IN THE SUPREME COURT OF IOWA
No. 11–0095
Filed July 27, 2012
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF IOWA, INC.,
Appellant,
vs.
RECORDS CUSTODIAN, ATLANTIC COMMUNITY SCHOOL DISTRICT,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Cass County, Richard H.
Davidson, Judge.
A requestor under the Iowa Open Records Act appeals a decision
granting the record custodian’s motion for summary judgment finding
the requested records exempt from production under the Act.
AFFIRMED.
Randall C. Wilson of ACLU of Iowa Foundation, Inc., Des Moines,
for appellant.
Brett S. Nitzschke and Emily K. Ellingson of Lynch Dallas, P.C.,
Cedar Rapids, for appellee.
2
WIGGINS, Justice.
A party requested information pursuant to Iowa Code chapter 22
(2009), Iowa’s Open Records Act (Act), concerning the discipline of two
school district employees after the school district disciplined them for
performing a strip search of five students. The district court entered
summary judgment in favor of the school district. The requestor
appealed. On appeal, we hold that the disciplinary information sought is
exempt from disclosure under Iowa Code section 22.7(11). Accordingly,
we affirm the judgment of the district court.
I. Background Facts and Proceedings.
The facts are not in dispute. In August 2009, two employees of the
Atlantic Community School District conducted a strip search of five
female students in an attempt to locate $100 reported missing by
another student. The incident received substantial media coverage.
Initially, the school district superintendent announced the employees
had conducted the search in accordance with school board policies.
However, the superintendent later announced the school district would
discipline the employees. In doing so, the superintendent did not
disclose the names of the employees or describe the discipline.
The American Civil Liberties Union of Iowa Foundation (ACLU of
Iowa) submitted an open records request to the school district’s records
custodian seeking the identities of the employees as well as the
disclosure of the “specific consequences they received including duration
or amounts of any penalties or consequences.” The school district
provided the names of the two employees, but did not describe the
discipline imposed because it believed such information was exempt from
disclosure under section 22.7(11).
3
The ACLU of Iowa filed a petition in the district court seeking an
injunction ordering the school district to comply with its records request.
The parties filed cross motions for summary judgment. The district court
granted summary judgment in favor of the school district and dismissed
the petition. It found the reports were exempt from disclosure under the
Act as a matter of law. The court of appeals affirmed the decision of the
district court. We granted further review.
II. Standard of Review.
Generally, actions brought under the Act are in equity and
reviewed de novo. Gannon v. Bd. of Regents, 692 N.W.2d 31, 37 (Iowa
2005). However, when a ruling under the Act involves summary
judgment, our review is for correction of errors at law. Id.; see also Iowa
R. App. P. 6.907.
III. Analytical Framework.
The general assembly made the decision to open Iowa’s public
records. See Des Moines Indep. Cmty. Sch. Dist. Pub. Records v.
Des Moines Register & Tribune Co., 487 N.W.2d 666, 669 (Iowa 1992); see
also Iowa Code § 22.2. In deciding which records are public, the general
assembly created and fixed the limitations on disclosure. See Des Moines
Indep. Cmty. Sch. Dist. Pub. Records, 487 N.W.2d at 669. Thus, our job
is to construe the Act to determine whether the requested information is
subject to disclosure.
The Act allows public examination of government records to ensure
the government’s activities are more transparent to the public it
represents. Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 45 (Iowa
1999). In construing the Act, we have said its purpose is “to remedy
unnecessary secrecy in conducting the public’s business.” City of
Dubuque v. Tel. Herald, Inc., 297 N.W.2d 523, 527 (Iowa 1980),
4
superseded by statute on other grounds, Iowa Code § 22.7(18) (1985), as
recognized in City of Sioux City v. Greater Sioux City Press Club, 421
N.W.2d 895, 897 (Iowa 1988). To that end, the Act’s goal of disclosure
seeks “[t]o facilitate public scrutiny of the conduct of public officers.”
Howard v. Des Moines Register & Tribune Co., 283 N.W.2d 289, 299 (Iowa
1979); accord Iowa Civil Rights Comm’n v. City of Des Moines, 313 N.W.2d
491, 495 (Iowa 1981) (“The purpose of [the Act] is to open the doors of
government to public scrutiny—to prevent government from secreting its
decision-making activities from the public, on whose behalf it is its duty
to act.”).
The Act essentially gives all persons the right to examine public
records. Iowa Code § 22.2 (2009). However, it then lists specific
categories of records that must be kept confidential by those responsible
for keeping records. Id. § 22.7. Accordingly, these records are exempt
from disclosure. Id. The general assembly has amended this list
numerous times over the years. Over sixty categories of records are
currently exempt from disclosure. See id. § 22.7. We have previously
determined the general assembly intended that we broadly interpret the
disclosure requirement, but narrowly interpret the confidentiality
exceptions. DeLaMater v. Marion Civil Serv. Comm’n, 554 N.W.2d 875,
878 (Iowa 1996). We have also stated, however, that “where the
legislature has used broadly inclusive language in the exception, we do
not mechanically apply the narrow-construction rule.” Id.
