The State of Freedom of
Information in Iowa 2013
By Kathleen Richardson,
executive secretary
Iowa Freedom of Information Council
A report prepared for the Iowa FOI Council’s
annual meeting, Oct. 3, 2013
INTRODUCTION
The highly anticipated and much watched Iowa Public Information Board opened for business in July 2013 after a year of rule making, hiring staff and setting up shop. The board’s plate immediately started to fill as a pent-up demand for its legal resources became apparent.
The nine-member volunteer board — comprised of representatives from media, government and the public — hired Keith Luchtel, an attorney and former lobbyist for the Iowa Newspaper Association and Iowa Broadcasters Association, as its first executive director. Margaret Johnson, former Fremont County attorney, was hired as deputy director. Cindy Meyerdirk was hired as administrative assistant.
Among the activities of the IPIB in 2012 and 2013:
- Board members met once a month, beginning in July 2012. Subcommittees met more frequently.
- Board chair Bill Monroe and other IPIB members traveled the state, meeting with constituencies from journalists to government officials. They reported being warmly received, even by groups that had been initially opposed to the creation of the board, because they see the potential value of a free and consistent source of legal advice for access issues.
- The board wrote, held public hearings on and approved its administrative rules and procedures, and wrote an ethics and conflict of interest policy.
- A board subcommittee created a website, with information about Chapters 21 and 22 and forms for filing requests for information and also formal complaints. The site can be found at: ipib.iowa.gov.
Among the legal issues that the board dealt with in its first months:
- The board drafted a formal advisory opinion to the Iowa Civil Rights Commission that settlement agreements resolving complaints should be open records in most circumstances. However, the board was forced to revisit that opinion after the commission provided more information that indicated that a working agreement between the commission and the federal Equal Employment Opportunity Commission would forbid disclosure of certain information contained in conciliation agreements.
- The board informally advised that a city council member’s private Facebook page fell under the open records law when it was used for public business.
- The board accepted two complaints submitted by The Des Moines Registerinvolving records requests about operation of the Iowa Juvenile Home and a request for a declaratory order from the Register regarding the legality of overtime fees charged for a public records search.
- Formal open meetings complaints were also received about the Story County Board of Supervisors, the Osceola County Public Safety Commission, and the Linn County Board of Supervisors.
- State Rep. Charles Isenhart asked the board to take action to require a task force created by the Dubuque County Board of Supervisors to comply with the open meetings law.
The board’s jurisdiction is limited to issues involving Chapters 21 and 22, the Iowa open meetings and records laws, and to addressing complaints submitted within 60 days of an alleged violation of the law. The board has the authority to give informal and formal advice, issue declaratory orders with the force of law, attempt to mediate disputes, and enforce the law through contested-case proceedings under the Administrative Procedures Act. Communication with the board is public record, unless the communicator requests confidentiality and the board grants it pursuant to an exception in Chapter 22.7.
The board will also conduct training and disseminate information about open meetings and public records. It co-hosted a symposium on government openness with the University of Iowa on Oct. 3 that addressed transparency issues at the University and examined transparency in the digital age.
The board is also discussing potential recommendations to the Legislature regarding changes to the open meetings and records laws that would clarify when advisory groups of government bodies are subject to the meetings law, whether charging of overtime fees to fulfill records requests is “reasonable,” and under what circumstances record custodians may exercise their discretion to release otherwise confidential records.
The initial board members are:
- Robert Andeweg, Urbandale mayor
- Tony Gaughan, Drake University law professor
- Jo Martin, vice president of Times-Citizen Communications
- Andy McKean, Anamosa attorney and former legislator
- Gary Mohr, Bettendorf community college administrator
- Bill Monroe, retired executive director of the Iowa Newspaper Association
- Kathleen Richardson, executive secretary of the Iowa FOI Council
- Suzan Stewart, attorney for MidAmerican Energy Co.
