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May 24, 2023

More Iowa public records, open meetings cases going to court

Iowa Governor’s Office, school boards told in recent cases to follow the law Aug. 6, 2023 5:00 am Iowa judges recently have sided with open government advocates trying to gain access to public records

Iowa Governor’s Office, school boards told in recent cases to follow the law

Aug. 6, 2023 5:00 am

Iowa judges recently have sided with open government advocates trying to gain access to public records and attend public meetings — with the latest ruling requiring the state to pay $135,000 in legal fees for three media organizations denied records by Gov. Kim Reynolds.

But advocates would like to see courts and the Iowa Public Information Board use penalties already in Iowa law to discourage repeat offenses.

When a District Court judge ruled in June the Central DeWitt superintendent and school board violated Iowa law by holding closed meetings under false pretenses, school board members were unapologetic, according to Rep. Norlin Mommsen, R-Dewitt, who was one of 75 residents who attended a July 13 school board meeting.

“The school board’s response to this is was ‘we did nothing wrong’,” Mommsen told The Gazette. “It’s this defiance. And maybe it is because there’s no penalty.”

Iowa Code Chapter 22 requires government bodies — which include any state, county, city or school group supported with taxes — to allow people to view or copy public records in a reasonable amount of time for a reasonable cost, if not for free.

The sticking point often is whether specific records are considered confidential under one of more than 70 exceptions in the law.

But in a lawsuit settled in June, the plaintiffs sued not because Reynolds and her staff claimed the sought records were confidential, but because the Governor’s Office did not respond to records requests for more than 18 months.

The Governor’s Office fulfilled the requests in January 2022, a month after Clark Kauffman and the Iowa Capital Dispatch, Randy Evans and the Iowa Freedom of Information Council and Laura Belin and Bleeding Heartland filed the lawsuit.

The Governor’s Office asked to have the lawsuit dismissed, but the Iowa Supreme Court ruled in April the case could proceed. Reynolds’ team settled June 3, agreeing to let a state District Court resolve any open records disputes with the plaintiffs that may arise over the next year.

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The Governor’s Office makes no admission of guilt in the settlement. Reynolds’ staff said the delays were caused by the state being busy dealing with the COVID-19 pandemic.

“The COVID-19 response put unprecedented demands on the governor’s team to meet the immediate needs of Iowans. As a result, responses to requests were unintentionally delayed, which is not acceptable,” Spokesman Kollin Crompton said in June. “Our office has assessed our internal processes and we continue to reevaluate the process to improve timeliness.”

Evans said he hopes the ruling stops the “worrisome trend” of government bodies ghosting public records requests.

“I was concerned if we didn’t prevail it would embolden, not only the governor, but other state agencies and local governments as well, to drag their feet,” Evans said. “To take the position they (government bodies) hadn’t rejected open records request if they were too busy to get to it would cut the legs out from under open records statute.”

Other recent decisions show school boards trying to shield their discussions from the public.

Bettendorf Community School District in June settled a lawsuit filed by media outlets challenging the legality of a May 2022 board meeting.

One day after the Uvalde, Texas, school massacre, the Bettendorf superintendent and school board — minus one member — met with about 300 parents to discuss misbehavior and harassment by some middle school students. Journalists were blocked from the meeting and parents were told not to record the session.

Iowa’s public meetings law, outlined in Iowa Code Chapter 21, requires meetings with a board majority in which they are acting on their policymaking duties to be open to the public, including journalists.

As part of the settlement, the district acknowledged the meeting was illegal and promised future meetings would meet the law’s requirements. The district agreed to reimburse plaintiffs $6,500 for attorney fees, reported WQAD, one of the plaintiffs.

In the Central DeWitt case, Superintendent Dan Peterson and the school board told the public they were closing their Feb. 7, 2022, meeting to the public to evaluate Peterson’s performance.

Instead, they discussed controversial topics, including gender and sexuality issues, instructional materials, and an administrative realignment, Seventh Judicial District Court Judge Mark R. Lawson wrote in a June 26 ruling.

“First, the scope of the meeting was breathtaking in contrast to its stated purpose,” Lawson wrote. “In other words, this was not a minor or technical violation. Second, as noted earlier, no one in the meeting spoke up to argue the meeting was straying well beyond its stated purpose.”

Lawson ordered the school district to pay Sycamore Media, which publishes the DeWitt Observer, more than $18,500 for legal fees.

Central DeWitt Ruling by Gazetteonline on Scribd

Peterson told The Gazette he disagreed with Mommsen’s characterizing the district’s response to the ruling as defiant.

“We have accepted the District Court judge’s decision, will abide by the decision, and already have worked on improving our processes and procedures regarding scheduling and holding closed session meetings,” he said in an email this week.

When government bodies keep information secret, Iowans seeking access may choose to file a lawsuit. But hiring a lawyer can cost thousands of dollars, deterring many Iowans.

