis for a claim of
judicial bias or partiality. Greenfield v. Wurmlinger, 158 Idaho 591, 605, 349 P.3d 1182, 1196
(2015); see also Owen, 168 Idaho at 647, 485 P.3d at 143 (holding claim of judicial bias not
supported by any citations to record highlighting acts of prejudice). Accordingly, we decline to
review Tanner’s claim of judicial bias.
F. Attorney Fees and Costs on Appeal
An award of attorney fees may be granted under I.C. § 12-121 and I.A.R. 41 to the
prevailing party and such an award is appropriate when the court finds that the appeal has been
brought or defended frivolously, unreasonably, or without foundation. ISP requests attorney fees
on appeal. This Court concludes that based on the above reasons, Tanner’s appeal was pursued
frivolously and grants the State’s request for attorney fees.
21
IV.
CONCLUSION
For the reasons set forth above, the district court did not err in dismissing Tanner’s petition
and awarding ISP attorney fees. The judgment dismissing Tanner’s petition is affirmed. Attorney
fees and costs are awarded to ISP.
Chief Judge LORELLO and Judge GRATTON CONCUR.
22