Horsfield Materials, Inc. v. City of Dyersville

IN THE SUPREME COURT OF IOWA
No. 12–0491

Filed July 5, 2013

HORSFIELD MATERIALS, INC.,

Appellant,

vs.

CITY OF DYERSVILLE,

Appellee.

Appeal from the Iowa District Court for Dubuque County,

Andrea J. Dryer (trial) and Lawrence H. Fautsch (motion to compel

discovery), Judges.

A materials supplier appeals from the district court’s denial of

declaratory and injunctive relief in an action against a municipality for

alleged violations of Iowa’s public bidding and open records laws.

DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED

IN PART, AND CASE REMANDED.

Vernon P. Squires of Bradley & Riley, PC, Cedar Rapids, for

appellant.

Douglas M. Henry and P. Christopher Williams of Fuerste, Carew,

Juergens & Sudmeier, P.C., Dubuque, for appellee.
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MANSFIELD, Justice.

In this case, we must decide whether an entity excluded from a

city’s list of preapproved material suppliers on a public construction

project can obtain a declaratory judgment that such a preapproval

process violated Iowa’s public bidding statute and constitutional

guarantees of equal protection and due process. Additionally, we must

decide whether the same entity should have been granted relief under

Iowa’s open records law based on the city’s delay in responding to an

open records request.
We conclude the supplier lacked standing to challenge the

preapproval process under Iowa’s public bidding statute. We find the

supplier did have standing to assert its constitutional claims but reject

those claims on the merits. Finally, we hold the city’s substantial and

inadequately explained delay in responding to the supplier’s open records

request violated the law. For these reasons, we affirm the judgment

entered by the district court dismissing the plaintiff’s public bidding and

constitutional claims, but reverse in part the district court’s ruling that

denied the plaintiff relief under the open records law.

I. Facts and Procedural Background.

Plaintiff Horsfield Materials, Inc. (Horsfield) is a construction

supply business based in Epworth, about ten miles east of Dyersville.

Horsfield produces and sells construction materials including aggregate

(e.g., crushed stone, sand, and gravel) and ready-mix concrete. Horsfield

supplies a variety of customers such as individuals, large concrete

contractors, government bodies, and developers.

Horsfield has a sister company, Horsfield Construction, Inc., that
does business as a construction contractor. Matthew Horsfield is the

president of both firms. In 2005, Horsfield Construction became
 3

embroiled in litigation with Dyersville over a downtown pavement,

sidewalk, and streetlight replacement project that Horsfield Construction

had agreed to perform for the City.

This litigation concerns the Wastewater Treatment Facility Phase II

Improvements, which consisted of modifications and upgrades to

Dyersville’s existing wastewater treatment facility. The estimated cost of

the project was approximately $1.2 million. The project was largely

funded as an Iowa Green Initiative through the Iowa Revolving Loan

Fund, but $300,000 of federal stimulus money was available. To qualify
for these funds, the City had to issue a notice to proceed by mid-

February 2010.

Because the estimated cost of the project exceeded $100,000, the

project fell under the requirements of Iowa’s public construction bidding

statute. See Iowa Code §§ 26.1–.15 (2009). Chapter 26 imposes certain

requirements on the bidding and selection process for public

construction projects, including notice, public hearing, and selection of

the “lowest responsive, responsible bidder.” Id. § 26.9.

Gary Sejkora, a licensed professional engineer retained by the City,

finalized the proposed plans and specifications for the wastewater project

on December 3, 2009. These stated that a public hearing would be held

on the plans and specifications on December 21, 2009, and that the

deadline for submitting bids on the project would be January 7, 2010.

Two special conditions in the specifications limited the aggregate

and concrete suppliers that could be used on the project to three named

companies. The relevant language stated as follows:

27. AGGREGATE SUPPLIERS: Bard Concrete, River City
Stone, and Kuhlman Quarries are approved aggregate
suppliers subject to compliance with material specifications.
 4
Other aggregate suppliers must obtain approval from the
City and Engineer prior to bidding.

28. CONCRETE SUPPLIERS: Bard Concrete, Apex
Concrete, and Flynn Ready-Mix are approved concrete
suppliers subject to compliance with material specifications.
Other concrete suppliers must obtain approval from the City
and Engineer prior to bidding.

This was not the first time Horsfield had been excluded from a list

of preapproved suppliers. Another city project in the summer of 2009

had similarly limited suppliers to specific companies other than

Horsfield. Horsfield suspected that it was being “blackball[ed]” because

of its sister company’s involvement in litigation with the City.

Under the public hearing requirement, a city may not enter into a

contract for a public improvement project “until the governmental entity

has held a public hearing and has approved the proposed plans,

specifications, and form of contract, and estimated total cost of the

public improvement.” Id. § 26.12.

On the day of the December 21 hearing, Horsfield’s attorney faxed

a letter to Sejkora and to the city clerk, asking for an explanation as to

why other suppliers, and not Horsfield, had been preapproved. Horsfield

also asked what steps it could take to become an approved supplier for
the wastewater project. Additionally, the letter contained Horsfield’s first

open records request to Dyersville. Horsfield requested

all records that relate to, reference, or concern in any way
the procedures, guidelines, publications, standards,
processes, and notifications used in: 1) determining the
“approved” suppliers in paragraphs 27 and 28 of the
contract specifications; 2) determining that Horsfield
Materials, Inc. was not an “approved” supplier, and
3) determining “approved” and “not approved” suppliers or
contractors generally by the City of Dyersville, or its agents,
on this and other publicly bid projects. The request includes
a list of all suppliers and contractors currently “approved”
and “not approved” by the City of Dyersville. This request
also includes, without limitation, all communications with
any supplier or contractor concerning the approval process
 5
and designation as an “approved” supplier. It also includes,
without limitation, all records containing any reference or
mention of Horsfield Materials, Inc., Horsfield Construction,
Inc., or their agents, to the extent the records relate in any
way to approval or exclusion as a supplier or contractor for
this or any other project for the City of Dyersville.

Matthew Horsfield spoke at the hearing that evening, requesting

that his company be named an additional preapproved supplier. The city

council did not grant his request and instead, approved the plans and

specifications with the existing versions of paragraphs 27 and 28.

The following day, December 22, Horsfield’s attorney faxed another

letter to the City, renewing the company’s request to become a

preapproved supplier of aggregate and concrete. Horsfield also clarified

that its records request included electronic information and documents

in possession of any city employee, any city council member, or the

mayor.

