Clark Kauffman is deputy editor at Iowa Capital Dispatch, where this article first appeared.
A divided Iowa Supreme Court has reversed a lower court decision and ruled that the public should have access to county-supervisor applications maintained by Scott County.
The case involves the Scott County Board of Supervisors, which experienced a midterm vacancy in December 2022 when one member resigned. A committee of elected county officials—Auditor Kerri Tompkins, Recorder Rita Vargas and Treasurer Tony Knobbe—then set about the process of filling the vacancy through an appointment. The three opted to keep confidential the applications for the post throughout the appointment process.
To further ensure confidentiality, they referred to the applicants by numbers during a public meeting dealing with the appointment and they later revealed only the name of the applicant who was appointed.
Court records indicate Assistant Scott County Attorney Robert Cusack advised the committee that the 27 applications, including the names of applicants, were to be considered confidential if the applicants requested confidentiality. The county then asked the applicants whether they wished to assert confidentiality—and thirteen of the 27 did so.
The county subsequently denied two Open Records Law requests to see the names and applications of the individuals who weren’t selected and who had requested confidentiality. Litigation ensued and a district court judge eventually ruled the county was not obligated to make the information public.
The case was appealed and in a 4-3 decision on February 14, the Iowa Supreme Court reversed the lower court’s ruling and remanded the case to district court for further proceedings.
Under one part of Iowa’s open records law—Iowa Chapter 22.7(18)—governmental bodies can keep confidential communications from people outside of government if the bodies “could reasonably believe” public disclosure would discourage such communications.
In ruling the names should be made public, the majority of the court noted that the county had failed to make an explicit promise of confidentiality at the outset of the appointment process and that, despite the lack of such an assurance, 27 people applied for the post.
“The fact that 27 candidates applied without a promise of confidentiality suggests that the prospect of disclosure did not in fact deter people from submitting application,” Chief Justice Susan Christensen wrote for the majority. “Twenty-seven people were informed that the selection would be made in a public meeting and still chose to apply.”
Christensen also noted that the selection process involved a public meeting during which committee members deliberately concealed the identities of the people they were discussing.
Christensen also observed that county supervisors “are not just public officials, they are elected officials,” typically chosen by the public, at public elections, to serve four-year terms. When filling a position that is vacated mid-term, counties have the option of staging a special election or filling the post through an appointment, the justices noted.
“There is no evidence in the record that Scott County contemplated that an appointment would be less public than a special election,” Christensen stated in the majority’s decision. “The names of all applicants and the applications must be disclosed.”
The court found that since the three committee members relied on advice from the assistant county attorney, they are not liable for damages that stem from violating the open records law, although the citizens who sued for access, Allen Diercks and Diane Holst, are entitled to recover all of their costs, including attorneys’ fees, from the county.
Joining Christensen in ruling that the applications should be made public were Justices Edward Mansfield, Dana Oxley, and Matthew McDermott.
Justice David May wrote a dissenting opinion, joined by Justices Thomas Waterman and Christopher McDonald. The dissent cited three prior cases in which the court held that it’s possible for public employers to reasonably believe that disclosure of employment applications would deter similar communications.
The three stated that the protection of confidentiality “does not depend on how zealously the protection is advertised, how many applicants ultimately apply, how many applicants subjectively care about the protection, or whether the protection may be compromised at some point.”
The three dissenting justices also argued that “until today, Iowa law offered a safe harbor for public employers like Scott County and the University of Iowa,” adding that the majority’s decision “may well result in smaller pools of qualified applicants for positions of responsibility in government.”
Full text of Iowa Supreme Court majority opinion and dissent in Allen Diercks and Diane Holst v. Scott County and Kerri Tompkins, issued on February 14
Top photo of the Iowa Judicial Branch building is by Steve Cukrov, available via Shutterstock.