This report was prepared for the Iowa FOI Council’s annual meeting on Oct. 8, 2015, by Kathleen Richardson, the outgoing executive director of the council.
INTRODUCTION
The Iowa Public Information Board, a 3-year-old state agency tasked with helping to enforce the state open meetings and records laws, had a busy year responding to hundreds of open-government questions and complaints. However, the board failed in its first legislative attempt to remedy several longstanding issues in the FOI laws.
After extensive public hearings, the board introduced legislation (Senate File 384) that would have amended Chapter 21, the state open meetings law, to ensure appropriate advance notice of meetings and expand the definition of government bodies required to comply with the law to include more subcommittees. The board also introduced an amendment to Chapter 22, the public records law, modeled after the federal Freedom of Information Act that would have clarified which law enforcement records are required to be released. The meetings amendments were fought by government associations and the changes met resistance from law enforcement and victims’ advocates. The IPIB legislation passed the Senate, with the law enforcement provision removed, but it did not advance out of a House subcommittee.
Among other issues addressed by the IPIB this year:
The Burlington Hawk Eye and the family of a Burlington woman who was shot and killed by a police officer are asking the board to order the release of records related to her death.
Burlington officer Jesse Hill in January responded to reports of a domestic dispute at the home of Autumn Steele. Hill accidentally shot Steele when he was attacked by her German Shepherd as he approached the house. The Des Moines County attorney cleared Hill of criminal charges and the officer has returned to work.
Local law enforcement authorities say that they have turned over all records in the case to the Iowa Division of Criminal Investigation. The DCI has refused to release the transcript of a 911 call, police body camera and dashboard videos and other information requested by the Hawk Eye and Steele’s family. The state claims the records are part of the police investigative file, which can be kept confidential under Chapter 22.7(5). Officials have released 12 seconds of the body camera footage and a summary of the incident, but the DCI claims releasing more information would invade the dead woman’s privacy. The complainants argue, among other things, that the information requested is part of the “immediate facts and circumstances” surrounding the incident that police are required to release.
IPIB Executive Director Charlie Smithson recommended in July that the board dismiss the records complaints because Iowa law allows law enforcement officials to keep investigative files confidential indefinitely. The board rejected that recommendation, reviewed the police body camera video in a private session, and in September instructed its staff to attempt to resolve the matter informally between the parties.
Mason City implemented a practice earlier this year in which city council members split into subcommittees to discuss the budget without open meetings or minutes. Budget discussions previously had been open to the public. Mayor Eric Bookmeyer argued that the procedure was legal because the subcommittees did not constitute a quorum of the council members and were merely advisory in nature.
The issue was brought before the Iowa Public Information Board, which said that lack of clarity in the Iowa open meetings law allowed the subcommittees to meet behind closed doors. However, board members discouraged the practice.
These formal advisory opinions were issued by the board:
Creation of records (IPIB AO 2015-04): The city of Muscatine received a request for information concerning the city’s automatic traffic cameras. The city said that some of the information requested was not collected or kept by the city, and the city asked the board whether it was required to create records to respond to the request. In an advisory opinion, the IPIB said that there is nothing in the Iowa Code that requires a government body to create records that do not otherwise exist.
Who may attend closed sessions (IPIB AO 2015-03): A Diagonal, Ia., resident asked the board whether there are any limits on who may be allowed into a government body’s closed session. The opinion says that the open meetings law is silent on this topic, and concludes that the government body has discretion as to whom it may invite to attend a closed meeting.
Draft documents (IPIB AO 2015-01): Chapter 22.7(65) allows confidentiality for government bodies’ “tentative, preliminary, draft, speculative or research material.” The board established the following criteria to determine whether a document falls into exception:
1. The document is tentative, preliminary, draft, speculative or research material;
2. The document exists in a form prior to completion of its intended purpose;
3. The document exists in a form prior to the form that is ultimately submitted for use or used in the actual formulation, recommendation, adoption or execution of any official policy or action by a public official with authority to make such decisions; and
4. The document must not have been submitted to or used by a public official authorized to adopt or execute official policy.
In applying these criteria, the document must truly be a draft that is not in its final form to be submitted to a public official who has authority to make decisions regarding the subject matter to which the draft applies. In addition, if the draft has been submitted to a public official authorized to adopt or execute official policy, the exception does not apply.