The categorical exemption at issue in this appeal exempts from
disclosure “[p]ersonal information in confidential personnel records of
public bodies including but not limited to cities, boards of supervisors
and school districts.” Iowa Code § 22.7(11).
5
We have considered the meaning of the “[p]ersonal information in
confidential personnel records” exemption in past cases challenging the
denial of requests for disclosure by records custodians. See Clymer, 601
N.W.2d at 47–48; DeLaMater, 554 N.W.2d at 878–81; Des Moines Indep.
Cmty. Sch. Dist. Pub. Records, 487 N.W.2d at 669–70. In these cases, we
have developed the analytical framework to determine whether this
exemption applies.
In Des Moines Independent Community School District, we
determined performance evaluations contained in an employee’s
confidential personnel file were exempt from disclosure under section
22.7(11) based on the plain language of the statute. 487 N.W.2d at 670.1
Because we determined the plain language of the statute exempted
performance evaluations, we declined to apply a balancing test. Id. In
reaching this conclusion, we acknowledged the plaintiff’s policy
arguments in favor of disclosure:
We are not unsympathetic to the Register’s public
policy arguments favoring disclosure. The allegations made
both by and against [an elementary school principal] led to
her resignation and her financial settlement with the district.
These are matters of public interest. The Register
understandably seeks to inform the public about all details
surrounding this payment of public funds.
1We discussed Des Moines Independent Community School District Public Records
v. Des Moines Register & Tribune Co., 487 N.W.2d 666 (Iowa 1992), in DeLaMater. See
DeLaMater v. Marion Civil Serv. Comm’n, 554 N.W.2d 875, 879 (Iowa 1996). We stated,
“Without explicitly employing a balancing test [in Des Moines Independent Community
School District], we concluded the documents in question ‘fell within the category of
personal information in personnel records.’ ” Id. (quoting Des Moines Indep. Cmty. Sch.
Dist., 487 N.W.2d at 670). Our reading of Des Moines Independent Community School
District indicates the court did not apply a balancing test and based its decision on the
plain meaning of the statute. As discussed in this opinion, if the plain language of the
exemption includes the category of information sought, we do not apply a balancing
test.
6
Id. However, we directed the Register to make these arguments to the
general assembly because the general assembly created the exemption.
Id. Thus, when we find that a requested piece of information fits into a
category of an exemption, we will not apply a balancing test. Id.
We have reiterated this rule in response to arguments that we
must nonetheless determine whether the public’s “right to know”
outweighs the government entity’s interest in privacy even where we find
section 22.7 exempts information from disclosure. See Gabrilson v.
Flynn, 554 N.W.2d 267, 273 (Iowa 1996) (“ ‘[I]t is not our responsibility to
balance competing policy interests. This balancing is a legislative
function and our role is simply to determine the legislature’s intent about
those policy issues.’ ” (quoting Ne. Council on Substance Abuse, Inc. v.
Iowa Dep’t of Pub. Health, 513 N.W.2d 757, 761 (Iowa 1994))). In
Gabrilson, we also addressed an argument that section 22.7 did not
protect certain information because it was available for inspection by the
public at the Library of Congress, the plaintiff had previously received a
copy of it, and it had previously been made publicly available. Id. at 271.
We summarily dismissed this argument finding no authority for the
proposition that the Act removes a record from the exemption merely
because it exists in the public domain, regardless of how it got there. Id.
at 272.
We also analyzed section 22.7(11) in DeLaMater. There, we had to
determine whether section 22.7(11) exempted the disclosure of the
grading scale of a promotional exam given by the Marion Civil Service
Commission and the raw scores of each examinee on each component of
the promotional examination. DeLaMater, 554 N.W.2d at 877. We cited
an American Law Reports annotation for the following test:
7
[T]he courts will usually first examine the specific statutory
provision involved to see if the statute delineates exactly
what types of records or other information are considered
private and thus subject to the public disclosure exemption.
If, however, the particular record, report, or other
information sought to be disclosed is not specifically listed in
the personal privacy provision as a personal matter, or if the
provision does not define those matters, the disclosure of
which would constitute an invasion of personal privacy, the
courts most often will apply general privacy principles, which
examination involves a balancing of conflicting interests—the
interest of the individual in privacy on the one hand against
the interest of the public’s need to know on the other.
Id. at 879 (citations and internal quotation marks omitted).
