Public service not always fun
In January, I was appointed by the governor to the nine-member Iowa Public Information Board (IPIB) to fill out the remaining 15 months of the term of a member who had resigned.
The past eight months have been eye-opening for me, but I continue to believe in the board’s potential to help Iowans with their access to open meetings and public records.
It’s been a challenge.
On several key votes in recent months, I’ve found myself in a minority position on the board.
In other instances, I’ve joined the other board members in taking actions that have brought condemnation on us from a number of media entities and other defenders of openness.
It’s a situation similar to those that at some time or other most members of public boards have to face. I now have greater appreciation than before for volunteer public service.
Some background might help explain the significance of these developments to me personally.
For six years, starting in 2007 or so, the Iowa Newspaper Association (INA) lobbied the Iowa Legislature to create a state public information board with authority to enforce the state’s open meetings and public records laws, as well as provide a one-stop shop to answer people’s questions about legal openness and make suggestions to the Legislature about ways to improve openness in Iowa’s public bodies.
At that time, I was serving as co-chair of the association’s government relations committee. Creation of the public information board was our top priority each of those six years.
One of the prime motivations for the INA was the fact that if a government agency refused to grant legal openness, the only recourse for the complainant was to go to court.
That’s time-consuming and expensive.
In addition, the state attorney general or county attorney to whom the citizen complained is also the attorney for the agency. That creates a difficult conflict of interest.
Finally, in 2013, with significant pressure on the Legislature from Gov. Branstad, the public information board was authorized and a budget of about $450,000 was approved.
In the years since then, IPIB has answered thousands of questions about open meetings and public records, determined whether laws on openness have been violated, and sought to settle such disputes informally if possible, but through enforcement if necessary.
Overall, both the public and government personnel have increased their understanding of what Iowa law requires in the area of openness.
Resolution in one case, however, has proved particularly troublesome to achieve, and it’s that case that has brought significant criticism to the public information board itself.
In the spring of 2015, the Burlington Police Department was called to a residence in that city on a domestic abuse complaint. A Burlington police officer who answered the call was attacked by a dog in the yard of the home, pulled his gun to defend himself, and in so doing shot and killed the woman who lived there.
The incident was captured on the police officer’s body camera.
Members of the family of the deceased woman, and the Burlington Hawk Eye newspaper, filed a request to see the videotape, stating that it was a public record.
The city of Burlington and the Iowa Division of Criminal Investigation (DCI), which had received the tape as part of its separate investigation of the incident, refused the request. Both stated that the exemption in Iowa law that makes documentary information in an investigation confidential protected the tape from public view.
The complainants then contacted the Iowa Public Information Board to force release of the tape.
IPIB twice, once in December 2015 and again in October 2016, found probable cause that the city of Burlington and the DCI were in violation of the state’s public records law.
IPIB appointed a prosecutor to handle the case before an administrative law judge.
Since then, the attorneys representing both sides have filed dozens of motions and countermotions.
Bottom line: the administrative law judge ruled in IPIB’s favor on a key aspect of the case, the city of Burlington and the DCI appealed to IPIB to reconsider its previous ruling on that key aspect, and IPIB in July of this year reversed its position on that aspect.
Its reversal, however, took place after the board had gone into closed session at that July meeting to discuss the appeal.
I had voted against going into closed session, but the board by an 8-1 vote chose to do so, citing Iowa law which grants public bodies the right to do that in order to discuss litigation matters with an attorney.
So we went closed, and came out and voted 8-1 to reverse our position on the key point. I was the only board member to vote against the reversal.
To complicate matters, we also voted “to proceed to draft an order as discussed in closed session.” I voted yes on that motion.
That action earned us howls of criticism from numerous newspapers throughout Iowa. And on reflection, my opinion is that they are right.
We should have stated openly what we had decided to do in the closed session. I regret my vote on that motion.
We also went into closed session at our August meeting to again discuss the litigation, with our attorney present. When we came back into open session we took no action.
Then this month, at last Thursday’s IPIB board meeting, the state ombudsman requested that we release to that agency the tape recordings of our July and August closed sessions. The ombudsman had received a complaint from a citizen about those sessions.
Iowa law grants the ombudsman access to tapes of closed sessions.
The IPIB board at last Thursday’s meeting, by a vote of 7-2, denied the ombudsman the requested access, claiming that the attorney-client privilege takes precedence over the state law that grants the ombudsman access to closed session tapes.
I cast one of the two votes against withholding the tapes from the ombudsman.
The nine members of the IPIB represent three different cohorts: three members representing the media, three representing local governments and three representing the public. That combination pretty well guarantees there will be differences of opinion on some issues.
I think that’s a good thing. To achieve a majority on the board requires that a persuasive argument be made in a particular case.
But it’s sadly ironic that the Iowa Public Information Board is being called on the carpet by respected newspapers that think it has violated the very principles it was created to champion.
Whether the board is able to regain its previous reputation, and also be granted its funding from the Legislature in next year’s budget, is an open question, in my opinion.
Rick Morain is the retired editor-publisher of The Jefferson Herald.