Confusion on Iowa public records law leads to costly requests for information

Costs and time spent defining what qualifies as an open record in Iowa are the biggest impediments to gaining access to information about how government functions and the way public money is spent.

The cluster of rules defining public records in Iowa can be confusing or leave room for uncertainty. When a dispute arises, fighting for access to information often means hiring a lawyer despite the creation of the Iowa Public Information Board, which took effect in 2013 and can mediate record disputes.

'I can read the code and someone in the government can read the code and we'll both come back with different answers,' said Steve Delaney, editor and publisher of the Hawk Eye newspaper in Burlington.

The Hawk Eye is part of a legal dispute over a denied records request for information about the Jan. 6, 2015, fatal shooting of Autumn Steele, 34, of Burlington, by a city police officer. Legal costs in the case have risen to more than $30,000 and the case is ongoing.

Although the creation of the public information board shows improvement in Iowa's transparency efforts, the Hawkeye State still earned a D+ in a government transparency report published in November.

The report was part of a survey conducted by the Center for Public Integrity and Global Integrity assessing state government transparency and accountability across 13 categories. Iowa tied for 11th place overall, earning failing grades in judicial accountability and lobbying disclosure.

Sunshine Week, which runs from March 13 to 19, highlights open government and public records issues.

The wording of Iowa's open record laws earned the state slightly lower scores on a number of the integrity survey questions. The reason — there is no law specifically requiring a record in question be made public. Instead, Iowa's law functions under a presumption that a record is open unless it is listed in the Iowa Code as a confidential record.

Johannes Tonn, a research manager with Global Integrity who worked on the survey, said states generally have a decent legal framework for access to information, but a slow creep of changes made over time can reduce access. Citizens and journalists are usually better served if laws specifically mention what information must be made public, he said.

'What happens over time is that lawmakers and bureaucrats start introducing more and more exemptions and more and more doubt about whether or not some information should be public,' Tonn said.

But Arthur Bonfield, associate dean emeritus of the University of Iowa College of Law, said reversing the way Iowa's law works and listing every public record would be impossible.

'If you put the shoe on the other foot, you can have a 1,000-page book and you still wouldn't list all of them.' Bonfield, the principal draftsman of Iowa's open records law, said.

A growing number of exemptions for Iowa records considered confidential are listed under section 22.7 in the state's open records law.

COST OF UNCERTAINTY, CONFUSION

Uncertainty about what should be released has led to debate and legal costs as Iowans try to get information they believe should be public.

Gazette Editor Zack Kucharski said record requests increasingly require more interaction with lawyers to figure out what information to request and negotiate cost of the records.

'We've had several open records requests that ended up costing over a thousand dollars,' he said. 'We probably could spend even more time fighting to get that number down, but sometimes if they start at $70,000 and you end up at one (thousand), that's still a win.'

The Des Moines Register sued the Iowa Department of Public Safety in March 2014 to get video and audio records of Worth County sheriff's deputies' use of a Taser on a man who later died. The records had been denied citing the exemption for investigative reports.

Although the records were eventually provided as part of a settlement in which the Register dropped the lawsuit, the settlement also specified that the release didn't mean that the records were public and didn't not set a president for future cases, meaning it cannot be cited in trying to gain access to similar records.

Amalie Nash, the Register's editor and vice president for audience engagement, said the lawsuit cost 'multiple thousands of dollars.'

The Iowa Public Information Board proposed an amendment to the public records law last year to clarify which law enforcement records are considered public. The amendment was modeled after federal laws, but met with resistance in the Senate and was removed from the bill.

This story was produced by the Iowa Center for Public Affairs Journalism-IowaWatch.org, a non-profit, online news website that collaborates with Iowa news organizations to produce explanatory and investigative reporting.