The State of Freedom of Information in Iowa 2008
By
Kathleen Richardson, executive secretary
Iowa Freedom of
Information Council
A report prepared for the Iowa FOI Council’s annual meeting, Sept. 19, 2008
Introduction
Despite more than a year of public hearings and behind-the-scenes negotiations,
the Legislature this spring failed to pass the first major overhaul of the Iowa
open meetings and records laws advanced in decades.
The centerpiece of the legislation was the creation of an Iowa Public Information
Board, a state agency that would answer questions about the state freedom of
information laws, investigate complaints, help resolve disputes, and enforce
the law.
The legislation passed the Senate, 43-6, but never made it out of committee
in the House before adjournment.
The process began in early 2007 with public hearings in both the House and Senate about chronic problems with the open meetings and records laws. The hearings followed a drumbeat of scandals involving government secrecy, including the misuse of public funds by a central Iowa job-training agency (CIETC). Legislators heard testimony about lack of enforcement of the FOI laws by the attorney general’s office and county attorneys.
In addition to creating the Public Information Board, the bill would have:
* Rewritten the definitions of public records in Iowa.
* Allowed record custodians to keep public information secret if releasing it
would constitute “an unwarranted or undue invasion of personal privacy.”
* Allowed confidentiality for “tentative, preliminary, draft, speculative
or research” public records.
The legislation would also have opened more information in government employee personnel records, required more openness in the hiring process for government employees, and attempted to curb the practice of “walking quorums” or serial gatherings of public officials outside of public meetings.
Secrecy shrouds U of I sexual assault case
Controversy over an alleged
sexual assault by two University of Iowa football players boiled over this summer,
with the state Board of Regents launching a second investigation into the university’s
handling of the case.
The Hawkeye players, Cedric
Everson and Abe Satterfield, who have since left U of I, are charged with sexual
abuse. They are accused of raping a female athlete in a campus residence hall
last October.
The university and Johnson
County attorney Janet Lyness have fought release of public records related to
the sexual assault case. The Iowa City Press-Citizen sued the university earlier
this year, claiming violations in the state open records law. The newspaper
went to court again this spring and succeeded in obtaining search warrants and
affidavits related to the investigation. A judge ordered the release of more
information this fall.
In July, the mother of the
accuser gave the Press-Citizen copies of letters she had sent to the university,
alleging that U of I was insensitive in handling her daughter’s allegations
and failed to respond to harassment of her daughter by fellow students.
After hearing about the letters, the Board of Regents reopened its inquiry into
the university’s handling of the case. University President Sally Mason
told the Regents that her office did not turn the letters over to the board
earlier because of concerns about student privacy.
In recent years, the University
of Iowa and the Board of Regents have been criticized and sued over the secrecy
with which the search for a new university president was conducted.
Cedar Rapids refuses
to release FEMA information
The city of Cedar Rapids
had denied a newspaper’s request for information about government payouts
to residents whose homes were damaged by this summer’s record flooding.
The Cedar Rapids Gazette asked the city to provide address-by-address damage assessments of the 850 homes in the city’s 100-year flood plain. Questions have been raised about fairness in how the government is responding in recovery efforts.
The city has claimed that
the information is Federal Emergency Management Agency data and not city information.
It also has argued that the information is protected by federal privacy law,
even though a federal judge ordered FEMA to release similar information to Florida
news organizations in 2007.
Personal data in
land records causes furor
Privacy watchdogs raised
alarms in September over personal information included in public records on
a land records database. IowaLandRecords.org, run by the Iowa County Recorders
Association, provides online access to records recorded through the county offices,
including mortgage and land transaction records. Records filed prior to 2002
had been available without some personal information, such as Social Security
numbers, being redacted, raising fears of identity theft. The Web site shut
down information to address concerns after complaints. The Recorders Association
was also criticized after it was revealed that it had considered selling the
database information to a private real estate database company.
County hospital
ordered to release payroll records
A district court judge in
May rejected the Davis County Hospital’s petition to deny a Bloomfield
man’s request for employee payroll records.