In applying this test, we first tried to determine whether the
requested information fit into the category of information exempt from
disclosure under section 22.7(11). Id. Our review of the Iowa cases
provided limited assistance. Id. We then looked to interpretations by
other courts and reached the same conclusion. Id. at 879–80. Having
determined that the materials sought were not the type of information
our Act categorizes as private, we performed the balancing test. 2 Id. at
880–81.
2The annotation we cited in DeLaMater based its test on the fact that “[a]
majority of state freedom of information laws include some form of privacy exemption,
and, with few exceptions, the exemptions closely track the Federal Freedom of
Information Act’s sixth exemption.” Andrea G. Nadel, Annotation, What Constitutes
Personal Matters Exempt from Disclosure by Invasion of Privacy Exemption Under State
Freedom of Information Act, 26 A.L.R. 4th 666, 670 (1983). The Iowa Open Records
Act’s privacy exemption does not track the Federal Freedom of Information Act (FOIA).
FOIA’s provision relating to personnel records exempts from disclosure “personnel and
medical files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6) (2006) (emphasis
added). The exemption for personnel, medical, and similar files is qualified, and a court
must determine whether disclosure of a document would constitute a “clearly
unwarranted” invasion of privacy. See id. This language requires a balancing test. The
Iowa Open Records Act does not have the qualifying language of FOIA. Therefore, we
question whether Iowa even has a balancing test. However, because we decide this case
without applying a balancing test, we will leave that question for another day.
8
Finally, we most recently considered section 22.7(11) in Clymer.
There, we restated that when “a statutory exemption does not articulate
precisely what records or information the legislature considers private,
courts commonly apply [a balancing test] as a means of weighing
individual privacy interests against the public’s need to know.” Clymer,
601 N.W.2d at 45. As in DeLaMater, we surveyed Iowa cases and cases
from other jurisdictions to determine whether the records sought could
be categorized as information considered private under the Act. Id. at
45–47. After determining the Act did not categorize the records under an
exemption, we applied the balancing test. Id. at 47–48.
In summary, to determine if requested information is exempt
under section 22.7(11), we must first determine whether the information
fits into the category of “[p]ersonal information in confidential personnel
records.” We do this by looking at the language of the statute, our prior
caselaw, and caselaw from other states. If we conclude the information
fits into this category, then our inquiry ends. If it does not, we will then
apply the balancing test under our present analytical framework. 3
IV. Application of Analytical Framework.
The ACLU of Iowa requested records or information describing the
discipline imposed on two employees. Thus, we must first determine if
the Act categorizes this information as “[p]ersonal information in
confidential personnel records.” Iowa Code § 22.7(11). Our prior
caselaw is very helpful in making this determination. We concluded that
3This approach is consistent with our approach under the Iowa Public
Employment Relations Act (PERA) to determine whether a proposed bargaining topic is
a mandatory subject of collective bargaining. See Waterloo Educ. Ass’n v. Iowa Pub.
Emp’t Relations Bd., 740 N.W.2d 418, 429 (Iowa 2007) (limiting the use of a balancing
test to those situations in which a proposed bargaining topic cannot be categorized
according to a specific term listed in section 20.9 of PERA).
9
performance evaluations contained in an employee’s confidential
personnel file were exempt from disclosure under the Act in Des Moines
Independent Community School District without performing a balancing
test. See Des Moines Indep. Cmty. Sch. Dist., 487 N.W.2d at 669. There,
we characterized the performance evaluations as “in-house, job
performance documents exempt from disclosure.” Id. at 670.
Disciplinary records and information regarding discipline are nothing
more than in-house job performance records or information.
Our conclusion is consistent with those of other courts that have
considered whether disciplinary action is exempt from disclosure under
their jurisdictions’ open records acts. See, e.g., Copley Press, Inc. v. Bd.
of Educ. for Peoria Sch. Dist. No. 150, 834 N.E.2d 558, 561 (Ill. App. Ct.
2005) (“Given its plain and ordinary meaning, a ‘personnel file’ can
reasonably be expected to include documents such as . . . disciplinary
records.”); Wakefield Teachers Ass’n v. Sch. Comm. of Wakefield, 731
N.E.2d 63, 67 (Mass. 2000) (“It would distort the plain statutory
language to conclude that disciplinary reports are anything but
‘personnel [file] or information.’ ”); Oregonian Publ’g Co. v. Portland Sch.
Dist. No. 1J, 987 P.2d 480, 484 (Or. 1999) (stating that “ ‘personnel files’
would usually include information about . . . disciplinary matters or
other information useful in making employment decisions regarding an
employee”); see also Pivero v. Largy, 722 A.2d 461, 462 (N.H. 1998)
(noting “personnel file” in department of labor regulations “means any
and all personnel records created and maintained by an employer and
pertaining to an employee including and not limited to . . . disciplinary
documentations” (citations and internal quotation marks omitted));
Swinton v. Safir, 720 N.E.2d 89, 91 (N.Y. 1999) (noting that a record of
disciplinary charges and their resolution was part of a personnel file).