Notice requirements for public meetings (IPIB AO 2015-02): A Diagonal, Ia., resident asked whether the Chapter 21 public meetings notice is the same as the notice requirements for a public hearing. The board’s opinion is that the notice requirements in Chapter 21 do not satisfy the notice requirements for public hearings under Chapter 331.434, though the notice requirements of Chapter 331.434 would constitute notice under Chapter 21.
According to the board’s 2014 report to the Legislature, the IPIB last year resolved 92 formal complaints, answered 788 informal inquiries from government officials and citizens, and conducted 38 training sessions around the state. Most issues were resolved informally by the board staff working with complainants and governments. The board also negotiates settlement and training agreements to resolve complaints.
IN THE COURTS
Judge rejects newspaper’s appeal of IPIB ruling
A Polk County judge in November 2014 denied The Des Moines Register’s request to obtain a copy of a video reportedly showing a state employee using excessive force while restraining a teenage girl at the Iowa Juvenile Home.
The Register had requested a copy of the video after the employee, Robert McFatridge, was dismissed and charged with assault. The newspaper ran a series of articles about alleged mistreatment of the home’s residents, including girls who were confined to isolation cells for months. Gov. Terry Branstad ordered the home closed in January.
The Department of Human Services refused to release the video footage taken inside the juvenile home, even though The Register said it would blur the image of the girl’s face to protect her identity. The agency and the Iowa Attorney General’s Office argued that release of the video would violate state and federal laws regarding privacy of individuals receiving government services. The newspaper brought the issue to the Iowa Public Information Board, which in February 2014 agreed with the state.
The Register appealed the decision in Polk County District Court. Chief District Judge Arthur Gamble ruled that the IPIB did not err in its decision that the video was a confidential record.
McFatridge was convicted in May 2015 of assault causing bodily injury.
Attorney must be present to close meeting to discuss strategy
The Iowa Court of Appeals in March concluded that the Iowa open meetings law requires government bodies to have their counsel present in order to close a meeting to discuss litigation strategy.
James Olinger and Larry Meyer sued the members of the Harrison County Board of Supervisors, alleging that the board held two illegally closed meetings in 2013 as trustees of the Utman Drainage District. The stated rationale for closing the meetings was to discuss matters related to litigation, but counsel was not present at either meeting. Chapter 21.5(1)(c) allows government bodies to close a meeting “to discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent where its disclosure would be likely to prejudice or disadvantage the position of the government body in that litigation.”
The plaintiffs requested, as provided in Chapter 21.5(5), that a district court judge listen to the recordings of the closed sessions to determine whether they could have access to the records to prepare their case. After listening to the recordings, the judge ordered the recording of one meeting released, saying a public discussion would not have prejudiced the trustees in litigation. However, the judge found that the recording of the second meeting should not be released. The court ordered each trustee who had participated in that meeting to pay a $100 fine, but later suspended the fine.
Both sides challenged aspects of the judge’s ruling, including that the district court found an open meetings violation and imposed a fine without allowing the trustees an opportunity to present defenses. The plaintiffs argued that the court imposed damages before determining whether the defendants knowingly violated the law, which would have triggered heightened penalties; erred in suspending the fines, and also in failing to award the plaintiffs attorney fees and costs.
The Iowa Court of Appeals found errors in the district court’s ruling and remanded it. One of the issues that the appellate court said it expected the lower court to address on remand is whether counsel must be present at meetings closed to discuss current or imminent litigation — and concluded through its analysis of the law and legislative history that the government body’s attorney must be present in order for the exception to apply.
[James W. Olinger and Larry C. Meyer v. Robert Smith, Walter Utman and Gaylord Pitt, Harrison County, Iowa, and Utman Drainage District, No. 14-0751, Iowa Court of Appeals, March 25, 2015]
Insurer settles privacy lawsuit by former D.M. superintendent
The insurer for Des Moines Public Schools in August settled a lawsuit with former superintendent Nancy Sebring, agreeing to pay her $350,000.
The settlement came after Polk County District Judge Robert Hutchison ruled this spring that Sebring’s sexually explicit emails with a lover are public record.
The school district discovered the emails in spring 2012 while responding to public records requests from The Des Moines Register and the Omaha World-Herald about Sebring’s move to a new job in Omaha. Sebring abruptly resigned, then lost the Omaha job after the emails became public. Sebring claims that the district’s release of the emails ruined her life, and she sued the district and school officials for invasion of privacy, intentional infliction of emotional distress, interference with contract of employment, and conspiracy.
The district’s insurance company decided to settle the lawsuit to avoid the expense of litigation.
