The Iowa Supreme Court ruled this month on three cases balancing the public’s right to know with an entity’s right to keep certain information confidential. In two of the majority rulings, justices found other considerations outweighed the grounds for disclosure, but three justices dissented from each of those decisions.

The Iowa Supreme Court issued its ruling in Press-Citizen Company, Inc., vs University of Iowa on July 13. Steve Woodhouse of the Knoxville Journal-Express provides the background:

The Press-Citizen, a newspaper in Iowa City, successfully sued the University for refusing to produce records related to an October 2007 alleged sexual assault on campus. This was the case involving two football players and a female student-athlete.

The University argued that the Federal Educational Rights and Privacy Act (FERPA) prevented them from disclosing student records, if the student could be easily identified by the general public. By the time the Press-Citizen made the request, the names of the students involved were already known statewide.

The Press-Citizen felt the Open Records Act superseded FERPA. A Johnson County District Court Judge agreed, and on Oct. 5, 2009, ordered the disclosure of documents and awarding the Press-Citizen $30,500 in attorneys’ fees.

The University of Iowa appealed, represented by the Iowa Attorney General’s Office. Justice Ed Mansfield wrote the majority opinion, joined by Chief Justice Mark Cady, Justice Bruce Zager, and Justice Thomas Waterman. His opinion (pdf) notes that state and federal courts have issued conflicting decisions on whether FERPA prohibits the release of certain education records, including disciplinary records. Mansfield argues,

We need not step into this controversy here, however, because we believe a provision of the Iowa Open Records Act already gives priority to FERPA. Section 22.9 of the Act provides:

If it is determined that any provision of this chapter would cause the denial of funds, services or essential information from the United States government which would otherwise definitely be available to an agency of this state, such provision shall be suspended as to such agency, but only to the extent necessary to prevent denial of such funds, services, or essential information.

An agency within the meaning of section 17A.2, subsection 1, shall adopt as a rule, in each situation where this section is believed applicable, its determination identifying those particular provisions of this chapter that must be waived in the circumstances to prevent the denial of federal funds, services, or information.

Otherwise stated, the first paragraph of section 22.9 suspends the operation of a provision of the Open Records Act if the provision would cause the denial of federal funds to a state agency. This paragraph, we believe, answers the Press-Citizen’s argument that FERPA in and of itself is not a positive law. Section 22.9 gives it the effect of a positive law. If the University regularly released educational records pursuant to section 22.2(1) of the Open Records Act, it would be engaging in a “practice” of permitting the release of confidential education records, assuming the records contained “personally identifiable information.” See 20 U.S.C. § 1232g(b)(1). The sanction for this would be a loss of federal funding. […]

Of course, at the end of the day the federal government might not try to defund the University of Iowa regardless of the circumstances. But we do not think section 22.9 requires Iowa courts to make predictions about policy decisions made in Washington D.C. That would be unworkable. See Iowa Code § 4.4(3) (setting forth a presumption that “[a] just and reasonable result is intended”). As we read the first paragraph of section 22.9, it requires us to withhold legal effect from a provision of the Open Records Act, such as section 22.2(1), if it appears that

of the provision) would result in a loss of federal funding for a state agency.

Justice Brent Appel wrote the dissenting opinion, joined by Justices Daryl Hecht and David Wiggins. I found his arguments more convincing:

The Federal Educational Rights and Privacy Act (FERPA) states that federal funds shall not be available “to any educational agency or institution which has a policy or practice” of releasing personally identifiable information without the written consent of parents. 20 U.S.C. § 1232g(b)(1) (2006). In my view, compliance with a judicial order pursuant to a generally applicable state public records statute does not amount to a policy or practice of any educational agency or institution. See generally Maynard v. Greater Hoyt Sch. Dist. No. 61-4, 876 F. Supp. 1104, 1108 (D.S.D. 1995). The majority opinion repeatedly cites “policy or practice,” while omitting the statutory requirement that the “policy or practice” must be one of the “educational agency or institution.” In effect, the majority opinion amends the statute to strike the words “agency or institution.”

In light of this explicit wording of FERPA and the Iowa Open Records Act, I would not rewrite either statute. While federal law plainly is supreme, I find no conflict between FERPA and the Iowa Public Records Act. As a result, I would require disclosure of the public records in this case.

UPDATE: The Iowa City Press-Citizen will receive $30,500 from the state of Iowa to cover legal fees associated with this case.

The Iowa Supreme Court issued two decisions on July 27 that related to disclosure of information. As in Press-Citizen v. University of Iowa, the justices split 4-3 in American Civil Liberties Union Foundation of Iowa vs. Records Custodian, Atlantic Community School District. However, some of the justices who came down on the side of disclosure in the Press-Citizen appeal reached the opposite conclusion in the case against the Atlantic School district.

