This report was prepared for the Iowa FOI Council’s annual meeting, held on Oct. 2, 2014. The report was prepared by Kathleen Richardson, who was then the council’s executive director.
Introduction
After years of advocating for the creation of the Iowa Public Information Board, a government agency charged with enforcing the state’s open meetings and records laws, some Iowa journalists were taken aback when the board ruled against the media in several high-profile complaints.
In one case, The Des Moines Register was rebuffed in its attempt to compel the Department of Human Services to release a videotape that purported to show an employee at the Iowa Juvenile Home in Toledo slamming a teenage resident’s head into a wall. The employee was fired and is facing assault charges, and the home was eventually shuttered. The state argued that the video was protected under state and federal patient confidentiality laws, even if the video was blurred to obscure the teenager’s identity. The Iowa Public Information Board agreed in a 6-3 decision in February. In March, the Register sued the board to reverse the decision.
Iowa Public Information Board
The board and its two staff attorneys — Executive Director Keith Luchtel and Deputy Director Margaret Johnson — experienced twice as many cases as anticipated in its first year of operation (July 2013-July 2014), handling 654 open meetings and records cases, including 101 formal complaints and 412 informal requests for help or information.
Some of the more high-profile cases before the board:
• An economic development agency and public officials in Cerro Gordo County said in May that they couldn’t identify the Fortune 100 company that is receiving a $9.3 million forgivable loan and a 15-year, 90 percent property tax rebate to build a warehouse and distribution center in the area. The agency and officials agreed to keep the company’s identity secret until the project is completed next year and say there are no public records that identify the beneficiary of public largesse. Des Moines Register reporter Lee Rood asked the IPIB to rule that the economic development agency documents were covered by the Iowa open records law, but the board decided this summer that the agency did not constitute a government body under the law, though board members condemned the excessive secrecy in the Cerro Gordo case.
• The board held its first enforcement hearing in late August against the Washington County attorney. Attorney Larry Brock had failed to respond to a public records request from a terminated county employee, and then ignored the IPIB’s communications attempting to resolve the complaint. The IPIB staff eventually obtained release of the records and recommended that the board resolve the case by fining Brock $100 and requiring him to complete remedial training. The board rejected the settlement. Brock elected to have his case heard by an administrative law judge, who ruled that he had violated the law and recommended a $1,000 fine. The board accepted the judge’s decision in its October meeting.
• The board dismissed a complaint against the city of Waterloo, even though city officials took almost two months to respond to a records request by a state representative. Rep. Dawn Pettengill had asked the board to remind the city of its responsibility to respond in a timely manner. The city said its response was delayed because employees were on maternity leave and vacation, but fulfilled the records request after the information board intervened.
• Red Oak High School Principal Jedd Sherman leveled a complaint against the Red Oak school board, claiming that it violated the open meetings law when it discussed his termination behind closed doors. The board’s attorney, Rick Engel, advised the board that it could discuss Sherman’s termination in closed session even though he sought an open discussion. While Chapter 21.5(1)(i) requires the individual being considered in a personnel matter to request a closed session, Engel cited other provisions of the open meetings law that allows closed sessions to discuss matters to be kept confidential under other state or federal law or to discuss strategy with counsel in matters are in litigation or where litigation is imminent. The IPIB staff advised the Red Oak board in February that the meetings to discuss Sherman must be public, but the board decided on closed sessions anyway. The IPIB is investigating the matter.
• The board disagreed with the Office of Ombudsman that a city had violated the notice provision of the open meetings law when it posted the agenda for a special council meeting on a board inside city hall 26 hours in advance of the meeting, but the building was open for only 11 of those hours. Iowa law requires posting 24 hours prior to the meeting “on a bulletin board or other prominent place which is easily accessible to the public,” and the ombudsman argued that the law required that the posting be accessible to the public for 24 hours.
IN THE COURTS
Register sues to obtain Taser records
The Des Moines Register settled a lawsuit against the Iowa Department of Public Safety in July. The newspaper had sued to obtain records regarding an incident in Worth County in which a man died in custody after police Tasered him multiple times. The state medical examiner ruled the death a homicide, but deputies were cleared of wrongdoing in the incident. The county said that it had given all records in the case to the state Division of Criminal Investigation, and the state argued that the Taser records were part of a law enforcement investigative file and hence permanently sealed from disclosure under Iowa law. The state eventually reached agreement with The Register to release the records.
Federal judge blocks release of Iowa sheriff’s emails
Story County Attorney Stephen Holmes was thwarted from releasing Sheriff Paul Fitzgerald’s emails regarding his role as a board member of the federal First Responder Network Authority by a federal court judge in July.
Fitzgerald had publicly criticized a $7 billion federal emergency communications network, alleging some authority members had conflicts of interest because of ties with wireless carriers. A reporter for the investigative reporting website Politico had requested copies of Fitzgerald’s emails on the subject, made from his county email account, and county attorney Holmes had said the correspondence was public record under Iowa open records law. Federal officials went to court to stop the release of the records, citing federal confidentiality provisions. U.S. District Court Judge James Gritzner blocked the release of the emails, ruling that the emails belonged to the federal government, even though they had been made using a county email system, because Fitzgerald sent them in his capacity of a federal board member.
