Date:
07/17/2025
Subject:
Cody Edwards/Iowa Department of Revenue - Investigative Report and Probable Cause Order
Opinion:
The Iowa Public Information Board
In re the Matter of: Cody Edwards, Complainant And Concerning: Iowa Department of Revenue, Respondent |
Case Numbers: 25FC:0049 Status Report and
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COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Investigative Report:
On May 2, 2025, Cody Edwards filed formal complaint 25FC:0049, alleging the Iowa Department of Revenue (Department) violated Iowa Code chapter 22. Cody Edwards is an attorney representing Lamar Company, LLC (Lamar). The Department is represented by the Iowa Attorney General’s Office.
The IPIB accepted this Complaint on June 19, 2025.
Facts
This complaint started with a contested case proceeding between Lamar and the Department. The contested case was appealed and reheard by the Department. The case has now been appealed to District Court and is set for hearing on August 1. The contested case and any corresponding litigation is outside the scope of IPIB’s jurisdiction.
In the midst of these proceedings, Edwards made a public records request to the Department on behalf of his client. The following is the timeline of the request and subsequent limitations on records requested, as outlined by Edwards:
January 30, 2025. A public records request was made for the following information:
1) Any and all correspondence between and among Department of Revenue employees regarding The Lamar Company, Inc.
2) Any and all correspondence between and among Department of Revenue employees regarding Docket No. 23IDR0004/Rev. Docket No. 2021-310-1-0318 (In the Matter of Lamar Company, LLC).
3) Work product of non-attorney employees of the Department of Revenue related to the following: a. The Lamar Company, Inc. b. Docket No. 23IDR0004/Rev. Docket No. 2021-310-1-0318 (In the Matter of Lamar Company, LLC).
February 3, 2025. Edwards limited the timeframe of the public records request to July 2022 through present.
February 5, 2025. The Department communicated that the public records search resulted in more that 6,900 results.
February 5, 2025. Edwards requested the “number of emails for the second half of 2022, all of 2023, all of 2024, and 2025 thus far.”
February 12, 2025. The Department indicated the number of emails per year was as follows:
• 2022: 1736 emails
• 2023: 2138 emails
• 2024: 3467 emails
• 2025: 746 emails
February 19, 2025. Edwards further limited the scope of the request and asked for requested emails regarding Lamar sent or received in 2024 and 2025 by specific Department employees. It is important to note that Edwards argues this limitation did not impact the overall request for documents not defined as emails.
April 17, 2025. The Department provided documents in response to the public records request, which included 142 emails and other documents. The Department stated other records were withheld based on attorney-client privilege, attorney work product under Iowa Code section 22.7(4), and/or the draft exception under Iowa Code section 22.7(65).
On the same date, Edwards requested a listing and description of communications and documents the Department identified as being exempt from disclosure.
April 29, 2025. The Department declined to provide a listing and description of records withheld as exempt.
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:
…
Records which represent and constitute the work product of an attorney, which are related to litigation or claim made by or against a public body.” Iowa Code 22.7(4).
Analysis
Edwards seeks two forms of relief:
- A clear justification for withholding each record deemed confidential including: (1) the date of the document; (2) the personnel of the Department who wrote and received the document and their role in working with the Director in the Lamar case; (3) the subject matter of the document; and (4) the specific basis, described in narrative form with citation to legal authority, of the grounds to withhold the document.
- The release of the following public records requests that are NOT in the form of emails from July 2022 to the present:
- Any and all correspondence between and among Department of Revenue employees regarding The Lamar Company, Inc.
- Any and all correspondence between and among Department of Revenue employees regarding Docket No. 23IDR0004/Rev. Docket No. 2021-310-1-0318 (In the Matter of Lamar Company, LLC).
- Work product of non-attorney employees of the Department of Revenue related to the following: a. The Lamar Company, Inc. b. Docket No. 23IDR0004/Rev. Docket No. 2021-310-1-0318 (In the Matter of Lamar Company, LLC).
Each of these requests for relief will be addressed below.
Justification for Withholding Each Record
Edwards argues the Department has the burden of proof to demonstrate any justification for withholding public records as confidential. Citing to Kirkwood Institute, Inc. v. Sand, 6 N.W.3d 1, 6 (Iowa 2024), Edwards further argues any justification must include information such as (1) the date of the document; (2) the personnel of the Department who wrote and received the document; (3) the subject matter of the document; (4) the specific basis, described in narrative form with citation to legal authority, of the grounds to withhold the document.
The Department argues all records not provided have been withheld on the grounds of attorney-client privilege and attorney work product pursuant to Iowa Code section 22.7(4). It should be noted the Department also cites to draft privilege confidentiality provisions pursuant to Iowa Code section 22.7(65), but states that all draft documents are also subject to attorney-client privilege. The Department states,
“Further, regardless of the draft exception, it is worth noting these documents all involved attorney work product in putting together these drafts of orders and filings and attorney-client communications discussing these drafts with the requested individuals. Therefore, even if this Board were to find the draft exception did not apply to these documents, they are still afforded protection under attorney-client privilege and attorney work product.”
Because attorney-client privilege and attorney work product exceptions have been applied to all documents, IPIB staff will forego any analysis involving draft exceptions.
The Department provides the following arguments in support of its position:
- The doctrine of attorney-client privilege exists outside the realm of Iowa Code Chapter 22 and should be protected.