- Peggy Weitl, Carroll County treasurer
Regents Transparency Task Force recommends public hearings, changes in records request processes
In response to criticism of lack of openness at both the Board of Regents and the public universities (see the rest of this report for details on a string of incidents), the Regents named a transparency task force in February. The task force was charged with recommending best practices for responding to public information requests and also for providing additional access to public information.
The 11 committee members included representatives from the three state public universities, the Board of Regents and its staff, the public, the new Iowa Public Information Board and two legislators. The task force met three times during the spring and summer, and held a series of public hearings around the state. The public hearings were dominated by testimony from members of Iowa Citizens for Community Improvement, who expressed concern about corporate influence and conflict of interest on the Regents and at the state universities.
The task force’s recommendations, submitted in August, included:
- Each of the Regents institutions and the board itself appoint a transparency officer to track and ensure compliance with public records requests, including posting records requests on the web.
- Each Regents institution and the board hold a public comment hearing prior to each board meeting to allow opportunity for comment on issues affecting the board and the upcoming agenda.
- Require that academic program closures occur only at in-person meetings of the Regents.
- Provide each board member with a state email account.
- Establish a transparency data page on each institution and board website.
Gartner sues Iowa Public Radio
Michael Gartner — former president of the Board of Regents, former editor of the Ames Tribune and a member of the Iowa Freedom of Information Council — filed two lawsuits against the Iowa Public Radio this spring, claiming that the IPR board twice violated the Iowa open meetings laws. IPR board officials held a closed-door session in December 2012 to discuss the job performance of chief executive Mary Grace Herrington, who was subsequently fired in a closed meeting in February 2013. Iowa open meetings law allows a closed session to discuss job performance, but only when the employee requests the closed session and confidentiality is necessary to prevent needless and irreparable damage to the individual’s reputation. When challenged, the IPR board argued that it was not legally required to comply with the open meetings law. In May, the Iowa Attorney General’s Office said in an informal opinion requested by state Sen. David Johnson that IPR was subject to open records law and “likely” required to comply with meetings law. The Iowa Board of Regents, which created IPR to run the state’s public radio station, in June approved an operating agreement with IPR that requires the station to adhere to the state’s sunshine laws. The agreement runs through June 30, 2019.
[Gartner and IPR have subsequently settled the lawsuits, with IPR agreeing to run public service announcements about the Iowa Public Information Board and pay Gartner’s attorney fees.]
ISU refuses to release details of NCAA violations
Iowa State University this spring announced that it reported 79 infractions of the National Collegiate Athletic Association rules regarding phone calls to recruits between 2008 and 2011. But the ISU athletic department refused to respond to media requests to provide details of the infractions, including identifying specific sports or individuals who made calls that violated NCAA rules. Some details were finally released in September when the NCAA reported its decision regarding sanctions.
DCI agent’s firing leads to call for change to personnel exception
Department of Criminal Investigation agent Larry Hedlund was put on leave shortly after he reported Gov. Terry Branstad’s trooper-driven vehicle speeding on a state highway in April. Hedlund was fired in July, but the state insisted that his dismissal was the result of a longstanding disciplinary investigation and had nothing to do with his whistleblowing about the governor’s speeding.
The Iowa public records law was implicated when Branstad complained that the state couldn’t release Hedlund’s disciplinary report to clear up the matter, because of an exception in Chapter 22 that makes confidential “personal information in confidential personnel records” of government officials and employees. Hedlund’s attorney refused to release the report because he said it was erroneous and defamatory.
Branstad then appointed retired Iowa Supreme Court chief justice Louis Lavorato to investigate the situation. The governor also called for a change in the law that would allow record custodians the discretion to release personnel information.
Lavorato’s report, released in August, said there was no direct evidence the governor’s office was involved in Hedlund’s dismissal.
Former D.M. school superintendent sues over release of explicit emails
Nancy Sebring, who quit her job as superintendent of the Des Moines public schools in 2012 after it was discovered that she had sent sexually explicit emails to a lover via government computers and email account, sued the district, two district employees and a member of the school board in June over the public release of those emails.