District Judge Glenn Pille ruled last year that the emails, made on government computers from a government email account in violation of district policy, were part of Sebring’s personnel file and so fell under an exception to the Iowa public records law and shouldn’t have been released. But Judge Hutchison wrote this year, “What are otherwise public records cannot be hidden from public scrutiny simply by the records keeper pronouncing them to be the basis for possible disciplinary action.”
The case also raised issues of reporter’s privilege to keep sources confidential. The Register fought attempts to force then-editor Rick Green and reporter Kathy Bolten to testify about the circumstances surrounding the release of the Sebring emails. Iowa’s common law privilege provides that journalists cannot be forced to testify unless the plaintiff can prove that the information sought is substantially necessary to the cause of action and that the plaintiff has exhausted all other ways of obtaining the information. Hutchison ruled that Sebring had not met that legal burden.
Injunction granted to block release of development communications
A Polk County District Court judge in March granted a Burlington developer’s request for an injunction to block the release of some of his communications with the governor’s office and the Iowa Economic Development Authority.
Developer Randy Danniel was sued in March 2014 by disgruntled investors in his Iowa Logistics Development Co. Liberal activist Matt Sinovic of Progress Iowa filed a public records request, requesting copies of communication between Danniel and the governor’s office and the Iowa Economic Development Authority. Sinovic sought similar information regarding communication between the Lee County Economic Development Group and state officials.
Danniel and the Lee County development group sought injunctions barring release of the records. Danniel maintained that he had expected that his communications with state officials would be confidential. He argued that his communication should be shielded as trade secrets, under Chapter 22.7(3), and as “communications not required by law, rule, procedure, or contract that are made to a government body” by persons outside of government, if the government could reasonably believe those persons would be discouraged from communicating if the records were made public (Chapter 22.7(18)).
Sinovic and Progress Iowa argued that even if an exception applied, release of the records would be in the public interest. The Iowa Attorney General’s Office also argued that the petitioners should not have had any expectation that their communications with state officials were confidential.
While the court recognized that Danniel bore a high burden to overcome the presumption of openness and disclosure of public records, it said evidence showed that Daniel expected his communication would be confidential and that the state officials he dealt with also recognized the need for secrecy. The court also said that some of the information that Danniel provided to the state constituted trade secrets, the release of which would injure the developer.
[Randy Danniel, Iowa Logistics Development Co. Inc. v. Iowa Economic Development Authority and State of Iowa. Progress Iowa, Intervenor, Case No. EQCE076937. Lee County Economic Development Group Inc. v. Iowa Economic Development Authority, Iowa Governor Branstad’s Office and State of Iowa. Progress Iowa, Intervenor. Case No. EQCE076994. Ruling on Requests for Injunction in the Polk County District Court of Iowa]
Polk judge denies summary judgment in former DCI agent’s records case
A Polk County judge in January denied requests for summary judgment in the case of a former Division of Criminal Investigation agent who claims the state improperly released his personnel records.
Larry Hedlund sued the Iowa Department of Public Safety for wrongful termination. He alleges he was fired in retaliation after he complained that a state trooper was speeding while driving Gov. Terry Branstad in 2013. The governor later asked former Iowa Supreme Court Chief Justice Louis Lavorato to conduct an independent investigation into Hedlund’s dismissal. As part of that investigation, Lavorato was given access to documents from Hedlund’s personnel file, which is allowed to be kept confidential under Chapter 22.7(11). Even though Lavorato signed a non-disclosure agreement, Hedlund claims that the Department of Public Safety violated the public records law when it released his personnel records.
Both plaintiff and defendant in the case asked Polk County District Court Judge Lawrence McLellan for summary judgment, but he denied the motions.
[Larry R. Hedlund v. Records Custodian, Iowa Department of Public Safety, Case No. EQCE074849 in the Polk County District Court of Iowa]
Student newspaper staff sues community college, administrators
Staff members of the Muscatine Community College student newspaper, The Calumet, have sued the institution and officials for violating their First Amendment rights.
The lawsuit filed in May claims that interim dean Rick Boyer demanded that the student journalists seek permission before publishing faculty members’ photos. Jim Compton, the newspaper’s adviser, said that when he met with Dean Gail Spies to discuss the demand, she supported the prior restraint and threatened retaliation if the newspaper ran a story about the situation. The Calumet ran the story anyway. Within a week Compton was removed as adviser and replaced with a part-time adjunct. The lawsuit also claims that the newspaper classes were rescheduled at a more inconvenient time for the students.