- Neither Chapter 22 nor any interpretation thereof requires the production of a privilege log or the release of records that are attorney-client work product. Diercks v. Malin, 894 N.W.2d 12, 16 (Iowa Ct. App. 2016); Iowa Public Information Board 15FC:0030/15FC:0034.
IPIB has a history of precedent that supports the position that attorney-client privilege exists outside the scope of Iowa Code Chapter 22:
“As further noted by the [Attorney for Complainant], the issue of attorney-client privilege stands on its own outside of Iowa Code chapter 22 and IPIB’s jurisdiction. Sources of this privilege include various sections of the Iowa Code, the Iowa Rules of Professional Conduct, and common law. The Iowa Attorney General has also issued a “Sunshine Advisory” which recognizes three types of documents exempt from public examination and copying, one of which are documents covered by attorney-client privilege.
IPIB has recognized the exemption of attorney-client privileged documents when reviewing public records requests and dismissed past complaints for this reason, citing the aforementioned sources. [Complainant] has not waived privilege; therefore, the emails in question remain confidential under attorney-client privilege.
The Iowa Attorney General issued a Sunshine Advisory that included attorney/client privileged materials as a “‘privilege’ or professional confidence recognized by the courts…”
The IPIB also has adopted Iowa Administrative Rule 497-7.11(2)(e) which states:
7.11(2) Confidential records. The following records may be kept confidential.… e. Records which constitute attorney work product, or attorney-client communications, or which are otherwise privileged. Attorney work product is confidential under Iowa Code sections 22.7(4), 622.10 and 622.11, Iowa Rule of Civil Procedure 1.503(3), Federal Rule of Civil Procedure 26(b)(3), and case law. Attorney-client communications are confidential under Iowa Code sections 622.10 and 622.11, the rules of evidence, the Code of Professional Responsibility and case law.”
This language is cited in several IPIB orders and opinions, including the most recent orders titled 23FC:0024, 22FC:0027, 22FC:0010, 20FC:0018.
Furthermore, there is nothing in Iowa Code Chapter 22 or any other statute within IPIB’s jurisdiction that requires the disclosure of a log or other detailed information to justify the use of an attorney-client privilege or attorney work product exception. IPIB staff agree with the Department’s reliance on Dierks v. Malin as controlling precedent in support of the position that a privilege log or other information is not required to justify use of confidentiality provisions pursuant to Chapter 22. Dierks v. Malin, 894 N.W. 2d at 16.
The Department has invoked attorney-client privilege as it relates to the requested public records and unless or until Chapter 22 changes, there are no requirements that the Department must provide additional information to support the justification.
Release of Additional Records
Edwards argues his request for emails was limited in scope but that his request for any other documentation was not limited. Based on this argument, Edwards states the Department has failed to provide records beyond emails that may be due and owing based on the original request.
The Department argues that the complaint filed with IPIB by Edwards only relates to emails and that Edwards’ concerns regarding the release of additional information are misplaced.
Edwards original complaint states as follows:
“Complainant limited its request for emails to those sent or received by [specific Department employees] in 2024 and 2025, but did not impose such limitation on all other types of correspondence. Based on Complainant’s review of the documents produced by the Department, it is unclear whether the Department produced “all correspondence between and among Department of Revenue employees regarding The Lamar Company, Inc.”
IPIB staff find there is legitimate confusion regarding the scope of the original request and the applicable limitations. IPIB staff direct the Department to provide the following public records, if any, from July 2022 to the present to Edwards:
- Any correspondence, not including emails, between and among Department of Revenue employees regarding The Lamar Company, Inc.
- Any correspondence, not including emails, between and among Department of Revenue employees regarding Docket No. 23IDR0004/Rev. Docket No. 2021-310-1-0318 (In the Matter of Lamar Company, LLC).
- Work product of non-attorney employees, not including emails, of the Department of Revenue related to the following: a. The Lamar Company, Inc. b. Docket No. 23IDR0004/Rev. Docket No. 2021-310-1-0318 (In the Matter of Lamar Company, LLC).
This information should be provided to Edwards within 30 days. This does not exempt Edwards from seeking additional public information or from filing another complaint with IPIB for failure to release non-exempt public records.
Discovery Process
IPIB staff note there is an appeal pending in District Court. This order is based on IPIB’s limited jurisdiction pursuant to Iowa Code Chapters 22 and 23 and does not create a precedent or decision related to any discovery matters that may emerge in litigation.
IPIB Action
The Board may take the following actions upon receipt of an Investigative Report:
a. Redirect the matter for further investigation;
b. Dismiss the matter for lack of probable cause to believe a violation has occurred;
c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or
d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding.
Iowa Admin. Code r. 497-2.2(4).
Recommendation
It is recommended this matter be dismissed for lack of probable cause to believe a violation has occurred. The Department is directed to release any additional public records that should be released to the complainant as directed by this Investigative Report.
By the IPIB Executive Director
_________________________
Erika Eckley, J.D.
Under Iowa Admin. Code r. 497-2.2(4) the Board takes the following action:
- a. Redirect the matter for further investigation;
- b. Dismiss the matter for lack of probable cause to believe a violation has occurred;
- c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or
- d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding.
By the Board Chair
___________________________________
Monica McHugh