PRAIRIE VILLAGE, KS — On Nov. 14, the newly-minted Iowa Public Information Board (IPIB), whose formation was the result of years of lobbying by media groups and transparency activists, made a suite of rulings that caused some of those same activists to question how aggressively it would pursue its open-government mandate.
IPIB dismissed petitions by The Des Moines Register, which asked for a ruling specifying that public-records requesters could not be charged for government workers’ overtime pay; the Associated Press, which requested access to fired public workers’ arbitration records; and a resident of Sanborn, Iowa who argued that city officials there had violated the law by keeping a public-meeting notice behind locked doors for much of the legally-mandated 24-hour period.
State Ombudsman Ruth Cooperrider took issue with the Sanborn open-meetings decision. The petitioner in that case, Jerry Niichel, called it “absolutely unbelievable,” and said he was considering legal action. Lyle Muller, who is the executive director of the Iowa Center for Public Affairs Journalism and serves on the Iowa Newspaper Association Government Relations Committee, said in an interview a week later that while it was too early to fully assess the board’s performance, these early decisions did not bode well.
“We’ll see how all this plays out,” Muller told me. “But these rulings last week kind of disturb me.”
A ‘sea of frustration’
For years, Muller had fought to establish this board, alongside some of the same people who now serve on it. IPIB’s executive director, Keith Luchtel, who authored the Nov. 14 decisions, was a longtime lobbyist for the Iowa Newspaper Association and the Iowa Broadcasters Association; chairman Bill Monroe was the former INA executive director; and another board member, Drake University professor Kathleen Richardson, heads the Iowa Freedom of Information Council. The board members also include representatives from government and the general public; they are charged with enforcing the state’s public-records and open-meetings laws, and providing outreach and training to government agencies on compliance.
In 2012, just months before the board was finally signed into law, Iowa received an “F” in the category of public-records accessibility in a study by the Center for Public Integrity, Global Integrity and Public Radio International (the Iowa section was conducted by Muller’s Iowa Center for Public Affairs Journalism and the Cedar Rapids Gazette). The state graded out well in other “corruption risk” categories, coming in seventh overall nationally in the study, but the grade was dragged down by a long history of lax enforcement of public-records statutes.
“There’s a whole sea of frustration in Iowa from citizens trying to get access to the information they need,” state Sen. Jeff Danielson said in 2011. “Iowans still wonder why officials still say ‘no’ to them when they ask for documents.”
Iowans whose public-records requests were ignored could complain to the state ombudsman, who might write an advisory opinion admonishing agencies for their misbehavior. But, as Ombudsman Ruth Cooperrider told me, “My office did not have the ability to sanction people for violations.”
Those who did have enforcement power, advocates complained, were unresponsive. State Attorney General Tom Miller, who has served for decades and recently announced another reelection bid, has repeatedly refused to address public-records complaints, impeded news investigations, and antagonized journalists over public-records issues.
Part of the problem in obtaining help from the attorney general stems from the mandate of the office itself, which is charged with defending government officials as well as enforcing the law. This conflict of interest creates a problem for attorneys general in most states, not just Iowa, Kenneth Bunting of the National Freedom of Information Coalition told IowaWatchdog.org in April.
“Unfortunately, I’m aware of more cases where AG’s have had to defend state agencies or local governments, even when they were claiming an unsupportable position,” he said.
Whether because of indifference to transparency laws, conflicts of interest, or other reasons, “citizens were often left in the lurch,” said Luchtel, the former Iowa media lobbyist who is now the IPIB executive director.
“Someone from the public would complain,” Muller said, “and the government’s response was, ‘Sue us.'”
Some individuals and organizations did just that. But for those few who had the time, will, and resources to sue the government, Muller said, “you’re not only paying your own legal costs but you’re paying your opponent’s costs–through taxes.”
What was needed, open-government advocates believed, was an independent entity to which Iowans could appeal without having to go to court–and which, unlike the ombudsman’s office, had enforcement powers.
This vision became reality last year with the creation of IPIB–after years of battles between transparency advocates on the one hand, government-association lobbyists on the other, and an attorney general’s office that offered conflicting positions on the issue–sometimes on the same day.
In the bill-signing announcement, Gov. Terry Branstad said he hoped the board could help Iowa reverse the “F” grade on public-records access issued by Muller’s organization. Even as IPIB became a reality, however, there were no illusions that the battle for open government in Iowa had been won.
Obstacles and logjams
As soon as it opened for business this summer, the board was deluged with complaints–from citizens and media groups, but also from government officials across the state claiming that they were overwhelmed with nuisance requests.
“At first it was very busy and I thought it was just the logjam,” Richardson told me. “But they hired two attorneys … and the number of calls and issues that they deal with has continued to be strong.”