On December 30, Matthew Horsfield emailed Sejkora, again asking

to become a preapproved supplier for the wastewater project. Sejkora

declined to preapprove Horsfield because “[w]e do not have any

experience working with Horsfield Materials on projects comparable to

the Dyersville Wastewater Treatment Facility Phase II project. Therefore,

we require documentation prior to considering approval.” Sejkora then

referred Horsfield to an addendum issued that day that contained a new

Special Condition 29. This condition allowed a general contractor to

request approval of an alternative supplier for aggregate or concrete

within thirty days after being awarded the contract.

Under Special Condition 29, the request for approval was required

to be in writing and to include details about the proposed supplier’s

business such as contact information, history of the business and
production facilities, and resumes of “key individuals involved.”
 6

Additionally, a number of quality test results from the Iowa Department

of Transportation (DOT) were required, as well as a minimum of three

references from engineers, contractors, and owners that had used the

supplier’s products before.

Preapproved suppliers of course did not need to provide this

information, but Sejkora later testified that these requirements reflected

the underlying criteria for preapproval. Yet Sejkora could not recall

when any of the preapproved suppliers had last submitted the aggregate

or concrete quality control reports that Special Condition 29
contemplated.

Horsfield’s aggregate and concrete have never been deemed

unacceptable by the DOT, which certifies aggregate and concrete

sources. Horsfield also maintained that the City’s offer in Special

Condition 29 to approve a new supplier after the contract award was not

a realistic option. A general contractor would be very reluctant to

antagonize the supplier whose bid it had used to gain the contract by

later trying to substitute a new supplier.

That same day, December 30, Horsfield submitted an additional

open records request to Dyersville, seeking “all documents and records

relating in any way to Addendum No. 2 to the Contract and/or any other

documents and records relating to an alternative suppliers approval

process.” The following day, the City provided Horsfield with thirty-nine

pages of records in response to the outstanding requests.

Horsfield’s attorney openly questioned whether the thirty-nine

pages amounted to all the responsive documents. On January 7, 2010,

the day bidding closed on the wastewater project, Horsfield again
clarified the scope of its requests, pointing out that they included

documents in the possession of Sejkora, even though he was not an
 7

employee of the city. Horsfield took the position that Sejkora, as

engineer on this project, was the City’s agent.

On January 11, 2010, the city council awarded the project to

Portzen Construction, having concluded that it was the lowest

responsible, responsive bidder. Portzen’s bid totaled $1,323,537,

approximately nine percent above the engineer’s estimate. Horsfield

never submitted information under Special Condition 29, and Horsfield

Construction never bid on the wastewater project.

That same day, Horsfield submitted its final open records request
relevant to this case. This request sought:

1. All records that concern, reference, or relate in any
way to the proposed wastewater treatment facility
improvements referenced above.

2. All records that concern, reference or relate in any
way to Matt Horsfield, Horsfield Construction, Inc., or
Horsfield Materials, Inc.

One day after receiving this request, Dyersville’s attorney responded that

because of Horsfield Construction’s prior legal dispute with the City, the

volume of responsive documents would be very large. He suggested that

Horsfield narrow its requests to exclude documents produced in the

litigation or created over twelve months ago. By email dated January 21,

2010, Horsfield’s attorney agreed to these two limitations. On January

25, Dyersville’s attorney wrote to Horsfield’s attorney, explaining the

reimbursement that the City would expect for its costs associated with

retrieving the records and stating that the City would begin working on

Horsfield’s request.

On January 26, Dyersville’s attorney sent Horsfield’s attorney a

privilege log for five emails relating to Special Condition 29 that the City
considered protected by the attorney–client privilege. On February 7,
 8

having not received any documents in response to its January 11 request

(as modified on January 21), Horsfield’s attorney emailed Dyersville’s

attorney requesting a status update. A few days later, the city

administrator Mick Michel sent an internal email to the City’s attorney,

indicating that progress was slow on the document production. One of

the problems was that the potentially responsive “documents” included

forty-two hours of video of city council meetings and other public

hearings, which the City believed needed to be screened to determine

whether they were responsive to the request.
On March 18, 2010, Horsfield brought the present lawsuit in two

counts. The first count sought relief under the Open Records Act; the

second count asserted a claim that the City’s practice of preapproving

suppliers violated Iowa’s public bidding statute, as well as federal and

state due process and equal protection guarantees.

Meanwhile, the parties’ dealings on the January 11 open records

request continued. On March 25, Dyersville’s attorney wrote Horsfield’s

attorney, updating him on the status of the open records request. He

informed Horsfield’s attorney that forty-two hours of video of city council

meetings and other public hearings still needed to be reviewed and

sought Horsfield’s input. The City’s counsel indicated that Horsfield

could provide a hard drive onto which the City would copy the entire

forty-two hours for Horsfield’s review.

On April 5, the attorneys for Horsfield and the City exchanged

emails about records other than the video recordings. The next day,

April 6, Dyersville produced 617 pages of documents in response to the

January 11 request. Two days later, the City’s attorney provided a
privilege log for eight emails the City had withheld. He also indicated

that he was still awaiting instructions concerning the video.
 9

On June 2, Horsfield filed a motion to compel discovery.

Horsfield’s principal argument was that the City had wrongfully withheld

emails exchanged between Sejkora (who was not a city employee) and the

City’s attorney. The district court denied the motion, citing Tausz v.

Clarion-Goldfield Community School District, 569 N.W.2d 125, 127 (Iowa

1997). However, the City subsequently elected to produce the emails and

used them at trial.

During the two-day trial to the court that took place on July 28–

29, 2011, Matt Horsfield testified that Horsfield Materials has sources for
materials in Dubuque County, has supplied most of the major concrete

contractors in the area, has supplied the county and the Iowa DOT, and

wanted to supply materials for Dyersville jobs. He also testified that in

two additional public works projects in 2011, Dyersville has continued to

use a list of preapproved suppliers that excludes Horsfield.

Following trial, the district court entered findings of fact and

conclusions of law that rejected each of Horsfield’s claims. Concerning

Horsfield’s challenge to the City’s preapproval process, the court found

that Horsfield lacked standing:

If an unsuccessful bidder on a public construction
contract lacks standing to challenge the legality of bidding
procedures, then an aggregate and concrete supplier
desirous of selling its products to a bidder, and perhaps
ultimately to the governmental entity if the bid is successful,
also lacks standing to challenge a portion of the bidding
procedures.

Regarding Horsfield’s open records claim, the district court concluded no

violation had occurred:

Under the circumstances, the delay in making the city’s
records that were responsive to the January request
available did not amount to a refusal to make the records
available. The city made good faith efforts to comply, and
did substantially comply, with Chapter 22 requirements.
 10

Horsfield filed a motion to enlarge under Iowa Rule of Civil

Procedure 1.904(2), requesting the district court to separately address

and analyze its constitutional claims. It argued that Horsfield had

standing to bring its constitutional claims regardless of any lack of

standing under the public bidding statute. The district court denied the

motion. Horsfield now appeals.

