24FC:0089 Curtis Wagler et al./Henry County Sheriff’s Office - Acceptance Order

Date:
01/16/2025

Subject:
Curtis Wagler et al./Henry County Sheriff’s Office  - Acceptance Order

Opinion:

The Iowa Public Information Board

COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Acceptance Order: 

On October 9, 2024, Danny Cornell filed formal complaint 24FC:0089, alleging that the Henry County Sheriff’s Office violated Iowa Code Chapter 22.

Facts

On May 7, 2024, Cornell, legal counsel for the Waglers, submitted a records request for documents and communications relating to a particular deputy’s placement on the county’s Brady-Giglio list, along with a broad request for records relating to the county attorney’s decision not to prosecute the Waglers in a dismissed criminal case. This request was filed with the Henry County Sheriff’s Office on May 9, 2024, and the county attorney was separately notified. Both government bodies acknowledged the request.

The Sheriff acknowledged the request for the first time on May 20 after he returned to the office. On June 3, the Sheriff provided 1,000 pages of documents to the county attorney to review for confidentiality. On July 4, the sheriff hired a private law firm, seeking their assistance in responding to the records request, and the sheriff instructed the county attorney to cease his review, citing a possible conflict of interest.[1] According to the Sheriff’s Office, a package containing the requested records was mailed on August 5, but it was never received by the Waglers. On August 12, the Sheriff’s Office emailed the records it had physically mailed, which consisted of seven pages of records, with confidentiality asserted to withhold the remainder. This was 95 days after the request was made.

The five records disclosed included 1) a single-page letter from the deputy to the county attorney requesting records related to the Brady-Giglio list, 2) a single-sentence email to the county attorney directing him to the aforementioned letter as an attachment, 3) a single-page letter from the deputy to the sheriff, requesting an investigation to avoid placement on the Brady-Giglio list, 4) a two-page signed statement by the deputy concerning his decision to make the arrests, and 5) an email from the sheriff to the county attorney which consisted of a “law enforcement checklist” reporting on the deputy’s performance.

In the cover letter for the response, the sheriff asserted that all records responsive to the request were confidential, either because they were part of a police investigative file under Iowa Code § 22.7(5) or because they were correspondence between the Sheriff’s Office and the County Attorney’s Office, entitled to attorney-client privilege. The five documents listed above were included because the sheriff “partially waive[d]” confidentiality.

On October 9, 2024, Cornell filed formal complaint 24FC:0089 against the Henry County Sheriff’s Office, alleging undue delay and the failure to release certain public records which were improperly withheld as confidential.[2] After opening the complaint, an additional 107-page PDF was released, consisting of public records previously released to a local newspaper in response to a similar Chapter 22 request.

The Sheriff’s Office argues the delays were the product of an ongoing dispute with the county attorney regarding the same subject matter for which this request sought documents. It was because of this conflict the sheriff requested the county attorney not be involved in responding to the request, instead opting to retain private counsel.[3]

Applicable Law

“The following public records shall be kept confidential, unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information:

5. Peace officers’ investigative reports, privileged records or information specified in section 80G.2, and specific portions of electronic mail and telephone billing records of law enforcement agencies if that information is part of an ongoing investigation, except where disclosure is authorized elsewhere in this Code.” Iowa Code § 22.7(5).

“Good faith, reasonable delay by a lawful custodian in permitting the examination and copying of a government record is not a violation of this chapter if the purpose of the delay is any of the following:

c. To determine whether the government record in question is a public record, or confidential record.

d. To determine whether a confidential record should be available for inspection and copying to the person requesting the right to do so. A reasonable delay for this purpose shall not exceed twenty calendar days and ordinarily should not exceed ten business days.” Iowa Code § 22.8(4)(c), (d).

Analysis

I. The Sheriff’s Office’s Response to the Waglers’ Chapter 22 Request

A minimum of 88 days elapsed between the time the complainants submitted their Chapter 22 request and the eventual release of five records, and it was 95 days before the complainants received the records. The parties dispute whether this constituted unreasonable delay.

In advisory opinion 24AO:0010, the IPIB addressed a closely related fact pattern, involving a parallel request made by a local newspaper with the Henry County Sheriff’s Office, which sought similar records during an overlapping period of time. 24AO:0010, Clarification on the Definition of “Reasonable Delay.” The delay in that case was approximately 60 days. Id. In the advisory opinion, IPIB discussed six factors identified by the Iowa Supreme Court in Belin v. Reynolds for determining whether a government body has impliedly refused to disclose records during reasonable delay, including 1) how promptly the respondent acknowledged the requests and follow-up inquiries, 2) whether the respondent assured the requester of their intent to provide the requested records, 3) whether the respondent explained why requested records weren’t immediately available, 4) whether the respondent produced records as they became available (“rolling production”), 5) whether the respondent updated the requester on efforts to obtain and produce records, and 6) whether the respondent provided information about when records could be expected. Id. (citing Belin v. Reynolds, 989 N.W.2d 166, 174 (Iowa 2023)). IPIB also wrote that the need to obtain outside representation due to an inter-governmental dispute could constitute a reasonable, good faith delay, but “informing the requester of the need to retain outside representation and that this is causing a delay is important in helping [to] determine whether the delay is reasonable.” Id.

