Iowa inspection agency keeps secret emails on potential bills

The state agency that inspects Iowa nursing homes is refusing to disclose emails from the agency staff concerning proposed legislation.

The Iowa Department of Inspections, Appeals and Licensing is asserting that emails that were completed, sent and received are preliminary “draft” documents that aren’t subject to disclosure under Iowa’s open records law.

The department’s position is based on the fact that the subject matter of the emails is legislation that was still in the preliminary, draft stages of development.

In December 2023, the Iowa Capital Dispatch asked the department for a copy of data the agency shared with lawmakers or the governor’s office over the previous 10 days that were related to its Health Facilities Division.

On Jan. 25, the agency said a search for the requested records yielded “more than 300 emails” that were being reviewed by legal staff and that the cost to perform that work was estimated to be $100. That Capital Dispatch agreed to pay the $100.

On Feb. 9, the department provided the Capital Dispatch with four emails that related to its efforts to reduce a backlog of complaint investigations and overdue inspections at Iowa nursing homes. At the time, the agency gave no indication that it was withholding any records as confidential, but indicated there were “quite a few” documents the agency had deemed irrelevant.

The Capital Dispatch then asked it for the 300 emails that were deemed irrelevant, plus the internal correspondence related to that determination.

On Feb. 28, an agency attorney provided redacted copies of documents related to the department’s search for records, but said that while hundreds of emails had been deemed irrelevant, they had not been reviewed to determine whether they could be legally withheld from public disclosure under any of the exemptions to the law.

Such a review, the attorney said, would cost the Capital Dispatch $250. At that point, the department also reported it was withholding as confidential a set of emails that pertained to draft legislation. The Capital Dispatch questioned whether emails that had been completed, sent and received could be treated as draft documents simply because they discussed other documents that were still in the draft stages.

The Capital Dispatch noted that Iowa law states that the exemption for draft documents “shall not apply to public records that are actually submitted for use or are used in the formulation, recommendation, adoption, or execution of any official policy or action of a governmental body.”

The Capital Dispatch asked the agency to turn over the emails. In response, its attorney stated that “the tentative and preliminary sharing of potential language for proposed legislation” rendered the emails subject to the draft-document exemption.

The attorney also noted that information in the email was not shared with legislators, who are the individuals who are authorized to adopt and execute official policy, but with the senior legal counsel for the Legislative Services Agency that helps draft bills.

The exemption to the state’s open records law that the department relies on does not require agencies to keep draft documents confidential. It instead gives public agencies the option of either disclosing or withholding draft documents.

Among the legislation being considered this session is House File 2585, which would enable the agency to forgo a complaint-related, on-site visit to a nursing home if it believes the complaint involves an issue that was already the subject of a complaint within the previous 90 days. Under the proposed new law, the agency could also forgo an on-site inspection by choosing to investigate the matter by phone or through a review of electronically delivered records.

Other elements of the bill would require the department to provide training for nursing home staff at state expense, and would require it to consult with care facilities about any planned citations for regulatory violations before such citations were issued.

A spate of deaths and serious injuries tied to regulatory violations in Iowa nursing homes has prompted Democratic and Republican lawmakers this year to propose a series of bills to address the issue. Republican lawmakers are backing bills they say will foster a more “collaborative” approach to regulatory enforcement, while Democrats have argued the state isn’t being tough enough on violators.

This article first appeared in the Iowa Capital Dispatch.