Not Allen Diercks. The 66-year-old Bettendorf chiropractor has been a government watchdog for decades, once filing more than 50 records requests in two years.

“The public deserves public records,” Diercks said. “This isn’t a political thing. It’s really an American thing.”

Diercks, represented by Bettendorf attorney Mike Meloy, won a 2011 Iowa Supreme Court case that set precedent for helping citizens recoup legal fees in public records cases.

Riverdale, a city of about 400 near Bettendorf, sued Diercks, Marie Randol and Tammie Picton in 2008 over whether the defendants were entitled to view security camera video showing then-Mayor Jeffrey Grindle arguing with Diercks over a records request.

Diercks, Randol and Picton won the case at trial and the District Court awarded them $64,732 in attorney fees. An appellate court reversed that award, but the Iowa Supreme Court later ruled the District Court was right.

“Statutory attorney-fee awards motivate lawyers to step up and fight city hall on behalf of residents whose elected officials refuse requests for disclosure,” Justice Thomas D. Waterman wrote in the Nov. 18, 2011, decision.

Sycamore Media, which also publishes the Bellevue Herald-Leader and the Maquoketa Sentinel-Press, has filed two lawsuits in five years pushing back on government bodies trying to keep secrets.

“We’ve had two cases where the violations were so clear we felt obligated to pursue them to ensure transparency for the public,” Sycamore Owner and CEO Trevis Mayfield said.

Sycamore and the Sentinel-Press in 2019 sued the Maquoketa Police Department after the agency refused to release body camera and dash camera footage of a traffic stop in which officers found then-Assistant Jackson County Attorney Amanda Lassance with bloodshot eyes, slurred speech and beer cans throughout the vehicle, court records show.

Jackson County deputies later cited Lassance for having an open container in a vehicle and gave her a ride back near her office.

Seventh Judicial District Judge John Telleen on June 22, 2020, ordered Maquoketa to release the videos.

“Their squad car and body camera footage will show a portion of the incident not found in the public records already provided by the Clinton and Jackson County sheriff’s departments. This information will give the public a fuller understanding of the incident in question,” the ruling stated.

Lawsuits are a last resort, Mayfield said.

“For the most part, we give people the benefit of the doubt, especially when you’re dealing with city councils and school boards because they are elected volunteers,” he said.

Maquoketa Ruling by Gazetteonline on Scribd

The Iowa Legislature in 2012 created the Iowa Public Information Board as a cheaper, faster way to resolve disputes over Iowa’s open records and meetings laws.

The nine-person board that includes government officials, media and members of the public has accepted about 1,000 formal complaints in 10 years, but has only had five contested cases. The most recent was resolved in 2019.

“If you look at the statute, it does try to prioritize informal resolutions and finding ways to resolve disputes,” said Erika Eckley, who became the board’s executive director in March. “We get farther if we try to resolve issues by training than by being a punitive body.”

Alan Kemp, executive director of the Iowa League of Cities, said he appreciates the board’s approach.

“Our smaller cities, they see a lot of turnover in city clerks, in elected officials,” he said. “Too often the people who come in have not had any chance to get any training and don’t know anything about any of the requirements.”

Evans and Mayfield said the board seems reluctant — particularly in recent years — to investigate and prosecute knowing violations.

“I tell journalists that if you believe you have a strong case to win access to records or meetings, you’re doing yourself a disservice by taking that case to the Public Information Board,” Evans said.

Evans pointed to a complaint filed with the board in May 2022 over a vote in closed session to restrict access to a book in the Pleasant Valley School District. The board decided last month — 14 months after the complaint was filed — that while there was probable cause the book reconsideration committee violated open meetings law, because the school district held a training in June, the complaint would be dismissed.

While a case is pending before the board, no court case may move forward.

“The Pleasant Valley School District has been allowed by the Public Information Board to simply drag its feet for months and months,” Evans said.

Eckley said the board recently upgraded its case management system to keep better track of cases and make sure they aren’t lingering.

Breaking Iowa’s open records or open meetings laws can result in a fine ranging from $100 to $500 or up to $2,500 for a knowing violation. But fines are rare.

Former Washington County Attorney Larry Brock agreed in 2014 to pay a $1,000 fine after a judge decided he knowingly violated open records law by waiting more than three months to provide records to a former park ranger.

In two other cases — one in Des Moines and one in Burlington — public officials were ordered to pay $100 and $200, respectively, for failure to comply with open records laws. Evans isn’t aware of any other fines for Chapters 21 and 22 in recent decades.

Open government advocates want more accountability. Diercks suggested zero tolerance once public officials have signed off on taking an online course about open records and open meetings.

“They very first offense you do after you know, you get a $1,000 fine,” he said. “The second offense you are out of office and you don’t serve. Until they start making them pay for this, it’s not going to change.”

Mommsen said he is considering proposing a bill that would make it easier for Iowans to recall school board members.

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