This lawsuit grew out of the outrageous strip-searching incident at Atlantic High School in August 2009. The school district paid $300,000 to settle a lawsuit and released the names of the staff involved in the strip search but did not announce its disciplinary measures against those staffers. That prompted the American Civil Liberties Union of Iowa  to sue the school district in February 2010.

[ACLU of Iowa executive director Ben] Stone says there have been reports of people resigning, but nothing officially, and he says they want to know what exactly was done for those who engaged in the strip search.

He says they need to see the punishment to know if the district took the issue seriously. Stone says it is a balancing act to allow some personnel information to remain concealed, versus the public’s right to know. “We think in this case that the public interest in seeing that government officials are held accountable for violating a law like the strip search prohibition would be a more important piece of information than the plain privacy interest of the people that have been disciplined,” Stone says.

A district court judge found that disciplinary records from an employee’s personnel file are not subject to Iowa’s open records law. A split Iowa Court of Appeals panel agreed with the lower court, rejecting the ACLU’s lawsuit in October 2011. The Appeals Court decisions are here (pdf). Radio Iowa summarized the arguments.

The majority ruling of the court said “We acknowledge the public interest in open access to governmental records and the conflict between access and the interest in protecting privacy rights of employees. But we agree with the district court that any expansion of the public’s right to these records is a matter for the legislature to determine.”

Justice Amanda Potterfield disagreed with the majority ruling. She said “While the disciplinary measures may implicitly contain information regarding the job performances of the two individual employees, the privacy interests implicated here, the measures relate most directly to the response of the school district in which the public has a legitimate interest.

My analysis of the decisions of the Iowa Supreme Court in cases involving the exemption to our open records law for “personal information in personnel records” leads me to believe disclosure of the narrow piece of information requested by the ACLU should not be categorically denied under the circumstances here.”

The seven Iowa Supreme Court justices couldn’t reach consensus on this case either. Wiggins wrote the majority ruling (pdf), joined by Hecht, Zager, and Appel. Wiggins notes,

The [Iowa Open Records] Act essentially gives all persons the right to examine public records. Iowa Code § 22.2 (2009). However, it then lists specific categories of records that must be kept confidential by those responsible for keeping records. Id. § 22.7. Accordingly, these records are exempt from disclosure. Id. The general assembly has amended this list numerous times over the years. Over sixty categories of records are currently exempt from disclosure. See id. § 22.7. We have previously determined the general assembly intended that we broadly interpret the disclosure requirement, but narrowly interpret the confidentiality exceptions. […]

The categorical exemption at issue in this appeal exempts from disclosure “[p]ersonal information in confidential personnel records of public bodies including but not limited to cities, boards of supervisors and school districts.” Iowa Code § 22.7(11). […]

In Des Moines Independent Community School District, we determined performance evaluations contained in an employee’s confidential personnel file were exempt from disclosure under section 22.7(11) based on the plain language of the statute. 487 N.W.2d at 670.1 Because we determined the plain language of the statute exempted performance evaluations, we declined to apply a balancing test. […]

We have reiterated this rule in response to arguments that we must nonetheless determine whether the public’s “right to know” outweighs the government entity’s interest in privacy even where we find section 22.7 exempts information from disclosure. See Gabrilson v. Flynn, 554 N.W.2d 267, 273 (Iowa 1996) (” ‘[I]t is not our responsibility to balance competing policy interests. This balancing is a legislative function and our role is simply to determine the legislature’s intent about those policy issues.’ ” (quoting Ne. Council on Substance Abuse, Inc. v. Iowa Dep’t of Pub. Health, 513 N.W.2d 757, 761 (Iowa 1994))).

I understand how “balancing is a legislative function,” in the sense that state lawmakers specifically approved certain exemptions to the Open Records Act. However, no state law could take into account all of possible circumstances that put the public’s right to know in conflict with reasons to keep information from a public entity confidential. Judges will need to weigh these competing concerns in some situations. That was a major point in Chief Justice Cady’s 15-page dissent, joined by Waterman and Mansfield. He made a strong and well-documented case in a dissent that was longer than the majority opinion. From Cady’s opening and closing sections:

The majority opinion takes a step backward from the new age of open government in this state. It is a step in the wrong direction.