In her lawsuit, Sebring claims that her correspondence was “purely personal and private emails disclosing intimate details about her personal life,” and that Teree Caldwell-Johnson, then president of the school board; school district spokesperson Phil Roeder, and district attorney Patricia Lantz released the emails “with malicious intent to harm and punish Sebring and to cause her severe embarrassment, humiliation and emotional distress.” Sebring claims that the scandal has so damaged her reputation that her career is a “shamble” and she can’t get a job.
Sebring has sued for invasion of privacy, intentional infliction of emotional distress, and interference with contract. Sebring had been slated to become superintendent of the Omaha school district, but the job fell through after her racy emails were released in response to public records requests from the Omaha World-Herald and The Des Moines Register. Sebring’s lawsuit alleges that district insiders who knew about the emails leaked the information to The Register.
In another lawsuit related to Sebring’s resignation, the American Civil Liberties Union of Iowa has sued the district on behalf of former school board member Graham Gillette, claiming that a board meeting held in May 2012 to discuss Sebring’s departure was closed illegally. Polk County District Court Judge Karen Romano reviewed the audio tapes and minutes of the closed meeting and in July ruled that the school board did go off-topic several times during the meeting, and those portions of the meeting should be made available to the plaintiffs. Iowa open meetings law says that officials “shall not discuss any business during a closed session which does not directly relate to the specific reason announced as justification for the closed session.”
The selection in March of Sebring’s successor as superintendent in Des Moines was also criticized for its lack of transparency. None of the candidates were identified except the three finalists, and closed screening interviews were held in a warehouse while a reporter was watched by a guard in a separate office. The board met in closed session to discuss its selection, then announced its choice at a press conference and in a news release without any public discussion or vote. During the late-night closed session, board members left the meeting room, telling a waiting reporter that they were just “taking a little break,” but then sneaked out of the building. When they tried to resume the meeting the next day, they had to be reminded that the open meetings law requires them to post new notice if the recess lasts for more than four hours.
Additional exceptions added to public records law
The Legislature was relatively quiet on the open meetings and records front this year, but three exceptions were added to Chapter 22, the public records law. Among action:
- 22.7(62), the exception addressing the Iowa Department of Aging, was amended to comply with a federal law mandating confidentiality of client records.
- An exception was added for electronic medical information that drivers will voluntarily provide to the Iowa Department of Transportation to imbed on their licenses to allow first responders to know serious health issues in case of emergency.
- An exception was added that would allow government agencies to keep confidential their email lists for mass emails that they send out with routine information and notices. The exception is meant to shield the email addresses of people who sign up for email alerts from being released to commercial interests or spammers.
- An exception was added that provides confidentiality for the details of bills submitted by lawyers for work done for the state public defender’s office for indigent defense.
- A new Code section, 331.339, explicitly states that the new Mental Health and Disability Services Regions, which are replacing county mental health services, are subject to the sunshine laws.
Among legislation that failed to pass was a bill that would have kept confidential the identities of the holders of gun permits; efforts to expunge court records when a criminal charge is dismissed or a person is acquitted, and a bill that would have placed additional transparency requirements on the Board of Regents. Anti-bullying legislation was also introduced that would have given schools the authority to punish students for offensive comments written on social media outside of school. The proposal was criticized as violating students’ First Amendment right to free speech.
Also during the session, the office of Citizens’ Aide/Ombudsman and the attorney general’s office were at odds over access to tapes and transcripts of closed meetings of government bodies. The ombudsman’s office supported legislation that would make it clear that it has access to the material from closed meetings, arguing that it needed the recordings and transcripts to fully investigate citizen complaints about government agencies and boards. The attorney general countered that allowing access to closed-door transcripts would encourage second-guessing of volunteer boards.
D.M. Register reports disclose harsh treatment at Iowa Juvenile Home
A series of articles this year by Des Moines Register investigative reporter Clark Kauffman showed harsh treatment of youths confined at the Iowa Juvenile Home, including instances when teenagers were forcibly restrained and kept in isolation rooms for months at a time.
