FOREWORD

1967 was a year of substantial progress toward open government in Iowa. In that year, the legislature passed statutes which, for the first time, opened specified meetings and records of certain governmental bodies to certain members of the public. What follows is a brief introduction to the development of the respective statutes.

Open Records. In August of 1967 the Iowa legislature enacted An Act to protect the right of citizens to examine public records and make copies thereof. This public records statute gave every citizen the right to examine and copy all public records not otherwise made confidential. Iowa Code § §  68A.1, 2 and 7.

Chapter 68A was enacted in response to citizen complaints about the denial of access to public records. Note: Iowa's Freedom Of Information Act; Everything You've Always Wanted To Know About Public Records But Were Afraid to Ask, 57 Iowa L. Rev. 1163, 1166 (1972). Prior to enactment of chapter 68A, an Iowa citizen's right to inspect public records was severely limited. The situation was not as serious as that described in early England, where "the public business was not the public's business," id., but the only reported Iowa decision on the subject held: "Not every document which comes into the possession or custody of a public official is a public record." Linder v. Eckard, 261 Iowa 216, 152 N.W.2d 833, 835 (1967).

In the twenty years that followed enactment of the statute, there was a significant amount of litigation concerning the meaning and extent of the Open Records law. Much of that litigation is summarized below. In 1988, the legislature amended the statute in such a way as to indicate that it still did not completely endorse the concept of public access. The statute was amended to extend its application, not just to citizens, but to all "persons." At the same time, however, access was restricted when the list of documents made confidential was expanded. The statute was also transferred from Chapter 68A to Chapter 22 and re-numbered accordingly. See, generally, Iowa Code Chapter 22.

Since 1988, the legislature has amended the Act to include within its definition of governmental bodies certain nonprofit corporations supported by property tax revenue and the nonprofit corporations created in response to liberalized gambling laws.

The scope of the litigation arising out of the Act has expanded as well; with suits filed over everything from contracts for broadcast rights to intercollegiate sporting events, to production of settlement documents in cases involving school districts.  More recently, the legislature has acted to enhance the monetary sanctions for violations of these statutes, while expanding the scope of documents considered confidential.

The provisions of the statute, together with information and guidance from the courts and the Iowa attorney general, are set forth in the outline which follows. In construing these provisions, it is important to keep a number of "guiding principles" in mind:

First, Iowa Code Chapter 22 is Iowa's freedom of information statute. Des Moines Register & Tribune Co. v. Osmundson, 248 N.W.2d 493, 501 (Iowa 1976). Second, Iowa Code §  22.2(1) insures that "'[e]very person shall have the right to examine and copy public records and to publish or otherwise disseminate public records or the information contained therein.' From this we discern that the statute's purpose is 'to open the doors of government to public scrutiny-to prevent government from secreting its decision-making activities from the public, on whose behalf it is its duty to act." Iowa Civil Rights Comm'n v. City of Des Moines, 313 N.W.2d 491, 495 (Iowa 1981). Third, the statute "establishe[s] a liberal policy of access from which departures are to be made only under discrete circumstances." City of Dubuque v. Telegraph Herald Inc., 297 N.W.2d 523, 526 (Iowa 1980). Fourth, there is a presumption in favor of disclosure. Id. at 527. Fifth, the specific exemptions in §  22.7 are to be construed narrowly. Id. But this "narrow" construction principle is subject to two caveats. Over-utilization of the principle could easily thwart rather than promote the legislative intent underlying §  22.7. And where the legislative exception is broadly inclusive, the "narrow" construction rule does not aid in ascertainment of the legislature's intent. City of Sioux City v. Greater Sioux City Press Club, 421 N.W.2d 895, 897 (Iowa 1988). Last, the statute provides a procedure — independent of the §  22.7 exceptions — for injunctive relief against disclosure in a carefully circumscribed area. City of Dubuque, 297 N.W.2d at 528.

Northeast Council on Substance Abuse Inc. v. Iowa Dept. of Public Health, Div. of Substance Abuse, 513 N.W.2d 757, 759 (Iowa 1994).

