An open-records victory but still a long way to go

KATHIE OBRADOVICH Iowa Capital Dispatch

The Iowa Supreme Court said it loud and clear: The governor is not above the law.

The high court’s ruling issued last week was a significant victory for advocates of open government, including Iowa Capital Dispatch and our deputy editor Clark Kauffman. We were among the plaintiffs in the case because it was the only avenue left to maintain the Iowa Open Records Law as a meaningful, enforceable statute.

In a 6-0 ruling, the justices made it clear that custodians of public records can’t skirt the law’s requirements by simply ignoring requests for documents, as the governor’s office did for as long as 18 months before the lawsuit was filed.

Gov. Kim Reynolds, in a statement, blamed the pandemic for her office’s failure to comply with the law.

“During that time, there was an unprecedented number of open records requests and many of those went unfulfilled for a period,” she said. “While we disagree that this lawsuit should continue, my office has eliminated the backlog of open records requests and is committed to upholding our responsibility to respond to any new requests in a timely manner.”

Laura Belin, publisher of the Bleeding Heartland blog and one of our co-plaintiffs in the case, pointed out the hypocrisy of Reynolds claiming COVID-19 as an excuse.

“The pandemic placed unusual demands on many people, and we understood it might take state officials a little longer to process records requests,” Belin said in a Friday press conference.

“But the delays continued for many months, long after Gov. Reynolds had ordered state government staff back to their offices and encouraged Iowans to resume their normal lives.”

And even as the governor was arguing that releasing documents was an undue burden on her office, Reynolds and Republicans in the Legislature have been pushing for massive new transparency laws for public schools, including requiring up-to-date publication of all library and classroom materials.

The justices recognized that under the governor’s argument, Iowans would have no other recourse but to file a lawsuit to access public documents from that office.

That’s a relief. But even if this ruling and the litigation still to come turns out 100% in our favor, there will still be barriers to Iowans’ ability to access public documents.

One of those is the law’s failure to limit how much government officials can charge the public for processing records before they are released.

Iowa Capital Dispatch has received estimates as high as $10,000 for fulfillment of records requests. Generally, state agencies say we’re paying for a key-word search for records and the hourly fee for a government lawyer to review each page to redact any potentially confidential information. Some of these lawyers are making $400 an hour.

Randy Evans, executive director of the Iowa Freedom of Information Council and another of the plaintiffs in our lawsuit, points out these fees are intentionally prohibitive to Iowans seeking information to which they are entitled under the law. Lawmakers could easily fix this by excluding from “reasonable” fees the cost of attorneys to comply with the law.

The other significant barrier to Iowans’ right to know is the giant loophole that allows law enforcement agencies to indefinitely avoid releasing video from dashboard cameras, officers’ body cameras and other sources. The refusal to release video that might embarrass or expose an officer or the department means a lack of accountability to the public. Again, lawmakers could find a balance between the public interest and the privacy concerns of the public, but they