At its inception, Luchtel said, the board’s workload was expected to be about 300 cases per year. As of last week, he said, IPIB has received a total of 201 cases–a rate that, if it continues, would result in an estimated 543 cases per year.
“It’s more work than I thought it was going to be, frankly,” said Richardson, who also serves as executive secretary of the Iowa Freedom of Information Council and director of the Drake University journalism school.
More problematic than the volume of cases, however, are the statutory limits placed on the board. For one thing, the executive, legislative and judicial branches were exempted from IPIB scrutiny.
Moreover, the board’s powers are limited by dozens more exemptions already written into Iowa’s sunshine laws. Stephen Berry of the Iowa Center for Public Affairs Journalism noted last year that “[t]he Iowa code carries 65 exemptions in the public records law, all of them added over time.” And the Hawkeye State is not unique in this regard.
Exemptions related to personnel records have long been an obstacle to open government in Iowa. A 2011 special report by Steven Reed for the Cedar Rapids Gazette detailed a case in the 1990s in which an Iowa public school teacher was charged with sexually harassing a student, but his criminal record was expunged in a plea deal and “because Iowa law prohibits release of disciplinary files,” he was able to move “undetected” to a new teaching job in Kansas City, where he was later arrested for kidnapping and sexually assaulting a child.
Today, such personnel exemptions remain an issue, as evidenced by one of the board’s controversial rulings on Nov. 14. The AP’s Ryan Foley asked the board to force the Department of Administrative Services to release files related to nine fired state employees going through arbitration procedures, arguing that the state’s statutory exemption for such files unfairly favors union workers. Luchtel and the board sided with the department, arguing that withholding the records was legal.
Regardless of the merits of the exemption in question, Muller acknowledged, the board’s hands were tied on this issue.
“Am I happy with the ruling? No,” he told me. “Does the law uphold the ruling? Yes, it does.”
IPIB members said their other two controversial Nov. 14 decisions were dictated by statute as well.
“What I would point out to people who are concerned,” Richardson said, “is that one of the things this board is trying to do is look at gaps in the law and make recommendations for what can be changed.”
The board dismissed Jerry Niichel’s open-meetings complaint, ruling that the city of Sanford obeyed the law by posting its meeting notice for 24 hours, even though the sign had been locked up in a government office overnight for much of that period.
The ombudsman, Cooperrider, wrote a memo disputing this reading, arguing that the relevant statute requires public-meeting notices to be “easily accessible to the public” for “at least twenty-four hours prior to the start of any public meeting” and that the city of Sanford violated the statute by keeping the notice locked up overnight.
Muller agrees with this interpretation, arguing that otherwise “you could post [a notice] at 3:00 and close at 4:30, and practically no one would see it.”
Luchtel argues that, as a former city attorney, he had never read the statute as requiring notices to be in view for 24 hours, rather than simply being posted 24 hours ahead of time.
“I think you have to strain to interpret it that way,” he told me.
Luchtel says he was also bound by statute in ruling against The Des Moines Register on whether records requesters could be charged by the state for overtime pay. The case stemmed from a dispute between the Register and the Iowa Department of Public Safety, which attempted to charge the paper for employees’ overtime pay in fulfilling a public-records request. The attorney general ultimately told the agency not to charge overtime for the request, but the Register asked IPIB for a declaratory order stating that charging overtime violates public-records laws.
The board determined that there was no statutory basis for such a declaration. In writing this ruling, Luchtel was, ironically, going against his former colleagues at the Iowa Newspaper Association, which petitioned the board in support of the Register‘s filing.
“Some are disappointed I’m not opening the doors to everything,” Luchtel said. “It’s still the law. I’m not going to bend it to what I want.”
Transparency, Muller counters, should be business-as-usual for government agencies, not an after-hours, overtime proposition.
“Why isn’t that part of the regular duties?” he asked. “Why is the records-search overtime?”
A model for transparency?
Still, despite this ruling, Rick Green, publisher and president of the Register, told me in an email that he and his colleagues have been generally “pleased with our interactions with the Public Information Board,” and open-government advocates say they have not lost confidence in IPIB.
“I think Iowa’s better than an ‘F’ now that there’s this mechanism,” Muller said, adding that, “If nothing else, there is a greater awareness, and the state as a matter of policy said transparency is important.”
Richardson has more ambitious goals, arguing that IPIB can help Iowa serve as a model for transparency across the nation. Iowa is one of only a few states, she says, that has vested a public-information board with real enforcement powers.
“This is being looked at by public-interest advocates around the country,” Richardson said.
Will they like what they see?
“Ask me in a year or so,” Muller said.
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Deron Lee is CJR’s correspondent for Iowa, Missouri, Kansas, and Nebraska. A writer and copy editor who has spent nine years with the National Journal Group, he has also contributed to The Hotline and the Lawrence Journal-World. He lives in the Kansas City area. Follow him on Twitter at @deron_lee.