The State of Freedom of Information in Iowa

A report prepared for the Iowa FOI Council's annual meeting, Sept. 27, 2002

By Kathleen Richardson, executive secretary

Introduction

An examination of cases, complaints and controversies involving Iowa public meetings and records laws shows that while advocates of open government have had significant successes in the past year, these are offset by continuing abuses.

The good:

The Iowa Supreme Court supported two Waterloo journalists who refused to buckle to demands by their opponents in an open meetings lawsuit that they reveal confidential sources of information.

The Buena Vista County clerk of court agreed to release documents and pay attorney's fees after the Des Moines Register sued to obtain court records.

Iowa journalists and representatives of the three state university fund-raising foundations have made progress toward increased public access to the foundations' records and meetings.

The Iowa judiciary moved this year to put more and more court information online.

The Iowa Attorney General's Office began producing monthly newsletters to educate Iowa citizens and government officials about the state access laws.

The bad:

A judge in Cedar Rapids denied the Cedar Rapids Gazette's request for copies of emergency calls made to police in connection with a stabbing death - even though there were indications the caller, who requested an ambulance, was told to hang up and dial 911.

Both vehicle and boating accident reports required to be submitted to the state remain shrouded in secrecy.

The ugly:

The Legislature earlier this year amended the open records law to make it more difficult to obtain medical examiner records.

The Des Moines Register sued the public county hospital after executives declined to release memos and e-mails exchanged by hospital managers about their decision to evict a clinic for the poor - a decision that was never discussed in public.

City councils in Olin and Spirit Lake adopted policies that restricted public comment at meetings.

City councils routinely violate the open meetings law by going into closed session to discuss all real estate transactions and then refusing to release tape recordings of the meetings even after the transactions are completed, newspaper editors reported.

One central Iowa county attorney refuses to release the names of juveniles charged with crimes, even though the Iowa Legislature specifically acted in the mid-1970s to ensure that complaints against juvenile offenders be made public. The police chief in a southeast Iowa community refuses to release the names of crime victims.

In addition to longstanding, chronic problems of openness, the 2002 Iowa Legislature joined lawmakers around the nation in reacting to the fear of terrorism by adding "homeland security" exceptions to open records and meetings laws.

While significant strides have been made in the past two years in public records training for Iowa officials, a special public records ombudsman named in 2001 resigned this summer due, and there are no immediate plans to replace him.

Openness in Iowa in 2002 is being eroded by ignorance (if not outright defiance) of the law, fears of terrorism, and apathy by citizens and journalists alike. As America is threatened from without, Iowans are frittering away their rights in their own backyard.

Waterloo journalists win reporter's privilege case

Two Waterloo journalists took a reporter's privilege case to the Iowa Supreme Court this year - and won.

The journalists cannot be forced to disclose information received from confidential sources, the Supreme Court ruled in June.

The case arose from closed meetings held by the board of Hawkeye Community College that resulted in the dismissal of the school's president. The Waterloo-Cedar Falls Courier filed a lawsuit alleging that the board violated the Iowa open meetings law.

After the lawsuit was filed, Courier Editor Saul Shapiro and Managing Editor Nancy Raffensperger Newhoff met with people who were present at the closed meetings, promising the sources confidentiality. The college sought to force the editors to disclose the names of their sources and to produce notes from the interviews.

There is no statutory shield law in Iowa, but the state's courts have recognized a limited reporter's privilege to protect sources since the 1970s. Journalists may be ordered to reveal confidential information only if it is shown that the evidence sought is necessary and probably admissible at trial and that it cannot be obtained elsewhere.

Hawkeye Community College argued that the Courier had waived the privilege by filing the lawsuit, and that the editors should be treated like parties to a lawsuit instead of journalists. The Supreme Court disagreed, and also ruled that the "college did not prove the disputed material was critical to its defense and is unavailable from other non-privileged sources."

The Des Moines Register sues county clerk of court in open records case

The Des Moines Register sued the Buena Vista County Clerk of Court this summer after the clerk declined to release documents related to a county attorney's subpoena. The newspaper and the clerk settled the dispute in August. Under the terms of the settlement, the court agreed to release the documents sought by the newspaper and to pay the newspaper's attorney's fees.

The newspaper had sued Clerk of Court Donna McPherren after she declined to release documents related to the county attorney's subpoena of patient records from a Storm Lake Planned Parenthood clinic. A baby's body was found at the Buena Vista Recycling Center in May and law enforcement authorities were seeking information about women who recently had pregnancy tests. Planned Parenthood of Greater Iowa refused to release its records.

