Iowans who handle public records requests for government bodies gained more protection from possible retaliation on June 23, when the Iowa Supreme Court ruled that former Iowa Department of Public Health communications director Polly Carver-Kimm can proceed with both of her wrongful termination claims against the state.
Four justices affirmed a Polk County District Court decision, which allowed Carver-Kimm to allege under Iowa’s whistleblower statute that she was wrongly forced to resign in July 2020, and that Iowa’s open records law protected her activities when fulfilling records requests for the public health agency.
The Iowa Supreme Court did reverse one part of the lower court’s ruling. All seven justices determined that Governor Kim Reynolds and her former spokesperson Pat Garrett should be dismissed as individual defendants, because they lacked the “power to authorize or compel” Carver-Kimm’s termination.
But the impact of the majority decision in Carver-Kimm v. Reynolds extends far beyond the named defendants in one lawsuit.
AREAS OF AGREEMENT
Here’s the full text of the Iowa Supreme Court’s majority opinion by Justice Matthew McDermott and partial concurrence by Justice Christopher McDonald.
The state had sought to dismiss Carver-Kimm’s suit on several grounds. All justices agreed with the District Court that a qualified immunity statute enacted in 2021 was not retroactive to the lawsuit Carver-Kimm had filed the previous year and later amended.
That law does affect public employees who have filed wrongful termination suits (or other kinds of tort claims) against government officials or government bodies since June 2021. As the Iowa Supreme Court articulated in a unanimous decision issued earlier this month, in order to survive a motion to dismiss, litigants will need to outline the particular circumstances demonstrating a “plausible violation” of a law that was “clearly established.”
As mentioned above, the court unanimously dismissed claims against Reynolds and Garrett, since “no statute or constitutional provision gives a governor (or a member of the governor’s staff) authority to appoint or remove a department employee such as Carver-Kimm.”
All justices agreed to send the case back to Polk County District Court, where Carver-Kimm can pursue a tort claim against the state.
“SHE WAS UNDER A STATUTORY DUTY TO FULFILL PROPER REQUESTS”
The most significant part of the majority decision was the section from pages 12 to 21. That’s where Justice McDermott (joined by Chief Justice Susan Christensen and Justices Edward Mansfield and Thomas Waterman) explained why Carver-Kimm can also pursue a “claim for wrongful discharge in violation of public policy”: namely, her efforts to comply with Iowa Code Chapter 22, the open records law.
In briefs filed with the District Court and on appeal, the state had argued Iowa Code Chapter 22 “doesn’t establish a clearly defined and well-recognized public policy that could be undermined by Carver-Kimm’s resignation.” Those are necessary elements in this kind of case, where the plaintiff is asking the court to make an exception to Iowa’s at-will employment doctrine.
Carver-Kimm had pointed to a section of the law that instructs Iowa courts to take into account the following policy: “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.”
The state’s brief characterized that phrasing as “the sort of general, vague and amorphous concept that is neither clearly defined nor well-recognized for creating an implied common law wrongful-discharge cause of action.”
Justice McDermott’s opinion agreed “that the broad declaration as to what is ‘generally in the public interest’ in Iowa Code section 22.8(3) is too general to serve as the basis for a wrongful discharge claim.” However,
When Carver-Kimm was the custodian of records at the department, she was under a statutory duty to fulfill proper requests for public records. […] If Carver-Kimm was discharged for complying with that duty—which is what she alleges in her petition—those circumstances could support a claim.
At this early stage of litigation, when the court is considering a motion to dismiss, the court typically accepts facts alleged in the plaintiff’s petition as true. The Iowa Supreme Court did not rule on the substance of Carver-Kimm’s claims.
The next step in the case will be discovery. Carver-Kimm’s attorney Tom Duff told Bleeding Heartland a trial date may be set in the next twelve to eighteen months. The trial will resolve the merits of Carver-Kimm’s claims. Was she in fact forced to resign because she had provided members of the media with public records, as required by law, consistent with her job duties?
Justice McDermott’s opinion emphasized, “Carver-Kimm can maintain a cause of action if, and only if, she can show she was terminated for complying with her statutory duty as lawful custodian to produce records that she had an obligation to produce.”
Three justices wouldn’t have allowed that part of the case to proceed.
“THIS COURT SHOULD NOT CREATE AN ADDITIONAL ENFORCEMENT MECHANISM”
Justice McDonald (joined by Justices Dana Oxley and David May) wrote separately, concurring with most of the ruling but dissenting from the part that allowed Carver-Kimm’s claim for wrongful discharge in violation of public policy. His core argument: “Under our precedents, this court should not create an additional enforcement mechanism the legislature declined to provide.”
As explained on pages 32 to 39, Justice McDonald sees other provisions in Iowa Code Chapter 22 as sufficient to enforce the open records law.