10
Moreover, to suggest that a balancing test should be applied in this
case undermines the categorical determination of the legislature and
rewrites the statute. It also creates a logical problem. Can it be that
discipline in employee A’s personnel file may be treated differently than
the exact same discipline in employee B’s file, based on the degree of
public interest? Can it be that identical discipline for the son or
daughter of a public official, which might create something of media
frenzy if released, is entitled to less protection under the statute than a
child with a less public family background?
Under our prior caselaw and that of other jurisdictions, we can
easily conclude that the plain language of the statute supports the
exemption in this case. Accordingly, it is unnecessary to apply a
balancing test. Therefore, we agree with the district court that section
22.7(11) exempts the information requested by the ACLU of Iowa from
disclosure under the Open Records Act.
V. Disposition.
We affirm the judgment of the district court because we agree with
the district court that the disciplinary records requested are exempt from
disclosure under section 22.7(11).
AFFIRMED.
All justices concur except Cady, C.J., Waterman, and Mansfield,
JJ., who dissent.
11
#11–0095, ACLU Found. v. Records Custodian
CADY, Chief Justice (dissenting).
I respectfully dissent. The majority opinion takes a step backward
from the new age of open government in this state. It is a step in the
wrong direction.
This case goes to the heart of why we have an open records act in
this state: the expectation that government will be better suited to deal
honestly and fairly with its citizens when its citizens have the ability to
examine the records of government business. While our legislature
understands that confidentiality is needed in some aspects of
government work, the facts of this case reveal a substantial public
justification for disclosure of the requested information. The exemptions
enacted by our legislature were not designed to capture such
circumstances. The public nature of the requested information in this
case is supported by the facts. To defuse public criticism over an
incident in a public school of public concern, the school district
announced that two public employees would be disciplined for their
conduct in connection with the incident. This public declaration, in the
face of public concern and criticism over an initial response by the school
superintendent, made it reasonable for the school district to also let the
public know what discipline was imposed. The public did not just have
an interest in knowing that discipline would be imposed, but also in
knowing whether the discipline was appropriate and meaningful. In this
context, the discipline was “public” from the moment it was announced
and should have been disclosed pursuant to the Open Records Act. In
this dissent, I will first explain why I believe the majority opinion is
inconsistent with decades of caselaw. I will then discuss how the Open
Records Act should have been applied to mandate disclosure in this case.
12
Over the last thirty-two years, we have developed a solid body of
interpretive law to guide us in applying the “[p]ersonal information in
confidential personnel records” exemption to the public’s right to
examine public records. See Iowa Code § 22.7 (11) (2009). This law has
allowed our state to sort through the thicket of difficult and sensitive
clashes between the individual privacy interests of personnel files on
government employees and the competing right of the public to know.
The majority now inexplicably dumps this law and unravels a long chain
of past cases of this court in favor of an amorphous interpretive
approach built on the premise that the operative statutory phrase we
have been interpreting as a court over the last thirty-two years is now
unambiguous, except when particular circumstances might render it
ambiguous. This confusing approach is not only a dramatic shift that is
inconsistent with the basic way courts develop and apply law, it is
inconsistent with the way we define privacy in the law and the way our
legal tests seek to draw principled lines. Additionally, it is an approach
we specifically rejected long ago.
Within Iowa’s declared policy of open government records, our
legislature carved out numerous exemptions. One exemption is
“[p]ersonal information in confidential personnel records.” Id.
The phrase used by our legislature to articulate this exception is
not without ambiguity. For example, “personal” can mean several
different things. It can mean “of, relating to, or affecting a particular
person.” Merriam-Webster’s Collegiate Dictionary 924 (11th ed. 2005).
Or it can mean “relating to . . . an individual’s . . . private affairs.” Id.
Under the first definition, anything in a confidential personnel record
relating to a particular person would be covered by the exemption; under
the latter, only private matters relating to that individual would be
13
covered. Until today, we have never adopted the first of these two
definitions of “personal” in interpreting section 22.7(11). Otherwise, we
would never have decided, as we did in past cases, that an employee
severance agreement was subject to disclosure or that information about
individual employees’ sick leave and vacation was subject to disclosure.
A review of these past cases clearly reveals the approach we have taken
to best serve the purpose and intent of the statute.
Our first opportunity to interpret this exemption was in 1980, not
long after the passage of the Iowa Open Records Act. In City of Dubuque
v. Telegraph Herald, Inc., we were called upon to decide if applications for
an appointive city office were exempt from disclosure as “personal
information in confidential personnel records.” 297 N.W.2d 523, 526
(Iowa 1980) (internal quotation marks omitted), superseded by statute on
other grounds, Iowa Code § 22.8, as recognized in City of Sioux City v.