Muscatine Community College has denied the claims. The plaintiffs are being represented pro bono by a Chicago law firm. Iowa law protects students at public schools from prior restraint.
[Mary Mason, Jessica Gomez, et al v. Bob Allbee, Don Doucette, Gail Spies, Joan Kindle, Deb Sullivan, Board of Trustees of Eastern Iowa Community Colleges and Muscatine Community College, in the U.S. District Court for the Southern District of Iowa]
Judge refuses to dismiss ISU students’ First Amendment lawsuit
Federal Judge James Gritzner in January denied Iowa State University’s motion to dismiss a lawsuit filed by students in the campus chapter of the National Organization for the Reform of Marijuana Laws (NORML). The students claim that the university violated their First Amendment rights when it forbid them from using ISU logos on the organization’s T-shirts. ISU argues that it is a trademark issue, but the students say they are being discriminated against because of their support for legalizing marijuana, a political issue. They say that even the campus bondage club was allowed to use ISU logos on their T-shirts.
[Paul Gerlich and Erin Furleigh v. Steven Leath, Warren Madden, Thomas Hill and Leesha Zimmerman, in the U.S. District Court for the Southern District of Iowa]
IFOIC seeks expanded access to electronic court records for journalists
The Iowa Freedom of Information Council has begun discussions with the Iowa judiciary to allow journalists expanded access to electronic court records. The judiciary this year completed the statewide rollout of its Electronic Data Management System that allows electronic filing of court records and statewide access to those records. However, access thus far has been limited to lawyers and real estate abstractors.
The IFOIC has written to the Supreme Court that allowing journalists wider access to electronic judicial records would help them provide a “better, faster and more complete job” of reporting on the courts and would benefit the public.
IN THE LEGISLATURE
Legislators in 2015 debated but did not pass bills that would have shielded firearms permits and police body camera footage from public scrutiny, but lawmakers did pass laws that affect access to court records.
Passed:
• Criminal records: Senate File 385 allows a motion to expunge all records in a criminal case 180 days after the defendant has been acquitted of all charges or the charges have been dismissed. If the defendant was the victim of mistaken identity, the motion to expunge can be filed immediately. The record in a criminal case expunged in this matter is a confidential public record under Chapter 22.7.
• Juvenile records: SF 292 amends Chapter 232, making confidential juvenile court records when the case is dismissed or there is an informal adjustment where no petition is filed (no formal delinquency proceeding). Such records are available only to a limited class of people, including the child’s attorney or guardian ad litem, court staff, the county attorney and the superintendent of the child’s school district.
• Data processing software: Chapter 22 was amended by SF 435 to clarify that a government body can charge “reasonable” programming or processing costs associated with fulfilling a record request if the requester wants the record in a specific format different from that in which the record is kept.
• Access to records of closed meetings: The ombudsman and the Iowa Public Information Board will have access to the minutes and recordings of closed meetings, in order to perform their duties, under SF 457.
• Medical examiner reports: Medical examiner reports, including autopsy reports, may be released to an organ procurement organization if the deceased was an organ donor (SF 335).
Did not pass:
• Weapons permits: The Legislature spent much of the session debating changes to firearms regulation, including limiting public access to weapons permits, but the language was eventually removed from legislation.
• Police body camera footage: Three bills were filed that would have required police to use body cameras, but would have made the video generally confidential. The legislation did not advance; however, the issue is expected to reemerge next year.
• Public employee disciplinary records: HF 509 would have made public the reasons for a government employee’s dismissal, demotion or resignation in lieu of termination, but the bill faced strong opposition from public employees’ and government organizations.
• Confidentiality requests: HF 502 would have allowed any citizen to request that his or her name, address and phone number be made confidential in records of the county auditor, treasurer, recorder or assessor. The bill was approved by the House Public Safety Committee, but was not debated by the House.
WINNERS AND SINNERS
Regents discuss U of I president’s retirement deal behind closed doors
The Iowa Board of Regents in January approved University of Iowa President Sally Mason’s request to remain a tenured professor and “emeritus president” after her retirement in August, at a salary of $315,000. But the regents made the decision in closed session, citing Chapter 21.5(1)(i), which allows a closed meeting “to evaluate the professional competency of an individual whose appointment, hiring, performance, or discharge is being considered when necessary to prevent needless and irreparable injury to that individual’s reputation and that individual requests a closed session.”