In most of our cases involving the tort of wrongful discharge, the public policy at issue is one related to employment where only the employee has the ability to detect a violation of the public policy, the capacity to seek compliance with the public policy, and the incentive to enforce the public policy. […]
In those cases, the public policy tort is necessary to vindicate the policy. That is not the case here. The open records law allows any person to request and obtain public records. Iowa Code § 22.2(1). The requestor will know whether the legal custodian complied with the records request. The requestor has the capacity and incentive to bring suit to enforce the open records law.
For Justice McDonald, the court’s April decision in Belin v. Reynolds (I was among the plaintiffs) “demonstrates the power and effectiveness of chapter 22’s statutory enforcement mechanism absent an additional tort remedy.” In that case, the governor’s office delayed producing records, in some cases for well over a year, then provided many of the records after we filed suit. The state tried to dismiss the case as moot and argued that the open records law imposes no timeliness requirement. But a unanimous Iowa Supreme Court “held that unreasonable delay can constitute a violation of the law,” and allowed us to proceed with our claims.
“Our precedents provide that this court should imply a cause of action for wrongful discharge only where necessary to enforce the public policy at issue,” Justice McDonald wrote. “Belin demonstrates the implied tort is not necessary here.”
I would respectfully disagree, for the same reasons outlined by the Iowa Supreme Court majority.
“THE PROPER FUNCTIONING OF THE OPEN RECORDS ACT DEPENDS ON THE GOVERNMENT EMPLOYEES WHO ADMINISTER IT”
If I try to obtain documents from a state agency, and the records custodian does not respond for a long time, the law allows me to go to court. Under the Belin precedent, I can proceed with claims for damages even if records are provided after I file suit.
But what if a senior agency employee orders the records custodian to send me only documents with little news value, withholding material that may point to misconduct or facts government officials had hoped to keep under wraps?
One example comes to mind. In October 2020, I sought records from the Iowa Department of Homeland Security and Emergency Management related to the use of federal COVID-19 relief funds to pay some staff salaries in the governor’s office. If the agency had sent me nothing, I could have pursued legal remedies.
But what if, instead of sending me all the responsive records, the agency had sent a few emails and invoices, withholding material that showed state financial records were altered to make it appear that the expenditure complied with federal guidelines?
What if the records custodian wanted to provide everything subject to disclosure under the law, but was warned she would be fired if she released documents showing headings on a table were changed from “FY 2020 Shortfall Per I/3 Finance” to “COVID-19 Personnel Costs,” and from “Revised Salary/Benefits to Balance Appropriation” to “Salary/Benefits Not Budgeted Related to COVID-19”?
I would have had no way of knowing the agency withheld newsworthy documents, no reason to pursue remedies outlined in Chapter 22, and nothing to hang my hat on if I did file a complaint in District Court or with the Iowa Public Information Board.
The open records law states that as a matter of Iowa policy, “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.” Sometimes, the records custodian is the only person who would know the law is being violated to spare officials from inconvenience or embarrassment.
As Justice McDermott’s opinion noted, “The question isn’t simply whether some remedy exists for someone that advances the public policy at issue, but whether a remedy exists to address the wrong associated with firing an employee against clearly defined public policy.”
A wrongful-discharge-in-violation-of-public-policy claim isn’t some redundant protection. What if, for instance, a lawful custodian is told by their boss that if they produce some embarrassing records, they’ll be fired? Without legal protection for the custodian in this circumstance, it’s likely that the records will never be produced—and the records’ existence will never be known to the requesting party. The proper functioning of the Open Records Act depends on the government employees who administer it, and the wrongful-discharge-in-violation-of-public-policy tort protects those employees.
That’s why this case matters for public employees, regardless of how Carver-Kimm’s trial plays out.
“ONE MORE IMPORTANT DECISION AFFIRMING THAT NO ONE IS ABOVE THE LAW”
Speaking to Bleeding Heartland by telephone on June 23, Carver-Kimm’s attorney Duff said they were pleased with the ruling overall. Upholding his client’s right to bring a claim that she was discharged in violation of public policy “sends a message to communications officers and information officers of the state, county, and city governments that they should be able to fulfill their job duties when a lawful records request is made, and that they can do so without fear of reprisal from the government for doing so.”
Rita Bettis Austen, legal director for the ACLU of Iowa, also hailed the Supreme Court’s decision to recognize Carver-Kimm’s claims, both for wrongful discharge in violation of public policy and under Iowa’s whistleblower statute. In a written statement, she added,
The Court, citing numerous legal precedents, including the recent win in the Belin v. Reynolds case, found that there is such a public policy for records custodians to comply with Iowa’s public records law.
This case is one more important decision affirming that no one is above the law. It’s critical that public employees know that they are protected from retaliation by higher ups for fulfilling their duties to provide public records, which protection ultimately safeguards our democracy by enabling the people to both know and exercise oversight over the people they elect to represent them.
The ACLU of Iowa represented the plaintiffs in Belin v. Reynolds and has been involved with many other open records cases.
The governor’s spokesperson Kollin Crompton did not respond to a request for comment on the Iowa Supreme Court’s latest decision.