Mitchell v. City of Cedar Rapids

IN THE SUPREME COURT OF IOWA
No. 18–0124

Filed April 5, 2019

JERIME ERON MITCHELL and BRACKEN ANN MITCHELL,

Appellees,

vs.

CITY OF CEDAR RAPIDS, IOWA, and OFFICER LUCAS JONES,
Individually and in His Official Capacity,

Appellants.

Appeal from the Iowa District Court for Linn County, Patrick R.

Grady, Judge.

Defendants in civil action arising from police shooting appeal

discovery rulings denying protective order for police investigative reports.

AFFIRMED.

Wilford H. Stone and Gregory T. Usher of Lynch Dallas, P.C.,

Cedar Rapids, and Elizabeth D. Jacobi, City Attorney’s Office,

Cedar Rapids, for appellants.

Laura M. Schultes, Pressley Henningsen, and Emily Anderson of

RSH Legal, P.C., Cedar Rapids, and Larry R. Rogers Jr. of Powers, Rogers

& Smith, LLP, Chicago, Illinois, for appellees.
 2

WATERMAN, Justice.

In this interlocutory appeal, we revisit the interplay between our

civil discovery rules and a confidentiality provision in the state Freedom

of Information Act, Iowa Code section 22.7(5) (2018), to determine

whether the district court abused its discretion by compelling the

defendants to produce police investigative reports without a protective

order preventing disclosure to the public. This tort action arises out of a

late-night traffic stop. A Caucasian police officer fired gunshots while

struggling with an African-American motorist. The gunshot wounds

rendered the motorist a quadriplegic. The police department released the

dash cam video of the incident to the public. The video went viral on

social media, 1 and the shooting attracted intense media attention. A

year earlier, the same officer had fatally shot another man, a Caucasian,

fleeing a traffic stop. No criminal charges were filed in either incident.

The plaintiffs, the injured motorist and his wife, sued the police

officer and the City for compensatory and punitive damages. The

plaintiffs sought discovery of the police investigative reports, which the

defendants offered to produce subject to a protective order prohibiting

disclosure to the media or other nonparties. The district court, noting
the police investigation had been completed and involved no confidential

informants, denied the motion for protective order but limited the order

compelling production to reports prepared within ninety-six hours of the

incident, excluding police internal review records. We granted the

defendants’ application for interlocutory appeal.

1The dash cam video on one website alone was viewed over 832,000 times.
PoliceActivity, Police Dashcam Video in Shooting that Paralyzed Jerime Mitchell, YouTube
(Dec. 8, 2016), https://www.youtube.com/watch?v=fexMzfomUok.
 3

On our review, we affirm. Litigants suing the government

ordinarily may obtain relevant records through discovery

notwithstanding confidentiality provisions in Iowa Code section 22.7, but

a protective order may be required precluding disclosure to nonparties.

Police investigative reports do not lose their confidential status when the

investigation closes. But section 22.7(5) includes an exemption from

confidentiality for basic facts about the incident, subject to a legislatively

prescribed balancing test. Our precedent also uses a balancing test.

The district court did not abuse its discretion by denying the requested

protective order. The district court balanced the competing interests in

confidentiality and transparency through its ninety-six-hour time limit, a

carve-out for police internal review records, and directives to handle

remaining confidentiality issues by redaction or further proceedings.

I. Background Facts and Proceedings.

On November 1, 2016, Police Officer Lucas Jones was on night

shift patrol for the Cedar Rapids Police Department. At 1:17 a.m., he

saw a truck driving with a broken rear license plate light. 2 Officer Jones

pulled the truck over, approached on foot, and asked the driver for his

license and registration. The driver, Jerime Mitchell, complied. Officer
Jones and Mitchell dispute what happened over the next two minutes.3

Mitchell got out of the truck and resisted Officer Jones’s efforts to

handcuff him. The two men wrestled to the ground. Officer Jones’s

police dog, Bane, joined the fray. Mitchell forced his way up and back

2“A citation issued for failure to have . . . a rear registration plate light . . . shall
first provide for a seventy-two hour period within which the person charged with the
violation shall replace or repair the . . . light.” Iowa Code § 321.385A(1)(b). If the light
is replaced within the time period, the citation is expunged. Id. § 321.385A(2).
3The microphone Officer Jones wore on his uniform was not functioning during
the traffic stop, and the only audio from the incident was recorded by the microphone in
the squad car.
 4

into his driver’s seat and began driving off with Officer Jones clinging to

the open door. Officer Jones unholstered his handgun and fired three

shots before jumping or falling off the moving truck. A bullet wound

near Mitchell’s cervical spine left him paralyzed from the neck down.