II. Standard of Review.

Horsfield filed the present petition in equity seeking injunctive and

declaratory relief. In their briefing, the parties agree that the scope of
review is de novo. However, “[t]he fact the action was filed on the equity

docket does not control our review.” City of Riverdale v. Diercks, 806

N.W.2d 643, 651 (Iowa 2011). Rather, the manner in which the district

court actually tried the action determines our standard of review. Id. at

651–52. Here, the district court ruled on evidentiary objections, but any

rulings excluding evidence were “minor and did not have a significant

effect on the proceedings.” Passehl Estate v. Passehl, 712 N.W.2d 408,

414 (Iowa 2006). Accordingly, we will apply a de novo standard of

review. This means that the district court’s findings of fact are not

binding, but we will “give deference to those findings because the district

court had the opportunity to assess the credibility of the witnesses.”

Hensler v. City of Davenport, 790 N.W.2d 569, 578 (Iowa 2010).

III. Analysis.

A. Standing Under Iowa Code Section 26.9. Horsfield alleges

that Dyersville’s ongoing use of preapproved suppliers for public

contracts violates Iowa’s public bidding statute. Specifically, Horsfield

contends that the practice violates Iowa Code section 26.9, which
provides, “The contract for the public improvement must be awarded to

the lowest responsive, responsible bidder.” In Horsfield’s view, by
 11

limiting the universe of potential aggregate and concrete suppliers, the

City undermines the legal requirement in section 26.9 that it get the best

deal for its taxpayers. See, e.g., Philip L. Bruner & Patrick J. O’Connor,

Jr., 1 Bruner & O’Connor on Construction Law § 2:45 (2012) (“Limitation

of competition through the use of unjustifiably restrictive product

specifications violates the objectives of competitive sealed bidding.”); see

also Kratz v. City of Allentown, 155 A. 116, 117 (Pa. 1931) (“The city had

the right to call for stone of a particular quality and fitness, but not from

a particular quarry. To do the latter might create a monopoly and
prevent competitive bidding.”). The initial question we must answer is

whether Horsfield has standing to raise this claim.

Our self-imposed standing inquiry has two distinct prongs, each of

which a plaintiff must satisfy to proceed with a claim. “Our cases have

determined that a complaining party must (1) have a specific personal or

legal interest in the litigation and (2) be injuriously affected.” Citizens for

Responsible Choices v. City of Shenandoah, 686 N.W.2d 470, 475 (Iowa

2004); see also Alons v. Iowa Dist. Ct., 698 N.W.2d 858, 869 (Iowa 2005).

This inquiry is separate from, and precedes, the merits of a case. See

Alons, 698 N.W.2d at 864 (“Even if the claim could be meritorious, the

court will not hear the claim if the party bringing it lacks standing.”).

We have previously considered our standing doctrine as it applies

to unsuccessful bidders on public construction projects. We have

consistently held that our public bidding statute seeks “ ‘to secure by

competition among bidders, the best results at the lowest price, and to

forestall fraud, favoritism and corruption in the making of contracts.’

Such statutes were enacted for the benefit of the taxpayers, not the
bidders.” Elview Constr. Co. v. N. Scott Cmty. Sch. Dist., 373 N.W.2d 138,

141 (Iowa 1985) (quoting Istari Constr., Inc. v. City of Muscatine, 330
 12

N.W.2d 798, 800 (Iowa 1983)) (holding that an unsuccessful bidder does

not have standing in an equity action to void public project contracts).

As a result, we have denied standing to unsuccessful bidders that

seek to void a municipality’s contract with a successful bidder or seek

damages for lost profits. See Garling Constr., Inc. v. City of Shellsburg,

641 N.W.2d 522, 524 (Iowa 2002). In Garling, a general contractor was

unsuccessful in bidding on a municipal building project even though it

made the lowest bid and the city made no finding that it was not

responsible. Id. at 522–23. The evidence suggested that the city
preferred another, costlier, bidder because it was local. Id. at 523. The

unsuccessful bidder petitioned for writ of certiorari, demanding damages.

Id. Despite an apparent violation of the public bidding statue, we held

that the unsuccessful bidder lacked standing to collect damages. Id. at

524–25. We reasoned that it

“would be contrary to the public interest the bidding laws
were designed to protect, since it would twice penalize
taxpayers by compelling them to pay not only the excess over
what they would have paid if the contract were properly
awarded, but also the amount of profit lost by the contractor
whose bid was wrongfully rejected.”

Id. (quoting James L. Isham, Annotation, Public Contracts: Low Bidder’s

Monetary Relief Against State or Local Agency for Nonaward of Contract,

65 A.L.R. 4th 93, 111 (1988) [hereinafter Isham]). “The paramount

purpose of the competitive bidding statute is to protect the public as

taxpayers, and that purpose must not be impaired in interpreting the

statute.” Master Builders of Iowa, Inc. v. Polk County, 653 N.W.2d 382,

394 (Iowa 2002) (holding that Iowa’s competitive bidding statute does not

bar project labor agreements, whereby bidders agree on collective
bargaining terms before bidding, and only parties to the agreement will

be chosen for the contract).
 13

In both Garling and Elview, we used “standing” terminology to

explain our decisions. 641 N.W.2d at 523–24; 373 N.W.2d at 141.

Related to standing, but generally distinguished from it, is the question

whether the plaintiff has a “cause of action” under the statute in

question. Bond v. United States, __ U.S. __, __, 131 S. Ct. 2355, 2362–

63, 180 L. Ed. 2d 269, 277–78 (2011) (discussing the distinction between

the two concepts). Arguably, we could have said in Elview and Garling

that the unsuccessful bidder did not have a cause of action, because the

issue was not whether it had allegedly suffered a cognizable injury, but
whether it could bring the claim in question over that alleged injury. But

having gone down the standing path in these two prior cases, we will

remain there for the present case.

We have, however, left open the possibility that unsuccessful

bidders may have standing in actions for injunction, mandamus, or

declaratory judgment. Garling, 641 N.W.2d at 524–25. “Denial of

standing to an unsuccessful bidder does not mean violation of a bidding

statute will necessarily go unchallenged. An injunction action,

mandamus, or declaratory judgment might still be available.” Id. at 524.