Greater Sioux City Press Club, 421 N.W.2d 895, 897 (Iowa 1988). We first
turned to the language of the statute and observed our legislature wrote
the exemptions to be narrowly construed. Id. at 527. We also observed
that our legislature did not exempt all personnel records, but only
“confidential personnel records.” Id. at 526. Moreover, we observed our
legislature did not just exempt “confidential personnel records,” but only
“personal information” in confidential personnel records. Id. We
indicated the “personal information” requirement revealed our legislature
intended to exempt information “that the right of privacy would protect.”
Id. We then concluded that Iowa’s “personal information” exemption is
properly applied and interpreted by balancing the public interests served
by disclosure against the private interests in protecting privacy, a test
used by federal courts in “applying and interpreting” a similar exemption
in the Federal Freedom of Information Act, 5 U.S.C. § 552(b)(6) (2006),
14
that protects information in personnel files from an unwarranted
invasion of personal privacy. Telegraph Herald, 297 N.W.2d at 526–27.
In adopting this test, we rejected the argument made by the city in the
case that the “personal information” component of the exemption was
our “legislature’s effort” to apply “the private business practice of keeping
employment applications confidential” to “public bodies.” Id. at 527
(emphasis added). In other words, we rejected a categorical
interpretation that “personal information” meant matters customarily
kept confidential in private business. Thus, the approach adopted by the
majority today of interpreting “personal information” only as it relates to
a person was specifically rejected by our court in 1980.
Since Telegraph Herald, we have had several other opportunities to
interpret this exemption and consider its application to the real-world
environment. In 1992, we held that job performance evaluations of
school employees contained in an investigation file were exempt from
disclosure as “[p]ersonal information in confidential personnel records,”
but a settlement agreement was not similarly exempt as “personal
information.” Des Moines Indep. Cmty. Sch. Dist. Pub. Records v.
Des Moines Register & Tribune Co., 487 N.W.2d 666, 669–70 (Iowa 1992).
In this case, a school district instituted an investigation into parent–
teacher complaints against a school principal and accusations of racism
and sexism by the principal. Id. at 667. The investigation was
conducted by two separate investigative committees. Id. During the
course of the investigation, the committees collected documents relating
to the past performance of school employees. Id. at 670. The
investigation was halted after a settlement was reached, but the
Des Moines Register then sought disclosure of “all documents related to
the administrative investigation,” including job performance evaluations.
15
Id. at 668. It also sought disclosure of the settlement agreement. Id. at
669.
The majority reads Des Moines Independent Community School
District to hold that job performance evaluations were categorically
exempt as “personal information” and uses this conclusion to undermine
the need for a balancing test. Yet, we were never asked to decide in the
case if performance evaluations were personal information. Instead, the
relevant dispute in the case over the performance evaluations, and the
one we addressed and resolved, was whether the section 22.7(11)
exemption was lost because the performance evaluations were located in
an investigation file instead of the actual confidential personnel files. Id.
at 670. It is important to recall in the case that the Des Moines Register
sought documents relating to the “administrative investigation.” Id. at
668. Contrary to the conclusion of the majority, we only held “[t]he
nature of the record is not controlled by its place in a filing system.” Id.
at 670. Thus, we said records that fall “within the category of personal
information in personnel records” do not lose their protection when
“deposited in investigation files.” Id. We did not engage in a balancing
test because the issue of whether performance evaluations fell within the
exemption was not raised on appeal. The majority has misread our prior
case, and it is unfair to use the case as authority for its position that the
balancing test is not used to determine if the section 22.7(11) exemption
applies. In fact, we specifically applied the balancing test in the case to
decide if the settlement agreement was “personal information in a
confidential personnel record.” Id. at 669. We noted the competing
public and private characteristics of the settlement agreement, but found
the balance weighed in favor of disclosure. Id. Without question, the
16
balancing test continued as our law following our decision in Des Moines
Independent Community School District.
We next considered the section 22.7(11) exemption four years later
in DeLaMater v. Marion Civil Service Commission, 554 N.W.2d 875 (Iowa
1996). In that case, we were called upon to decide if civil service
examination results were exempt as “ ‘personal information in
confidential personnel records.’ ” DeLaMater, 554 N.W.2d at 878
(quoting Iowa Code § 22.7). We found the subject of test scores
implicated both privacy and public interests, but that public interests
supported disclosure when the scores would be disclosed without
identifying the name of the test taker. Id. at 880. Importantly, we not
only applied the balancing test to reach the result, we reviewed the
background and importance of the balancing test in construing the
exemption. Id. at 879. We observed that, when the legislature does not
precisely delineate the types of information considered private and thus
exempt from disclosure,
“the courts most often will apply general privacy principles,
which examination involves a balancing of conflicting
interests—the interest of the individual in privacy on the one
hand against the interest of the public’s need to know on the
other.”