Finally, two caveats are in order. The first relates to the search for records in the state of Iowa. Frequently, the statutory scheme which creates an individual agency also provides that the agency shall promulgate rules for the conduct of its daily affairs. Occasionally, those agency rules include provisions governing the confidentiality of certain of the agency records. When that happens, the custodian of the records which appear to be public pursuant to the provisions of chapter 22 may assert that the records are confidential and unavailable for purposes of inspection and copying. See, e.g., Iowa Admin. Code §  441-28.12. If such a situation should arise, the Act — not the agency rule — should control. Second, the Iowa legislature is continually seeking to alter the scope of these Acts. See, e.g., An Act relating to the right of privacy of an individual or a group, association, or class of individuals, and the collection, storage, disclosure, verification, and matching of certain information, and providing penalties: Hearings on S.F. 2178 Before a subcommittee of the Senate Judiciary Committee, 73rd G.A. (1988). Thus, while the attached statutes are intended to be accurate as of the date of this writing, the reader is urged to consult the Iowa Acts each time a question arises.

Open meetings. In July of 1967, the Iowa Legislature enacted "An Act requiring meetings of governmental agencies to be open to the public." S.F. 536, 62nd G.A. (1967). Iowa Laws chapter 98. This open meetings statute gave every citizen of the state of Iowa the right to attend certain specified meetings of public agencies. Iowa Code § §  28A.1 and 2.

The purpose of the statute was "to prohibit secret or 'star chamber' sessions of public bodies, to require such meetings to be open and to permit the public to be present unless within the exceptions stated therein." Dobrovolny v. Reinhardt, 173 N.W.2d 837, 840-841 (Iowa 1970). Prior to enactment of the statute, the public had no right to attend the meetings of governmental bodies. See generally, 56 Am Jur 2d Municipal Corporations, Etc., 161 (1971).

In 1979, the statute underwent comprehensive revision. It was given a new title: "An Act relating to the holding of meetings by governmental bodies expressly created by statute or executive order, local governmental bodies, and other groups created by such governmental bodies, in open session, unless otherwise exempted by statute, and providing remedies and damages." H.F. 2074, 67th G.A. (1978). Iowa Laws chapter 1037. As a part of this amendment, and perhaps in response to criticism from those reviewing the earlier legislation, (see e.g., The Iowa Open Meetings Act: A Lesson in Legislative Ineffectiveness, 62 Iowa L. Rev. 1108, 1114 (1977)), the legislature included a statement of intent and declaration of policy. It provided: "This chapter seeks to assure, through a requirement of open meetings of governmental bodies, 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." Iowa Code §  21.1. Its provisions were made applicable, not just to citizens, but to "members of the public." Iowa Code §  21.2(3).

Since 1979, there have been few amendments to the Act. In 1989, §  21.10 was added, requiring appointed officials to be briefed on the provisions of both open meetings and public records laws, Iowa Code §  21.10; and in 1990, §  21.11 was added, extending the applicability of the Act to meetings of nonprofit corporations which relate to the conduct of pari-mutuel racing and wagering pursuant to chapter 99D, Iowa Code §  21.11.

During this same period, the Act has also been subjected to strict scrutiny by the courts and the Iowa attorney general. The Iowa Court has reiterated its commitment to the importance of open meetings. See e.g., Donahue v. State, 474 N.W.2d 537, 539 (Iowa 1991) ("The statute [chapter 21] was enacted for the public benefit and should be construed to favor openness.").

Two things have remained constant: (1) The legislature continues to amend these acts as technology changes and the manner in which records are stored becomes more sophisticated; and (2) The notion of public access remains somewhat controversial. In the fall of 2000, for example, 13 Iowa newspapers combined to investigate local government compliance with the public records statute. The study concluded that Iowans are "routinely denied access to public records", particularly when those records are in the hands of local law enforcement agencies. See Sioux City Journal, Vol. 137 Nos. 20-23 (September 23-26, 2000).

The provisions of the statute, together with information and guidance from the courts and the Iowa attorney general, are set forth in the outline which follows. The caveats contained in the preliminary discussion of the open records law should be considered as they relate to this discussion as well.