The State of Freedom of Information in Iowa 2006
By Kathleen Richardson, executive secretary
Iowa Freedom of Information Council
Introduction
A series of highly publicized controversies involving government secrecy — especially allegations that government bodies violated the state’s open meetings law — pushed access issues into the spotlight in Iowa in 2006.
The Institute for Tomorrow’s Workforce is a legislatively created group that received nearly $1 million in state money to design a link between Iowa teacher pay and student performance. The board went into closed session in July to discuss hiring a consultant, even though no exception to Chapter 21, the open meetings law, seemed to apply. According to attendees, board co-chair Marvin Pomerantz insisted that the section of the law that allows government bodies to close meetings to discuss “personnel issues” applied and said that if the meeting wasn’t closed, he was going to end it.
A Polk County judge granted a consent order that said the Institute’s board had violated the law and would pay the plaintiffs’ legal fees. The lawsuit was filed on behalf of the Iowa FOI Council, the Des Moines Register, the Iowa Newspaper Association, the Waterloo/Cedar Falls Courier, the Cedar Rapids Gazette and the Associated Press.
One procedure, in which the board went into closed session to discuss the search and then subsequently met several times without announcing each meeting, prompted a lawsuit by the Iowa City Press-Citizen. The newspaper claimed that the “rolling meeting” violated the state open meetings law by failing to give proper notice of the closed meetings and failing to obtain a public affirmative vote of two-thirds of the board members, as required by law. The board argued that the series of discussions were all part of the same closed meeting and that notice was not required each time.
In addition, the names of candidates for U of I president were kept secret and search committee members were required to sign confidentiality agreements so strict that they couldn’t tell their families about the search. The regents said that they were forced to conduct the search in secret because top candidates would pull out if they believed their names would be made public.
Under Chapter 22.7(18) of the public records law, a government body can keep the names of candidates for public posts confidential if the agency could reasonably believe that people would be discouraged from applying if applications were open to the public. However, secret sessions are not required. In addition, more government bodies are citing Chapter 21.5(1)(i) of the open meetings law in keeping the interviews themselves secret, even though that exception says sessions may be closed only when necessary to prevent “needless and irreparable injury” to the applicant’s reputation and the applicant requests closure.
The troubled job-training agency is under investigation for misusing public money, and four people connected to the agency have been indicted on fraud and conspiracy charges.
CIETC’s lawyer said that the closed sessions were appropriate under an exception to the open meetings law that allows private discussion of legal strategy tied to current or imminent litigation. The lawyer, Jonathan Wilson, said that even though CIETC wasn’t involved in court litigation, the agency and state are immersed in what he called “administrative litigation.”
Earlier, Gov. Tom Vilsack’s office and the Iowa Department of Administrative Services had refused to release a written report on the involvement of state employees in the CIETC scandal. Officials cited an exemption to the Iowa open records law that allows government officials to keep secret “personal information” in workers’ personnel files. Vilsack quickly released the report earlier denied by his office.
Before adjourning for the session, the Iowa Legislature passed legislation mandating more transparency in agencies like CIETC that administer government programs. The state ombudsman’s office also received a new staff member to act on information from whistleblowers.
The Iowa Lottery had allowed the placement of TouchPlay gambling machines that looked like slot machines in more than 2,500 businesses throughout the state. Complaints were soon raised by Iowa residents that the machines were too accessible to, and made gambling too attractive for, children. Iowa casinos also complained that the lottery machines were taking business away from them.
The Des Moines Register asked the Iowa Lottery for public records on where the TouchPlay machines were located and how much money was being made off them. Iowa legislators also sought such information.
The Lottery, at the advice of the attorney general’s office, sent letters to all companies that owned TouchPlay machines, alerting them to the Register’s request. The Lottery did not dispute that the information was public record and said it would release the information unless the companies sued to stop it. Several companies did file suit.
The Register won the legal challenge. However, the judge declined to require the state to pay the newspaper’s legal bills, as required by law, saying that the state had “substantially complied” with the public records law, even though it took several months for the newspaper to receive the records it sought.
Citizens win lawsuit against Riverdale officials
after years of attempting to obtain public records
Two residents of Riverdale won a civil lawsuit, claiming that city officials had violated the state’s open records law by failing to release documents about spending in the city’s fire department.
