Iowa Open Records Law: Hot Tip for Government Agencies that Want to Keep Secret their Activities from the Public

Iowa Code Chapter 22, known as the Iowa Open Records Law, gives the public the right to examine, copy and disseminate a public record unless the public falls within certain exceptions in Iowa Code § 22.7 or other areas of law. The Iowa Public Information Board (“IPIB”) is responsible for securing “compliance with and enforcement of the requirements of” Iowa Code Chapter 22. Iowa Code § 23.1.

The purpose of the Iowa Open Records Law is “to open the doors of government to public scrutiny—to prevent government from secreting its decision-making activities from the public, on whose behalf it is its duty to act.” Sysco Iowa, Inc. v. Univ. of Iowa, 889 N.W.2d 235, 237 (Iowa Ct. App. 2016) (quoting Iowa Civil Rights Comm’n v. City of Des Moines, 313 N.W.2d 491, 495 (Iowa 1981)). The Iowa Open Records Law establishes a “presumption of openness and disclosure.” Iowa Film Prod. Servs., 818 N.W.2d at 218. The Iowa Supreme Court has stated that "[d]isclosure is the rule, and one seeking the protection of one of the statute's exemptions bears the burden of demonstrating the exemption's applicability." Diercks, 806 N.W.2d at 652 (quoting Clymer, 601 N.W.2d at 45).

Despite the clear requirement that the government agency who is withholding public records from the public has the burden to prove that each document withheld meets an exception from public disclosure, the Iowa Public Information Board (“IPIB”) has recently created a loophole that allows government agencies to withhold documents from the public without proving the documents withheld actually meet an exception from public disclosure.  

In a recent IPIB opinion, at issue was whether the Iowa Department of Revenue (“Department”) properly withheld documents in response to a public records request. The public sought documents related to a case before the Director of Revenue and the Department withheld documents under the guise of attorney-client privilege and attorney work product. The Department refused to provide any information to the public requestor about the documents withheld that would have allowed the public requestor the ability to actually analyze whether the documents withheld actually met the requirements of attorney-client privilege or attorney work product. And, contrary to the well-established Iowa Supreme Court precedent that the government agency bears the burden to prove the exception from public disclosure applies to each document withheld, IPIB stated otherwise:

[T]here is nothing in Iowa Code Chapter 22 or any other statute within IPIB’s jurisdiction that requires the disclosure of a log or other detailed information to justify the use of an attorney-client privilege or attorney work product exception.

*****

The Department has invoked attorney-client privilege as it relates to the requested public records and unless or until Chapter 22 changes, there are no requirements that the Department must provide additional information to support the justification.

(emphasis added).

That is, based on IPIB’s Order, a government agency that does not want to produce documents in response to a public records request under Iowa Code Chapter 22 can simply state the documents were withheld under attorney-client privilege. According to IPIB, once the government invokes attorney-client privilege as the basis for withholding public records, that is the end of the inquiry—the public has no opportunity to determine whether the government agency is actually being truthful. The public requestor must simply trust the government agency. Thus, any government agency that does not want to produce documents in response to a public records request can simply claim the documents withheld are subject to attorney-client privilege.

Iowa Open Records Law be damned.