by Gary Taylor
Iowa Supreme Court, April 14, 2023
Three journalists, two news organizations and the Iowa Freedom of Information Council collectively emailed eight different open records requests to the Governor’s office and staffers, with each request covering a different topic. The first request was sent April 2020, and the last was sent April 2021. Each request was followed up, some several times, by the requestors sending follow-up emails to check on the status of their requests. Receiving no documents, the requestors filed suit December 2021 alleging that the Governor’s office had violated the Open Records Act by failing to provide the requested records. They further alleged that even if the documents were to be provided after the filing of their suit, the Governor’s office had already violated the Act by failing to provide the records promptly and timely. The Governor’s office did supply the requested records around January 3, 2022, and quickly moved to dismiss the suit as being moot (because the records had been provided). Alternatively the Governor’s office argued that even if the case was not moot, the claims nonetheless failed “when brought against the Governor” because permitting timeliness claims would “infringe on the Governor’s executive privilege.” Plaintiffs countered that the Governor’s office had not provided all the requested records: some had still not been provided while others that were provided had been redacted under claims of confidentiality. Plaintiffs argued that regardless of these facts, the timeliness issue must be addressed. Plaintiffs also disputed the claim of executive privilege.
The Supreme Court characterized plaintiffs’ claims as raising issues of (1) insufficiency and (1) delay.
Insufficiency. The Court first determined that the issue of production of unredacted documents on January 3, 2022 was in fact moot, because an order to produce already-produced records would have no force or effect in the underlying controversy. Further, the Court saw no important public interest in further litigation about the production of records that have already been produced. Weighing on the Court’s decision was the “great respect” the judicial branch owes to the executive branch.
The Court looked differently, however, on the claims regarding documents that had not been provided or provided but redacted. Mootness did not apply to those claims, and the issue must be heard by the district court to determine whether the Governor’s office’s claims of confidentiality were valid.
Delay. The Court laid out the following general principles in reviewing Open Records claims: Plaintiff’s burden is to demonstrate three elements: (1) that “the defendant is subject to the requirements of” the Act, (2) “that the records in question are government records,” and (3) “that the defendant refused to make those government records available for examination and copying by the plaintiff.” Then, the burden shifts to the defendant “to demonstrate compliance with the requirements of” the Act. The question here is whether the Open Records Act allows a plaintiff to sue when there is no express refusal but yet the defendant fails to produce the records for an extended period of time.
The Court focused on the term “refused” and, after consulting four different dictionaries for definitions of the word, concluded that a party can “refuse” by “showing that it won’t produce records,” which can be demonstrated through an “unreasonable delay” in producing records.
Relevant inquires [as to whether a delay is unreasonable] may include:
1. how promptly the defendant acknowledged the plaintiff’s requests and follow-up inquiries,
2. whether the defendant assured the plaintiff of the defendant’s intent to provide the requested records,
3. whether the defendant explained why requested records weren’t immediately available (e.g., what searches needed to be performed or what other obstacles needed to be overcome),
4. whether the defendant produced records as they became available (sometimes called rolling production),
5. whether the defendant updated the plaintiff on efforts to obtain and produce records, and
6. whether the defendant provided information about when records could be expected.
The district court was correct in not dismissing plaintiff’s case, as there were relevant questions related to these factors that still needed to be addressed. The Court also disagreed with the Governor’s office’s contention that these questions do not apply to electronic records. Nothing in the Open Records Act suggests that electronic-record requests should be exempted from a timeliness inquiry.
Executive privilege. Finally, the Governor’s office argued that permitting timeliness claims would “infringe on the Governor’s executive privilege”; contending that gauging the reasonableness of her response times would require an inquiry into “how the Governor and her staff – including her senior legal counsel – were spending their time,” and “whether her allocation of resources between responding to open records requests and her other governing responsibilities was reasonable.” The Governor’s office believed that these issues were nonjusticiable political questions.
The Court dismissed this theory. The answer to the question of timeliness in a records request depends on a defendant’s “outward behavior”; i.e., how the defendant responded. “It should not depend on defendants’ thinking. It should not depend on the defendants’ internal conversations. It should not depend on the inner workings of the Governor’s office. It should not depend on political questions, like whether the Governor properly allocated resources when staffing her office. And it should not depend on potentially privileged information, like the details of how the Governor was spending her time, or what she discussed with her lawyers.” [emphasis original]. The Court expressed doubt that a defendant’s attempt to show a good faith, reasonable delay per section 22.8(4) “would require substantial inquiries into a defendant’s resource allocation choices or any other confidential decision-making. They should not require us to wander in constitutional minefields.”
The case was remanded to district court for further proceedings.