Id. (quoting Andrea G. Nadel, Annotation, What Constitutes Personal
Matters Exempt from Disclosure by Invasion of Privacy Exemption Under
Freedom of Information Act, 26 A.L.R.4th 666, 670–71 (1983)). We also
specifically observed that our legislature did not list examples of
“personal records” or define the term, which rendered the balancing test
necessary to interpret the legislature’s meaning of “personal
information.” Id. at 879.
17
Finally, we had an opportunity three years later to consider if a city
worker’s sick leave compensation and usage fell within the section
22.7(11) exemption in Clymer v. City of Cedar Rapids, 601 N.W.2d 42
(Iowa 1999). We again observed that section 22.7(11) does not precisely
articulate what information the legislature considers private. Clymer,
601 N.W.2d at 45. We also cautioned that precedent is of little
assistance and further recognized that the role of the court was to decide
if information personal to the employee and placed in a confidential
personnel file was intended by the legislature to remain confidential. Id.
As a result, we found the balancing test was required given the
“ambiguity” of the statute. Id. at 47. In applying those tests, we held the
compensation allocated to named employees was not exempt as long as
medical conditions or professional evaluations were not disclosed. Id. at
47–48. Otherwise, we held the address, gender, and birthdate
information was exempt. Id. at 48.
In short, we have consistently applied a balancing test to
determine whether a record qualifies as “[p]ersonal information in
confidential personnel records” under section 22.7(11). The majority
“question[s] whether Iowa even has a balancing test,” but elects to “leave
that question for another day.” Yet, there is no real question that the
majority has overruled Clymer, DeLaMater, Des Moines Independent
Community School District, and Telegraph Herald.
The majority wants the court to follow Gabrilson v. Flynn, 554
N.W.2d 267 (Iowa 1996), claiming it supports the notion that the
balancing test is not used when the information at issue is the type
commonly viewed in the world outside of government as confidential.
Yet, not only did we specifically reject such an approach in Telegraph
Herald, the majority’s characterization of the Gabrilson holding is
18
misplaced. In Gabrilson, we only held the balancing test is not used to
interpret those exemptions that identify the information with precision.
554 N.W.2d at 273. The rationale for this holding is that the legislature
has already engaged in a balancing test when it specifically identifies the
information sought to be exempt, making it inappropriate for courts to
further apply the balancing test. Id. Importantly, Gabrilson dealt with
the examination exemption under section 22.7(19), which we found was
a precise delineation that needed no balancing test to determine its
meaning. Id. at 272; see also Iowa Code § 22.7(19) (“Examinations . . . to
the extent that their disclosure could reasonably be believed by the
custodian to interfere with the accomplishment of the objectives for
which they are administered.”). The approach we took in Gabrilson was
the same we recognized in broadly discussing the balancing test in
DeLaMater. The balancing test is necessary when the legislature has not
specifically listed the information sought to be exempted under a
personal privacy exemption. DeLaMater, 554 N.W.2d at 879. Thus, it is
inappropriate to read Gabrilson to reject the necessity of a balancing test
under our exemption for “[p]ersonal information in confidential personnel
records.” See Iowa Code § 22.7(11). Moreover, we made it clear in both
DeLaMater and Clymer that our legislature did not define personal
information or list any specific examples that would allow the exemption
to be applied without balancing the competing interests. If our prior
cases have any meaning, it is that the balancing test is necessary to
interpret the phrase “personal information.” Gabrilson clearly does not
support the position of the majority, but is consistent with our line of
past cases.
As a result, we have built thirty-two years of jurisprudence
concerning section 22.7(11) with the aid of a balancing test. During
19
these three decades, our legislature never disagreed with our interpretive
approach by amending the statute to abandon the balancing test.
Recently, the legislature did amend section 22.7(11) to limit the
exemption to records of “identified or identifiable individuals” and to
specifically except certain types of records from the exemption, including
the records concerning the discharge of an individual as a result of the
final disciplinary action. 4 See 2011 Iowa Acts ch. 106, § 10 (codified at
4Section 22.7(11) now reads:
11. a. Personal information in confidential personnel records of
government bodies relating to identified or identifiable individuals who
are officials, officers, or employees of the government bodies. However,
the following information relating to such individuals contained in
personnel records shall be public records:
(1) The name and compensation of the individual including any
written agreement establishing compensation or any other terms of
employment excluding any information otherwise excludable from public
information pursuant to this section or any other inapplicable provision
of law. For purposes of this paragraph, “compensation” means payment
of, or agreement to pay, any money, thing of value, or financial benefit
conferred in return for labor or services rendered by an official, officer, or
employee plus the value of benefits conferred or services rendered by an
official, officer, or employee plus the value of benefits conferred including
but not limited to casualty, disability, life, or health insurance, other
health or wellness benefits, vacation, holiday, and sick leave, severance
payments, retirement benefits, and deferred compensation.