In fact, many other states have conferred standing on an unsuccessful

bidder in these circumstances.1

1See, e.g., Ala. Mun. & Envtl. Eng’rs, Inc. v. Slaughter Constr. Co., 961 So.2d 889,

894 (Ala. Civ. App. 2007) (declining to allow unsuccessful bidder to seek monetary
damages from violation of competitive bidding statute and noting that remedy is limited
to injunction as provided for in the statute); City of Phoenix v. Wittman Contracting Co.,
509 P.2d 1038, 1040 (Ariz. Ct. App. 1973) (“[A]n unsuccessful bidder, arbitrarily and
capriciously refused award of a public contract, is a ‘party beneficially interested’ with
sufficient standing to seek mandamus relief.”); Walt Bennett Ford, Inc. v. Pulaski Cnty.
Special Sch. Dist., 624 S.W.2d 426, 428 (Ark. 1981) (holding that an unsuccessful
bidder which alleged it was the lowest qualified bidder had standing to sue to void an
allegedly improper public project contract); Kajima/Ray Wilson v. L.A. Cnty. Metro.
Transp. Auth., 1 P.3d 63, 68 (Cal. 2000) (“California courts long ago authorized a
disappointed bidder to seek a writ of mandate to have a contract set aside.”); Lawrence
Brunoli, Inc. v. Town of Branford, 722 A.2d 271, 273–74 (Conn. 1999) (“Providing
unsuccessful bidders with an equitable remedy alone is consistent with the policies that
 14
______________________
we previously have identified as underlying the municipal bidding statutes.”); Mid-Am.
Waste Sys. of Fla., Inc. v. City of Jacksonville, 596 So.2d 1187, 1188–89 (Fla. Dist. Ct.
App. 1992) (holding that second most responsible bidder has standing to seek
injunctive and declaratory relief against awarding contract to sister corporation of waste
hauler that had been convicted of price fixing); Hilton Constr. Co. v. Rockdale Cnty. Bd.
of Ed., 266 S.E.2d 157, 161 (Ga. 1980) (allowing low bidder to seek mandamus and
injunctive relief for alleged violation of public bidding law); Arakaki v. States, 952 P.2d
1210, 1214 (Haw. 1998) (noting that unsuccessful bidder may seek to have an agency
order a “remand and reconsideration” by government body awarding contract); Scott v.
Buhl Joint Sch. Dist. No. 412, 852 P.2d 1376, 1382–83 (Idaho 1993) (holding
disappointed bidders had standing to bring suit seeking declaratory judgment,
mandamus, and injunction); Ct. St. Steak House, Inc. v. County of Tazewell, 643 N.E.2d
781, 784 (Ill. 1994) (reaching the merits of a mandamus action challenging a county’s
exercise of discretion under a public bidding statute); Shook Heavy & Envtl. Constr. Grp.
v. City of Kokomo, 632 N.E.2d 355, 358 & n.7 (Ind. 1994) (noting that unsuccessful
bidders may challenge contract award if it alleges fraud or collusion); Sutter Bros.
Constr. Co. v. City of Leavenworth, 708 P.2d 190, 196 (Kan. 1985) (“An unsuccessful
bidder’s remedy is to seek injunctive relief preventing the award of the contract to one
not legally entitled thereto.”); Pendleton Bros. Vending, Inc. v. Commonwealth Fin. &
Admin. Cabinet, 758 S.W.2d 24, 28 (Ky. 1988) (noting that procurement statute confers
standing to unsuccessful bidders to challenge award of contract in violation of the
statute); Airline Constr. Co. v. Ascension Parish Sch. Bd., 568 So.2d 1029, 1032 (La.
1990) (noting that under Louisiana’s public bidding statute, which requires awarding
contracts to the lowest responsible bidder, “an unsuccessful bidder may sue to enjoin
the public body from executing the contract or to set aside the award of the contract to
another bidder when the public body acted arbitrarily in selecting the successful
bidder”); Associated Subcontractors of Mass., Inc. v. Univ. of Mass. Bldg. Auth., 810
N.E.2d 1214, 1218 (Mass. 2004) (holding that “subcontractors[] have standing to bring
this suit” because, among other things, “the claim is one for declaratory judgment”);
Groves v. Dep’t of Corr., 811 N.W.2d 563, 568 (Mich. Ct. App. 2011) (noting that, when
unsuccessful bidder alleges fraud, abuse, or illegality, it may seek injunctive relief
against municipality for competitive bidding violations); Tel. Assocs., Inc. v. St. Louis
Cnty. Bd., 364 N.W.2d 378, 382 (Minn. 1985) (“While it is true that an unsuccessful
bidder has standing to maintain a proceeding to review the award of a contract in
violation of [competitive bidding law], this procedure is sanctioned merely to ensure
enforcement of the statute.”) (citation and internal quotation marks omitted); Gulf Oil
Corp. v. Clark County, 575 P.2d 1332, 1333–34 (Nev. 1978) (“A timely challenge is
compatible with the public interest since it serves to force compliance with the purpose
of the bidding procedure.”); Jerkens Truck & Equip., Inc. v. City of Yonkers, 579 N.Y.S.2d
417, 422 (App. Div. 1992) (holding an unsuccessful lowest bidder had standing to bring
writ of prohibition claim to prevent city from awarding public contract to the successful
bidder); Cementech, Inc. v. City of Fairlawn, 849 N.E.2d 24, 27 (Ohio 2006) (noting that
a rejected bidder’s remedy is limited to injunctive relief); Associated Builders &
Contractors of R.I., Inc. v. Dep’t of Admin., 787 A.2d 1179, 1186 (R.I. 2002) (holding that
general contractors disqualified from bidding had standing to seek injunctive relief
challenging project labor agreement requirement under the competitive bidding statute);
Sloan v. Dep’t of Transp., 618 S.E.2d 876, 878–79 (S.C. 2005) (recognizing a “public
importance” exception to the standing rule in the public bidding context); H & W
Contracting, LLC v. City of Watertown, 633 N.W.2d 167, 172–73 (S.D. 2001) (“Because a
disappointed bidder’s standing is based on the protection of public interests, it extends
only to suits for declaratory or equitable relief seeking to compel compliance with the
 15

Horsfield argues that its declaratory judgment claim fits into the

class of claims that most other states allow and as to which Garling left

the door open. But there is a key difference. Horsfield is not an

unsuccessful bidder. It is a prospective supplier.

Because Horsfield is a supplier rather than a contractor, it is more

distant from chapter 26’s paramount purpose of protecting the taxpayer.