This case goes to the heart of why we have an open records act in this state: the expectation that government will be better suited to deal honestly and fairly with its citizens when its citizens have the ability to examine the records of government business. While our legislature understands that confidentiality is needed in some aspects of government work, the facts of this case reveal a substantial public justification for disclosure of the requested information. […] To defuse public criticism over an incident in a public school of public concern, the school district announced that two public employees would be disciplined for their conduct in connection with the incident. This public declaration, in the face of public concern and criticism over an initial response by the school superintendent, made it reasonable for the school district to also let the public know what discipline was imposed. The public did not just have an interest in knowing that discipline would be imposed, but also in knowing whether the discipline was appropriate and meaningful. In this context, the discipline was “public” from the moment it was announced and should have been disclosed pursuant to the Open Records Act. […]

Without the balancing test, courts will only be able to apply the section 22.7(11) exemption through their own personal assessment of the personal nature of the information at issue, divorced from any legitimate public need for the information. The goal of transparency in government will surely be thwarted by those in government who, in the face of public criticism over the handling of employee misconduct concerning matters of legitimate public interest, will be able to quell public discourse and end controversies over employee misconduct of public concern with no public scrutiny by simply announcing that discipline has been imposed. Thus, the public will have no means to measure the appropriateness of the government’s response to misconduct in matters of legitimate public interest. This approach is a return to the government of the past and a danger to our future.

Another Iowa Supreme Court ruling released on July 27 was less contentious, with six justices concurring and Zager not taking part. A Polk County District Court had previously held that “11 film companies that received tax credits from the now defunct Iowa program could keep their budget summaries from being released to the public.” But writing for the majority, Justice Mansfield was persuaded by the appeal from the Iowa Department of Economic Development, represented by the Attorney General’s Office. The whole ruling is here (pdf).

This case requires us to decide whether filmmakers receiving tax

credits from the State of Iowa under the State’s tax credit program can enjoin the State from releasing summaries of their films’ final budgets to the public. We conclude they cannot. On this record, the budget summaries do not qualify as trade secrets under Iowa Code section 22.7(3) (2009). Nor can they be considered “[r]eports to governmental agencies which, if released, would give advantage to competitors and serve no public purpose” under Iowa Code section 22.7(6). Finally, the filmmakers have failed to meet section 22.8’s requirements for injunctive relief by demonstrating disclosure would “clearly not be in the public interest” and would “substantially and irreparably injure any person or persons.” Accordingly, we reverse the judgment of the district court and remand for further proceedings. […]

Below and on appeal, the Producers assert that the Form Z Summaries are shielded from disclosure under section 22.7(3) as “[t]rade secrets which are recognized and protected as such by law,” and under section 22.7(6) as “[r]eports to governmental agencies which, if released, would give advantage to competitors and serve no public purpose.”9 The Producers also argue that disclosure of the summaries would “clearly not be in the public interest” and would “substantially and irreparably injure” a person or persons within the meaning of section 22.8.

The State, by contrast, argues the records do not fall under either section 22.7 exemption. Moreover, the State maintains that even if the records came within one of these exemptions, the “lawful custodian” would still have discretion to order them released under the first sentence of section 22.7, as quoted above. According to the State, a party that wishes to enjoin the release of records by a lawful custodian who intends to release them must meet the requirements of section 22.8. The State further asserts that the requirements for injunctive relief under section 22.8 were not met.

We do not reach the State’s argument regarding how the first sentence of section 22.7 should be interpreted. Instead, on our de novo review, we conclude the Producers failed to establish that the Form Z Summaries were confidential under section 22.7(3) or section 22.7(6), or that they were entitled to relief under section 22.8. […]

According to the record, IDED awarded approximately $24 million in tax credits to moviemakers in fiscal year 2009, a year in which our state government suffered a shortfall in revenues and endured layoffs and furloughs. The public would appear to have an interest in knowing how this money was used. As in the Northeast Council case, the requested records would provide more information, albeit in summary form, regarding how public money was spent. Id.; see also Craigmont Care Ctr. v. Dep’t of Soc. Servs., 325 N.W.2d 918, 920-21 (Iowa Ct. App. 1982) (rejecting a claimed exemption under this section for cost reports filed by various health care facilities after finding that the taxpaying public’s strong interest in knowing the cost of care for Medicaid recipients outweighed the potential advantage competitors could gain from access to these reports).

The Producers argue that Northeast Council is distinguishable because they are not “spending government grant funds for a government service, but rather are private business entities, producing films and receiving tax credits upon completion as an inducement to engage in their production activities in Iowa.” Yet this seems to us a distinction without a difference. Either way, a private entity is receiving taxpayer money in furtherance of a public purpose. In Northeast Council, that was the critical consideration. 513 N.W.2d at 761.14

The film tax credit fiasco led to the resignation of top Iowa Department of Economic Development officials in the fall of 2009. Ten people have also faced criminal charges related to fraud or abuse in using the film tax credits. The last of those ten cases just went to court last week, the Des Moines Register reported.

“Of course, it would have been better to have the decision sooner,” said Jeffrey Thompson, a deputy attorney general involved in the film investigation. “But we thought it was an important fight to fight.”

Thompson said the decision made clear that people trying to prevent disclosure must present “good evidence, and that transparency is in the public interest where state money is involved.”

Please share any relevant thoughts in this thread.