The Register has wrestled with the Iowa Department of Human Services and the attorney general’s office over release of records related to the home. The DHS has refused to release security camera footage that allegedly shows youths being mistreated by staff members. The state has claimed that the restraints and isolation rooms could be considered part of the “mental health treatment” received by the children. Four workers at the juvenile home have been fired as a result of investigation of abuses.
The Register claimed in September that the attorney general’s office was attempting to block access to information about previously undisclosed allegations of abuse. TheRegister received electronic copies of records related to the home and was able to access redacted information that detailed denial of substance-abuse treatment and violent encounters between staff and juveniles. The Register reported on the redacted content, but did not include the names of the youths.
In the courts
Supreme Court says volunteer commissioners immune in open meetings case
The Iowa Supreme Court ruled in June that volunteer members of a regional planning commission were immune from personal liability for admitted violation of the open meetings law because the violation was not intentional.
The Upper Explorerland Regional Planning Commission, which serves a five-county area in northeast Iowa, in 2009 studied whether to expand the Postville post office or locate alternative space elsewhere in the region. The commission conducted a secret vote in September 2010 to buy property in Decorah. Immediately after the vote, members questioned the legality of the vote. (Iowa open meetings law requires all final action to be taken in open session.) The office of citizens’ aide/ombudsman advised the commission to hold a second vote via written ballot, which the agency did.
The city of Postville and a Postville resident sued the commission, alleging various violations of Chapter 21. The commission admitted violations related to the September 2010 secret vote, but denied the rest of the allegations. Among the relief sought, the plaintiffs wanted each individual commission member to be fined $500 and 11 commissioners to be removed.
The Iowa Supreme Court said that even though the Iowa open meetings law provides for fines for members of governmental bodies who violate the law, a separate section of the Iowa Code, 28H.4(2), provides immunity for citizens who volunteer to serve on government councils. The Court said the volunteers are not personally liable unless the violations were intentional or knowing, or the person derived improper personal benefit.
However, the Court left the door open to further examination of the issue, noting that the plaintiffs argued that this immunity does not apply to open meetings violations, but did not properly raise this issue in the district court.
The Postville plaintiffs also claimed the commission did not provide adequate meeting notice and violated the publication law. The Court rejected the publication claim, but sent the notice issue back to the trial court for further determination. [City of Postville v. Upper Explorerland Regional Planning Commission, No. 12-1002, June 7, 2013.]
Supreme Court rules in ‘libel per se’ case
The Iowa Supreme Court ruled in January that Internet publishers should be afforded the same protections in defamation lawsuits as other media defendants, but declined to change Iowa law that recognizes libel per se and distinguishes between media and non-media defendants. Libel per se involves those statements considered so clearly defamatory that malice need not be proved.
The case involved a self-published memoir in which the author claimed that his ex-wife had been molested by her father as a child and suffered from bipolar disorder as a result. The ex-wife and her father sued both the former husband and his Internet publisher, Author Solutions, for libel, invasion of privacy and intentional infliction of emotional distress. A trial court had granted summary judgment to the plaintiffs on the defamation claims, ruling that the published statements were libel per se, or libel “on the face of it,” and that because the defendants were not members of the mainstream media, they were not protected by the First Amendment safeguards laid out in the landmark U.S. Supreme Court caseNew York Times v. Sullivan. The defendants were supported in their appeal by an amicus brief filed by the Iowa Freedom of Information Council and seven media organizations.
The Supreme Court established a two-part test for determining whether an entity is a publisher and media defendant: “a person or entity whose regular practice is to (1) receive written materials prepared by a number of third parties and (2) make finished products from the materials that are designed to be more suitable and accessible for the public to read.” The Court said that Author Solutions could be considered a media defendant and as such should have been granted summary judgment on both the defamation and false light claims because it could not be found liable for libel per se. [Bierman v. Weir and Author Solutions Inc., No. 10-1503, Jan. 18, 2013]
Supreme Court rules Dyersville violated public records law
The city of Dyersville violated the public records law when it took more than two months to fulfill a records request, the Iowa Supreme Court ruled in July.
