The $15,000 Kempthorne will be asking for next week at a “debt retirement” event is being asked for very carefully. Secretary Kempthorne does not want to violate the Hatch Act, but wants his campaign debt eliminated. Kempthorne’s carefully crafted “debt retirement” event is only one of several examples of the former governor’s contempt for the rules.
In addition to carefully skirting the Hatch Act, the rules outlining to what extent government employees can participate in political activities, former Governor Kempthorne has ignored one hundred years of tradition by retaining his gubernatorial papers rather than depositing them at the Idaho State Historical Society and has been the key component in the lifting of restrictions that have previously outlawed the carrying of concealed weapons in our national parks.
One has to wonder when the Kempthorne strong hold on Idaho will end. Like the unfortunate limelight forced on Idaho by our infamous senior senator, Idaho's image is being tainted by the blatant disregard for precedent being displayed by our former governor. As if bestowing on this state the most hideous of state quarters wasn't enough, we are now being credited as the home of the man who doesn't seem to mind if poachers are let in to our national parks or if the people who first elected him to office have access to whatever records, important or not, may have been retained from his tenure in the Idaho Statehouse.
Today the Idaho Statesman has an update on the situation with Governor Kempthorne's papers, an update that is as ambiguous as the original reporting that Governor Kempthorne is still holding tight to his records. Apparently, the state historical society, under the direction of Janet Gallimore, has been in "talks" with the former governor regarding his papers that have been under his control since he left Idaho to join the Bush administration two years ago. The startling truth behind the "talks" taking place is not that Kempthorne has waited two years to participate in these talks, it is that the talks are taking place, period. Every report regarding Kempthorne's papers has emphatically stated that state law requires all gubernatorial records to be turned over to the state historical society. However, the quote from today's article is, "if they reach a deal, the former governor's papers would join a historical record of Idaho used by scholars, lawyers, and curious citizens." If? If they reach a deal? There are laws about these things, but a former governor can decide if he wants to obey them?
Something that has been a bit troubling since the Statesman first broke the story last week is that nobody seems to be capable of citing the exact law that requires the governor's records to be retained at the state historical society. Again, in today's Statesman article, no citation exists. The article suggests that either the 1864 act of the Idaho territorial government regarding the binding of materials for housing at the state archive or the 1947 law creating the state archives may have given the state historical society authority to house the governor's papers.
For whatever reason, nobody dares cite the exact language under which we are all speculating the fate of Governor Kempthorne's papers. The language appearing in the territorial government documents does not and could not foresee the sheer mass of material a state government could produce. In 1864, the territorial government was trying to survive governing from afar and couldn't care less about the historical record of that very governance. Similarly, the 1907 act (House Bill 104) establishing the Idaho State Historical Society makes no specific mention of the records of the governor, stating that the historical society should be established and should provide for the acquisition, care, and exhibition of state property. I suspect whatever law those commenting on this story refer to is the 1947 act that gave state archival authority to the Idaho State Historical Society. From the Idaho Session Laws:
The 1947 act offers further clarification of the archival authority placed in the hands of the state historical society, specifically that the state archive should "facilitate the use of Idaho records for official reference and historical research" (Sec. 1) and that "any state, county, city, or village or other public officer in custody of public documents is hereby authorized and empowered to deliver to the Idaho State Historical Society for preservation any official books, records, documents, original papers, newspaper files, printed books, or portraits not in current use in his office" (Sec. 2).
(H.B. No. 206)
AN ACTAUTHORIZING AND EMPOWERING CUSTODIANS OF THE STATE, COUNTY, CITY, OR VILLAGE RECORDS OF HISTORICAL SIGNIFICANCE AND NOT IN CURRENT USE TO DELIVER THEM TO THE IDAHO STATE HISTORICAL SOCIETY FOR PERMANENT PRESERVATION; PROVIDING FOR THE CERTIFICATION OF COPIES OF SUCH RECORDS BY THE IDAHO STATE HISTORICAL SOCIETY; PROVIDING FOR THE APPROPRIATE DISPOSAL OF OFFICIAL RECORDS WHICH POSSESS NO SIGNIFICANCE , IMPORTANCE NOR VALUE; AUTHORIZING THE IDAHO STATE HISTORICAL SOCIETY TO REQUIRE AND SUPERVISE THE COLLECTION OF HISTORICALLY IMPORTANT STATE, COUNTY, OR VILLAGE ARCHIVES.
It is also plausible that the records management guidelines in place for state government in general and the governor's office specifically (67-802, 67-4126, 67-4129, 67-5725, and 67-5751a of the Idaho Code) have been interpreted to mean that the Idaho State Historical Society has supreme authority over all state documents as they are presumably property of the State of Idaho.
Regardless of which authority-granting law we point to in the case of placing Governor Kempthorne's papers, there are arguments to be suppressed and arguments to be supported.
First, as was mentioned by state archivist Rod House in today's Statesman piece, gubernatorial records are among the most viewed items at the state archive. House estimated 115 cubic feet of gubernatorial records have been viewed this year--a number I support fully as I alone have looked at the papers of former governors Gossett, Bottolfsen, Arnold, and Clark this year (Alexander, Ross, Evans, Batt, and Samuelson last year)--and this number should be the key here. Clearly, the state archive is capable of not only housing these materials, they are making them available to the public at every request. Whatever argument you hear to the contrary should be immediately dismissed.
Second, comments appearing on the Statesman's website and elsewhere that suggest Kempthorne's keeping of these records is the responsible thing to do because of the private nature of some of the documents (social security information, legal matters, etc.) is absolutely false. Ignoring one hundred years of precedent because you believe privacy is the number one concern of making gubernatorial records public is ridiculous. Archivists across the country deal with this on a daily basis. Information can be redacted. Privacy can be protected. This is what archivists do. Saying you are ignoring the law in an attempt to protect your constituency's privacy is admitting you have things to hide and don't value transparency.
The third, and most troubling aspect of this story is that the rules either no longer apply or hold little significance in this state that is caring less and less about the historical record it leaves behind. In the past two years it appears little conversation has taken place regarding Kempthorne's papers. Without sounding too cynical, in this post-Executive Order 13233 world, it is startling how little attention is being paid to the status of records of this magnitude.
A credible source with connections to the state archives has told me that the situation with the Kempthorne papers is not the first in terms of gubernatorial records falling through the cracks. Let's hope the Kempthorne papers are deposited, secured, and preserved for future generations interested in the history of our great state.