In this case, the Sheriff acknowledged the request eleven days after the request was submitted. Before being removed from the review process, the county attorney provided two updates to the complainants on the status of the request. However, there were apparently no further assurances from the Sheriff’s Office between the initial correspondence on May 20 and the notice of mailing on August 6. The Sheriff’s Office never explained the reason for the delay, though the county attorney indicated in early June that more time would be needed given the scope of the request. There was no rolling production of records and, no updates were given during the review process. The Sheriff’s Office provided an estimate of two weeks on May 21, and the county attorney requested an additional week on their behalf on June 3, but no other estimates were given after this time. With regards to the sheriff’s decision to obtain outside representation, 24AO:0010 indicated that this could justify a reasonable, good-faith delay, but the complainants were not informed of this until June 25, when the county attorney informed them.

In this case, there were a number of delays in responding to the request with each continuing to compound the delay. Few updates were provided as these delays arose. Ultimately, five documents were released in August, three months after the initial request. Although IPIB acknowledges extenuating circumstances in this instance contributed to a delayed response, this delay to produce a small number of documents could be found to be unreasonable.

II. Records Withheld by the Sheriff’s Office as Confidential

Turning to the substantive disclosure in this case, the Sheriff’s Office asserted two grounds to claim confidentiality for all records requested. For the complainants’ broad request for records relating to the decision to decline prosecution of the Waglers, the Sheriff’s Office stated: “Section 22.7(5) provides an exception to FOIA production for the investigative files of law enforcement agencies. I do not waive that exception. Therefore, I have nothing to produce.”

It is not clear the Sheriff’s Office applied the correct standards for confidentiality. Iowa Code § 22.7(5) protects three categories of information from disclosure, including 1) police officers’ investigative reports, 2) “privileged records or information specified in section 80G.2,” and 3) “specific portions of law enforcement agencies’ electronic mail and telephone billing records that are part of an ongoing investigation.” See 23AO:0003, Confidentiality of Police Investigative Files. The portion of the exception covering investigative reports provides only a qualified, rather than categorical, privilege for police investigative report. Mitchell v. City of Cedar Rapids, 926 N.W.2d 222, 232–34 (Iowa 2019). In addition to showing a record is part of an investigative report, a governmental body asserting confidentiality under this exception must satisfy the Hawk Eye balancing test, which has three elements: “(1) a public officer is being examined, (2) the communication [to the officer] was made in official confidence, and (3) the public interest would suffer by disclosure.”

The complainants’ fourth request was broad, seeking “Any other documents associated with the subject matter outlined in the attached letter . . . regarding the declination of prosecution of Curtis Wagler, Lori, Wagler, and Owen Wagler and the actions taken by [the deputy] surrounding or otherwise related thereto.” Reviewing the attached letter, it is unknown whether all records of the Sheriff’s Office responsive to this request would count as part of the police investigative report. Even if they are, however, the Hawk Eye analysis should have been applied.

Similarly, the 107-page disclosure made to the local journal on a separate Chapter 22 request includes seemingly responsive records on the Brady/Giglio issue which were not created for this purpose but which the Sheriff’s Office did not initially disclose to the complainants. This raises questions about whether the privilege exceptions were properly applied and whether all responsive documents have been provided. Upon review, IPIB may find that all required disclosures have now been made, but these facts warrant acceptance to ensure the proper standards of review are applied to the complainants’ Chapter 22 request and the records requested to which they are entitled have been received.

Conclusion

Iowa Code § 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and have merit before the IPIB accepts a complaint. This complaint meets the necessary requirements for acceptance.

IT IS SO ORDERED:  Formal complaint 24FC:0089 is accepted pursuant to Iowa Code § 23.8(1) and Iowa Administrative Rule 497-2.1(2)(a). 

Pursuant to Iowa Administrative Rule 497-2.1(3), the IPIB may “delegate acceptance or dismissal of a complaint to the executive director, subject to review by the board.”  The IPIB will review this Order on January 16, 2025.  Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.

By the IPIB Executive Director

_________________________

Erika Eckley, J.D.

[1] See 24AO:0010, Clarification on the Definition of “Reasonable Delay” as It Pertains to the Period of Time for a Record’s Custodian to Determine the Confidentiality of Records Addressed the Matter in Regards to a Separate Requestor.

[2] The complaint also named the Henry County Board of Supervisors as a respondent, but IPIB dismissed the Board as a party on November 21, 2024, on the basis that the Sheriff’s Office had excluded the County Attorney from responding to the request and the Sheriff’s Office was therefore solely responsible for any violations alleged in the complaint.

[3] The ongoing internal, political dispute within the County regarding this matter is beyond the scope of IPIB’s jurisdiction.