A contractor that claims to have been the low bidder can argue that if the

contract were awarded to it, taxpayers would directly benefit. But the

relationship between relief to Horsfield and relief for Dyersville taxpayers
is more tenuous. Horsfield’s argument has to run that if the City did not

have a defined list of preapproved suppliers, the resulting bids would on

balance be lower and better for the City. Whatever the possible merits of

this argument, it is a more indirect one than a disappointed bidder might

assert.

In challenges to administrative agency actions, the standing

inquiry has required “ ‘the interest sought to be protected by the

complainant to be arguably within the zone of interests to be protected or

______________________
competitive bid laws.”); Metro. Air Research Testing Auth., Inc. v. Metro. Gov’t of Nashville
& Davidson Cnty., 842 S.W.2d 611, 617 (Tenn. Ct. App. 1992) (noting “in the absence of
a statute, an unsuccessful bidder’s standing extends only to equitable or declaratory
relief to ensure enforcement of required competitive bidding procedures”); Peerless Food
Prods., Inc. v. State, 835 P.2d 1012, 1015 (Wash. 1992) (“Although a public contractor
whose low bid is wrongfully rejected by a government entity is often held to have
standing to prosecute an action for injunction, mandamus, or declaratory judgment, it
is less frequently held that there is a remedy for damages in such cases[.]”) (citation and
internal quotation marks omitted); W. Va. Util. Contractors Ass’n v. Laidley Field Athletic
& Recreational Ctr. Governing Bd., 260 S.E.2d 847, 850 (W. Va. 1979) (holding an
association of utilities contractors, that were prevented from bidding on a public
project, had standing to seek declaratory judgment); D.M.K., Inc. v. Town of Pittsfield,
711 N.W.2d 672, 678 (Wis. Ct. App. 2006) (citing Aqua-Tech, Inc. v. Como Lake Prot. &
Rehab. Dist., 239 N.W.2d 25, 31 (Wis. 1976)) (stating that an unsuccessful bidder’s
remedy for competitive bidding violations is injunctive relief, not damages); see also
Isham, 65 A.L.R. 4th at 103 (“Declaratory judgment appears to be a popular and viable
method of challenging the validity of contracts awarded to other than the lowest
responsible bidder.”).
 16

regulated by the statute.’ ” Godfrey v. State, 752 N.W.2d 413, 419 (Iowa

2008) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397

U.S. 150, 153, 90 S. Ct. 827, 830, 25 L. Ed. 2d 184, 188 (1970)). The

circumstance here is somewhat analogous: Horsfield is challenging the

action of a municipality under a statute regulating the municipality’s

conduct; it is not asserting a constitutional claim here. See id.

(distinguishing standing to bring constitutional claims).

Other jurisdictions have generally found that potential

subcontractors, like Horsfield, are not proper parties to invoke remedies
under the competitive bidding statutes. For example, in Connecticut

Associated Builders & Contractors v. City of Hartford, the Connecticut

Supreme Court affirmed a trial court’s ruling that subcontractors lacked

standing to challenge a project labor agreement. 740 A.2d 813, 822

(Conn. 1999). The court reasoned that allowing subcontractor standing

was less certain to vindicate the public interest in getting the lowest and

best overall bids and more likely to complicate and delay the bidding

process. As the court explained:

The trial court determined that the subcontractors did
not have standing because they did not have a legal stake in
the bidding process. The court reasoned that a diminished
possibility of potential work as subcontractors was too
attenuated an interest to give the subcontractors a legal
stake in the bidding process. . . .

....

The problem with the plaintiffs’ arguments is that the
limited standing we have granted to disappointed and
excluded contractors to bring challenges based on
competitive bidding laws is designed to protect the interests
of the public, not those of the contractors. The plaintiffs do
not dispute the fact that the subcontractors did not and
could not have bid on the project. We can discern no reason
for expanding the “private attorney general” standing granted
to contractors that bid or were precluded from bidding on a
public project. On the contrary, permitting legal challenges
 17
from the numerous subcontractors that potentially could be
affected by a particular bidding process would be likely to
upset the balance in protecting the public’s dual interests in
fair public bidding processes and in the efficient completion
of public works projects.

Id. at 822–23; see also Amtech Sys. Corp. v. Ill. State Toll Highway Auth.,

637 N.E.2d 619, 625 (Ill. App. Ct. 1994) (holding that a supplier lacked

standing to challenge specifications that allegedly required any

successful bidder to use another supplier’s product); Transactive Corp. v.

N.Y. State Dep’t of Soc. Servs., 706 N.E.2d 1180, 1184 (N.Y. 1998)

(holding that a subcontractor, whose bid was part of an unsuccessful

general contractor’s bid, did not have standing to bring a competitive

bidding challenge, because it was “not within the zone of interests

protected by” the public bidding statute). We agree with the reasoning in

those cases and adopt it here.

We do not foreclose the possibility that a contractor bidding on a

project could have standing to bring a claim under chapter 26 for

mandamus, injunction, or declaratory relief asserting that it lost the bid

because the city wrongfully disallowed a supplier it wanted to use. Nor

do we endorse such a claim. We simply indicate that from a standing

perspective, this kind of claim would appear to be a better mechanism for

vindicating the interests of taxpayers and would present a more clear
and direct injury.

Horsfield cites our recent decision in Hawkeye Foodservice

Distribution, Inc. v. Iowa Educators Corp. and urges that harm to a

company’s “competitive interests” can satisfy the injury requirement for

standing. See 812 N.W.2d 600 (Iowa 2012). But the facts, the

procedural posture, and the statutes involved in that case were different.
In Hawkeye Foodservice, the plaintiff food service company filed a

petition alleging that the defendant government agencies had, in violation
 18

of Iowa law, established an unlawful entity (also named as a defendant)

that “award[ed] Hawkeye’s competitor a prime vendor contract,” thereby

“taking business away from Hawkeye.” Id. at 606. In other words, the

plaintiff (unlike Horsfield) was like an unsuccessful bidder that would

have received a contract but for the defendants’ allegedly illegal conduct.

Also noteworthy is that the case had been dismissed on the pleadings by

the district court. Id. at 604. Thus, we concluded the plaintiff’s

allegation that “it has lost and continues to lose business based on the

AEAs’ illegal actions” was sufficient for that stage of the proceedings. Id.
at 607. Additionally, the plaintiff in Hawkeye Foodservice, a private

company, was suing under laws designed to circumscribe the authority

of the defendants to engage in private-type activities. Id. at 610–13.

