PRAIRIE VILLAGE, KS — In its own polite, Midwestern fashion, The Des Moines Register is mad as heck and is not going to take it anymore.
After Iowa officials refused to release records showing alleged abuses by state employees, the paper is pursuing dual lawsuits to force the records into public view. In one case, the Register is even suing the state’s new public information board, formed expressly to address years of complaints about records transparency.
The legal moves, coupled with related efforts at coalition-building, are part of an avowedly more assertive posture by the paper to shift the state’s political culture toward openness—a stance that is welcomed by open-government advocates in Iowa, even if its prospects for success are uncertain.
One of the suits, filed against the Iowa Department of Public Safety, seeks police records of an incident last fall in Worth County in which an inmate was Tasered multiple times and died while in custody—a death that the state medical examiner ruled a homicide. The other suit involves a 2012 video that shows an employee at the Iowa Juvenile Home in Toledo slamming a female inmate’s head against a wall; the employee has been fired and the home has been closed, but the state has refused the Register’s requests to release the video on the grounds of protecting the alleged victim’s confidentiality, and the Iowa Public Information Board ruled in the state’s favor by a vote of 6-3 in February.
In late March, a month after that ruling, the Register reported that it was taking both the DPS and the IPIB to court. Two months later, the gears of justice are grinding slowly. The Register’s attorney, Michael Giudicessi, says the court has not issued a scheduling order or trial date in either case, and the public information board case in particular is not likely to see much action until the fall.
“The pace of these cases demonstrates a major shortcoming of access laws,” Giudicessi told me in an email. “While public officials withhold access in a heartbeat, corrective actions by the press and the public take months and years.”
Rejoining the fight
The push to take the disputes to court came from Amalie Nash, the paper’s editor and vice president for audience engagement. Nash, who joined the Register from the Detroit Free Press only earlier this year, said she is intent on upholding the paper’s “longstanding tradition of standing up for public records.”
The state is “fortunate to have an organization like the Register that will put its money where its mouth is,” said Chris Mudge of the Iowa Newspaper Association, “because oftentimes newspapers don’t have the resources to do that.” The association plans to file an amicus brief in support of the Register in the case against the public information board.
Herb Strentz, a former head of the Iowa Freedom of Information Council and one of the deans of the state’s transparency movement, pointed out that the Register has not been the only news organization in the state to take on these battles. He credits Michael Gartner, a former Register editor who now writes for the alt-weekly Cityview, with successfully suing the Iowa Public Radio board last year “for blatant violation of the open-meetings law in the firing of its executive director” when the Register and others did not take up the case.
But in an email interview, Strentz praised the Register for taking on its current court fights, hearkening back to what he considers the paper’s heyday as a transparency advocate in the 1970s and 1980s.
“It is good to have today’s Register continuing the fight,” Strentz said. “Any newspaper or broadcast station fighting for access deserves our praise because editors and news directors have so many budget pressures to cope with.”
Transparency reform falls short of advocates’ hopes
In filing the suits, the Register is in effect arguing that long-running concerns over transparency have not been addressed, despite reform efforts.
In 2012, the state received an “F” for public access to information in a study by the Center for Public Integrity and other groups. (The study was supported by the Omidyar Network, which is a major funder of the United States Project.) Indifferent enforcement of public-records laws was a continuing frustration to advocates, journalists, and even some lawmakers. “Someone from the public would complain, and the government’s response was, ‘Sue us,’” Lyle Muller of the Iowa Center for Public Affairs Journalism told me last year.
That same year, the state took a key step toward greater transparency with the creation of the Iowa Public Information Board—the culmination of a six-year lobbying battle by media and open-government advocates. The board, with representatives from government, media, and the general public, would act to expedite records requests and, uniquely among such state bodies, would have enforcement power to make government agencies comply with the law.
But, Strentz wrote in a recent Register op-ed, the board “has not yet lived up to the optimism of its advocates.”
Last fall, even as some of the board’s early decisions were prompting concerns among the people who had worked to see it created, Register publisher Rick Green told me he and his colleagues were generally “pleased with our interactions with the Public Information Board.” Now, after another adverse ruling, the paper is taking IPIB to court—an ironic development, Strentz wrote in his op-ed, given that the “costs and the time consumed by such litigation are what the board was supposed to do away with.”
Mudge of the newspaper association stressed that, while her group was siding with the Register in this case, “I’m not disappointed in the board.” She said the board has resolved several public-records disputes by working directly with stakeholders behind the scenes and has made the right decisions in a number of cases, including an open-meetings dispute involving a local school board.
Nash, the Register editor, was not as sanguine. “I think there certainly are things they have done that are beneficial,” she said. “But when it comes to the large decisions they made involving the Register, we’ve been disappointed in the stands they’ve taken.”
Pushing the envelope—or unsealing it?
Ironically, the Register and the board do find agreement on the paper’s other lawsuit—against the Department of Public Safety for withholding records in the Worth County Taser case.
“Why won’t the sheriff release the Taser log?” Keith Luchtel, the board’s executive director, said in an interview. “I think the Register is entitled to that.” Luchtel, who previously worked as a lobbyist for newspapers and broadcasters in the state, added that “most law enforcement officers seem to agree with me” that withholding such records serves no public purpose, and he said the board was looking into the matter. (Compounding the irony is the fact that, according to Nash, the Register had opted not to bring the Taser case to the board for fear of being rebuffed again.)
On the juvenile-home case, however, there appears to be no room for compromise. Luchtel told me he was “somewhat surprised” that the Register filed suit in the case, “as it seemed the law was pretty clear that the record was confidential.”
He said the confidentiality of the girl under the care of the juvenile home was of paramount concern.
“If all surveillance videos of girls in public detention were public record, what kind of problems would you run into?” he said.
Nash says the video can be released with the girl’s identity concealed. “OK, blur out her face. That’s fine,” she said. “We don’t need to identify her either.”
Luchtel argued that “even if the image were to be blurred, people with knowledge could identify her, people in her community, her family could identify her.” And, he said, the state’s open-records statutes don’t provide the basis for treating a juvenile-home surveillance video as anything but a confidential medical record.
Ultimately, he said, “We certainly don’t feel any antagonistic relationship to the Register. They’re trying to push the envelope, so to speak. They’re trying to make new law.”
Giudicessi, the Register’s lawyer, counters that the paper wants the court to read the law in the spirit of openness. “Rather than pushing the envelope, the Register simply seeks to unseal it.”
‘A chorus of voices’
While the Register waits for the court to rule, the paper is trying other approaches to shift the state toward openness. Nash has called for a “legislative roundtable” in which state lawmakers, members of IPIB, other state officials including the attorney general, and newspapers and broadcasters across Iowa meet to discuss transparency issues.
The goal, she wrote in proposing the idea, is “to continue to build momentum for legislative changes or to stop interpretations of existing laws that fly in the face of transparency.”
Mudge, Luchtel, and Strentz all told me they were in favor of the idea—though Strentz, who called in his op-ed for a “rewrite” of state transparency laws to emphasize openness, is also skeptical.
“More power to her,” he said. “But I’m puzzled as to where the public outrage is. Hundreds of citizens bugging legislators about rampant secrecy in Iowa will do more to get action than a roundtable.”
At the very least, Nash says, the issue has galvanized her newsroom. When she announced to her colleagues this spring that the paper was filing the dual lawsuits, “people were really excited that we were going to take a stand.”
Now, she hopes that enthusiasm will spread—among media and open-government advocates, and to members of the public as well.
“We want it to be a chorus of voices saying, ‘We want you to default to transparency rather than secrecy.’”