Kenneth Turner had asked
for public records that would have identified specific employees by hiring date,
hourly wages and job classification. The county hospital did not deny that the
information was public record, but argued that releasing it would not be in
the public interest because it would embarrass hospital employees and make it
more difficult for the hospital to recruit and retain employees. The hospital
asked the court to grant an injunction allowing it to deny the records request.
Judge Michael Mullins wrote
that he was sympathetic to the hospital’s concerns, but pointed out that
Chapter 22, the Iowa open records law, specifically states that “free
and open examination of public records is generally in the public interest even
though such examination may cause inconvenience or embarrassment to public officials
or others.”
However, the judge also
ruled that the Davis County Hospital acted in good faith when it sought the
injunction, and so denied Turner’s request that the hospital pay his attorney’s
fees.
Winners
and Sinners
AEA consortium accused
of operating in secret
A consortium that provides
support services for Iowa Area Education Agencies (AEAs) has been sued by an
Iowa City company that accuses the consortium of anti-competitive behavior and
operating outside of public scrutiny.
In a lawsuit filed in June
in Polk County District Court, Hawkeye Food Service Distribution Inc. accuses
Iowa Educators Consortium of five counts of discrimination, coercion, favoritism
and anti-competitive behavior. The consortium, which was formed in 2000 by members
of the boards of directors of each of the Iowa AEAs, requires its members to
purchase at least 60 percent of their food service needs through a vendor selected
by the consortium.
The lawsuit also says that
because the consortium was not formed as a 28E intergovernmental agency, it
is not required to comply with the open meetings and records laws and so has
operated without public disclosure and accountability.
The regional Area Education Agencies were created by the Iowa Legislature in 1974 to provide local school districts with such services as special education and print and media services.
Effort to shield
draft reports from Rebuild Iowa task force
The governor’s office
declined in August to release draft recommendations by task forces of the Rebuild
Iowa Commission that is mapping the state’s recovery from historic floods
this summer. While Gov. Chet Culver maintained that he is committed to transparency
in the commission’s workings, aides initially argued that releasing drafts
of the group’s final report could be misleading to the public. The governor’s
office later switched gears and released the draft reports.
Superintendent search
closed . . . sort of
People who attended a meeting
of the search committee for a new superintendent for the North Scott Community
School District were left scratching their heads at the proceedings in mid-July.
While the session was public meeting, and discussion of potential candidates
for interim superintendent was on the agenda, two journalists who attended were
told that they couldn’t be there and, if they insisted on remaining, committee
members would refer to the potential candidates as “Candidates A, B, C.,
etc.”
Iowa attorney general
supports federal reporter’s privilege
Attorneys general of 42
states — including Iowa’s Tom Miller — in July urged leaders
of the U.S. Senate to support the Free Flow of Information Act (S. 2035). The
legislation would recognize a qualified reporter’s privilege.
The Senate judiciary committee
passed the bill in October 2007 and shortly thereafter the House of Representatives
passed similar legislation.
The bill creates a qualified
privilege for reporters to protect confidential information and establishes
criteria for federal courts to use when determining when a journalist should
be compelled to produce information.
Iowa receives ‘F’
on public records law
A national study gave Iowa
and 37 other states a failing grade on accessibility to public records.
The study, conducted by
the Better Government Association in 2007 and released last March, analyzed
how easy it was for residents to obtain records.
“This national study
shows that in the vast majority of states, citizens have little to no recourse
when faced with unlawful denial of access under their state's FOI laws,”
said Charles Davis, executive director of the National Freedom of Information
Coalition, based at the University of Missouri School of Journalism, which co-sponsored
the study. “It's a cry for reform of FOI laws nationwide.”
The study rated state public
records laws on Response Time, Appeals, Expedited Review, Attorney's Fees and
Costs, and Sanctions. Nebraska and New Jersey received 14 out of 16 possible
points, for “Bs.” Iowa received 8.5 points, or an “F.”
Riverdale legal
saga continues
The eastern Iowa community
of Riverdale agreed in March to pay $9,000 in legal fees to settle a lawsuit
by a resident who accused the city of violating the state public meetings law
in its discussions over use of city property.
Allen Diercks had accused
a city committee of failing to comply with the open meetings law as it looked
into uses for a city park. Diercks said the committee failed to post notices
and agendas and failed to keep minutes.
