bleeding heartland

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Herb Strentz discusses the disappointing work of the Iowa Board of Public Information, which was established a decade ago to enforce open meeting and state records laws.

Question: Should “we the people” of Iowa pay for our government not to tell us what it is doing?

Answer: The question is rhetorical, because we already do, although as a matter of principle and given the intent of Iowa’s Sunshine Laws, we shouldn’t.

The center for these questions and answers is the Iowa Public Information Board (IPIB). When it was created in 2012, after years of working with state lawmakers, the council was announced. The concept was that challenges to government secrecy would be answered quickly and inexpensively. No need to hire a lawyer to represent your concerns.

But two good comments illustrate how these dreams were more like delusions.

One is a recent Bleeding Heartland article by Laura Belin, who denounced the IPIB’s draft administrative rules on open cases. The proposal would have added “unforeseen circumstances” to the list of excuses that school boards, councils, police, county supervisors or other government officials can use to hide their plans and actions from the public.

The other is an op-ed that Art Cullen wrote for the Storm Lake Times in March 2019. Cullen said the information panel “should be disbanded as ineffective by design” given how it has handled the Burlington Police Department’s refusal to release video of an officer’s death. by Autumn Steele in 2015.

Belin’s message is pretty much self-explanatory. You can read it here for more details.

Cullen needs an update as the Burlington dispute is still ongoing. A federal district court judge ruled that the video should be released, leading the city to settle a wrongful death lawsuit filed by Autumn Steele’s family for $2 million.

A court in Iowa will determine whether other documents, such as 911 call recordings and video from the police car’s dash cam, can be released. In December 2021, the Iowa Supreme Court ruled that an attorney hired by Steele’s family had standing to search for documents that are not publicly available. The attorney had previously filed a complaint with the IPIB, but the board did not order Burlington officials to release documents relevant to the shooting.

In 2019, Cullen lambasted the board for voting 6-2 against requiring the police officer’s video to be released, even though “an administrative law judge assigned to hear the case for the board found that the body camera video was not part of an ongoing criminal investigation, and that the presumption that a case must remain open under the law must prevail.” He noted that “counsel allowed the city and state, with unlimited attorney hours, to drag out the case for years – in hopes of exhausting the family’s and newspaper’s limited financial resources.”

How did we come here?

I was involved in key reviews of Iowa’s Open Meeting Law in 1978 and the Open Records Law in 1984. At the time, I was an executive with the Iowa Freedom of Information Council. the Iowa nonprofit (a position I held from 1976 to 2000), while dean and professor in the School of Journalism and Mass Communication at Drake University. I had no role in the creation of the IPIB, but I followed the process, given my interest in open government.

Keith Luchtel wrote the history of the IPIB last year. A longtime lobbyist for the Iowa Newspaper Association, Luchtel became the news council’s first executive director in 2013. He later served as a board member and retired this spring. (In my role on the Iowa Freedom of Information Council, I worked with Luchtel and appreciated how lawmakers respected him.)

Luchtel described the six years of lobbying to establish a public information committee, against furious opposition “from more groups of public entities than I knew existed!” Although frustrating at times, the long work fueled hope for what the IPIB could achieve.

Language embedded in open meeting and recording laws, known as Chapter 21 and Chapter 22 of the Iowa Code, also raised expectations for this new state government agency.

The opening lines of Chapter 21 declare “that the basis and justification of government decisions, as well as those decisions themselves, are readily available to the people. Ambiguity in the construction or application of this chapter should be resolved in favor of openness.

A section of the Public Records Act states that in any dispute concerning a government effort to limit access to records, “the district court must consider that free and open examination of public records is generally within public interest even if such examination may cause inconvenience or embarrassment to public officials or others”.

For advocates of transparency, these statements seemed clear enough, demanding enough.

What could go wrong? We would even have a public information board to give some teeth to the expressed intention! The idea was that the council would eliminate the need for people to hire lawyers to deal with being denied access to records or meetings. Dealing with an open-minded IPIB would be far more efficient and effective than dealing with a recalcitrant school board or city council.

As one activist asked at the time, “What’s the Iowa Freedom of Information Council going to do now?”

What could go wrong? A lot, it turned out.

On the one hand, what a law says, or what could be inferred, trumps the ambitious intent of a law. To the argument that “that’s what the spirit of the law was supposed to do,” a judge will likely answer, “Then it’s up to the legislature, not me, to sort it out.” »

Sometimes the wording isn’t what it’s supposed to be. Activists believed a victory had been won with the passage “The ambiguity…should be resolved in favor of openness”.

But the other side could easily say, “Well, that’s not ambiguous for us at all.”

Once upon a time, legislative leaders in Iowa — foremost among them former House Speaker Don Avenson — believed that public agencies had limited discretion in deciding when to close a meeting or treat a file as confidential. But over time, these circumstances have become more of a rule than an exception.

The IPIB’s proposal to allow government agencies to delay providing documents due to “unforeseen circumstances” would have compounded this problem, giving officials another excuse to deny access to a public document.

Belin reported this week that the IPIB’s current executive director, Margaret Johnson, told the legislature’s administrative rules review committee that the board would not go ahead with draft records rules. open. Concerns raised by government officials sank the package; they argued that some of the proposed requirements would be too onerous or beyond the IPIB’s regulatory authority. During his presentation to the legislative committee, Johnson did not mention the concerns raised by transparency advocates.

When Iowa’s open meeting and open records laws were enacted, they were more concise than similar laws in many other states. Perhaps lawmakers placed some trust in government agencies, assuming they would follow the intent to maximize openness.

It wasn’t working well, so IPIB was created to remedy the problems. However, time and time again, the council deferred to government agencies, believing that the laws permitted denials of public access, rather than emphasizing the openness of the laws.

One IPIB member who prioritized transparency over government secrecy was Rick Morain. A retired editor and publisher of the weekly Jefferson Bee & Herald, Morain was among the council’s “media representatives,” appointed by Governor Terry Branstad. Governor Kim Reynolds did not reappoint him this year.

In an email, he wrote,

Yes, I asked to be reappointed to the IPIB – the governor’s staff member who called me after I asked discussed the board with me a bit, but made no comment on my likelihood . After the announcement of the IPIB nominations was published without my name among the nominations, I received an email from the governor’s office stating that the governor “decided to go in another direction”, what that this means. I was not surprised not to be renewed.

Kathie Obradovich, editor of the Iowa Capital Dispatch online, documented Reynolds’ opposition to openness and transparency in an August 2021 column. Obradovich rightly called the Reynolds administration ” the least transparent for 30 years”.

Incidentally, the statute creating the IPIB gave the governor the power to appoint its nine members, subject to confirmation by the Iowa Senate. “No more than three members” can represent the media, and no more than three can represent government bodies; the others represent the public. Branstad’s nominees led to an equally divided board, with three members each representing government, media and the public. Reynolds has deviated from this practice and in recent years has appointed only two media representatives.

How much do Iowans pay to maintain and expand secrecy? The Legislature approved and Reynolds signed a budget allocating $358,039 to the public information commission in the current fiscal year, the same amount as last year.

The cost of having an uninformed or misinformed public is, of course, much higher.

Herb Strentz served as dean of the Drake School of Journalism from 1975 to 1988 and professor until his retirement in 2004. He served as executive secretary of the Iowa Freedom of Information Council from its founding in 1976 until 2000.

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