Judge Robert J. Elgee will review a 15-year-old police report involving the Bowe Bergdahl family before making a decision if the report should be released to Cable News Network.
Arguments regarding release of the report were made Monday afternoon in Blaine County Fifth District Court by CNN attorney Debora K. Kristensen, of the Boise law firm Givens Pursley, and Tim Graves, chief deputy for the Blaine County Prosecuting Attorney’s Office.
Monday’s hearing followed the filing by CNN on June 25 of a lawsuit against Blaine County pertaining to a June 11 CNN formal public records request to the Blaine County Sheriff’s Office for all police reports involving the Bergdahls. In response to the request, Sheriff Gene Ramsey provided CNN with three reports but declined to release a fourth record from 1999, claiming that release would constitute an “unwarranted invasion of personal privacy.”
CNN claims the report is releasable under Idaho Public Records Law, while Blaine County claims that the document is protected by Idaho Code 9-335, a statute pertaining to documents exempt from public disclosure and specifically exempting documents that would “constitute an unwarranted invasion of personal property.”
Elgee, who had not seen the disputed document prior to Monday, was given the report as Exhibit A at the conclusion of the hearing. Elgee’s review of the report for a determination of its possible release came at the request of Graves.
“How do I write a decision that says I can’t tell you because I can’t tell you?”
Judge Robert J. Elgee
Fifth District Court
“The record in question is clearly exempt from disclosure,” Graves told the judge. “I’m satisfied the court will see the reason if it reviews the document.
“We ask that you find that the sheriff was justified in not releasing the document.”
Kristensen argued that a police investigative report, once an investigation is finished, is releasable to the public under Idaho law.
“What we are entitled to is non-active investigative records,” she said. “With respect to public documents, the legislature has set rules as to what is releasable and what is not releasable.”
“We the media, the public, are entitled to know what’s going on with their government,” Kristensen said. “The public has the right to know the basis—what happened.”
Bergdahl, a U.S. Army sergeant from Hailey, has received national and international news media attention since his capture in Afghanistan in 2009. News media attention has intensified since his release by Taliban-affiliated forces on May 31.
Ramsey, who did not attend the Monday hearing, told the Idaho Mountain Express earlier that the report in question involved the Bergdahls in an investigation on Nov. 4, 1999. He said no criminal charges were filed as a result of the investigation.
The three reports Ramsey provided to CNN were redacted, with personal information omitted, and involved investigations concerning the Bergdahls in March 1998, January 2013 and August 2013. None of the investigations led to criminal charges against the Bergdahls or anyone else.
Elgee said during the hearing that the case poses a problem for him in that if he declines to release the report it will be difficult for him to explain why he deemed it not releasable. The judge explained that providing a reason for why the report couldn’t be released might in effect disclose what the investigation concerned.
“I have no idea what this record involves,” Elgee said. “These are the things I worry about: If I decide you don’t get the record, how do I write a decision as to why you don’t get the record? How do I write a decision that says I can’t tell you because I can’t tell you?”
Elgee did not say how long it would take before he renders a decision.