The city’s insurance
carrier paid $8,000 of the settlement and the city picked up the remaining $1,000.
This was the third lawsuit
brought against Riverdale since 2004 claiming violations of open meetings and
records laws.
FOI Council, newspaper
move to halt closure of CIETC hearing
A federal judge in May denied
a request to close the competency hearing of Ramona Cunningham, former top executive
of the Central Iowa Employment Training Consortium. Cunningham was charged with
fraud and misapplication of federal funds.
Cunningham’s attorney argued that Cunningham, who had been under psychiatric
care, was mentally unfit to stand trial and that public disclosure of her mental
health issues would harm her right to a fair trial. The Des Moines Register
and the Iowa Freedom of Information Council moved to prevent closure, citing
heightened public interest in the case and First Amendment right to attend judicial
hearings, and the court agreed. Cunningham later pleaded guilty.
Ombudsman’s
office opens 317 access cases
The State of Iowa Citizens’Aide/Ombudsman opened 317 cases involving public
meetings, public records and privacy in 2007, according to the office’s
annual report.
The majority of cases arose from complaints by citizens. Forty-five complaints
were substantiated by completed investigations. Among the situations investigated
by the ombudsman’s office:
*
Government bodies that weren’t publishing minutes of their meetings within
the legal time limit.
* A citizen who was denied a budget document by the mayor of Pacific Junction.
* An agenda for a City Council meeting in Winfield that the ombudsman determined
contained insufficient information to apprise the public of what was to be discussed
at the meeting.
* A man who said a city employee yelled at him when he requested information.
* A library board that held its public meetings in a building where the door
locked during the meetings, preventing public access.
* A police department that was responding to all requests for investigative
reports by telling the requesters that they would need a subpoena to obtain
the records.
* A city clerk who didn’t realize there was a legal time limit for responding
to records requests.
* A city that posted a sign at council meetings, prohibiting the recording of
meetings. (The open meetings law allows such recordings.)
* A city that held a closed meeting to discuss hiring a new city clerk, but
didn’t list the session on the agenda, vote to go into closed session,
cite a legal reason or tape record the closed session. The mayor told the ombudsman’s
office that it was the City Council’s first closed meeting in two years.
The major also said the city didn’t always post an agenda before meetings,
mistakenly believing that small communities did not have to comply with the
notice requirement of the open meetings law.
Legislation
The Legislature changed
the Iowa Code in several ways that will affect access to government information:
Information disclosed by applicants for financial assistance to the Iowa Department of Economic Development will be shielded under new Code section 15.118.
Information contained in the application is confidential while the IDED is reviewing the application, processing requests for confidentiality, negotiating with the applicant and preparing the application for consideration by the director or board.
The applicant must explain
why the public disclosure of the information would give an unfair advantage
to competitors. If a records request is denied because of the grant of confidentiality,
IDED is required to release a summary of the nature of the information withheld
and the reasons for withholding it. The department is mandated to balance an
applicant’s desire for confidentiality against the public’s right
to information about government activities.
A change in the law provides
increased access to some records by the Department of Inspections and Appeals.
The department inspects elder group homes, assisted living facilities and adult
day care services. Under current law, findings of fact in a monitoring evaluation
or a complaint investigative are made public only after all appeals are complete.
The change makes those findings public after informal review by the department.
A new exemption to Chapter
21 allows a closed session in a meeting of a public hospital “to discuss
patient care quality and process improvement initiatives,” marketing and
pricing strategies or other proprietary information. The public body must demonstrate
that public disclosure would put the hospital at a competitive disadvantage
and serve no public purpose.
A new exemption to the public
records law would allow confidentiality for information that is discussed in
a closed meeting, so long as it pertains to the topic of the closed meeting.
However, the information must be made public after the government body takes
final action OR generally no longer than 90 days after the closed meeting.
Another exemption allows
confidentiality for some information possessed by the office of energy independence,
the Iowa power fund board or the due diligence committee associated with those
bodies.
The regulatory appropriations bill directed the Iowa Ethics and Campaign Disclosure Board to develop and operate a searchable database of information filed with the board.