Monday, November 18, 2019
Ripperger Final Decision
Iowa Public Information Board
Wallace State Office Building
Des Moines, Iowa 50319
IN THE MATTER OF:
RANDY RIPPERGER IPIB No. 17FC:0029
Polk County Assessor
111 Court Avenue, Room 195 FINAL DECISION
Des Moines, Iowa 50309
STATEMENT OF THE CASE
This matter arises from an open records request made of the Polk County Assessor’s office by the Des Moines Register in March of 2017 to disclose the names of property owners who have opted out of the searchable feature on the assessor’s website. The Polk County Assessor declined to release this information and a complaint was filed with the Iowa Public Information Board. After an investigation, the IPIB entered an order on January 18, 2018 finding there was probable cause to believe Polk County Assessor Randy Ripperger violated the Open Records Act and directing a designated prosecutor to issue a statement of charges to initiate a contested case hearing. A contested case hearing was held on March 29, 2019, before Administrative Law Judge (ALJ) Kristine M. Dreckman. The ALJ issued a Proposed Decision on July 19, 2019, finding that the respondent Ripperger failed to allow a member of the public to examine and copy a public record in violation of Iowa Code section 22.2.
The respondent filed a timely Notice of Appeal from the ALJ’s proposed decision to the Board. Both parties submitted briefs and oral argument was held on October 17, 2019. The Board’s designated prosecutor, Amanda Adams, appeared on behalf of the Board and Assistant Polk County Attorney Megan Gavin appeared on behalf of Randy Ripperger.
The record includes the testimony of Clark Kaufmann, Margaret Johnson, Sergeant Paul Parizek, former Supreme Court Justice Michael Streit, Randy Ripperger, Dr. Heidi Warner, and Jeff Noble, as adduced at the contested case hearing; the transcript of the said contested case hearing; hearing exhibits marked A through H; a binder of relevant statutes, rules and court opinions; the Respondent’s Motion to Disqualify Members of the Iowa Public Information Board and Exhibits 1-4; the Response to the Motion to Disqualify; the parties’ briefs filed in connection with the Motion to Disqualify; the ALJ’s Proposed Decision of 07/19/19; the Notice of Appeal of 08/09/19; the Appeal Brief of 09/27/19; the Response Brief of 10/06/19; and the Board’s Notice of Hearing Schedule.
FINDINGS OF FACT
The findings of fact in the ALJ’s decision are accurate and are incorporated into this ruling as if set out in full. In brief, this matter arises from an open records request made of the Polk County Assessor’s office by the Des Moines Register to disclose the names of property owners who have opted out of the searchable feature on the assessor’s website. The Polk County Assessor declined to release this information on the grounds of confidentiality and a complaint was filed with the Iowa Public Information Board. After an investigation, the IPIB found that probable cause existed to believe Ripperger violated the Open Records Act and a contested case hearing was initiated with the ALJ finding directing a designated prosecutor to issue a statement of charges to initiate a contested case hearing. A contested case hearing was held on March 29, 2019, and the ALJ found that an open records violation had occurred and ordered the respondent Ripperger to cease and desist.
CONCLUSIONS OF LAW
The general assembly, in a decision to open Iowa’s public record, enacted the Open Records Act (“the Act”), which is also known as the Iowa Freedom of Information Act, found in Iowa Code chapter 22. The purpose of the Act is “to open the doors of the government to public scrutiny [and] to prevent government from secreting its decision-making activities from the public, on whose behalf it is its duty to act.”5 There is a presumption in favor of disclosure, with a liberal policy in favor of access to public records.6 “Disclosure is the rule, and the one seeking the protection of one of the statute’s exemptions bears the burden of demonstrating the exemption’s applicability.”
Additionally, the legislature created the Iowa Public Information Board (“Board”) to provide a means outside of litigation through district court by which to secure compliance with and enforcement of the requirements of the Act. The legislature conferred the Board broad duties, including receiving and investigating complaints, and deciding after such an investigation whether there is probable cause to believe a violation of the Act has occurred.
In his appeal, Ripperger argues the ALJ erred in 1) failing to address which party has the burden of proof to demonstrate a violation of the open records act; 2) inserting a “wholly novel and unsupported legal theory not advocated by the parties”; 3) misinterpreting the confidentiality provision of Iowa Code sections 22.7(18); and 4) failing the address the respondent’s affirmative defenses. As discussed below, the Board finds these assignments of error to be lacking in legal merit and/or unsubstantiated by the record in this case.
The Burden of Proof
The burden of proving a public record is exempt from disclosure or production is on the party claiming the exemption. Diercks v. Malin, 894 N.W.2d 12 (Iowa 2016). In its discussion of civil enforcement suits, the Court in Diercks succinctly explains the burden of proof as follows:
Iowa Code section 22.10 authorizes civil suits by citizens to enforce the statute.” Id. In such an action, the initial burden rests with the claimant to demonstrate “that the defendant is subject to the requirements of [chapter 22], that the records in question are government records, and that the defendant refused to make those government records available for examination and copying by the plaintiff.” Iowa Code § 22.10(2); see also Horsfield, 834 N.W.2d at 460. The claimant must make this showing by a preponderance of the evidence. See Horsfeld, 834 N.W.2d at 460; see also Wings v. Dunlap, 527 N.W.2d 407, 410 (Iowa Ct. App. 1994). “Once the citizen shows the city denied his or her request to access government records, the burden shifts to the city to demonstrate it complied with the chapter's requirements.” Diercks, 806 N.W.2d at 653 (citing Iowa Code § 22.10(2).
Id., 894 N.W.2d at 18.