A subcommittee of the board is working this summer on several proposed changes to the Iowa open meetings and records laws that would address longstanding issues. One proposal would amend the definitions of a governmental body and a meeting in Chapter 21 to clarify which governmental subcommittees and task forces are subject to the law. A second proposal would require that notice of governmental meetings be continuously accessible to the public for 24 hours prior to the meeting. A third recommendation would amend the public records exemption for police investigative reports to open the records once the case is no longer active. Board members are meeting with constituencies that would be affected by these legislative changes and will make final recommendations to the full board this fall.
State senator loses defamation lawsuit over campaign ad
The Iowa Supreme Court in May reaffirmed that public officials and figures face a higher burden in defamation lawsuits.
Rick Bertrand, a Republican state senator from Sioux City, sued his 2010 election opponent, Rick Mullin, and the Iowa Democratic Party after the Democrats ran a campaign ad that tied Bertrand to a controversial sleep aid marketed by his one-time employer, a Japanese pharmaceutical company. Bertrand argued in his defamation lawsuit that he was not involved in marketing the drug and worked in a different division of the company. A jury in 2012 awarded Bertrand $231,000, and he promoted the decision as the first step in cleaning up American politics.
The Iowa Supreme Court reversed the decision, ruling that Bertrand could not prove that the defendants acted with “actual malice” — knowledge that the ad was false or with reckless disregard for falsity — and indicating that ruling otherwise would stifle political speech protected by the First Amendment. [Bertrand v. Mullin, No. 12–0649, May 16, 2014]
Court rules in favor of former superintendent in case of salacious emails
Ex-Des Moines school superintendent Nancy Sebring won the first battle in her legal war with her former employer when a Polk County district court judge ruled in March that the district improperly released her sexually explicit email correspondence with a lover.
Sebring was forced to resign prematurely, and lost another job with the Omaha school district, after Des Moines officials released sexually explicit emails that she had exchanged with a lover via a government email address and computer. Sebring sued the Des Moines district, claiming that the release of the emails violated her privacy, inflicted emotional distress and interfered with her employment contract with the Omaha Public Schools. The Des Moines district sought summary judgment dismissing the case, arguing that the Iowa public records law required it to release the emails in response to media requests for Sebring’s correspondence.
Polk County District Judge Glenn Pille allowed the lawsuit to continue, ruling that the embarrassing emails were public record, but were confidential under an exception that shields government employees’ personnel records, because the district “treated the emails as a source of disciplinary action and evidence of employee misconduct.”
Dismissed Warren County employees allege open meetings violations
Warren County employees whose jobs were eliminated in a cost-cutting move this spring have accused the Board of Supervisors of violating the open meetings law by not discussing the reorganization in open session.
Six of the 11 employees who were terminated sued the county. During the trial in late July, the county administrator admitted deliberately avoiding talking to a quorum of the supervisors at one time about the dismissals in order to skirt the meetings law. The reorganization plan was not made available to the public until a few minutes before a special meeting in April. By that time, the county had already issued the severance packages and hired vendors to take over the fired employees’ responsibilities.
District Judge Mary Gunderson is expected to rule in the case this fall.
Judge reverses himself, unseals lawsuit against Ankeny police
Polk County District Judge Michael Huppert changed his mind in July about granting a plaintiff’s request to seal her lawsuit against the Ankeny Police Department.
The plaintiff, a police informant known in court documents only as “Jane Doe,” is suing Ankeny police, claiming they failed in their duty to protect her when she was raped during an undercover assignment. The plaintiff’s attorney, Roxanne Conlin, had asked Huppert to seal the lawsuit for the safety of her client, and he complied. However, Huppert reversed his order after a Des Moines Register reporter obtained a copy of the lawsuit and wrote about it. Legal experts had said sealing a lawsuit against a government agency is unusual and rarely appropriate.
In September, the Ankeny Police Department asked Huppert to make public the plaintiff’s name, arguing that she shouldn’t be allowed to remain anonymous while pursuing damages through the judicial system and that her alleged assailant already knew her identity.
Winners and sinners
• The Muscatine County Board of Supervisors passed a records retention policy in April that declared that the county would no longer archive county email on county servers. Individual employees or officials can make arrangements to back up email on their own machines. County attorney Alan Ostergren indicated that the new policy was a reaction to records requests by The Des Moines Register related to a situation in which a jailer used his Taser four times to shock a mentally disabled woman to force her to change her clothes.
• West Des Moines issued a news release named a new city manager in January without public discussion or a vote. Mayor Steve Gaer said that Tom Hadden, the Metro Waste Authority executive director, was the only person interviewed because the council considered him perfect for the job.
• Seven Lee County residents sued three county supervisors in September, accusing them of violating the state’s open meetings law. Supervisors Ernest Schiller, Rick Larkin and Ron Fedler were accused of holding secret meetings to discuss consolidating the Lee County courthouses, currently in Keokuk and Fort Madison, in Fort Madison.