Here Horsfield is bringing suit under bidding statutes intended to protect

taxpayers, not companies like Horsfield. Accordingly, we do not believe

that Hawkeye Foodservice affects the standing analysis in this case

under chapter 26.2

B. Horsfield’s Constitutional Claims. Horsfield alleges that

Dyersville’s ongoing exclusion of Horsfield from its list of preapproved

suppliers for public contracts violates federal and state due process and

equal protection guarantees. We agree with Horsfield that the standing

analysis for these claims differs from that for the claims under the

bidding statute. See Godfrey, 752 N.W.2d at 419–20 (discussing

constitutional standing). In cases involving “public rights,” we “no longer

require the litigant to allege a violation of a private right and do not

2As the district court found, there is no issue of taxpayer standing here. See,
e.g., Miller v. City of Des Moines, 143 Iowa 409, 423–24, 122 N.W. 226, 231–32 (1909)
(finding that taxpayers had standing to maintain an action to enjoin the performance of
a contract entered into by the city). The record is undisputed that Horsfield does not
own property within Dyersville. Horsfield does not maintain on appeal that it has
standing as a taxpayer.
 19

require traditional damages to be suffered. Instead, we require the

litigant to allege some type of injury different from the population in

general.” Id. at 420.

Horsfield has demonstrated that a government practice has put it

in a separate category from certain other suppliers and thereby

disadvantaged it. Three companies are approved to supply aggregate and

concrete; Horsfield, which presented proof that it is equally qualified,

remains on the outside looking in. Horsfield also has shown that it

regularly supplies numerous contractors in Dubuque County with
aggregate and concrete and is being prevented from doing so on

Dyersville projects due to its ongoing exclusion from the preapproved

supplier list. True, Horsfield has not established that its exclusion from

the City’s list has caused it to lose the profits associated with a particular

project. However, it has proved a negative, i.e., that its ongoing

exclusion from the preapproved supplier list and the practical obstacles

associated with postaward approval make it unlikely it will be able to get

work on city projects—far less likely than the privileged three. This is

certainly an “injury different from the population in general” and more

than an “abstract claim.” Godfrey, 752 N.W.2d at 420–21 (internal

quotation marks omitted). We should look at the question this way: If

hypothetically the City intentionally included only white-owned

companies on its preapproved list, would a minority-owned company on

these facts have standing to sue for an equal protection violation? We

believe the answer is clearly yes.

Thus, for its constitutional claims, Horsfield has met the “injury in

fact” element of standing. See Godfrey, 752 N.W.2d at 421 (quoting the
Supreme Court, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61,

112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351, 364 (1992), as requiring that a
 20

“plaintiff must establish a causal connection between the injury and the

conduct complained of and that the injury is likely, as opposed to merely

speculative, to be redressed by a favorable decision” (citation and

internal quotation marks omitted)).

An entity “need not demonstrate that it has been, or will be, the

low bidder on a Government contract. The injury in cases of this kind is

that a ‘discriminatory classification prevent[s] the plaintiff from

competing on an equal footing.’ ” Adarand Constructors, Inc. v. Pena, 515

U.S. 200, 211, 115 S. Ct. 2097, 2105, 132 L. Ed. 2d 158, 171 (1995)
(quoting Ne. Fla. Chapter of Associated Gen. Contractors of Am. v.

Jacksonville, 508 U.S. 656, 667, 113 S. Ct. 2297, 2304, 124 L. Ed. 2d

586, 598 (1993)) (finding that a subcontractor had standing to proceed

with an equal protection challenge).

When the government erects a barrier that makes it more
difficult for members of one group to obtain a benefit than it
is for members of another group, a member of the former
group seeking to challenge the barrier need not allege that
he would have obtained the benefit but for the barrier in
order to establish standing. The “injury in fact” in an equal
protection case of this variety is the denial of equal treatment
resulting from the imposition of the barrier, not the ultimate
inability to obtain the benefit.

Ne. Fla. Chapter, 508 U.S. at 666, 113 S. Ct. at 2303, 124 L. Ed. 2d at

597.

However, we agree with the City that Horsefield’s constitutional

claims fail on their merits. Because no suspect class or fundamental

right is at issue, we apply the rational basis test. King v. State, 818

N.W.2d 1, 25, 31 (Iowa 2012); see also Master Builders, 653 N.W.2d at

398 (finding that an equal protection challenge to the inclusion of a

project labor agreement in competitive bids should be evaluated under
 21

the rational basis test).3 The rational basis test is a “deferential

standard.” Ames Rental Prop. Ass’n v. City of Ames, 736 N.W.2d 255,

259 (Iowa 2007). For equal protection purposes, we must determine only

whether the classification is “rationally related to a legitimate

governmental interest.” Id. “A statute or ordinance is presumed

constitutional and the challenging party has the burden to ‘negat[e] every

reasonable basis that might support the disparate treatment.’ ” Id.

(citation omitted). “The City is not required or expected to produce

evidence to justify its legislative action.” Id. Still, for state constitutional
purposes, the government interest must be “ ‘realistically conceivable.’ ”

Qwest Corp. v. Iowa State Bd. of Tax Review, 829 N.W.2d 550, 560 (Iowa

2013) (citation and emphasis omitted); King, 818 N.W.2d at 30; Racing

Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 7–8 (Iowa 2004). And in

the equal protection context, the means chosen to advance that interest

cannot be “so overinclusive and underinclusive as to be irrational.” State

v. Mitchell, 757 N.W.2d 431, 439 (Iowa 2009); see also Racing Ass’n of

Cent. Iowa, 675 N.W.2d at 10.

3Horsfield argues that “a fundamental right applies, namely its liberty interest in
the right to contract.” However, to support that contention, it cites a case, Koster v.
City of Davenport, which involved an alleged state impairment of an existing contract in
violation of United States Constitution article I, section 10. See 183 F.3d 762, 766 (8th
Cir. 1999). On the due process claim, the Koster court applied the rational basis test.
Id. at 768–69. The United States Supreme Court has held for the better part of a
century that the right to contract is not fundamental under the United States
Constitution. See W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 391, 57 S. Ct. 578, 581–
82, 81 L. Ed. 703, 708 (1937) (“The Constitution does not speak of freedom of
contract. . . . [R]egulation which is reasonable in relation to its subject and is adopted
in the interests of the community is due process.”). Nor have we held in the past that
the right to contract is a fundamental right triggering strict scrutiny under the Iowa
Constitution. See State v. Willard, 756 N.W.2d 207, 213 (Iowa 2008) (applying a
rational basis test to sex offender residency restrictions notwithstanding the defendant’s
argument that they affected his right to contract). Horsfield is not asserting any claim
under article I, section 6 of the Iowa Constitution apart from traditional equal
protection, and we have no occasion to consider whether another type of claim would be
available.
 22

Dyersville’s preapproval process serves a realistically conceivable

governmental interest in quality control. As Sejkora testified, “The effort

was for quality control to make sure that we were able to obtain

materials from . . . suppliers we knew through our experience to be

capable of providing materials that complied with the specification

technical requirements.” And there is a reasonable fit between the

means chosen and the goal. Sejkora explained that the City had twenty

to thirty years of positive experience with each of the suppliers on the

preapproved lists: “We’ve had a working relationship with the three
identified and prior approved suppliers and over the years have seen this

material come in.” There is no indication the City excluded any suppliers

from its preapproved lists that had a similar track record. While there

are certainly other, perhaps better, ways to assure a quality supply of

concrete and aggregate at a competitive price, we cannot say the City’s

process is so arbitrary as to violate equal protection or substantive due

process. Accordingly, we reject Horsfield’s equal protection and

substantive due process claims.