The incident received widespread media coverage and intense

public interest. 4 Protesters marched on city hall demanding the release

of the squad car’s dash camera footage, which the City released to the

public. The Linn County Attorney convened a grand jury to review the

incident, but no criminal charges were filed against Officer Jones or

Mitchell.

In February 2017, Mitchell and his spouse, Bracken, filed this civil

action against Officer Jones individually and the City of Cedar Rapids

alleging negligence, assault and battery, intentional infliction of

emotional distress and seeking compensatory and punitive damages.

4Kevin Barry, Special Report: What’s Different One Year After Jerime Mitchell Was
Shot, CBS2/FOX28 (Nov. 1, 2017), https://cbs2iowa.com/news/local/special-report-
whats-different-one-year-after-jerime-mitchell-was-shot [https://perma.cc/3EXH-
VXHC]; Sarah Boden, Cedar Rapids Police Officer Won’t Be Indicted, Some Say Grand
Jury Should Have Been Postponed, Iowa Pub. Radio (Dec. 7, 2016),
https://www.iowapublicradio.org/post/cedar-rapids-police-officer-wont-be-indicted-
some-say-grand-jury-should-have-been-postponed#stream/0 [https://perma.cc/WX79-
T2EW]; Enjoli Francis, Questions Linger After Dash-Cam Video of Man Being Shot by
Cedar Rapids Police During Traffic Stop Is Released, ABC News (Dec. 9, 2016),
https://abcnews.go.com/US/questions-linger-dashcam-video-man-shot-cedar/story?id
=44087880 [https://perma.cc/ZA7H-NHYH]; Michael Howell, Jerime Mitchell Refutes
Officer’s Account of Nov. Altercation, CBS2 Iowa (Dec. 8, 2016),
https://cbs2iowa.com/news/local/jerime-mitchell-refutes-officers-account-of-nov-
altercation [https://perma.cc/L25P-PGZ6]; No Charges Against White Iowa Police Officer
Who Paralyzed Black Man in Shooting, CBS News (Dec. 6, 2016),
https://www.cbsnews.com/news/no-charges-for-lucas-jones-white-iowa-police-officer-
who-paralyzed-jerime-mitchell-in-shooting/ [https://perma.cc/QCC7-5D3X]; Staff
Editorial, Justice Talks Need Maximum Openness, The Gazette (Oct. 28, 2017),
https://www.thegazette.com/subject/opinion/staff-editorial/justice-talks-need-
maximum-openness-20171028 [https//perma.cc/F337-KFKR]; Makayla Tendall, Talks
Continue on Community Policing, Racial Profiling in Cedar Rapids, The Gazette (Dec. 14,
2017), https://www.thegazette.com/subject/news/government/talks-continue-on-
community-policing-racial-profiling-in-cedar-rapids-20171214 [https://perma.cc/
N2QN-PJ9K].
 5

The Mitchells allege that the City is vicariously liable for Officer Jones’s

actions. The defendants filed separate answers denying liability. The

parties proceeded with discovery.

The Mitchells requested the law enforcement investigative reports

for the November 2016 shooting, as well as for an October 20, 2015

officer-involved shooting. During the 2015 incident, Officer Jones

responded to another officer’s call to assist with a traffic stop and search

of Jonathan Gossman, a Caucasian. Gossman fled on foot. Officer

Jones released Bane. The police dog sunk his teeth into Gossman’s arm

and brought him to the ground. According to Officer Jones, Gossman

was holding a black handgun pointed at another officer and Bane.

Officer Jones fired sixteen rounds at Gossman, who died from gunshot

wounds. The Linn County Attorney and the Iowa Department of

Criminal Investigation reviewed the incident, and Officer Jones was not

charged with any crime.

The defendants produced in Mitchell’s civil action the police

department’s training, policy, and operational manuals without a

protective order. They also agreed to produce the requested reports to

the Mitchells subject to their proposed protective order modeled after the

stipulated protective order entered early in the case in a federal lawsuit

arising from another highly publicized police shooting. See Steele v. City

of Burlington, 334 F. Supp. 3d 972, 975 (S.D. Iowa 2018). The Mitchells

offered to stipulate to a narrower protective order requiring redaction of

witness names, addresses, dates of birth, and social security numbers.

