Debate continues in Iowa over enforcing records, meeting laws

DES MOINES - Attorney General Tom Miller says people who criticize his enforcement of Iowa's Public Records and Open Meetings laws as too lax are mistaken.

Nor is his office blocking creation of an Iowa Public Information Board, proposed annually since 2008 to strengthen enforcement of openness laws, Miller said.

“We've supported that,” Miller said in an interview. “Obviously, we think we can do a lot or all or most of this (enforcement), but we're not standing in the way of the agency. We are not opposing it, indeed, we've supported it.”

Two hours later, in a Capitol conference room across the street from Miller's office, his chief of staff spoke against the latest bill to create an independent board, faulting its structure, size, functions, due process and legal authority.

Deputy Attorney General Eric Tabor also questioned whether the board was necessary.

“We have a pretty good system that's working,” he said.

The following week, Miller's office proposed a new board limited to offering “informal resolution” and “informal guidance” in records and meetings disputes. The board would have no independent staff lawyers or enforcement powers.

To Iowans who seek stronger enforcement of the state's openness laws, the contradictions were a frustrating reminder of deeply rooted resistance to change and shifts in power.

“I've heard over the last three years why this (a board) wouldn't work,” Sen. Jeff Danielson, D-Waterloo said during the Feb. 24 hearing attended by Tabor, lobbyists and lawmakers. “Yet, Iowans still wonder why officials say ‘no' to them when they ask for documents. This (bill) gives Iowans the ability to say, ‘I've had enough.'”

Opposition to the bill was the latest example of, “it's a great idea, but I'm going to find every way not to do it,” Danielson said in an interview the next day.

“That posture breeds cynicism,” he said. “I don't think we can stand by and do nothing. …

“The opposition in this case was talking about a public information board, but in general, when you follow open meetings-open records over the last couple of years, the chief opposition are bureaucracies, elected officials and public agencies.

“The irony of that for me is they are the ones who continue to oppose change.

“The bigger irony for me in this process is they should be the ones who should uphold and encourage the value of an open exchange of information.”

Iowa's Public Records Law is plagued by “miserable, terrible problems,” according to the man who wrote the last major overhaul of the law more than a generation ago.

“There are dozens of weaknesses,” said Arthur Bonfield, associate dean at the University of Iowa Law School. “The Public Records Law needs to be redone. There's no question about it.”

More than three years ago, Bonfield drafted another comprehensive update based on the findings of a bipartisan committee whose 10 members worked on the project for six months.

The heart of the proposed revision is a board or agency independent of the Attorney General's Office.

The proposal also would increase access to the disciplinary records of government employees and resolve the legal status of preliminary drafts of government documents.

That caught the attention of the local governments and state agencies of whom more openness would be required and against whom enforcement would be directed.

The proposal failed to get sufficient legislative traction in 2008, 2009 and 2010. An admittedly weaker version has struggled again this year.

Keith Luchtel, who lobbies on behalf of the Iowa Newspaper Association, has observed locally elected officials struggle with openness and access.

Local governments are sensitive about violating employee privacy or suffering the embarrassment that can accompany public knowledge of misconduct, he said.

“I have been a city attorney in the past,” he said of his role in Clive, a Des Moines suburb. “I know it's sometimes a situation where you want to do right thing and are afraid to. People don't trust their own judgment. The inclination is to take the conservative road and do nothing. ... It's easier to hold a record than release it.”

Luchtel sounds more like a psychologist than a lawyer when he analyzes the behavior he has observed.

“There's a tendency I see, which I don't understand,” he said. “Good people want to step up and be on boards and councils and serve the public. They're sincere. But yet there's a tendency to think they can do that better if the public doesn't really understand what they're doing. ...

“The natural inclination is, ‘I don't want to make a fool of myself.'”

Openness advocates say that inclination is no basis to deny Iowans access to police reports; city, county and school board contracts; e-mails of government officials; audits; payrolls; internal investigations; and employee disciplinary files.

When access is denied, enforcement should follow - but too often doesn't, they say.

“We've been very open about the fact that we have frustrations with our current attorney general,” said Chris Mudge, executive director of the Iowa Newspaper Association.