This summer, the U of I search committee for Mason’s replacement met behind closed doors to select nine candidates from a pool of 46 applicants. The names of the candidates remained confidential until the finalists were selected and brought to campus. The regents voted unanimously on Sept. 3 to name business executive Bruce Harreld as the university’s next president. But the board came under fire when it was discovered that individual regents had held meetings with Harreld, but none of the other candidates, in July.
State allows secrecy in bid process, reconsidering practice
The governor’s office is reconsidering a process, reported by The Des Moines Register in July, that allows businesses to keep confidential as trade secrets some information in their bids for state contracts. The Iowa Department of Administrative Services allows bidders to submit two versions of their proposals: one for government employees and a redacted “public” version. The state as public records custodian has no say in what material is redacted. In other states, the government reviews the bids and determines what information can be kept confidential, the newspaper reported.
Gov. Terry Branstad and his advisers said in August that the state will begin to issue guidelines for businesses on what can legitimately be redacted as a trade secret. The Register also asked the Iowa Public Information Board to issue an advisory opinion on the matter.
Secret beneficiary of development deal finally identified
The mysterious beneficiary of a Clear Lake development project was identified in February as San Francisco-based pharmaceutical company McKesson Corp. The identity of the company had been kept secret for about a year, despite the fact McKesson had been promised forgivable loans and tax breaks from the city and county. Government officials claimed they had no documents that named the beneficiary of the development deal. The issue came before the Iowa Public Information Board in June 2014, but the board ruled that the developer, the North Iowa Corridor Economic Development Corp., was not subject to the open records laws because it wasn’t a government entity, even though it had received $260,000 from Clear Lake, Mason City and Cerro Gordo County.
U of Iowa withholds records related to coach’s firing
The University of Iowa has declined to release records relating to the dismissal of field hockey coach Tracey Griesbaum, claiming that the records are protected by the federal Family Educational Rights and Privacy Act (FERPA).
The Des Moines Register and other media organizations filed public records requests related to Griesbaum’s firing last year. The university declined to release records from professors Ellie Herman and Betsy Altmaier, who have served as faculty athletics representatives, claiming the records are shielded by FERPA. But Altmaier told The Register that the records she provided to the university were non-student records not covered by the law.
The university said Griesbaum was fired after athletes complained she created an environment of fear and intimidation. Griesbaum has filed a civil rights complaint with the state, claiming gender bias. The complaint is the first step in filing a lawsuit.
The Register has filed a complaint with the Iowa Public Information Board regarding the denial of records. The complaint is pending.
EXPANDED NEWS MEDIA COVERAGE
The Iowa Freedom of Information Council this year amended its procedures for handling journalists’ requests for Expanded News Media Coverage of Iowa court proceedings. The changes were in response to the overhaul of ENMC in 2014 that adapted the program to modern newsgathering and publishing technologies, such as mobile phones and social media; expedited ENMC coverage of initial appearances, and shortened deadlines for handling requests. Texts of the new IFOIC procedures, as well as the updated “Iowa Court Rules, Chapter 25: Rules for expanded news media coverage” can be found at the IFOIC website: www.ifoic.org.
Central Iowa judges and journalists met in October 2014 to discuss the amendments to the ENMC program, the most sweeping changes to the rules since their inception in 1979. About 30 jurists and journalists met at the Cub Club at Principal Park in Des Moines to discuss the new rules, online court records, cameras in federal courtrooms and the new tools that reporters use to cover the courts.
IOWA NEWSPAPERS ASSOCIATION EXECUTIVE TO RETIRE
Chris Mudge, the executive director of the Iowa Newspaper Association, has announced that she will retire in 2016. Mudge has held the position since 2009. Previously, she was INA assistant executive director and marketing director. Mudge has also been active in the Iowa Freedom of Information Council, serving as a trustee and member of the executive committee. Susan Patterson Plank, sales and marketing director of the INA’s Customized Newspaper Advertising, has been chosen to replace Mudge as INA executive director.
IFOIC MEMBER AND RETIRED PROFESSOR DIES
Longtime Iowa Freedom of Information Council member Wayne Davis of Ames died in January at age 94. Davis was an emeritus professor in the Iowa State University Greenlee School of Journalism and Communication. In addition to being an active member of the IFOIC, Davis received the Iowa Newspaper Association’s distinguished service award. He is survived by his wife, public relations professional Ferne Bonomi, also a longtime IFOIC member.