Horsfield also contends that the City violated its procedural due

process rights. “Under procedural due process, notice and an

opportunity to be heard are required when a person’s property interests

are at stake.” Lewis v. Jaeger, 818 N.W.2d 165, 181 (Iowa 2012).

“Procedural due process requires that certain procedures be afforded

(e.g., notice and an opportunity to be heard) before the government

deprives a citizen of a liberty or property interest.” King, 818 N.W.2d at

33 n.25. However, “[o]ur first inquiry in a procedural due process

analysis is whether a protected liberty or property interest is involved.”
Bowers v. Polk Cnty. Bd. of Supervisors, 638 N.W.2d 682, 691 (Iowa

2002). The problem here is that Horsfield has no protected liberty or
 23

property interest at stake, merely an unfulfilled desire to enter into

contracts to supply materials for Dyersville public improvements. See,

e.g., Greenwood Manor v. Iowa Dep’t of Pub. Health, 641 N.W.2d 823,

837–38 (Iowa 2002) (holding that nursing homes do not have a protected

property interest in a competitor’s not receiving a certificate of need).

Hence, no procedural due process violation occurred here. A different

question might be presented if we were talking about a broad or

stigmatizing debarment by the federal government. See Trifax Corp. v.

District of Columbia, 314 F.3d 641, 643–44 (D.C. Cir. 2003). Here,
however, Horsfield’s complaint is merely that it is unable to get on one

municipality’s approved supplier list. This does not implicate a liberty

interest.

C. Horsfield’s Open Records Act Claim. Horsfield also argues

the district court erred in finding that Dyersville did not violate Iowa’s

Open Records Act. That Act provides that “[e]very person shall have the

right to examine and copy a public record and to publish or otherwise

disseminate a public record or the information contained in a public

record.” Iowa Code § 22.2.

“ ‘The purpose of the statute is to open the doors of 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.’ ”

Diercks, 806 N.W.2d at 652 (quoting Rathmann v. Bd. of Dirs., 580

N.W.2d 773, 777 (Iowa 1998)). “ ‘Accordingly, there is a presumption of

openness and disclosure under this chapter.’ ” Id. (quoting Gabrilson v.

Flynn, 554 N.W.2d 267, 271 (Iowa 1996)).

Civil enforcement of Iowa’s Open Records Act initially places the
burden of showing three things on the party seeking enforcement

(Horsfield). That party must “demonstrate[] to the court that the
 24

defendant is subject to the requirements of this chapter, 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). Once a party makes these

showings, the defendant has the burden to show compliance, and the

court must issue an injunction if it finds the defendant has not complied

by a preponderance of the evidence. Id. § 22.10(3)(a); see also Diercks,

806 N.W.2d at 653 (“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.”).

Horsfield makes two arguments on appeal, both of which relate to

the timeliness rather than the completeness of production. First,

Horsfield contends the City violated the law by not making its 617-page

production until April 2010. This was approximately seventy days after

the parties confirmed Horsfield’s modified request for these documents

and, in Horsfield’s view, exceeded the twenty-day deadline set forth in

Iowa Code section 22.8(4)(d). Second, Horsfield argues that Dyersville’s

claim of privilege on certain emails, followed by its belated April 2011

eve-of-trial waiver of that privilege and production of the emails, amounts

to an admission that the City had “no defense to its failure to produce

relevant and responsive documents.”

There is no explicit time deadline in chapter 22 for the production

of public records when requested. However, Horsfield argues that there

is an implicit time limit of twenty days based on the following language in

section 22.8:

4. 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:
 25
a. To seek an injunction under this section.

b. To determine whether the lawful custodian is
entitled to seek such an injunction or should seek such an
injunction.

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.

Id. § 22.8(4)(a)–(d) (emphasis added). Yet the twenty-day time limit is not

a blanket rule; rather, it is limited to the circumstance in which the

custodian needs to determine whether an otherwise confidential record

should be made available to a person who claims the right to view it.

That is not the situation here.

On the other hand, the fact that section 22.8(4) lists certain

grounds for “[g]ood faith, reasonable delay” might lead to an inference

that those grounds are exclusive. See Kucera v. Baldazo, 745 N.W.2d

481, 487 (Iowa 2008) (discussing the rule of expressio unius est exclusio

alterious). But see State v. Meyers, 799 N.W.2d 132, 142 (Iowa 2011)

(noting limits on this principle).4 And section 22.4 of the Open Records

Act, by stating that “[t]he rights of persons under this chapter may be
exercised at any time during the customary office hours of the lawful

custodian of the records,” suggests that our legislature contemplated

immediate access to public records.

4One might also argue that because section 22.10(3)(b)(2) gives a defense to any
person who “[h]ad good reason to believe and in good faith believed facts which, if true,
would have indicated compliance with the requirements of this chapter,” there should
not be an another “good faith” test layered on top of that to determine whether
compliance with the Open Records Act has occurred.
 26

Based on our review of section 22.8(4)(d), we believe it is not

intended to impose an absolute twenty-day deadline on a government

entity to find and produce requested public records, no matter how

voluminous the request. Rather, it imposes an outside deadline for the

government entity to determine “whether a confidential record should be

available for inspection and copying to the person requesting the right to

do so.” We do not think we should extrapolate section 22.8(4)(d)’s

twenty-day deadline to other contexts, when the legislature chose not

even to include that deadline in the other portions of section 22.8(4).
According to a longstanding administrative interpretation of

chapter 22:

Access to an open record shall be provided promptly upon
request unless the size or nature of the request makes
prompt access infeasible. If the size or nature of the request
for access to an open record requires time for compliance,
the custodian shall comply with the request as soon as
feasible.

