Herb Strentz discusses the disappointing work of the Iowa Public Information Board, which was created ten years ago to enforce the state’s open meetings and records laws.
Question: Should “We the people” of Iowa pay for our government not telling us what it is doing?
Answer: The question is rhetorical, because we already do so—even though as a matter of principle and given the intent of Iowa’s Sunshine laws, we should not.
The center of this Q&A is the Iowa Public Information Board (IPIB). When created in 2012, after years of work with state lawmakers, the board was heralded. The concept was, challenges to government secrecy would be subject to quick, inexpensive answers. No need to hire a lawyer to represent your concerns.
But two good commentaries illustrate how those dreams were more like delusions.
One is a recent Bleeding Heartland post by Laura Belin, which blew the whistle on IPIB’s draft administrative rules on open records. The proposal would have added “unforeseen circumstances” to the list of excuses school boards, councils, police, county supervisors, or other government representatives can use to hide their plans and actions from the public.
The other is an editorial Art Cullen wrote for the Storm Lake Times in March 2019. Cullen said the information board “should be disbanded as ineffective by design,” given how it handled the refusal to release a Burlington Police Department video of an officer’s fatal shooting of Autumn Steele in 2015.
Belin’s post is pretty much self-explanatory. You can read it here for more details.
Cullen’s needs an update, because the Burlington dispute is still being litigated. A federal District Court judge decided the video should be released, leading the city to settle a wrongful death lawsuit filed by Autumn Steele’s family for $2 million.
An Iowa court will determine whether other materials, such as 911 call recordings and police car dashcam video, can be released. In December 2021, the Iowa Supreme Court ruled that an attorney hired by Steele’s family has standing to seek records that are not publicly available. The attorney had previously filed a complaint with IPIB, but the board did not order Burlington officials to disclose records relevant to the shooting.
Back in 2019, Cullen lambasted the board for voting 6-2 against requiring the release of the police officer’s video, even though “an administrative law judge assigned to hear the case for the board concluded that the body cam video is not part of an ongoing criminal investigation, and that the presumption that a record should remain open under the law should prevail.” He noted that the “board allowed the city and state, with limitless attorney hours, to drag out the case for years — hoping to exhaust the family’s and the newspaper’s limited financial resources.”
How did we get here?
I was involved in key revisions of Iowa’s open meetings law in 1978 and open records law in 1984. At the time, I was serving as executive of the nonprofit Iowa Freedom of Information Council (a position I held from 1976 to 2000), while dean and professor in the School of Journalism and Mass Communication at Drake University. I didn’t play a role in creating the IPIB, but followed the process, given my interest in government transparency.
Keith Luchtel wrote a history of the IPIB last year. A longtime lobbyist for the Iowa Newspaper Association, Luchtel became the information board’s first executive director in 2013. He later served as a board member, retiring this spring. (In my role with the Iowa Freedom of Information Council, I worked with Luchtel and appreciated how legislators respected him.)
Luchtel described the six years of lobbying work to establish a public information board, against furious opposition “from more groups of public entities than I knew existed!” While frustrating at times, the long slog fed into hopes of what the IPIB could accomplish.
Language embedded in the open meetings and records laws, known as Iowa Code Chapter 21 and Chapter 22, also raised expectations for this new state government agency.
The opening lines of Chapter 21 declare “that the basis and rationale of government decisions, as well as those decisions themselves, are easily accessible to the people. Ambiguity in the construction or application of this chapter should be resolved in favor of openness.”
One section of the open records law reads that in any litigation on a government effort to limit access to records, “the district court shall take into account that free and open examination of public records is generally in the public interest even though such examination may cause inconvenience or embarrassment to public officials or others.”
To transparency advocates, those statements seemed clear enough, demanding enough.
What could go wrong? We’d even have a public information board to put teeth into the expressed intent! The idea was the board would eliminate the need for people to hire lawyers to deal with denial of 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 will there be for the Iowa Freedom of Information Council to do now?”
What could go wrong? Plenty, it turned out.
For one thing, what a law says, or what might be inferred, trumps the aspirational intent of a statute. To the argument that “This is what the spirit of the law was intended to do,” a judge will likely respond, “Then it’s up to the legislature—not me—to fix it.”
Sometimes wording is not what it’s cracked up to be. Activists thought a victory had been won with the passage, “Ambiguity…should be resolved in favor of openness.”
But the other side could easily argue, “Well, it’s not at all ambiguous to us.”
Once upon a time, Iowa legislative leaders—chief among them the former House speaker Don Avenson—felt public agencies had limited discretion in deciding when to close a meeting or treat a record as confidential. But over time, those circumstances became more of a rule than an exception.
The IPIB’s proposal to allow government bodies to delay providing records due to “unforeseen circumstances” would have compounded that problem, giving officials yet another excuse to deny access to a public record.
Belin reported this week that IPIB’s current executive director Margaret Johnson told the legislature’s Administrative Rules Review Committee that the board would not move forward with the draft rules on open records. Concerns raised by representatives of government bodies sank the package; they argued that some of the proposed requirements would be too burdensome, or would exceed IPIB’s rule-making authority. During her presentation to the legislative committee, Johnson did not mention concerns raised by openness advocates.
When Iowa’s open meetings and open records laws were enacted, they were more concise than similar laws in many other states. Perhaps legislators placed a measure of trust in government agencies, assuming they would follow the intent to maximize openness.
That did not work well, so IPIB was created to remedy problems. However, time and again the board has deferred to government bodies, finding the laws permitted denials of public access, rather than emphasizing the laws’ spirit of openness.
One IPIB member who prioritized transparency over government secrecy was Rick Morain. The retired editor and publisher of the weekly Jefferson Bee & Herald, Morain was among the board’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 IPIB – the governor’s staffer who called me after I asked discussed the board with me a bit, but made no observation about my likelihood. After the announcement about IPIB appointments was released without my name among the appointments, I received an email from the governor’s office that the governor “had decided to go in another direction,” whatever that means. I was not surprised at not being reappointed.
Kathie Obradovich, editor of the online Iowa Capital Dispatch, documented Reynolds’ opposition to openness and transparency in an August 2021 column. Obradovich rightly called the Reynolds administration “the least transparent in 30 years.”
Incidentally, the statute creating IPIB gave the governor power to appoint its nine members, subject to Iowa Senate confirmation. “No more than three members” can represent the media, and no more than three can represent government bodies; the rest represent the public. Branstad’s nominees led to an evenly-divided board, with three members each representing the government, media, and public. Reynolds departed from that practice and in recent years has named only two media representatives.
How much do Iowans pay for the maintenance and expansion of secrecy? The legislature approved and Reynolds signed a budget allocating $358,039 for the public information board during 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 was dean of the Drake School of Journalism from 1975 to 1988 and professor there until retirement in 2004. He was executive secretary of the Iowa Freedom of Information Council from its founding in 1976 to 2000.