The Register had sought copies of a judge's rulings in the case. Most court documents are open records under Iowa law. However, criminal subpoenas are confidential, and McPherren maintained that Iowa court rules required that other rulings and records related to the subpoena remain confidential as well.

The Register obtained the documents independently from Planned Parenthood, but nevertheless challenged McPherren's decision, arguing common law, statutory and constitutional rights of access to public records. The parties agreed that it was not in their best interests to continue the litigation.

In a related development, the Iowa Supreme Court released its own documents related to Planned Parenthood's challenge of the subpoena. It had delayed doing so while the county clerk of court was involved in litigation.

A Register editorial characterized the newspaper's lawsuit as a "battle over the public's ability to witness how the courts handle" an important and controversial case involving medical privacy:

"Courts are public institutions in this country for good reason. To understand how the law is shaped, the public must have the ability to observe the process. . . . The Iowa Supreme Court has opened the doors to the courtroom for this case, but it is not clear that it has established a binding precedent. Thus, the court should amend its rules to make it clear that the doors will remain open in the future."

Access advocates seek university foundation records

Members of the Iowa Newspaper Association and the Iowa Freedom of Information Council met with representatives of the three state university foundations several times in 2002 in an attempt to reach agreement on public access to the foundations' records and meetings. Meanwhile, a group of Iowa citizens sued the Iowa State University Foundation in a separate attempt to force the foundation to open its books.

INA Executive Director Bill Monroe and representatives of several newspapers met three times with representatives of the Iowa State, University of Iowa and University of Northern Iowa foundations.

FOI advocates argue that the university foundations, which were created by the Iowa Board of Regents to raise money in the name of state universities for state universities, are public bodies under the Iowa open meetings and records laws. The foundations maintain that they are private, non-profit organizations not subject to the access laws.

However, foundation officials said they want to be seen as being more open, and at an April meeting, the news and foundation representatives agreed the foundations want to be "as open as the organizations they serve . . . ."

There are two categories of information that foundation officials insist must be kept confidential: information about donors who demand anonymity, and personnel information about foundation employees. The INA and the Iowa FOI Council have gone on record as agreeing that identities of donors who desire anonymity could be kept confidential by the foundations. Also, most personnel records are already exempt under the Iowa open records law.

Meanwhile, a lawsuit filed in Story County accused the ISU Foundation of violating the state public-records law. An attorney for the plaintiffs told The Des Moines Register in August that the lawsuit was filed after the foundation dragged its feet on complying with records requests. It also follows failed attempts in the Legislature to obtain legislation requiring the foundations to open their books.

Electronic access to Helder court records proves fleeting

The U.S. District Court for the Northern District of Iowa set up a special area of its Web site this spring to post court documents relating to the case of accused pipe bomber Luke Helder after the clerk of court's office was swamped with media requests for information.

However, the electronic access was short-lived; the court shut down the information pursuant to a federal Judicial Conference policy expressing concern about electronic availability of criminal court records. The court's Web site now indicates that the entire case file was pulled, but that "selected orders" will be made available.

More court records move online

The Iowa judiciary in September expanded its program of online court records, which it launched earlier this year.

Basic court information had been available via the Web since February, free of charge. The Iowa Supreme Court said that the site receives approximately 75,000 hits a day by 15,000 users.

The court added a new service that allows access to more detailed case information for $25 a month. The subscription service includes exhibit lists, bonds, judgments and liens, hearing and trial schedules. The Court said it expected the service to be used by insurance companies, attorneys, investigators, abstractors and the news media.

The judiciary plans to add a third online feature later this year: a program that will allow people to pay fines and court fees online.

The site can be reached at www.iowacourtsonline.org or through the Iowa Judicial Branch home page at www.judicial.state.ia.us.

Counties allow some residents to pull their information off-line

More and more public records are available electronically, but some counties are allowing residents to block information about themselves from going online.

At least two Iowa counties, Marshall and Jefferson, allow residents to pull their property records from online databases, the Des Moines Register reported this spring. The Marshall County assessor's office agreed to let police and court officials remove their records, and any Jefferson County resident can request that his or her property information be taken off the county Web site.

Police officers and court officials say they fear harassment by criminals, while others claim that online records are an invasion of privacy, even though the same information is available at the courthouse. Most Iowa counties don't allow searches of assessor's records by name.

Iowa Attorney General's Office publishes Sunshine Advisories

The Iowa Attorney General's Office this year has produced monthly Sunshine Advisories to provide citizens and government officials with basic information about the state public meetings and records laws.