(2) The dates the individual was employed by the government
body.
(3) The positions the individual holds or has held with the
government body.
(4) The educational institutions attended by the individual,
including any diplomas and degrees earned, and the names of the
individual’s previous employers, positions previously held, and dates of
previous employment.
(5) The fact that the individual was discharged as the result of a
final disciplinary action upon the exhaustion of all applicable
contractual, legal, and statutory remedies.
b. Personal information in confidential personnel records of
government bodies relating to student employees shall only be released
pursuant to 20 U.S.C. § 1232g.
20
Iowa Code § 22.7(11) (Supp. 2011)). Yet, the amendment limiting the
personnel file exemption to records of identified or identifiable individuals
does not change the need for the balancing test to resolve the continuing
ambiguity in the phrase “personal information.” Obviously, if an
individual cannot be identified by a document in a confidential personnel
file, there is no individual privacy concern in the document. Thus, the
amendment to limit the exemption to identified or identifiable individuals
merely reveals a privacy interest is implicated only when an identified or
identifiable individual is involved. When an individual is identified, the
exemption applies and a balancing test will be needed to weigh the
individual interest with the public interest, just as before. Furthermore,
the addition of exceptions to the exemption merely eliminates the
balancing test for certain types of records delineated by the legislature as
specifically excluded from the exemption. The amendment reveals our
legislature did precisely what our cases have been saying—exemptions
that are specific and clearly discernible are applied without a balancing
test. See DeLaMater, 554 N.W.2d at 879 (noting the balancing test is not
used when an exemption is described in the statute with precision). Yet,
for those records not excluded, the balancing test is still needed to
resolve the ambiguity of what constitutes “personal information.” Id.
After thirty-two years of consistent law to the contrary, the
majority concludes the term “personal information” is actually clear,
precise, and specific, which enables courts to decide what information in
a confidential personnel file is exempt as “personal information” by doing
nothing more than looking at the information and deciding it is
“personal.” Notwithstanding, it apparently attempts to keep the
balancing test in reserve to use in the more difficult cases when the
result might not be so readily apparent. While the majority attempts to
21
eliminate the need for any standard in normally applying the “[p]ersonal
information in confidential personnel records” exemption, in truth, any
application of the phrase “personal information” to particular facts
necessarily balances personal interests against public interests. While
some conclusions may be easier to reach than others, the balancing test
is still applied to the thought process, even if subtly, because the
balancing test is the only principled way to distinguish between personal
information and public information.
The majority also seeks to support its conclusion that disciplinary
records in a person’s confidential personnel file are “personal
information” on their face because such records are nothing more than
personal job evaluations that were conceded by the parties to be
“personal information” in Des Moines Independent Community School
District. Yet, the majority makes this declaration without any
explanation. Even conceding that job performance evaluations would
normally be “personal information” under a balancing test, a vast
difference exists between past job performance evaluations and the
publicly announced job discipline in this case. Job performance
evaluations normally address very personal and intimate information
relating to an array of strengths and weaknesses found at the core of a
person’s character and personality. Discipline imposed by a supervisor,
on the other hand, reflects a judgment by the supervisor about an
incident of wrongdoing by the person. While both types of information
have some privacy interests, performance evaluations of government
employees are much more personal, while discipline of government
employees implicates more public interest. Moreover, the discipline in
this case was imposed only after an incident of wrongdoing was made
public, and it followed a public clamor for disciplinary action. The school
22
superintendent publicly announced that discipline would be imposed so
that the public would be protected, but expected the public to trust him
that the discipline imposed was sufficient and appropriate instead of
describing the nature of the discipline. These facts made the discipline a
public matter. 5 The two situations found by the majority to be the same
could not be more different. As the balancing test clearly demonstrates,
the discipline imposed by the school superintendent in this case was not
exempt under section 22.7(11). The factors considered under the
balancing test support this conclusion. See Clymer, 601 N.W.2d at 45
(identifying five factors to weigh the individual privacy interests against
the public’s need to know in deciding what information falls within the
“personal information” exemption).
The first factor used in the balancing test considers the public
purpose of the party requesting the information. A substantial purpose
for the information weighs in favor of the public’s need to know.
The arguments of the parties teed up this factor. The ACLU
Foundation of Iowa believed the public needs information about the
discipline imposed in this case to be better prepared to scrutinize the
adequacy of the school’s response to the misconduct and better assure
accountability for wrongdoing directed toward students by school staff.
The ACLU Foundation of Iowa also asserted the discipline involved a
subject—school strip searches—in which the public maintains a strong
interest. The school district responded that the public purpose in
knowing the discipline is diminished because the adequacy of the
5There is nothing inherently private about discipline. It can be public. For
example, in our attorney disciplinary system, we impose a “public reprimand” as the
sanction for certain ethical infractions. See, e.g., Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Denton, 814 N.W.2d 548, 549 (Iowa 2012).
