NEWS

Iowa Public Information Board hasn't shown teeth, critics say

'For the resources we have, we helped a lot of people'

Iowa Public Information Board logo. (Image via Iowa Public Information Board website)
Iowa Public Information Board logo. (Image via Iowa Public Information Board website)

DES MOINES — The Iowa Public Information Board, one of few groups in the country with teeth to enforce open government laws, resolves most complaints without sanctions, fining only one government official in 20 months of operations.

The board fined former Washington County Attorney Larry Brock $1,000 in October for knowingly breaking Iowa’s open records law by failing to provide public documents for three months.

“To me, it was important for the board to be taken seriously,” said Kathleen Richardson, a board member, Drake University journalism professor and executive director of the Iowa Freedom of Information Council.

Still, three years after the Iowa Legislature created the board, some Iowans say its staff and board members are far more likely to side with government agencies than with average Joe citizens.

“The idea of this board is to counterbalance these big interests,” said Evan Burger, a former organizer with Iowa Citizens for Community Improvement. But “it’s for show. They’re not checking the balance of power.”

LONG-AWAITED BOARD

Iowa lawmakers formed the Public Information Board in 2012 after years of lobbying by open-government advocates, including The Gazette and other media outlets. The group’s purpose is to enforce chapters 21 and 22 of Iowa Code, which deal with open meetings and open records.

Unlike similar boards in other states, Iowa’s has authority to issue civil fines of up to $2,500 for a knowing violation.

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Gov. Terry Branstad appointed the nine-person board, which includes representatives from the media, government and the public. The board, approved by the Senate, has five registered Republicans, three Democrats and one Independent.

The group, which started accepting complaints in July 2013, successfully resolved 92 formal complaints in 2014. It answered 788 informal inquiries during that time.

“For the resources we have, we helped a lot of people,” said Keith Luchtel, who served as executive director from April 2013 until his retirement in November.

Luchtel, a retired lawyer for Nyemaster Goode in Des Moines, worked for years as a lobbyist, representing clients that included the Iowa Newspaper Association.

Richardson agrees the board has been successful: “It’s been overwhelmingly positive and is fulfilling its expectations.”

BOARD SELDOM FINDS FOR COMPLAINANT

The board’s website posts a sampling of 40 formal complaints. Of those, the board found probable cause for a records or meetings violation in only a handful.

Many complaints were dismissed because the alleged violations didn’t happen within 60 days of the complaint, a statutory requirement, Luchtel said. Often Luchtel or the deputy director, Margaret Johnson, would contact the government agency about the alleged violation anyway.

“Behind the scenes, we would get people help, even if they weren’t strictly entitled to it by law,” he said.

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One complaint dismissed by the board July 10 came from Story County residents and Iowa Citizens for Community Improvement.

The group asserted the county’s Board of Supervisors violated open meetings law by posting amendments to an application for a hog confinement operation just 90 minutes before a hearing. Officials acknowledged working with the farmer to amend his application on Memorial Day, the day before the May 27 hearing.

Supervisors approved the confinement plan May 27.

“We had no time to analyze those responses and determine if they were adequate,” said Greta Anderson, of rural Story County. “We wanted a do-over.”

Luchtel, who listened to a four-hour recording of the supervisors’ hearing, ruled they did not break the law, which requires government bodies publish notice of the meeting and a tentative agenda 24 hours in advance.

In a June 24 opinion, Luchtel said the board announced the amendments at the beginning of the hearing and listened to dozens of citizens. “The Story County Supervisors presided over one of the most open and democratic hearings I have heard,” he wrote.

Those comments infuriated complainants, who felt the 11th-hour amendments violated the spirit of open government. Burger, the former CCI organizer, said the citizens would have preferred the issue go before the whole public records board — not just Luchtel.

RULES ALLOW FOR EXECUTIVE ROLE

Rules allow the board to delegate acceptance or rejection of formal complaints to the executive director. Luchtel’s practice was to review a complaint, compile a report with a recommended action and put the complaint on the agenda for a vote.

“They delegated authority to me to make decisions, but they (complaints) were all reviewable by the board,” he said.

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The board has occasionally rejected an executive recommendation. The group slammed a $100 settlement that Johnson, the deputy director, proposed for Washington County’s Brock in favor of a steeper penalty.

Brock was charged in May with refusing to provide public records to a former Washington County employee, even when board staff advised him to do so or risk charges.

Other high-profile complaints came down in favor of state government.

Luchtel recommended the board dismiss a complaint filed in August 2013 by the Des Moines Register, seeking release of a video depicting abuse of a teenage girl at the former Iowa Juvenile Home in Toledo.

The majority of the board voted for the recommendation from Luchtel, who said the video was a medical record protected under federal patient privacy laws. A Polk County judge affirmed the decision in November.

“Many of us find the enforcement actions of the board lacking and disappointing,” said Mike Giudicessi, a lawyer for Faegre Baker Daniels in Des Moines who represented the Register in the Toledo video case.

NEW DIRECTOR VOWS IMPROVEMENTS

Charlie Smithson, who became the board’s executive director in November, has pledged changes, including bringing all formal complaints to the board, beefing up the website and writing more advisory opinions that can be used to educate officials. His budget for next year adds an employee to speed the complaint process.

Smithson is best known for leadership roles in the Iowa Ethics and Campaign Disclosure Board between 1998 and 2010.

“I’m hopeful Smithson will bring change to the board,” Giudicessi said. “He’s a solid investigator and he knows his way around Capitol Hill.”

IOWA PUBLIC BOARD OF INFORMATION BOARD MEMBERS

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• Robert Andeweg, Urbandale (Republican) — Anderweg is mayor of Urbandale and a lawyer with Nyemaster Goode in Des Moines.

• Tony Gaughan, West Des Moines (Republican) — Gaughan is a lawyer who is an assistant professor of law at Drake University in Des Moines.

• Jo Martin, Spirit Lake (Democrat) — Martin is a semiretired vice president for TimesCitizen Communications in Iowa Falls, having worked for several other Iowa newspapers prior. She is a past president of the Iowa Newspaper Association and the Iowa Newspaper Foundation.

• Andy McKean, Anamosa (Republican) — McKean is a lawyer who has served as a city attorney (Morley, Martelle, and Mechanicsville), a county supervisor (Jones County 2003-2011) and a state legislator (House 1979-1993 and Senate 1993-2003).

• Gary Mohr, Bettendorf (Independent) — Mohr is executive director, external affairs for Eastern Iowa Community College in Davenport.

• Bill Monroe, Johnston (Republican) — Monroe retired after 29 years as executive director of the Iowa Newspaper Association in 2009. Before that, he worked at several Iowa newspapers as an editor or publisher. In 2011, Gov. Terry Branstad named him to serve (as a volunteer) as the Governor’s Transparency Adviser. He has served on the executive committee of the Iowa Freedom of Information Council.

• Kathleen Richardson, Des Moines (Democrat) — Richardson is director and associate professor at the Drake University School of Journalism and Mass Communication and has served as executive secretary of the Iowa Freedom of Information Council since 2000. She has also served as a coordinator for the Expanded Media Coverage (camera in the courtroom) program for the Iowa Supreme Court.

• Suzan Stewart, Sioux City (Republican) — Stewart the senior managing attorney for MidAmerican Energy Company.

• Peggy Weitl, Carroll (Democrat) — Weitl is the treasurer of Carroll County.

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