The advisories, which are distributed through Iowa journalism and government organizations, have tackled such topics as confidential public records, whether a record custodian can ask a requester for identification and the steps a government body must take to legally close a meeting.

Sadly, last September when a Des Moines Register reporter asked to see an early copy of the Sunshine Advisories, the Attorney General's Office said that the drafts were not public record and could be sealed from public view.

Linn County judge blocks release of police emergency calls

The Cedar Rapids Gazette in June failed in its attempt to obtain copies of the calls made to Cedar Rapids police in connection with the stabbing death of University of Iowa medical school administrator Richard Nelson.

Nelson's wife, Phyllis, was charged with first-degree murder in the case. In granting the defendant's request to seal the tapes until after the trial, District Judge Thomas Horan said that publication of the calls threatened to be highly inflammatory and prejudicial to Phyllis Nelson.

The Gazette had requested a transcript of three phone calls made on the night of the murder to Cedar Rapids police; the last two calls were placed by the defendant and requested medical help. Phyllis Nelson's calls were apparently placed on a cell phone and routed to a non-emergency police line, even though she had dialed 911. The defendant reported a stabbing and requested an ambulance, but she was told to hang up and dial 911.

The Cedar Rapids city attorney notified Phyllis Nelson's attorney and the state about the Gazette's records request and said he would release the tapes unless someone took legal action to stop him. Phyllis Nelson's attorney then sought an injunction to prevent release of the information.

In his decision, Judge Horan agreed with the Gazette that the tapes were public records. But he said that the "government could reasonably believe that if citizens thought a neighbor, a relative, or the news media could obtain a tape of the call . . . citizens would, in some cases, be discouraged from making such calls."

The judge also said that review of the "voluminous newspaper articles" published about the case indicated that the public had already been provided with all the information required by the public records law. In addition, Horan said that the tapes, in which the slain man "can be heard in the background moaning," were "highly inflammatory" and threatened to unduly prejudice the community against the defendant.

State loses FOI ombudsman

Iowa has lost its first freedom of information ombudsman, and he won't be immediately replaced.

Robert Anderson, the award-winning reporter who was hired last year by the state Office of Citizens' Aide/Ombudsman as public records ombudsman, resigned this summer due to ill health.

The Iowa Legislature approved the new position in 2001 after a series of newspaper articles published throughout the state detailed poor compliance with the open records law. The appointment of an FOI ombudsman was seen as a victory for access advocates who for years had pushed for a state official whose job would be to respond to citizen complaints about possible open meetings and records violations.

In the ombudsman's annual newsletter, Anderson said that fees charged by government officials for public records were the "No. 1 source of complaints and questions" he had received, with access to law enforcement records second. Anderson also conducted FOI training for government officials, often in conjunction with the Office of the Attorney General.

Polk County's public hospital refuses to release management e-mails

The Des Moines Register has sued Broadlawns Medical Center, the Polk County public hospital, to obtain copies of memos and e-mails exchanged by hospital managers about their decision to evict a clinic for the poor.

The hospital argues that the documents are informal communications not covered by the open records law.

Broadlawns' elected board voted in public session in early June to continue its contract with the non-profit agency that ran the clinic. The cancellation of the contract, which was announced at the end of June, was not discussed in public, but the hospital's chairman and CEO reportedly consulted with the board via e-mails and memos.

Reporter discovers state agency's 'shadow' records

Clark Kauffman, a reporter for the Des Moines Register investigating the state Department of Elder Affairs and its regulation of nursing homes, stumbled upon the fact that the department was keeping two sets of records: a version that documented violations at nursing facilities and a second, sanitized set of records for public consumption that excluded information about the abuses.

There was no indication to citizens requesting records about nursing home inspections that another set of records existed; Kauffman found out about the shadow records only after paying $800 and asking to see all records for four homes.

The agency said the double record-keeping was inadvertent, but then admitted that the state Attorney General's Office had told the department to stop the practice months before. The Register's story about the record-keeping caused a public uproar and administrative shakeup at the Department of Elder Affairs.

Accident information remains shrouded under state law

Chapter 22, the open records law, states that while police investigative reports can be closed, the "date, time, specific location, and immediate facts and circumstances surrounding a crime or incident" shall not be kept confidential. Nevertheless, the Iowa Attorney General's Office has advised that vehicle accident reports required to be submitted to the state Department of Transportation by drivers and peace officers must be kept confidential. The Attorney General says that Chapter 321 of the Iowa Code, which requires that the DOT reports remain confidential, prevails over the openness dictates of the public records law. Some Iowa journalists have managed to work around the constraints with local law enforcement officials, but others have found the Attorney General's interpretation a hindrance to reporting on vehicle accidents.