The case involved a construction supply business that fought with Dyersville after being denied the opportunity to submit a bid for a wastewater treatment facility project in 2010. Part of the resulting lawsuit involved the business’ claim that the city violated the public records law by failing to respond to a request for records in a timely manner: the city took from approximately Jan. 25, 2010, to April 6, 2010, to produce 617 pages.
The Supreme Court said that “there is no explicit time deadline in Chapter 22 for the production of public records when requested.” The law places a 20-day time limit on a “good faith, reasonable delay” in producing records in certain circumstances, such as to determine whether the record is a public or confidential record. The Iowa Uniform Rules on Agency Procedure say that record custodians should respond to requests “promptly,” though “the size and nature of the request” can be taken into account.
While the Supreme Court declined to set a standard for compliance, because it was not an issue on appeal, it referred to Dyersville’s handling of the plaintiff’s record requests as “troubling” and “unsatisfactory,” even though the amount of material requested was voluminous. [Horsfield Materials Inc. v. City of Dyersville, No. 12-0491, July 5, 2013]
Story County district court enjoins ISU from disclosing research results
A Seattle law firm, the New York Times and others sought results for tests that an Iowa State University professor had done as a private consultant for Beef Products Inc. But the district court for Story County ruled in March that the work, while public record because it was in the custody of the university, was exempted from disclosure because it qualified as confidential business information and could be used by competitors to steal BPI’s trade secrets. The court also said that there was no public interest in disclosure, but involved “the university’s providing laboratory testing services for a fee to a private entity.” [Beef Products, Inc. v. Iowa State University of Science and Technology, Iowa District Court for Story County, March 13, 2013]
Expanded Media Coverage
A task force of lawyers, journalists and judges submitted recommendations to the Iowa Supreme Court this summer that would amend the Court’s Rules for Expanded Media Coverage to reflect changing technologies and newsgathering practices, such as live streaming, blogging and Tweeting. Among the issues the committee addressed was changing the definition of “news media” for purposes of who can participate in EMC; changing EMC procedures, especially as regards initial appearances in criminal cases, and amending the technical aspect of the Rules to allow for use of mobile electronic devices in the courtroom. The Court will post the recommendations for public comment.
Winners and sinners
- A report by The Des Moines Register in March showed that sheriffs in O’Brien and Woodbury counties were destroying gun permit applications after they were processed. A Woodbury County official explained that officials didn’t want to be responsible for the record, which is public under state law.
- University of Iowa surgeon John Chaloupka was identified in March as the University Hospitals employee who resigned after being embroiled in a lengthy disciplinary dispute involving another employee. Radiologist Malik Juweid had sued the university, claiming he was the victim of racial discrimination and defamation, among other claims. Chaloupka, who directed interventional neuroradiology at U of I Hospitals and Clinics, filed an affidavit supporting Juweid’s lawsuit, but subsequently resigned after being stripped of key duties. He sued as “John Doe” in 2011 to prevent the release to journalists of records that would have identified him in the case. Two courts subsequently ordered the records related to Chaloupka released, and the settlement agreement released this spring identified him. The Associated Press is attempting to recover its legal fees from the state, claiming that the university violated the public records law in refusing to release the settlement agreement even after being ordered to do so. The attorney general’s office encouraged the judge hearing the AP’s request in September to ignore its own longstanding “Sunshine Advisories” that settlement agreements are public records. [Iowa Court of Appeals, John Doe v. University of Iowa and the Associated Press, No. 2-1003, Jan. 9, 2013]
- The Des Moines Register reported in February and March on the University of Iowa’s longstanding but unannounced practice of investigating students, staff and faculty who had applied for gun permits. University officials had been providing the Johnson County sheriff with confidential academic and personal information about students who had applied for the permits, but suspended the record sharing after it was questioned as a possible violation of educational privacy.
