Public records lawsuit stalled by session now continues against Idaho Rep. Giddings

BOISE (Idaho Capital Sun) — After a nearly three-month delay because of the legislative session, a public records lawsuit against Rep. Priscilla Giddings, R-White Bird, will continue this month in court.

Giddings, who is running for lieutenant governor in the Republican primary on May 17, is the subject of a civil complaint filed by Erika Birch, a Boise attorney who represented the legislative intern who accused former Rep. Aaron von Ehlinger of rape in March 2021. A jury convicted von Ehlinger of the rape charge on Friday.

Birch filed the complaint in mid-January, but Giddings invoked her privilege as a legislator to defer civil suits until after the legislative session.

Birch’s complaint states she sent a public records request to Giddings on Aug. 19, 2021, for any written or electronic communications between Giddings and von Ehlinger that were related to her client, who is referred to as Jane Doe to protect her identity. Birch’s request encompassed the ethics committee complaint and hearing involving von Ehlinger in March, as well as the ethics complaint and hearing for Giddings in August. Her request also included communications between Giddings and David Leroy, an attorney who briefly represented von Ehlinger during the ethics investigation.

Two days after Birch’s request, Giddings responded to Birch by saying, “My office does not have any public record related to your request that isn’t already public. I have asked the Legislative Services Office to search their databases as well. My office considers this request closed.”

In a response filed last week on behalf of Giddings, Deputy Attorney General W. Scott Zanzig asked the court to dismiss the case because Giddings did not have any records responsive to Birch’s request.

“Rep. Giddings never had any written communications with Aaron von Ehlinger about the requested topics,” Zanzig wrote. “She had received two emails from Mr. Leroy about the requested topics in March 2021, but she had deleted both emails shortly after she received them, many months before Ms. Birch’s request.”

Zanzig also argued Birch “had Rep. Giddings in her sights for litigation” and based on what she saw as Birch’s lack of candor and other pending litigation involving Giddings, she did not respond to further requests for the records.

Wendy Olson, a Boise attorney who is representing Birch in the case, filed a response brief Tuesday afternoon saying Giddings did not comply with the Idaho Public Records Act because her search of the records should have included more than Giddings’ legislative email account, including text messages and messaging apps. Based on Giddings’ responses, Olson said, it’s unclear if that search went beyond legislative emails.

In Idaho Code, “writing” in public records law includes, but is not limited to handwriting, typewriting, printing and every means of recording. The most recent Idaho attorney general’s guide to Idaho’s public records law states emails and texts are considered public records. 

“Ms. Giddings offers no evidence regarding her efforts to search other media or platforms either at the time of Ms. Birch’s request or now, eight months later,” Olson said in the brief.

Olson included a transcript from Giddings’ ethics hearing at the Legislature in August when she referenced communications on Facebook and at least one other messaging platform, but said Giddings offered no evidence that she searched those platforms at any time for responsive records.

Olson also said Giddings’ statements justifying the reason why she did not respond to Birch’s further attempts to receive the records do not matter in the context of Idaho’s public records law. A requestor does not have to specify the reason he or she is seeking the information.

 “That Ms. Birch, or any other requestor, might seek such information to evaluate or even support future legal claims does not excuse Ms. Giddings from complying with her obligations under the Act,” Olson wrote.

Fourth District Judge Peter Barton will hear the case at 4 p.m. May 10 at the Ada County Courthouse.