Judge to issue written opinion in public records lawsuit against Idaho Rep. Giddings

Fourth District Judge Peter Barton will issue a written ruling in the public records dispute against Rep. Priscilla Giddings, R-White Bird, following a hearing on Tuesday.

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 in April.

The hearing took place online, with Deputy Attorney General W. Scott Zanzig arguing for Giddings and Boise attorney Wendy Olson representing Birch.

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.

Giddings argued in a response brief that she had no records responsive to Birch’s request, and said she deleted two emails from Leroy prior to receiving the request.

Olson argued Giddings’ response to the first request did not comply with the Idaho Public Records Act, and subsequent attempts to reach Giddings went unanswered. Based on Giddings’ response, it was unclear if her search for records extended beyond her legislative email account, as it should according to Idaho Code.

Olson said Birch didn’t know the emails from Leroy were deleted until that document was filed in court.

“A requester should not have to bring a lawsuit to find out if responsive records exist or were destroyed,” Olson said.

Zanzig said Birch brought the case out of a sense of mistrust of Giddings, and that while Giddings’ communication with Birch was “inartful,” her response was not frivolous or in bad faith. Zanzig said Giddings could not produce records that don’t exist, and asked the judge to dismiss the complaint.  

Olson asked the court to rule in favor of Birch and to require Giddings pay attorney fees and a civil penalty.

Barton did not give a time frame for when he would issue an opinion.