23
discipline imposed cannot be properly assessed by the public without
further disclosure of the specific underlying facts of the incident.
In general, our law recognizes a legitimate public concern over the
discipline imposed for wrongdoing by a public employee. See The Hawk
Eye v. Jackson, 521 N.W.2d 750, 754 (Iowa 1994) (recognizing a
substantial public concern in the discipline of police officers). This
concern is tied in with the needed public trust in all aspects of
government, including public schools. In particular, it includes the
extent and manner that students are searched by school officials. See
Iowa Code § 808A.2(4)(a) (prohibiting strip searches of students by school
officials). If adults fail to protect children, children will not be protected.
Moreover, without adequate discipline for wrongs perpetrated by adults
against children, the wrongdoing continues. Clearly, the public concern
in this case is legitimate. While a complete understanding of discipline
needs context, the imposition of discipline normally implies wrongdoing,
and knowledge of the discipline can give understanding to the predicate
wrongdoing. Consequently, I would conclude the subject of this case is a
matter of legitimate public concern and the information sought by the
ACLU Foundation of Iowa is proper.
The second factor is whether the public purpose can be
accomplished without disclosure of the information. Individual privacy
interests weigh against disclosure when the public purpose can be met
without disclosure.
In this case, the public cannot assess the seriousness in which the
school district treated the search of the students without knowledge of
the discipline. The public has been given knowledge of a disconcerting
incident, but has no ability to resolve its concern without knowledge of
24
the discipline. Consequently, this factor weighs in favor of disclosing the
information.
The third factor is the scope of the request. Generally, a narrow or
limited request would weigh in favor of disclosure because the intrusion
into the individual privacy interests would be minimized. See
DeLaMater, 554 N.W.2d at 880 (disclosing test scores without disclosing
individual names of test takers). In this case, the ACLU Foundation of
Iowa only sought disclosure of the nature and scope of the discipline, not
the underlying personal information. Thus, the scope of the request
weighs in favor of disclosure.
The fourth factor is whether alternative sources for obtaining the
information exist. If multiple sources of the requested information are
available, individual privacy interests would be minimized.
Consequently, the existence of multiple sources of information supports
disclosure.
Like all the factors, the availability of alternative sources for
obtaining the information is considered to balance the interests between
individual privacy rights and the public’s need to know. Clymer, 601
N.W.2d at 45. The sources of disclosure in this case appear to be very
limited. The school district only argued the individual employees would
be the alternative source. 6 Thus, the factor would weigh in favor of
protecting the individual privacy right.
The final factor is the gravity of the invasion of personal privacy. A
substantial invasion of personal privacy would weigh against disclosure.
6Although the individual employees are the only alternative source of the
information, it is interesting to note that they never intervened in this action nor
otherwise asserted an objection to the disclosure of their discipline.
25
In this case, the seriousness of the invasion is minimized by the
limited request for information. Additionally, the public has been
informed of the incident through news reporting sources, and the school
district released the names of the two staff members who were subjected
to discipline. Thus, the disclosure of the discipline at this point would
not invade the personal privacy of the individual staff in the same
manner as it would if his or her name had not already been disclosed.
The names of the individuals involved in the discipline have already been
associated with the event, and the ACLU Foundation of Iowa only
requested that the discipline imposed be disclosed. Our legislature has
specifically instructed that “free and open examination of public records
is generally in the public interest” even if it results in “embarrassment” to
others. Iowa Code § 22.8(3). This admonition applies not only to the
individual privacy interest, but also to the school district. Any
embarrassment or other negative response visited on the school district
as a result of the disclosure of its discipline is not a factor to consider.
Applying the five factors, I would conclude the district court erred
in granting summary judgment for the school district and failing to grant
summary judgment for the ACLU Foundation of Iowa. The factors weigh
in favor of disclosing the discipline imposed by the superintendent of the
school district. The factors reveal our legislature did not intend the
discipline imposed on school employees for conducting a strip search of
female students in a gym locker room to be exempt from disclosure
under section 22.7(11).
Without the balancing test, courts will only be able to apply the
section 22.7(11) exemption through their own personal assessment of the
personal nature of the information at issue, divorced from any legitimate
public need for the information. The goal of transparency in government
26
will surely be thwarted by those in government who, in the face of public
criticism over the handling of employee misconduct concerning matters
of legitimate public interest, will be able to quell public discourse and
end controversies over employee misconduct of public concern with no
public scrutiny by simply announcing that discipline has been imposed.
Thus, the public will have no means to measure the appropriateness of
the government’s response to misconduct in matters of legitimate public
interest. This approach is a return to the government of the past and a
danger to our future.
Waterman and Mansfield, JJ., join this dissent.