Expanded News Media Coverage rules updated
The Iowa Supreme Court this spring instituted the most sweeping changes to its rules for Expanded News Media Coverage since the program was adopted in 1979.
The amended rules were designed to reflect changing communications technologies and newsgathering practices. Beginning May 1, journalists are allowed to provide live coverage of Iowa court proceedings using such techniques as texting, Tweeting and blogging, and mobile technologies like smart phones and tablet computers.
In addition, the definition of “news media” representatives allowed to participate in electronic coverage of the judiciary is broadened to include non-mainstream journalists.
The changes are the result of a yearlong review of Chapter 25 of the Iowa Court Rules by a committee that included journalists, judges, a county attorney, a court administrator and a private practice attorney. Iowa Supreme Court Justice Bruce Zager chaired the committee. The court and committee received public comment on the proposed changes and incorporated suggestions into the final recommendation.
“The amended rules continue to allow transparency of court processes while not disrupting court proceedings or interfering with individual rights,” according to the court order changing the rules.
The Supreme Court sent information about the changes to judges around the state, and the Iowa Freedom of Information Council, the central coordinator of Expanded News Media Coverage, worked with its regional coordinators to educate journalists about the updated rules and procedures.
The new rules have been implemented with few problems overall, though there were several cases in Scott County in which confusion arose about the fact that ENMC, including live text coverage, is still not allowed during jury selection.
In early July, Scott County District Judge Henry Latham initially ruled that reporters covering jury selection in a drug case not only could not identify themselves by wearing badges and could not do live electronic reporting, but also could not take notes or report on the proceeding.
Latham amended his order after an appeal from the Quad-City Times, which argued that Latham’s ruling violated the First Amendment. Latham eventually allowed members of the news media to take notes and write about jury selection in the trial of three family members accused of manufacturing and possessing marijuana. The case was of public interest because one of the defendants suffered from terminal cancer and claimed that the marijuana use was medicinal.
Judge threatens photographer with contempt
A Fayette County judge threatened to hold a weekly newspaper photographer in contempt of court after the journalist took photos in the courthouse without permission.
In early August, Jerry Blue took photos of deputies transferring Oelwein Mayor Jason Manus to an initial hearing on charges of child sex abuse. However, Blue had not consulted with court personnel and was not wearing a badge identifying himself as a member of the news media. While the new ENMC rules allow journalists to photograph initial appearances without applying through the regional coordinator, they are required to ask permission of the judge and identify themselves. Judge Joel Dalrymple told Blue that if he published the photos he would be held in contempt of court.
Judge Richard Stochl later in the month lifted the ban and gave the Fayette County Union permission to run the photos.
IN THE LEGISLATURE
The 2014 legislative session was a relatively quiet one, as far as freedom of information issues were concerned. Among legislation that passed:
• Language was added to state budget bills that said that any appropriated monies could not be used to fund confidentiality agreements with dismissed state employees. The settlements became an issue during the session when The Des Moines Register reported that state agencies were paying fired state employees extra if they agreed to not discuss their settlement agreements. Gov. Terry Branstad and his staff said they knew nothing of the confidentiality agreements, and the director of the Iowa Department of Administrative Services lost his job over the controversy. Recess legislative hearings also looked into the matter.
• House File 2278 prohibits the disclosure of personal information on Des Moines Area Regional Transit Authority ridership cards. Aggregate ridership data remains open.
• Information obtained by a drone is not admissible as evidence in a court proceeding unless it is obtained pursuant to a search warrant, according to House File 2289.
• A provision in the Agriculture and Natural Resources budget bill shields the identities of property owners or managers and the locations of properties in certain water quality reports. The bill does not preclude access to aggregate data from the demonstration projects to reduce nutrients in certain watersheds.
• Senate File 383 requires courts to automatically schedule hearings to seal juvenile delinquency records two years after the last action in a juvenile delinquency case or when the child turns 18, whichever is later. Currently the hearing must be requested by the child.
• Current public records law makes confidential the email addresses of people who sign up to receive routine information and notices. Senate File 2232 adds phone numbers and personally identifiable information.
OMBUDSMAN’S REPORT
The Office of Citizens’ Aide officially changed its name to Office of Ombudsman in July 2013. While the new Iowa Public Information Board has assumed responsibility for recent issues related to Chapters 21 and 22 of the Iowa Code, the ombudsman’s office still is involved in some cases involving access to government information:
• The ombudsman’s office has been involved in an ongoing disagreement with the attorney general’s office over whether the ombudsman has legal authority to examine records of closed meetings.
• The ombudsman’s staff dealt with a recalcitrant north-central Iowa mayor who was reluctant to release financial records to a member of his own city council. The ombudsman’s office worked with the city attorney and provided open meetings and records training in efforts to resolve the situation.
• A city council repeatedly added items to agendas at the beginning of meetings, though Iowa law allows such additions only in emergencies. City officials said they did not realize they were violating the law, and agreed to participate in training.