In this matter at hand, it cannot reasonably be disputed that the records in question, i.e. the names of those individuals who opted-out of the online database, are governmental records and that respondent Ripperger refused to make them available for inspection. Once this finding was made by the Board via their investigation and subsequent probable cause order, the burden shifted to the respondent to show compliance with Iowa Code Chapter 22. Therefore, the burden was on Ripperger to show that the records were protected by a statutory exemption of confidentiality under Iowa Code section 22.7. It is the party claiming the exemption who bears the burden, not the Board as respondent asserts. The respondent Ripperger failed to meet this burden and, thus, the ALJ correctly found that the records were subject to disclosure.
The Existence of the Records In Question
The respondent asserts that because the assessor’s office did not keep records regarding the individuals who actually made the opt-out request on the property owner’s behalf, there was nothing for Kauffman (i.e. the Des Moines Register) to inspect.
The ALJ analyzed this argument in detail and was correct in holding as follows:
Ripperger is correct in that the language used in Kauffman’s complaint identifies the records in controversy as “the list of … property owners who had filed written requests.” The actual request made by Kauffman, however, must be reviewed in context of the parties’ entire email exchange. That exchange starts, in relevant part, by Ripperger informing him that “[t]he number of people on our name search disable list is 2,166.” Kauffman then responds, “Could I stop over sometime next week and look at the list of 2,166 property owners and/or their written requests (whichever is easier for you to produce)?” (Exhibit A).
Reviewing the entirely of the exchange, it is evident both parties understood Kauffman’s request to be the list of property owners who were removed from the name search function on the assessor’s website and/or their written requests to be removed from that function of the website. Ripperger maintains that his office did not keep copies of any such written requests, and that appears to be undisputed by the Board.
While the evidence supports the conclusion that Ripperger does not have copies of said written requests, the real record in controversy in this case is “the list”: the names of property owners that were removed from the website’s search function. The undersigned concludes that Ripperger had access to that information.
This conclusion is also supported by Ripperger’s response to Kauffman’s request. At that time, Ripperger did not inform Kauffman the records did not exist, but rather that he declined to make them available because “those requests should be kept confidential under Iowa Code section 22.7(18).”
Proposed Decision at 7-8.
The exemption under Iowa Code section 22.7(18) is intended to encourage “a broad category of useful incoming communications” with government “which might not be forthcoming if subject to public disclosure.” Des Moines Independent School Dist. v. Des Moines Register & Tribune Co., 487 N.W.2d 666, 671 (Iowa 1992). Under the facts of this case, however, the government does not benefit from people opting out of the searchable database. This is not the kind of communication with government that section 22.7(18) is intended to protect.
The Respondent’s Belief that the Individuals who Opted-Out did so with the Understanding of Confidentiality
The respondent also alleges on appeal that the individuals who sought to opt-out did so with the explicit understanding that this request would be kept confidential, and that the respondent reasonably believes that these individuals would not have done so if they knew it would not remain confidential. In support of this argument, respondent relies on the provisions of Iowa Code section 22.7(18) regarding communications that “persons would be discouraged from making…to that government body if they were available for general public examination.”
The applicability of this exception, or the lack thereof, was addressed in detail at the contested case hearing. The ALJ was correct in her application of the law to the facts adduced on this point at hearing and concluding as follows:
At the most basic level, to qualify for this exemption the record at issue must be a “communication.” As previously discussed herein, there is a distinction between the actual request made to remove a property owner’s name from the search function of the website and the name of a property owner who was removed from the search function as a result of the request. While the former is most certainly a communication, the latter is not. Because said records do not constitute communication, they do not fall under the cited exemption and are therefore subject to disclosure under the Act.
Proposed Decision at 9.
There is no provision in Chapter 22 allowing a governmental entity to refuse to disclose records on the grounds of an individual’s alleged belief about their confidentiality. Further, such a belief on the part of the custodian of records as to what the individuals may have believed is highly speculative at best and runs completely contrary to both the letter and spirit of Iowa’s open records law. These beliefs do not remove this information from the disclosure requirements of Iowa Code Chapter 22.
Finally, the respondent asserts on appeal that the safety concerns of private citizens outweigh any public interest in the release of this information. Respondent Ripperger asserts that at least two individuals have expressed their desire for confidentiality and would rather remain in the searchable database than have their identity disclosed on a list of the names of those persons who have opted out. Many of the people who opted out may certainly have done so for safety reasons, i.e., they have legitimate concerns that ready access through the data base to their home address may lead those who would do them harm directly to their door. Although we recognize the legitimate safety concerns among some categories of home owners, it is illogical to assume the vast majority of those with safety concerns would rather be easily found in the database than be merely listed among those who have opted out.
Iowa Code section 22.8 provides a mechanism for a party to seek an injunction to restrain examination of a specific public record or a narrowly drawn class of public records upon a showing of clear and convincing evidence that section 22.8 authorizes such issuance. While the Board acknowledges this argument and request is being asserted for the first time on appeal, in order to accommodate legitimate safety concerns of those whose property records are available in the Office of the Polk County Assessor, the effective date of this Order is deferred for 60 days from the signature date of this order to allow the Polk County Assessor to seek an injunction to shield disclosure of the actual property records. No injunction should be necessary to shield the names of those who have opted out of the searchable data base because disclosure of the list alone poses no danger if the disclosure of underlying records is enjoined.
The decision of the administrative law judge is supported by the record and it is hereby affirmed. As discussed above, the effective date of this Order is deferred for 60 days from the signature date of this order to allow the Polk County Assessor to seek an injunction to shield disclosure of the actual property records
DATED this ____ day of November, 2019.
Chair, Iowa Public Information Board
Randy Ripperger (mail); Meghan Gavin (mail and email); Amanda Adams (email); Margaret Johnson (email); Clark Kauffman (mail); Julie Bussanmas (email); Braedi Gloshen (email).