March 13, 2016

IowaWatch Sunshine Week Report: The Cost Of Uncertainty In Iowa’s Public Record Laws

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Costs and time spent defining what qualifies as an open record in Iowa are the biggest impediments to gaining access to information about how government functions and the way public money is spent.

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American Society of News Editors

The cluster of rules defining public records in Iowa can be confusing or leave room for uncertainty. When a dispute arises, fighting for access to information can incur expensive legal fees despite the creation of the Iowa Public Information Board, which took effect in 2013 and can mediate record disputes.

“I can read the code and someone in the government can read the code and we’ll both come back with different answers,” said Steve Delaney, editor and publisher of The Hawk Eye (Burlington).

The Hawk Eye is part of a legal dispute over a denied records request for information including full footage from a body camera following a fatal Burlington police shooting. The costs are in excess of $30,000 but the case is still ongoing. The newspaper has received some assistance from the Iowa Freedom of Information Council and its supporters.

Although the creation of the Iowa Public Information Board shows improvement in Iowa’s transparency efforts, the Hawkeye State still earned a lowly D+ in a government transparency report published this past November. The report was part of a survey conducted by the Center for Public Integrity and Global Integrity assessing state government transparency and accountability across 13 categories.

Read more from the State Integrity Report:

Iowa Draws A Lowly D+ In New Government Transparency Report

Iowa tied for 11th place overall, earning failing grades in judicial accountability and lobbying disclosure.

Sunshine Week, which runs from March 13 to 19 this year, brings attention to open government and public records issues.

The week-long initiative, launched in 2005 by the American Society of New Editors, focuses on the public’s right to know what government officials are doing and why and encourages education about freedom of information laws and the importance of open government.

The wording of Iowa’s open record laws earned the state slightly lower scores on a number of the State Integrity survey questions. The reason: there was no law specifically requiring a record in question to be made public. Instead, Iowa’s law functions under a presumption that a record is open unless it is listed in the Iowa Code as a confidential record.

Johannes Tonn, a research manager with Global Integrity who worked on the survey, said states generally have a decent legal framework for access to information, but a slow creep of changes made overtime can reduce access. Citizens and journalists are usually better served if laws specifically mention what information must be made public, he said.

“What happens over time is that lawmakers and bureaucrats start introducing more and more exemptions and more and more doubt about whether or not some information should be public,” Tonn said.

Using unambiguous wording helps to prevent such a backdoor approach, he said.

Professor Arthur Bonfield

Professor Arthur Bonfield

However, Arthur Bonfield, Allan D. Vestal Chair and Associate Dean Emeritus of the University of Iowa College of Law, said reversing the way Iowa’s law works and listing every public record would be impossible.

“If you put the shoe on the other foot, you can have a 1,000 page book and you still wouldn’t list all of them.” Bonfield, the principle draftsman of the Iowa open meetings law and major amendments to the open records law, said.

“No one in their right mind who is in favor of openness would have a public records law that lists each record that is available to inspection,” he added.

A growing number of exemptions for Iowa records considered confidential are listed under section 22.7 in the state’s open records law. Currently, 67 exemptions are listed, although records can be exempted in other parts of the Iowa code or under federal law as well.

Although some open records advocates have criticized the growing number of exemptions, Bonfield said that it was better, from a perspective of openness, to argue about the scope of an exemption to the public records law than to argue about the scope of the law’s initial coverage.

He compared Iowa’s law to the federal Freedom of Information Act, which lists nine generic categories of exempted records. Fighting over the wording of 67 narrow exemptions is better than fighting over the wording of nine broad exemptions, he said.

“There’s always going to be interpretation questions and you can’t avoid that. But the approach of saying that all records are public and everyone has a right to examine them, except for the few that are exempt, seems to me to be a better approach.”

Zack Kucharski, executive editor of The Gazette, of Cedar Rapids, said he preferred the presumption of openness.

“I’d rather start there than having to declare something public each time,” he said.

Rox Laird, a former editorial writer at the Des Moines Register and past president of the Iowa Freedom of Information Council, said one aspect of the law that is often overlooked is that the confidential records section, 22.7, states that the listed records can be kept confidential “unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information.”

Bonfield said the section’s wording was an example of how there are essentially three categories in the law. Some information is completely closed, like Social Security numbers and other personal identifying information. Some information is public and some of the information listed as confidential can be released if the agency chooses to do so.

“The agency may — if it chooses, if you convince it — release information listed in 22.7,” he said.

COST OF UNCERTAINTY, CONFUSION

In Iowa, uncertainty about what should be released has led to debate and legal costs as citizens work to get information they believe should be public.

Laird and other journalists and freedom of information advocates interviewed by IowaWatch frequently pointed to specific grey areas in the laws that they said need to be clarified, including the way state agencies determine how much to charge for records as well as uncertainty around the whether police investigative records and parts of personnel records should be considered public.