The parties failed to agree on the terms of a protective order. In July

2017, Officer Jones and the City filed a motion for a protective order

under Iowa Rule of Civil Procedure 1.504. The defendants sought to

prevent public disclosure of confidential documents including the police
 6

investigative reports. See Iowa Code § 22.7(5). The Mitchells filed a

resistance, arguing that the protective order proposed by the defendants

would permit them to determine unilaterally which documents are

confidential and require the Mitchells to challenge the confidentiality of

each document requested.

After a hearing, the district court ordered the City and Officer

Jones to produce

any requested law enforcement investigative reports,
including electronic recordings or telephone communications
generated by or in the possession of a defendant or a police
officer acting in the scope of his or her duties that were
compiled as a result of the reporter’s own observation or
investigation, including interviews or conversations with law
enforcement at the scene of the incident that resulted in the
injuries to Plaintiff Jerime Mitchell or lay witnesses to that
event. The order covers any investigative reports or
electronic communication generated or filed within 96 hours
of the incident, but does not apply to reports or
memorandum generated solely for purposes of a police
internal review of the incident.

The court relied on the three-part balancing test in Hawk Eye v. Jackson,

521 N.W.2d 750, 753 (Iowa 1994), to determine that the reports should

be disclosed under Iowa Code sections 22.7 and 622.11. The district

court did not compel the production of the personnel records, medical
records, the internal police investigation records, or other documents.

Instead, the court directed the parties to attempt to reach an agreement

as to those records. If the negotiations were unsuccessful, the court

would resolve the dispute.

The defendants filed a motion to reconsider the ruling in light of

American Civil Liberties Union Foundation of Iowa, Inc. v. Records

Custodian, Atlantic Community School District, 818 N.W.2d 231 (Iowa

2012), in which we held that a balancing test was unnecessary when “the

plain language of the statute supports the exemption.” Id. at 236. The
 7

district court denied the motion, determining that Atlantic Community

School District was limited to its facts. The district court further stated,

The Court concludes there is some ambiguity in
§ 22.7(5). The Court construes the statute as providing that
peace officers’ investigative reports, privileged records or
information specified in Iowa Code § 80G.2 are to be kept
confidential, but then goes on to set forth its own sort of
“balancing test” language to certain information. The section
creates its own exception to confidentiality, by stating that
“the date, time, specific location, and immediate facts and
circumstances surrounding a crime or incident shall not be
kept confidential under this section, except in those unusual
circumstances where disclosure would plainly and seriously
jeopardize an investigation or pose a clear and present
danger to the safety of an individual.” Iowa Code § 22.7(5)
(2017). In this case, there is no apparent ongoing
investigation with respect to the records at issue, and there
has been no allegation that any individual’s safety will be
impaired as a result of disclosure of the records. The Court
finds that the temporal limits of its order allows disclosure of
what the Court finds [to be] documents concerning,
“immediate facts and circumstances surrounding a crime or
incident.”

Officer Jones and the City filed an application for interlocutory

appeal, which we granted. We retained the appeal.

II. Scope of Review.

We review for an abuse of discretion a district court’s discovery

ruling on a motion for protective order. Sioux Pharm, Inc. v. Eagle Labs.,

Inc., 865 N.W.2d 528, 535–36 (Iowa 2015). “A district court abuses its

discretion ‘when the grounds underlying . . . [the] order are clearly

untenable or unreasonable.’ ” Id. at 535 (quoting Mediacom Iowa, L.L.C.

v. Inc. City of Spencer, 682 N.W.2d 62, 66 (Iowa 2004)). “A ruling based

on an erroneous interpretation of a discovery rule can constitute an

abuse of discretion.” Mediacom, 682 N.W.2d at 66 (quoting Shook v. City

of Davenport, 497 N.W.2d 883, 885 (Iowa 1993), abrogated on other

grounds by Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 690 N.W.2d

38, 44–48 (Iowa 2004)).
 8

“We review the district court’s interpretation of chapter 22 for

correction of errors at law.” Iowa Film Prod. Servs. v. Iowa Dep’t of Econ.