See Iowa Uniform Rules on Agency Procedure, Fair Information Practices,

Agency No.—X.3(17A,22), [hereinafter Fair Information Practices]

available at https://www.legis.iowa.gov/DOCS/Rules/Current/Uniform

Rules.pdf (emphasis added); see also Griffin Pipe Prods. Co. v. Bd. of

Review, 789 N.W.2d 769, 775 (Iowa 2010) (“Longstanding administrative

interpretations are entitled to some weight in statutory construction.”).

The State’s Uniform Rules on Agency Procedure, from which the above

quotation is taken, were drafted by a nine-member task force chaired by

University of Iowa Law School Professor Arthur Bonfield; they were

adopted in 1985. Fair Information Practices at 1. Under this

interpretation, practical considerations can enter into the time required
for responding to an open records request, including “the size or nature
 27

of the request.” But the records must be provided promptly, unless the

size or nature of the request makes that infeasible.5

In Wings v. Dunlap, our court of appeals reversed a district court’s

determination that a records custodian had violated chapter 22 when it

took from March 28, 1991, to April 22, 1991, for him to make certain

public records available for examination. 527 N.W.2d 407, 410–11 (Iowa

Ct. App. 1994). That court observed, “Chapter 22 cannot be interpreted

and applied in a vacuum.” Id. at 410. That court also held that a

“substantial compliance” standard should apply to alleged violations of
chapter 22, analogizing to a case where we applied a substantial

compliance rule in the context of Iowa’s open meetings law, Iowa Code

chapter 21. See id. (citing KCOB/KLVN, Inc. v. Jasper Cnty. Bd. of

Supervisors, 473 N.W.2d 171, 176 (Iowa 1991)). The court found

substantial compliance notwithstanding the admission by the city

attorney that she had “dropped the ball.” Id. at 409.

In this case we need not decide whether a substantial compliance

standard applies to claimed violations of the Open Records Act. The

district court followed such a standard and Horsfield does not argue on

appeal for something different. In light of this concession, we will utilize

substantial compliance here, assuming without deciding that it is the

appropriate test. See Brown v. John Deere Waterloo Tractor Works, 423

N.W.2d 193, 194 (Iowa 1988) (indicating that substantial compliance is a

fact-specific inquiry depending on whether “the purpose of the statute is

shown to have been served” (citation and internal quotation marks

omitted)).

5Under federal law, which expressly requires the requested records to be made

“promptly available,” 5 U.S.C. § 552(a)(3)(A) (2006), it has been considered whether the
agency “unreasonably delayed” and whether the requester was “prejudiced” by the
delay. Strout v. U.S. Parole Comm’n, 40 F.3d 136, 138 (6th Cir. 1994).
 28

Although it is a close question, on our de novo review we are not

persuaded that the City’s production of the documents requested in

January 2010 substantially complied with its legal obligation to produce

public records promptly, subject to the size and nature of the request.

The City took from approximately January 25, 2010, to April 6, 2010, to

produce these 617 pages. The City did not produce any of the

documents until after Horsfield went to court on March 18, 2010. A

hiatus in communication occurred from February 12, 2010, when

Horsfield’s attorney asked for a status report, until March 25, 2010,
when the City’s attorney informed Horsfield’s attorney that the records

were essentially ready for production, except that the City “had been

looking for time to review 42 hours of video.”

Most troubling, it appears that the video recordings of public

proceedings became a stumbling block to the production of the hard copy

documents. That should not have occurred. From the beginning, the

City could have offered Horsfield the opportunity to review or copy the

video on its own, as it ultimately did. In any event, any issues

surrounding the video should not have held up the production of the

hardcopy documents once they were located.

The City’s position in this case is not without support. The city

administrator Michel testified that he had to go through individual

employee email accounts. He had to figure out how to get administrative

rights and run an appropriate email search. Additionally, “we also had a

lot of papers that were not digitized or nonsearchable, so we actually had

to go through those documents to make sure that it didn’t have those

reference points.” Michel was dealing with other urgent matters at that
time, including the budget, development agreements, the implementation

of a loan within a tight time frame, and getting approval for buyouts from
 29

the 2008 floods. This was in addition to his work on regular city

business. Michel was devoting fifty to seventy hours a week to his job.

Furthermore, none of the 617 pages (nor the video) were actually used at

the trial on Horsfield’s underlying claim challenging the City’s use of

preapproved supplier lists.

Still, we have two problems with Michel’s testimony. First, his

explanations did not include any dates or other time frames. Thus, while

he gave plausible explanations for the City’s delay that might have

carried the day in other circumstances, it is impossible to know how
much time it really took city officials to work on Horsfield’s request,

relative to other demands on city officials’ time. The City had the burden

of going forward to demonstrate compliance with the Act. See Iowa Code

§ 22.10(2).6 In addition, as we have already discussed, the handling of

the video was unsatisfactory.

We disagree with Horsfield’s other contention with respect to

claimed violations of the Open Records Act. In our view, the City’s

tactical decision to waive the attorney–client privilege in April 2011 with

respect to the eight emails does not establish that the City violated the

Act when it initially withheld them. The Act allows public entities to

6Under section 22.10(2), once a party seeking judicial enforcement
demonstrates to the court that the defendant is subject to the
requirements of this chapter, 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, the burden of going forward shall be on the defendant to
demonstrate compliance with the requirements of this chapter.
The plaintiff must still prove “by a preponderance of the evidence that a lawful
custodian has violated” the Act. Id. § 22.10(3). Although section 22.10(2) speaks in
terms of a refusal rather than a delay in production, we think a refusal to produce
encompasses the situation where, as here, a substantial amount of time has elapsed
since the records were requested and the records have not been produced at the time
the requesting party files suit under the Act.
 30

withhold “[r]ecords which represent and constitute the work product of

an attorney, which are related to litigation or claim made by or against a

public body.” Id. § 22.7(4). Also, the Act does not affect other specific

statutory privileges recognized by the legislature, such as the attorney–

client privilege. See Burton v. Univ. of Iowa Hosps. & Clinics, 566 N.W.2d

182, 186–89 (Iowa 1997); see also Iowa Code § 622.10(1). Thus, the City

had a right to withhold the emails. While there may be circumstances

when it is unfair for a litigant that has properly asserted the attorney–

client privilege later to waive that privilege, this is a procedural matter
and not a violation of the Open Records Act.

IV. Conclusion.

For the foregoing reasons, we affirm the carefully reasoned

judgment of the district court in all respects, except we find that the City

violated the Open Records Act when it did not produce the public records

requested in January 2010 until April 2010. We reverse the judgment on

this point only and remand for further proceedings consistent with this

opinion.

DISTRICT COURT JUDGMENT AFFIRMED IN PART AND

REVERSED IN PART, AND CASE REMANDED.