Miller, attorney general for 28 of the past 32 years, has heard it all.

“What examples do they give?” he asked. “If there's a good case, we want to bring it. We're anxious to bring it … We stand at the ready.

“The thing is, we've gotten very few cases.”

John McCormally, an assistant attorney general tapped by Miller in December 2008 to “enhance enforcement and compliance” with the open meetings and public records laws, says he spends about 25 percent of his time on such matters.

Taking a violator to court is hardly ever necessary, he said in an interview.

“What we see, especially in smaller communities, people who are aggrieved with municipal or elected officials will want something to club those people with,” he said.

“We always try to weigh the question, ‘is this good use of our resources and the court's.'

“Sometimes we think, ‘boy, a District Court action,' which is what this is, ‘is such a big stick and our office in particular carries such clout, maybe there's a better way to solve this than filing action in District Court.'”

As a result, McCormally says he has no record of his most common and effective enforcement action - phone calls.

“You try to reason with people,” he said. “That's the strength I bring to this.”

The Attorney General's Office hasn't taken an enforcement case to court in years. Rarely are violations serious enough to require even a voluntary compliance agreement, McCormally said.

A typical agreement “essentially says if this happens in the future, we will file an enforcement action. It's sort of a warning,” he explained.

Finally, “if there's a problem with transparency, the electoral process does a good job of sorting that out,” he said. “To me, that's the system working.”

In her role as acting state ombudsman, Ruth Cooperrider is the recipient of many public complaints about compliance.

Her office listed 544 open meetings, public records and privacy complaints from 2008 through 2010. Investigations substantiated 89 violations, she said last week.

“Unfortunately, I don't think our open meetings-public records laws have kept up with the times,” Cooperrider said.

“There's some ambiguity, a lack of clarity or silence on certain issues,” she said. “That makes for a difficult time enforcing when the law is unclear or does not speak to a particular issue.”

In his Iowa City office, Bonfield expresses great respect for lawmakers and the legislative process. As an optimist, he's not likely to give up on the need for reform. As a realist, he won't harm his chances of future success by criticizing those who might be responsible for past frustrations.

Asked why the legislation he champions hasn't fared better, he replies, “Politics,” and declines to elaborate.

Cooperrider also is cautious.

“Unfortunately, the name of the game over there is compromising. It's the political reality of legislation,” she said.

The fight has been “as frustrating for me as anybody else,” said Sen. Pan Jochum, D-Dubuque, the sponsor of this year's bill to create an Iowa Public Information Board. “Getting there has been much more difficult than what I hoped it would be.”

The state newspaper association lowered its expectations this year, Mudge said, “because we hit our head against a wall for three years and are not getting anywhere. …”

Asked why improving public access through stronger enforcement has proved so difficult, Mudge replied:

“Primarily it is because of the magnitude and the efforts of the local government lobby.”

Larry Pope, a former majority leader of the Iowa House and retired professor at the Drake University Law School, is a lobbyist whose clients include the Iowa League of Cities, the Iowa Association of Municipal Utilities and the Metro Waste Authority.

Pope's attendance at hearings about bills that might alter the open meetings-public records status quo can be counted upon.

He joined Jochum, Danielson, Tabor and a roomful of others last month when discussion focused on Jochum's bill to create a public information board with enforcement powers.

Pope expressed his clients' “very serious concerns.”

He described the proposed board as time-consuming, duplicative, gerrymandered, unworkable and possibly tying the hands of the attorney general.

Given the opposition to that bill and to similar measures in recent years, Pope was asked in a recent interview whether his government clients are fundamentally against any measure to improve access and accountability.

“No, that is not our position at all,” Pope said. “We are willing to look at reform that would, in fact, create more transparency, give citizens more opportunities to get more information. …

“This is fifth year this issue has been on the front burner. There are a half-dozen bills in front of the House and Senate. Some create a new state agency with enforcement powers. We'd be opposed to those.

“Others would beef up the Ombudsman and Attorney General's Office and enable them to do the work. We'd be supportive of that.”

By Steven R. Reed, The Gazette