Dev., 818 N.W.2d 207, 217 (Iowa 2012).

III. Analysis.

We must determine whether the district court abused its discretion

by denying the defendants’ motion for a protective order. The defendants

agreed to produce the reports to the Mitchells for use in this lawsuit

subject to a protective order preventing them from disseminating the

reports to the media or other nonparties. The defendants argue that the

reports at issue are confidential within the meaning of Iowa Code section

22.7(5) and that they established good cause for a protective order. The

Mitchells contend the reports are not confidential and the defendants

failed to meet their burden to show good cause for a protective order in

light of the high public interest in this officer-involved shooting. We are

mindful that “[p]eople in an open society do not demand infallibility from

their institutions, but it is difficult for them to accept what they are

prohibited from observing.” Richmond Newspapers, Inc. v. Virginia, 448

U.S. 555, 572, 100 S. Ct. 2814, 2825 (1980).

We begin our analysis with the interplay between our discovery

rules and Iowa Code chapter 22 governing access to public records.

Because litigants’ access to confidential records may be subject to a

protective order, we must decide whether the records at issue are

confidential. We set forth an overview of chapter 22 to provide context

before we interpret section 22.7(5), the specific exemption applying to

police investigative reports. Finally, we address whether the district

court properly balanced the competing goals of confidentiality and

transparency in denying defendants’ motion for a protective order for the

police reports.
 9

A. The Interplay Between Iowa’s Open Records Act and the

Discovery Rules. “[T]he philosophy underlying our discovery rules is

that ‘litigants are entitled to every person’s evidence, and the law favors

full access to relevant information.’ ” Mediacom, 682 N.W.2d at 66

(quoting State ex rel. Miller v. Nat’l Dietary Research, Inc., 454 N.W.2d

820, 822–23 (Iowa 1990)). For that reason, “the district court should

liberally construe our discovery rules.” Id. “Upon motion by a party . . .

and for good cause shown,” however, a court may enter a protective order

“to protect a party or person from annoyance, embarrassment,

oppression, or undue burden or expense.” Iowa R. Civ. P. 1.504(1).

The Mitchells sought the police investigative reports under the

discovery rules as litigants suing Officer Jones and his employer, the City

of Cedar Rapids. We have previously addressed the tension between our

discovery rules and the confidentiality provisions in Iowa Code section

22.7. In Mediacom, we observed, “Iowa Code chapter 22 pertains to

parties seeking access to government documents and ordinarily has no

application to discovery of such information in litigation.” 682 N.W.2d at

69. Iowa Code section 22.7 does not create a “true privilege against

discovery of . . . confidential information.” See id. at 66. “[T]here is

nothing in section 22.7 that suggests the legislature intended to limit the

discovery rights of litigants in cases involving governmental entities.” Id.

at 69. “To the contrary, section 22.7 indicates the opposite because it

allows disclosure upon a court order.” Id. “[S]ection 22.7 does not

trump our discovery rules.” Id. Nevertheless, the confidentiality the

legislature prescribed for certain government records can be safeguarded

through a protective order allowing the litigants use of the records in the

lawsuit while preventing disclosure to the public. See id. at 67 (noting
 10

“rule 1.504, regarding protective orders, comes into play” to shield

confidential information from disclosure to nonparties). 5

B. An Overview of Iowa’s Freedom of Information Act. Iowa

Code chapter 22, the Open Records Act, is also known as the Iowa

Freedom of Information Act. City of Riverdale v. Diercks, 806 N.W.2d

643, 645 (Iowa 2011). “The general assembly made the decision to open

Iowa’s public records.” Atlantic Cmty. Sch. Dist., 818 N.W.2d at 232.

“The Act essentially gives all persons the right to examine public records

. . . [but] then lists specific categories of records that must be kept

confidential . . . .” Id. at 233. “The general assembly [thereby] created

and fixed the limitations on disclosure.” Id. at 232.

“The purpose of [chapter 22] 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 (alteration in original) (quoting Rathmann v.

