15FC:0030/15FC:0034

Date:
08/17/2017

Subject:
Burlington Police Dept, DPS, DCI - Order on Interlocutory Appeal

Opinion:

IOWA PUBLIC INFORMATION BOARD

WALLACE STATE OFFICE BUILDING

502 EAST 9TH ST.

DES MOINES, IA 50309

Procedural Overview

This matter comes before the Iowa Public Information Board (IPIB, hereinafter “the Board”) by way of Interlocutory Appeal from Administrative Law Judge Karen Doland’s Order Granting Petitioner’s Motion to Compel Answers to Interrogatories of June 12, 2017.  On that date, ALJ Doland granted petitioner IPIB’s motion to compel respondent’s answers to interrogatories.  Specifically, IPIB alleged respondent’s answers were legally insufficient in that they did not provide a “privilege log” or specific information sufficient to assess the applicability of the privilege or protection sought.  The ALJ agreed that this “blanket claim of privilege” was not supported by Iowa case law or the governing rules and statutes and went on to order the Division of Criminal Investigation and Burlington Police Department to either provide the specific information sought in the interrogatories or a privilege log compliant with Iowa Rule of Civil Procedure 1.503(5).  The Respondents resisted by filing an Interlocutory Appeal pursuant to 497 IAC 4.24. The Board heard arguments from all parties on July 21, 2017, and subsequently determined that an interlocutory review would expedite final resolution of the case and would provide an adequate remedy.  497 IAC 4.24.  Having carefully considered the argument of both sides, as well as the applicable rules, statutes, and case law, the Board hereby issues the following ruling as set forth below.

Ruling on the Interlocutory Appeal

The Board recognizes the applicability of Iowa Rule of Civil Procedure 1.503(5) to this discovery dispute, and agrees with the ALJ’s analysis of State ex rel Shanahan v. Iowa Dist. Court for Iowa County, 357 N.W.2d 523, 526-28 (Iowa 1984), with regards to the terms “privilege” and “confidential” under Iowa Code sections 622.11 and 22.7(5), as well as the notion that the burden shifts to the respondents to show compliance with the Open Records Act once the request has been denied.  Dierks v. Malin, 894 N.W.2d 12, 18 (Iowa Ct. App. 2016); Iowa Code section 22.10(2).  However, the Board disagrees with the ALJ’s conclusion that the respondents failed to meet this burden and are therefore required at this juncture to provide the disputed records and/or a privilege log.

The Board finds that Iowa case and statutory law are persuasive and/or controlling as to the issue presented here.  In Neer v. State, 798 N.W.2d 349 (2011) (Table), the Court of Appeals held in an unpublished decision that “[t]o require an item-by-item assessment of everything within a criminal investigation file would, for all practical purposes, eliminate the investigative exemption.” Id. at *4, citing State ex rel. Shanahan v. Iowa District Court, 356 N.W.2d 523, 529-30 (Iowa 1984).  In Shanahan, the Court of Appeals reversed the district court’s holding that the DCI file was fully discoverable by the litigants in the civil action. Id., 356 N.W.2d at 526.

We hold that the district court abused its discretion in ordering the DCI to give the civil litigants and their attorneys access to the entire criminal investigation file. The statutory privilege of Iowa Code section 621.11, which the state properly invoked, should have been upheld and enforced.

Shanahan., 356 N.W.2d at 531.

In the recent decision of Dierks v. Malin, 894 N.W.2d 12 (2016), the Iowa Court of Appeals specifically held that “although use of a privilege log or similar procedure to claim confidentiality in response to a public records request would promote the objectives of our public records statute, we find nothing in Iowa Code chapter 22 or our case law that requires such a procedure.”  Id. at footnote 16.  

Thus, it is this Board’s finding that the respondents have met their burden under Dierks v. Malin, supra, and that the records in dispute are confidential investigative reports as defined under Iowa Code section 22.7(5), and thus not subject to disclosure.  Nor are the records subject to being identified in a privilege log where such identification would essentially eliminate their statutory protection as confidential records, and where such a requirement runs directly contrary to the Court of Appeals holding in Neer v. State, supra.

Order

For all the foregoing reasons and authority, respondents’ request for Interlocutory Relief is hereby granted and ALJ Karen Doland’s Order of June 12, 2017, granting the Petitioner’s Motion to Compel is hereby reversed.

____________________________

Iowa Public Information Board, Chair
 

Issued on August 17, 2017