Similarly, boating accidents with injuries, death or property damage over $500 must be reported to the state Department of Natural Resources. But other than the identities of those involved, all information about the accidents is confidential under state law, the department maintains. In one boating accident last year that resulted in the death of a 9-year-old Marion boy, the DNR did not release the name of the victim and the other people involved until two months after the accident.

FOI lowlights from throughout the state . . .

Clinton police refused to immediately release the name of the owner of a dog that attacked a 15-month-old girl, even after city officials deemed the animal vicious under a city ordinance. Police said they were investigating the attack.

The Cedar Rapids fire chief issued a written policy last winter to routinely release public information from fire and rescue reports, but only after weeks of lobbying by the Cedar Rapids Gazette.

The fire chief had declined to release the names of people injured in fires, claiming that such information constituted a medical record, even though the state Attorney General's Office says Iowa law gives the fire department the discretion to release such information. The department's policy now is to release the names, ages and addresses of people injured in fires.

Mark Bowden, executive editor of the Gazette, said that a newspaper survey of area fire departments showed "rampant consistency" in what information is released to the public. "In a fire in Manchester, Iowa, the local chief is only identifying the burn victim as 'Larry,'" Bowden reported.

People who wanted to address meetings of the Olin City Council were told this spring that they couldn't name any elected officials when talking about issues.

A brochure prepared by the city clerk on the order of the mayor also said that people who wish to speak at Council meetings must ask the mayor and receive permission to speak.

Speakers are told to stick to the topic of discussion; if they want to raise other issues, they must seek to be placed on the agenda for the next meeting. Speakers are also instructed to keep their comments to a minimum, to address only city codes or policies and to avoid discussion of personalities or specific public officials.

A similar policy was enacted recently by the City Council in Spirit Lake, which has been embroiled in a public meetings dispute with a group of citizens. The Council limited the public's ability to put items on the agenda for Council meetings and restricted public comment at the meetings.

City councils around the state routinely go into closed session to discuss all real estate transactions and then refuse to release tape recordings of the meetings even after the transactions are completed, said editors attending the Iowa Associated Press Managing Editors annual meeting. The Iowa open meetings law allows for closed sessions to discuss real estate purchases and only when "premature disclosure could be reasonably expected to increase the price the government body would have to pay for the property." The minutes and recordings of the closed session are required to be released after the purchase is completed.

Other reports from the APME meeting indicate that one central Iowa county attorney refuses to release the names of juveniles charged with crimes, even though the Iowa Legislature specifically acted in the mid-1970s to ensure that complaints against juvenile offenders must be made public. The police chief in a southeast Iowa community refuses to release the names of crime victims -a deliberate flouting of the public records law that is supported by the county attorney and that occurs in communities throughout Iowa.

School superintendent searches are routinely done in secret at the prodding of the consultants who conduct much of the head-hunting and screening of the candidates, reporters from throughout the state report.

Journalists and other citizens throughout the state continue to wrestle with inconsistent or excessive fees charged for public records. The public records law says that the fee for copying a record cannot exceed the cost of providing the service. Nevertheless, newspapers in Davenport and Des Moines successfully challenged what they claimed were excessive fees for records.

2002 legislation brings a flurry of exceptions to FOI laws

Unfortunately for friends of FOI, the 2002 Iowa Legislature reacted to the fear of terrorism by adding several exceptions to the Iowa open records and meetings laws, Chapters 21 and 22 of the Iowa Code.

One amendment allows public airports, municipalities, municipal utilities and rural water districts to make secret any record "where disclosure could reasonably be expected to jeopardize the security of the public health and safety of the citizens served." The legislation also allows the governing boards of those bodies to close their meetings to discuss the records.

The Legislature also made confidential the security plans of the department of public defense, the emergency management division and the Iowa technology center.

A third amendment allows schools to keep secret any security procedures or emergency preparedness plans if disclosure could reasonably be expected to jeopardize student, staff or visitor safety.

In addition to the "homeland security" exemptions, the Legislature amended the open records law to modify the availability of medical examiner records. Examiner reports and records are confidential but may be released to law enforcement agencies and the decedent's next of kin. The cause and manner of death are not confidential unless "disclosure would jeopardize an investigation or pose a clear and present danger to public safety." FOI advocate unsuccessfully attempted to add language making it clear that the date, time, specific location and immediate facts and circumstances surrounding the crime or incident would not be confidential. The medical examiner's office maintains that such information should be obtained from law enforcement officials.