Bd. of Dirs., 580 N.W.2d 773, 777 (Iowa 1998)). “There is a presumption

in favor of disclosure” and “a liberal policy in favor of access to public

records.” Hall v. Broadlawns Med. Ctr., 811 N.W.2d 478, 485 (Iowa

2012). “Disclosure is the rule, and one seeking the protection of one of

the statute’s exemptions bears the burden of demonstrating the

5Federal authorities likewise recognize that statutory confidentiality provisions
do not generally create privileges against civil discovery but may warrant judicial
protective orders to prevent public disclosure of confidential information produced to a
litigant. See, e.g., Laxalt v. McClatchy, 809 F.2d 885, 889–91 (D.C. Cir. 1987) (vacating
order denying production of FBI investigative files and remanding for consideration of
protective order); Cienfuegos v. Office of the Architect of the Capitol, 34 F. Supp. 3d 1, 2
(D.D.C. 2014) (holding that statutory confidentiality for congressional employee dispute
resolution procedures “does not give rise to an evidentiary privilege[,]” and “permit[ting]
disclosure subject to a protective order”); see also People ex rel. Birkett v. City of
Chicago, 705 N.E.2d 48, 51–52 (Ill. 1998) (surveying federal cases declining to equate
FOIA exemptions with discovery privileges while noting “there are safeguards inherent
in the discovery process, such as the use of protective orders, which serve to shield the
government’s interest in maintaining confidentiality”).
 11

exemption’s applicability.” Diercks, 806 N.W.2d at 652 (quoting Clymer

v. City of Cedar Rapids, 601 N.W.2d 42, 45 (Iowa 1999)).

Iowa Code section 22.7 currently has seventy-three enumerated

exemptions from the disclosure requirements. “Although we should not

thwart legislative intent, the specific exemptions contained in freedom of

information statutes are to be construed narrowly.” Iowa Film Prod.

Servs., 818 N.W.2d at 219 (quoting Hall, 811 N.W.2d at 485). “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.’ ” Atlantic Cmty. Sch. Dist., 818 N.W.2d at 233

(quoting DeLaMater v. Marion Civil Serv. Comm’n, 554 N.W.2d 875, 878

(Iowa 1996)). Against that backdrop, we turn to Iowa Code section

22.7(5).

C. The Protection Afforded Police Investigative Reports Under

Iowa Code Section 22.7(5). Neither the district court nor our court has

had the opportunity to review in camera the police reports at issue. The

documents at the heart of this appeal are not in the court record. We

proceed categorically by addressing the interpretation of the operative

statutory language.

The defendants rely on section 22.7(5) together with section

622.11, which provides, “A public officer cannot be examined as to

communications made to the public officer in official confidence, when

the public interests would suffer by the disclosure.” Iowa Code § 622.11;

see id. § 22.7(5). Although we have held other privileges codified in

chapter 622 are testimonial only, 6 “the privilege [in section 622.11] may

6See, e.g., Roosevelt Hotel Ltd. P’ship v. Sweeney, 394 N.W.2d 353, 355 (Iowa
1986) (“The physician–patient rule provided in section 622.10 is an evidentiary rule
rather than a substantive right.”).
 12

be invoked at any stage of proceedings where confidential

communications would otherwise be disclosed.” State ex rel. Shanahan

v. Iowa Dist. Court, 356 N.W.2d 523, 528 (Iowa 1984). Taken together

Iowa Code section 22.7(5) and section 622.11 provide “assurance to all

persons upon whom law enforcement officials rely that ‘official

confidentiality attends their conversations and may protect from public

access the officers’ reports of what they have said.’ ” Hawk Eye, 521

N.W.2d at 753 (quoting Shanahan, 356 N.W.2d at 528). “The privilege

cloaking these communications, however, is qualified, not absolute.” Id.

The Mitchells argue that police investigative reports that may be

confidential during an “ongoing investigation” lose that status when the

investigation is closed. The defendants contend otherwise. To decide

this question, we begin with the text of the exemption. Section 22.7

provides,

The following public records shall be kept confidential,
unless otherwise ordered by a court, by the lawful custodian
of the records, or by another person duly authorized to
release such information:
....
5. Peace officers’ investigative reports, privileged
records or information specified in section 80G.2, and
specific portions of electronic mail and telephone billing
records of law enforcement agencies if that information is
part of an ongoing investigation, except where disclosure is
authorized elsewhere in this Code. 7 However, the date, time,
specific location, and immediate facts and circumstances
surrounding a crime or incident shall not be kept
confidential under this section, except in those unusual
circumstances where disclosure would plainly and seriously