- Gov. Branstad has continued to assert that “workgroups” created by his office to provide advice are not subject to the open meetings law. Chapter 21 requires any “advisory board, advisory commission or task force” created by the governor or Legislature to develop public-policy recommendation to meet in open session. Branstad has maintained that the requirement doesn’t apply to his “workgroups.”
- Iowa’s prisons have 86 policies that they maintain are “confidential,” without citing specific exceptions, according to a report published in January by The Des Moines Register.The report was part of an investigation into the state’s use of physical restraints on pregnant inmates, which was criticized as a potentially dangerous practice. Some of the policies that Iowa’s Department of Corrections keep secret are routinely made available to the public by federal prison officials. The department said it would review its policies to determine whether all of them really warrant secrecy.
- Faculty and staff at the University of Iowa’s College of Education complained in December 2012 that Provost P. Barry Butler and university general counsel Carroll Reasoner told them to destroy survey results that documented dissatisfaction with education dean Margaret Crocco. Faculty said they were told that if they didn’t comply, the university would not protect them legally if someone should file a lawsuit related to the situation. The provost denied destroying the records, but said he collected copies of the documents.
- The Ankeny City Council backed away from a decision to build a casino in the Des Moines suburb after citizens responded angrily to the hasty vote in November 2012. The city had posted a meeting agenda that did not include the casino vote, but amended the agenda 24 hours and three minutes before the meeting was to begin to include the contract. (Iowa law requires 24-hour posting of the agenda for an open meeting.) The council voted to approve the memorandum of agreement with Wild Rose Entertainment after a 15-minute presentation and a brief discussion. A few days later, the city pulled out of the agreement.
Ombudsman’s report
The Office of Citizens’ Aide/Ombudsman reported receiving 331 complaints and requests for information related to Chapters 21 and 22 in 2012. Among the issues the office addressed:
- A small town that failed to publish or post its minutes, as required by Iowa Code. The city erroneously believed it didn’t have to publish minutes because the community had no newspaper.
- A woman who was denied her request for copies of dashboard-camera videos from police cars that had accompanied her to retrieve items from her ex-husband. Local police refused to release the videos, citing privacy concerns of the ex-husband.
- A county conference board that failed to record the vote of each member present for an action item and broke into groups in a way that made it difficult for the public to monitor discussion.
- A police chief who refused a reporter’s request for records on an assault that involved juveniles.
- A national publication that complained when a county sheriff wanted to charge $5 apiece for copies of mugshots.
The ombudsman’s office also worked with the Iowa State Association of Assessors to draft a model policy that would provide guidance on fees for fulfilling records requests.
While the Iowa Public Information Board has authority to respond to issues related to Chapters 21 and 22 going forward, the ombudsman’s office envisions a continuing role in handling questions and complaints related to government transparency, including records retention, publication of minutes and alleged violations that are older than 60 days.
The office’s complete report can be found at www.legis.iowa.gov/ombudsman/
National survey ranks Iowa 19th in openness
The Better Government Association, a nonpartisan government watchdog group, ranked Iowa 19th in overall openness in its “Integrity Index,” released in July.
The 90-year-old, Chicago-based nonprofit compared all 50 states’ laws against “best practices” in the areas of open meetings, freedom of information (public records), whistleblower protection and conflict of interest. The last “Integrity Index” was conducted in 2008.
No state scored 100 percent, with the average total score of all states being 55 percent. Rhode Island scored highest overall with 70 percent and Montana ranked lowest with 28 percent. The association said that states have been slow to address changing technology and electronic access to information.
Iowa’s scores in the “Integrity Index”:
Total score: 58.32%
FOIA (records): 51.8%
Open meetings: 45.5%
Whistleblower protection: 71.9%
Conflict of interest: 64.1%
Some of the factors considered in the grading: procedures for accessing public records, barriers to access and penalties for denying requests; public information required about government meetings and hurdles to citizens bringing action about violations; filing requirements for financial disclosure by public officials and employees, and public accessibility to that information.
The complete report can be found on the Better Government Association website.