Open Meetings, Public Records and Following the Money

Economic development runs on two kinds of bodies: public ones that must work in the open, and private ones that mostly do not. A single project can pass through both several times. The trick is knowing which door to knock on for each piece of the record. Lesson 7 described the groups. This lesson is about the law that reaches them, the places it runs out, and how to add up the public money anyway.

Who is covered

The Attorney General's open meeting manual says private charities and homeowners associations are outside the law and are governed by their bylaws and the nonprofit corporation statutes. It does not address nonprofits funded largely by governments, regional development groups, or bodies formed by several governments under the joint powers statute, 67-2328.

Where it is unsettled

Idaho law leaves some questions open.

First, is a nonprofit that governments created, fund and control a "public agency"? Idaho's definition in 74-202(4) turns on how a body was created: by statute, by ordinance or other legislative act, or as a political subdivision. A 501(c)(3) incorporated under Title 30 fits none of those on its face. Courts in some other states ask instead whether a private body is the "functional equivalent" of a government agency, looking at public funding, government control and whether it performs a governmental function. No Idaho appellate decision adopting that test for the open meeting or records law was found for this lesson. Anyone arguing that a development nonprofit is covered would be making a new argument. Region IV Development Association would be the obvious test case: the IRS lists it as a 501(c)(3) yet designates it a government entity excused from filing Form 990, and commissioners from all eight counties it serves sit on its board.

Second, what about a body formed by an agreement among cities and counties under 67-2328? It exercises powers its members hold. Whether it is a "regional board" created "pursuant to statute" under 74-202(4)(b), or a subagency under (4)(d), has not been decided by an Idaho appellate court, as far as this lesson's research found. The AG's usual advice when a body is unsure is to open the meeting.

The records you can get anyway

Idaho defines a public record by who holds it: any writing about the public's business "prepared, owned, used or retained" by a state or local agency (74-101(13)). So send requests to the government that holds the records:

• Payments to the group: check registers, invoices, dues statements.
• Agreements: memberships, service contracts, grant administration contracts.
• What the group reported: quarterly or annual reports to the council, prospect summaries, presentations in the council packet.
• Correspondence: emails between city staff or officials and the group, on government accounts.
• Board reports: what the city's representative on the group's board told the council.

The exemptions you will run into

• 74-107(6): records "gathered by a local agency or the Idaho department of commerce" for the specific purpose of helping a person "locate, maintain, invest in, or expand business operations" in Idaho. This is the main shield for recruitment files. It is limited to records gathered for that purpose. A council's own vote, a fee waiver it adopts, or a payment it makes are harder to fit inside it.
• 74-107(1): trade secrets, including those in responses to requests for proposals.
• 74-206(1)(e): an executive session "to consider preliminary negotiations involving matters of trade or commerce in which the governing body is in competition with governing bodies in other states or nations." Competition with the next town over is not in the text. (Subsection (1)(d) separately allows a closed session to consider records that are exempt from disclosure, such as 74-107(6) files.) The motion must cite the subsection, pass by a two-thirds roll call, and no final action may be taken in the closed session. Details are in Executive Sessions.

Federal tools that fill the gaps

• EDA district rules. Under 13 CFR 304.2(c)(4), a district organization must hold meetings open to the public at least twice a year with agendas published in advance, give the public a chance to respond before decisions, and make audited statements, budgets and minutes available on reasonable request. This is a condition of federal designation. A refusal is something to report to EDA's regional office.
• Form 990. Tax-exempt organizations must provide copies of their last three annual returns and their exemption application on request, under the IRS public disclosure rules. Donor names on Schedule B are generally withheld for public charities.
• Single audits. Nonprofits that spend at least $1,000,000 in federal awards in a fiscal year beginning on or after October 1, 2024 ($750,000 before that) must get a single audit under 2 CFR 200.501, filed with the Federal Audit Clearinghouse.
• Federal awards. USAspending.gov lists EDA and other federal grants by recipient name.

The constitutional question nobody has litigated

Idaho's constitution forbids local governments to "lend, or pledge the credit" to private corporations (Article VIII, section 4) and forbids cities and counties to donate to or raise money for them (Article XII, section 4). Cities usually treat payments to development nonprofits as dues or fees for services, which is how they square the payments with those clauses. Whether any particular payment is really a donation depends on what the city receives in return. No Idaho appellate case on dues to an economic development nonprofit was found for this lesson, so asking a council what it bought with its payment is both a fair question and an open one.

Urban renewal has been tested in a related way. In Hoffman v. City of Boise (2021), Idaho Freedom Foundation leaders and others challenged two Boise revenue allocation areas under the constitution's debt limit. The Idaho Supreme Court affirmed dismissal for lack of standing, holding that the ordinances allocating increment did not create a "liability" under Article VIII, section 3.

Following the money for one project

Public money behind a project is rarely in one place. It is split among the state, the urban renewal agency, the city and the regional group. Adding it up is the single most useful thing a resident can bring to a hearing.