7Other provisions of the Iowa Code govern certain types of reports made to law
enforcement. See, e.g., Iowa Code § 321.271 (discussing confidentiality of motor vehicle
accident reports and access to those reports by the drivers and their attorneys); see also
Shannon by Shannon v. Hansen, 469 N.W.2d 412, 415 (Iowa 1991) (discussing interplay
among Iowa Code sections 22.7(5), 321.271, and 622.11 and affirming discovery order
in civil dramshop action allowing disclosure of witness statements taken during motor
vehicle accident investigation).
 13
jeopardize an investigation or pose a clear and present
danger to the safety of an individual. Specific portions of
electronic mail and telephone billing records may only be
kept confidential under this subsection if the length of time
prescribed for commencement of prosecution or the finding
of an indictment or information under the statute of
limitations applicable to the crime that is under investigation
has not expired.

Iowa Code § 22.7(5).

The Mitchells argue the term “ongoing investigation” in the first

sentence of section 22.7(5) modifies “investigative reports” such that the

report’s confidential status ends when the police investigation closes.

The defendants argue investigative reports remain confidential at all

times and the term “ongoing investigation” refers only to email and phone

records. The legislative history is instructive.

Section 22.7(5) was most recently amended in 2017 to add the

language, “privileged records or information specified in section 80G.2,” a

phrase separated by commas from other language in the first sentence.

2017 Iowa Acts ch. 122, § 1 (codified at Iowa Code § 22.7(5) (2018)). The

same bill enacted Iowa Code chapter 80G effective July 1, 2017. Id.

§§ 3–6 (codified at Iowa Code §§ 80G.1–.4). 8
The 2006 amendment to Iowa Code section 22.7(5) sheds more
light. 2006 Iowa Acts ch. 1122, § 1 (codified at Iowa Code § 22.7(5)

(2007)). 9 The 2006 amendment added this language to the first

sentence: “and specific portions of electronic mail and telephone billing

8Iowa Code section 80G.2 enumerates certain matters that a police officer may
not be compelled to disclose when testifying in a criminal proceeding, such as personal
identifying information of the officer or the officer’s family or the identity of a
confidential informant. Section 80G.2 provides for a balancing of interests if a criminal
defendant argues nondisclosure of this information would hinder his or her ability to
present a defense. Id. § 80G.2(2). The defendants are not relying on chapter 80G in
this appeal.
9Anearlier bill amending section 22.7(5) placed the same language about
electronic mail and telephone billing records in a separate subsection 22.7(5A). See
H.F. 2316, 81 G.A., 2d Sess. § 1 (Iowa 2006) (withdrawn).
 14

records of law enforcement agencies if that information is part of an

ongoing investigation.” Id. Again, as with the phrase added in 2017, the

language added to the first sentence in 2006 is separated by a comma

from the preceding language about police investigative reports. Id. The

2006 amendment also added the final sentence of section 22.7(5) timing

out the confidentiality of email and phone records upon the expiration of

the statute of limitations. Id. The final sentence only addresses email

and phone records and does not mention police investigative reports—

another indication that email and phone records are treated differently

than police investigative reports. See id.

Defendants rely on this legislative history and on a canon of

construction, the “last preceding antecedent.”

Under the doctrine of last preceding antecedent,
qualifying words and phrases refer only to the immediately
preceding antecedent, unless a contrary legislative intent
appears. Evidence of a contrary legislative intent can arise
when a comma separates the qualifying phrase from the
antecedent. In this circumstance, the qualifying phrase
generally applies to all antecedents.

Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v.

Shell Oil Co., 606 N.W.2d 376, 380 (Iowa 2000) (citations omitted); see
also Bearinger v. Iowa Dep’t of Transp., 844 N.W.2d 104, 109 (Iowa

2014); Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 144–46 (2012) (discussing last antecedent

canon). A clear indication of legislative intent can override this canon.

Shell Oil Co., 606 N.W.2d at 380.

We agree with the defendants that the legislative history of Iowa

Code section 22.7(5) (2018) and the last antecedent canon taken together

indicate that “ongoing investigation” in the first sentence refers to email

and phone records, not “police investigative reports.” The placement of
 15

commas supports our conclusion. The 2006 amendment added

language with no comma separating the phrase about email and phone

records from the limiting term “ongoing investigation” while a comma

sets off the preceding language, including “police investigative reports.”

