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.