One example is playing out in court and in meetings of the Iowa Public Information Board.

Burlington Police Department in front of the home of Gabriel and Autumn Steele where, Autumn, was shot and killed by Burlington police officer Jesse Hill when answering a domestic disturbance call at 10:25 a.m. Tuesday Jan. 6, 2015 at 104 S. Garfield in Burlington, Iowa.

Michael Noble Jr./The Hawk Eye (Burlington, IA)

Burlington Police Department in front of the home of Gabriel and Autumn Steele where, Autumn, was shot and killed by Burlington police officer Jesse Hill when answering a domestic disturbance call at 10:25 a.m. Tuesday Jan. 6, 2015 at 104 S. Garfield in Burlington, Iowa.

In a Burlington shooting in January 2015, a police officer responding to a domestic disturbance accidentally shot and killed Autumn Steele. Following the shooting, Steele’s relatives and The Hawk Eye newspaper separately filed requests for documents including complete footage of the shooting from the officer’s body camera and other documents related to the investigation of the shooting.

The requests, filed with the Iowa Department of Public Safety’s Division of Criminal Investigation, the Burlington Police Department and the Des Moines County attorney, were denied after which the parties filed complaints.

The Iowa Public Information Board decided the complaints had probable cause and will move on to a contested hearing where an administrative law judge will hear both sides and provide the board with a written ruling, which the board can accept or reject. The hearing is not yet scheduled.

Steve Delaney

Steve Delaney

Delaney, of The Hawk Eye, said it is rare for the newsroom to have an issue with public records requests much less incur legal fees, especially after the creation of the public information board. But in this case he said the newspaper needed the legal expertise of an attorney to argue for access to the record, which deals with the relatively new technology of police body cameras. Access to video from the cameras has stirred debate in other states as well.

Further complicating the issue is the placement of a comma within the section of the law dealing with police investigative records. A Polk County District Court judge ruled in 2014 that while portions of electronic mail and telephone billing records may be released after an investigation has ended, “peace officers’ investigative reports” do not need to be released.

“I just can’t see the everyday citizen would want to dip into their own pocket to hire an attorney on principle to get access to more than 12 seconds of video. I think they would have given up at the point at which it would have cost money,” Delaney said.

Amalie Nash, editor and vice president for audience engagement for the Des Moines Register, called efforts to get at peace officers’ investigative files, like the ones involved in the Burlington case, part of an ongoing dispute.

Amalie Nash, Des Moines Register

Des Moines Register photo

Amalie Nash, Des Moines Register

“That’s been the area that we’ve been the most concerned about, that these investigative files are considered to be closed indefinitely and more and more police agencies are saying ‘that’s part of an investigative file,’” she said.

A lawsuit filed in March 2014 by The Register against the Iowa Department of Public Safety requested video and audio records of Worth County sheriff’s deputies’ use of a Taser on a man who later died. The records had been denied citing the exemption for investigative reports.

Although the records were eventually provided as part of a settlement in which the Register dropped the lawsuit, the settlement also specified that the release didn’t mean that the records were public and did not set a president for future cases, meaning it cannot be cited in trying to gain access to similar records.

Although not citing a specific figure, Nash said the lawsuit cost “multiple thousands of dollars.”

The Iowa Public Information Board proposed an amendment to the public records law last year to clarify which law enforcement records are considered public. The amendment was modeled after federal laws, but met with resistance in the Senate and was removed from the bill.

The two cases are unusual in involving legal action and significant attention from news media across the state. But barriers and record request denials as well as debate over what is or isn’t considered a public record are frequent challenges to newsrooms and the public.

Zack Kucharski

Zack Kucharski

Kucharski, of The Gazette, said record requests increasingly require more time and interaction with lawyers in order to figure out precisely what documents and information to request and working to get cost estimates down.

“We’ve had several open records requests that ended up costing over a thousand dollars,” he said. “We probably could spend even more time fighting to get that number down, but sometimes if they start at $70,000 and you end up at one (thousand), that’s still a win.”

That expense is an even greater barrier to members of the public, who don’t have the support of a newspaper when requesting records.

Kucharski said members of the public frequently reach out to the newsroom for help and that some parts of the records request process and some of the tactics state and local agencies use can intimidate requesters.

“If you’re being asked why do you want the information, you really don’t have to answer that, but by asking that question it puts an individual on the defensive. It could make them feel like they’re doing something wrong when, in fact, they are entitled to that information.”

Delaney, of The Hawk Eye said he can understand some records being confidential but always has been a proponent of transparency in government.

“It’s our government, our record,” he said. “I don’t get why you would shutter the public eye since it’s the public paying the bills and the public that’s impacted by everything the government does.”

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This IowaWatch story was republished by The Hawk Eye (Burlington, IA), The Gazette (Cedar Rapids, IA), The Courier (Waterloo, IA) Mason City Globe Gazette and IowaInformer.com under IowaWatch’s mission of sharing stories with media partners.

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