The last sentence reinforces our conclusion. If police investigative

reports were in the same category as email and phone records, with

confidentiality requiring an open investigation and ending with the

expiration of the statute of limitations, we would see “police investigative

reports” included in the last sentence. We hold that police investigative

reports do not lose their confidential status under section 22.7(5) when

the investigation closes.

Our resolution of this interpretive issue does not end our analysis.

In denying the defendants’ motion for protective order, the district court

relied on the second sentence of section 22.7(5):

[T]he date, time, specific location, and immediate facts and
circumstances surrounding a crime or incident shall not be
kept confidential under this section, except in those unusual
circumstances where disclosure would plainly and seriously
jeopardize an investigation or pose a clear and present
danger to the safety of an individual.

Iowa Code § 22.7(5). The district court applied the balancing test we

used in Hawk Eye to adjudicate confidentiality claims based on both

section 22.7(5) and section 622.11. We must decide whether Hawk Eye

or Atlantic Community School District governs this dispute over access to

the police investigative reports.

1. Which case applies—Hawk Eye or Atlantic Community School

District? In Hawk Eye, a case involving a similar controversy, a

Burlington newspaper reporter “wrote a series of articles aimed at local

reaction to the highly publicized beating of Rodney King by Los Angeles

police officers.” 521 N.W.2d at 751. The reporter learned of a civil suit
 16

against a Burlington police officer. Id. The reporter approached the

police chief and asked for comment. Id. The chief was unaware of the

allegations and immediately requested an independent investigation by

the Iowa Department of Criminal Investigations (DCI) “to determine

whether [the officer] had engaged in criminal conduct or had violated

departmental rules and regulations.” Id. at 751–52. The DCI

investigated and provided a confidential report to the county attorney

and police chief. The chief concluded the officer had not breached any

department rules or regulations, and the county attorney concluded

there was not enough evidence to prosecute the officer for assault. Id. at

752.

The publisher of the newspaper requested a copy of the DCI report

from the county attorney, who refused. Id. The newspaper sought a writ

of mandamus to compel release of the report. Id. Meanwhile, the tort

case against the officer went to trial. Id. The same witnesses interviewed

by the DCI investigator also testified at the jury trial. Id. The jury

returned a verdict for damages against the officer and the city. Id. The

city later settled a second lawsuit alleging excessive force against the

same officer over a separate incident. Id.

The newspaper argued the public interest required disclosure of

the DCI report to evaluate a possible cover-up by the officials who had

declined to prosecute or discipline the officer. Id. The county attorney

argued disclosure would impede future investigations. Id. The district

court ordered disclosure of the DCI report with some redactions of

criminal history. Id.

On appeal, the county attorney argued that the report was

confidential under Iowa Code section 22.7(5) and section 622.11. Id. We

stated, “An official claiming the privilege must satisfy a three-part test:
 17

(1) a public officer is being examined, (2) the communication was made

in official confidence, and (3) the public interest would suffer by

disclosure.” Id. at 753; see also Shanahan, 356 N.W.2d at 527–31

(adopting this “sensitive weighing process,” the same three-part test,

under a prior version of section 22.7(5) and section 622.11 to determine

that litigants were not entitled to DCI files for two unsolved homicides).

Hawk Eye addressed the same arguments the defendants make

today—that public disclosure of the investigative reports would have a

chilling effect on police investigations.

Determining where the line falls between public harm and
public good requires weighing the relative merits of the
interests at stake. We have long recognized that
confidentiality encourages persons to come forward with
information, whether substantiated or not, that might be
used to solve crimes and deter criminal activity. Secrecy is
especially vital where reports are based on confidential
informants, persons indispensable to successful police work
but who frequently fear intimidation and reprisal.
Furthermore, nondisclosure permits law enforcement
officials the necessary privacy to discuss findings and
theories about cases under investigation.

Hawk Eye, 521 N.W.2d at 753 (citations omitted). But we continued by

noting “[o]ther case-specific factors, such as the nature of the

investigation and whether it is completed or ongoing, may tip the balance

in favor of public disclosure.” Id.