Residents said they had tried unsuccessfully for two years to obtain the documents. They had contacted the Scott County attorney, the Iowa attorney general, U.S. Sen. Charles Grassley and former U.S. Rep. Jim Nussle.
The controversy also sparked an investigation by the state auditor’s office.
A Scott County judge ruled that taxpayers, and not defendant city officials, would have to pay the plaintiffs’ $28,000 in legal bills.
Ombudsman’s investigations find violations in two communities
Investigations by the State of Iowa Citizens’ Aide/Ombudsman in 2006 found that officials in two communities violated the open meetings law.
A public library board in Randolph in southwest Iowa violated the law by going into closed session at a meeting without following proper procedure, the ombudsman’s office found. During its investigation, the ombudsman found additional violations of the law involving improper notice of public meetings, lack of quorum at meetings and members voting outside of official meetings.
The ombudsman also found that the Luther City Council violated the open meetings law by failing to include a closed session on its meeting agenda, failing to announce the reason for the closed session, not having a valid reason for going into closed session and discussing unrelated issues during a closed session.
The ombudsman’s reports on both situations included recommendations designed to stop the government bodies from future violations, including training in open meetings and records law for all members.
The state ombudsman’s office can investigate complaints of open government violations and make recommendations, but has no enforcement power.
Des Moines school board posts guards at interviews
The Des Moines school board interviewed candidates for superintendent in secret, even posting police at the meeting to keep out the public and reporters.
Earlier in the process, a consultant hired to help fill the job had scolded Des Moines parents for being too negative at public meetings, saying such “hostility” would scare away candidates. (Search firms contracted to help find public officials routinely advise public bodies to keep the names of the candidates secret and encourage candidates to request anonymity. One firm even boasts of giving candidates fake names.)
The board interviewed finalists in public, but then arrived at its decision in a closed session. While the board denied violating the open meetings law, an announcement on the district’s Web site announced that Nancy Sebring would be named the new superintendent even before a public vote was conducted on the appointment.
Des Moines officials angered when candidates’ names leaked
Des Moines city officials, who were determined to keep the names of candidates for city manager secret, were angered when the list of candidates was published by the Des Moines Register.
The decision to keep the names confidential was controversial, and public pressure forced the City Council to open the process a bit. The four finalists’ names were publicized and the interviews were opened to the public, though attendees were not allowed to ask questions. There was also an informal public reception.
In 1995, the process to select the previous city manager was conducted largely in the open, with a public forum.
State Board of Education attempts to muzzle members
A proposal would have prevented members of the State Board of Education from criticizing board actions.
The proposed change to the board’s guidelines read: “While all members may respond to media requests for information and may explain their personal positions relative to any given issue, once formal board action is taken, all members shall be publicly supportive of the same.”
The proposal did not include sanctions, but critics said it was an attempt to stifle free speech. The proposal was later tabled.
Other Winners and Sinners
Waukee hired a new city administrator after conducting the entire process — including narrowing the candidates down to three finalists and then making the final choice — behind closed doors. The City Council denied violating the open meetings law, which requires government bodies to take final action in public, even though before the final public vote the new city administrator had turned in a resignation letter to his old bosses that included his starting date in Waukee.
The Wapello County attorney filed unusual civil charges against the Ottumwa Cemetery Board, alleging six violations of the open meetings law. The charges included failing to provide an agenda for a meeting; failing to hold public votes to close a session; failing to announce the reason for a closed session; taking final action in closed session, and holding a closed session without proper legal reason.
The University of Dubuque subpoenaed the telephone records and e-mails of a seminary student who criticized school administrators. The subpoena demanded access to all communications between the student and two Iowa newspapers and between the student and faculty members. The action occurred as part of a lawsuit between the university, which is affiliated with the Presbyterian Church, and former professor. The subpoena was later quashed.
The Iowa Department of Public Safety made more crime and accident information available online and at Iowa Patrol posts after a series of articles in the Des Moines Register in 2005 pointed out how agency policy kept much of the information confidential or inaccessible.
A petition filed by residents of the Eagle Grove Community School District with their local school board was deemed “confidential.” The school board president took possession of the petition, but denied the local newspaper access to the document, saying that it represented “personal information” in the personnel file of a district employee — the one being criticized by the petitioners.
Legislative action
The Legislature enacted a flurry of changes in Chapter 22, the public records law, in 2006: