Reforms could clarify Iowa open records law, increase transparency

IOWA CITY — A police officer fired a gun in the Old Capitol Mall, just a couple hundred feet from stores, a medical clinic and University of Iowa offices.

University officials call the 2009 incident an “accidental discharge” and say nobody was injured. But they refused to disclose who did it, how it happened, or how the officer — a state employee working for University of Iowa police — was disciplined. To withhold those details from the public, the university cites a section of Iowa’s open records law which protects personnel information.

That’s just one example of what open government advocates say is a misinterpretation of the state’s open government law. Experts say public agencies interpret exemptions too broadly so the public never finds out about important information — like dangerous mistakes made by armed police officers.

State Sen. Jeff Danielson

As a remedy, the state Senate on Tuesday passed Senate File 289, which would amend the state’s law, requiring government organizations to disclose certain information about their employees. The bill was approved without opposition in the Senate and is expected to see a House vote this session.

Current law only says “personal information in confidential personnel records of public bodies, including but not limited to cities, boards of supervisors and school districts,” is exempt from public disclosure. The proposed amendment keeps most of that intact, but also says compensation, dates of employment, educational history, positions the employee has held, whether the employee was fired are all public information.

The current law does not clearly define personnel records, said Keith Luchtel, a Des Moines lobbyist who works for the Iowa Newspaper Association and the Iowa Broadcasters Association. “Now, we’re going to say that whatever’s in there, at least this much has to be released.”

Open records reform has become a perennial issue in Iowa. In each of the last few years, lawmakers have proposed at least one open government bill, but the legislation gets hung up by a slim margin or pushed aside to make way for other priorities. Some municipalities and public employee groups have lobbied against reform, citing worries about costs and protections for workers.

One lawmaker says he understands why some public bodies have been reluctant to make information available — records custodians don’t want to be responsible for defaming employees. Putting some explicit instructions in the law, he said, will help.

“Currently, they have to disclose that the person was employed from this date to that date, without any other information,” said state Sen. Jeff Danielson (D-Cedar Falls) a proponent of public information reform. “They’re overly cautious. With this, they’ll be less likely to be liable for giving out too much information.”

An investigation by The Iowa Independent earlier this year showed that even within the public university system, officials disagree on what the law says. In response to a request about employees on paid leave, Iowa State University officials reported when each ongoing leave started, salaries paid to those employees, and reasons for their leaves. All that in addition to copies of the letters sent to those employees, with employees names’ redacted. The University of Iowa, however, only released the number of employees and the aggregate amount paid to the group during their leaves, once again calling on the personnel exemption.

“My concern has been that it turns into a kind of black hole in which all kinds of information can be withheld,” said Kathleen Richardson, director of the Iowa Freedom of Information Council.

Iowa’s judicial branch has offered some guidance on how to treat exemptions to the personnel law, but whether or not details of the University of Iowa police officer’s “accidental discharge,” for instance, should be released are still unclear.

In Des Moines Independent Community School District v. Des Moines Register and Tribune Co., the Iowa Supreme Court ruled government agencies should disclose sensitive documents when they can redact information that would identify employees. However, a university spokesman said no amount of redaction would ensure the officer’s identity was protected.

It’s up to the records custodian to determine whether the document can be redacted and measure the public harm of withholding documents. In either case, the state offers little recourse to citizens whose requests are denied.

That’s a problem, advocates say, pointing to weak enforcement of open records law as part of the reason the Sunshine Review gives Iowa a C-. State law does impose fines on those who illegally withhold information, but getting a case in front of a judge requires time and money that many citizens can’t afford.

The state ombudsman and the attorney general are both equipped to take open records complaints from citizens, but the ombudsman can only make non-binding recommendations and the attorney general’s office rarely takes on those cases. Some say the fix is to create a board to review cases where citizens think records holders aren’t compliant.

“In absence of a board, right now the only choice a citizen has is to hire a lawyer and spend a lot of money to get justice,” Danielson said.

An open records review board was voted down by Senate Republicans last year. Similar legislation has been introduced in both chambers of the statehouse again this year, but it was introduced separate from the Senate File 289 because, Luchtel said, sponsors don’t expect the review board to have as much support.

Lobbyists for a handful of organizations that oppose Senate File 289 declined to comment.

Officials from the City of Cedar Falls say they support a broader open records law, but the city is officially opposed to the first version of Senate File 289, because of a provision in the bill which would require state bodies to release certain information after legal settlements.

“That’s a piece we need to look at but I usually think you should be open with what’s going on,” said John Pederson, a lobbyist for the City of Cedar Falls. “Were going to continue to work on these bills.”

This story was produced by IowaWatch.org, the non-profit online news service of The Iowa Center for Public Affairs Journalism.