In affirming the order compelling release of the DCI report in 1994,

we noted factors also present in today’s case: the absence of any

confidential informants or “named but innocent suspects,” or any

ongoing police investigation, and the presence of a heightened public

interest in police use of force. See id. at 753–54. We stated, “There can

be little doubt that allegations of leniency or cover-up with respect to the

disciplining of those sworn to enforce the law are matters of great public
 18

concern.” Id. at 754. We concluded based on the factual record that

“any public harm created by the disclosure of the DCI investigatory

report is far outweighed by the public harm accruing from its

nondisclosure.” Id. The Mitchells urge us to make the same

determination here.

The defendants contend the Hawk Eye balancing test has been

superseded by Atlantic Community School District. See 818 N.W.2d 235–

36. In Atlantic Community School District, we clarified our approach to

section 22.7’s exemptions.

[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
. . . 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 234 (quoting DeLaMater, 554 N.W.2d at 879). We elaborated that if

“by looking at the language of the statute, our prior caselaw, and caselaw

from other states” we determine the information requested fits into the

categorical exemption of Iowa Code section 22.7(11), “then our inquiry

ends. If it does not, we will then apply the balancing test under our

present analytical framework.” Id. at 235.

In Atlantic Community School District, the ACLU sought records

relating to the identities and specific disciplinary consequences of two

school employees who had conducted a strip search of five female high

school students after a theft. Id. at 232. The school district named the

employees but refused to disclose the discipline imposed, arguing it was

confidential and exempt from disclosure under section 22.7(11), which
 19

protects “[p]ersonal information in confidential personnel records.” Id. at

233 (emphasis added) (quoting Iowa Code § 22.7(11) (2009)). The ACLU

made an open records request under chapter 22 and then sought an

injunction ordering the district to comply with the request. Id. at 232.

We concluded that the employee disciplinary information was

confidential under section 22.7(11). Id. at 236. Noting that numerous

cases have upheld the confidentiality of performance evaluations in

personnel files, we determined that using a balancing test would

undermine the legislature’s intent in categorically removing these

documents from public view. Id. at 235–36.

We can easily harmonize Hawk Eye and Atlantic Community School

District. Atlantic Community School District controls when the records at

issue fall within a categorical exemption in section 22.7, such as the

“confidential personnel records” in section 22.7(11). See id. No

balancing of interests is necessary for such an exemption. Id. at 236.

The legislature has performed its own balancing and made the policy

choice to protect such records categorically. Atlantic Community School

District did not overrule or even cite Hawk Eye, which remains good law

for disputes over access to police investigative reports under section

22.7(5), a provision with its own legislatively prescribed balancing test in

the second sentence.

We conclude that the legislature has acquiesced in our

interpretation of section 22.7(5). We first used the three-part balancing

test thirty-five years ago in Shanahan, 356 N.W.2d at 527, and then

again in 1994 in Hawk Eye, 521 N.W.2d at 753. We have not retreated

from that approach in any subsequent case applying Iowa Code section

22.7(5). The legislature has twice amended section 22.7(5) since

Hawk Eye. Neither amendment overruled Hawk Eye’s balancing test for
 20

police investigative reports involving no confidential informant. See

Ackelson v. Manley Toy Direct, L.L.C., 832 N.W.2d 678, 688 (Iowa 2013)

(discussing the doctrine of legislative acquiescence). We hold that

Hawk Eye remains the controlling precedent for disputes over access to

police investigative reports.

2. Application of the Hawk Eye balancing test in this case. We

conclude the district court properly applied Hawk Eye. In both cases,

the police investigation had been completed without any confidential

informant or unidentified suspect. In both cases, one officer injured or

killed a civilian in separate incidents. Then and now, the dispute arose

against the backdrop of a national debate over the use of force by police

on unarmed African-Americans—Rodney King in 1991 and Michael

Brown in 2014. The defendants in both cases advanced cogent

arguments that disclosure of the police investigatory reports would

impede future investigations. Then and now, on balance, the public

interest favors disclosure.

The record in this case is devoid of evidence that disclosure would

harm any specific individual. More generally, the district court noted,

To the extent that law enforcement officer communications
with other officers might initially be made in confidence,
there is still an expectation that the communicating officer
might be expected to testify in a public proceeding especially
if it involves something the officer personally witnessed.

The same can be said of civilian witnesses.

The defendants contend they have already provided the “date, time,

specific location and immediate facts and circumstances surrounding”

the incident. In our view, the district court acted within its discretion

under Hawk Eye, consistent with the second sentence of Iowa Code

section 22.7(5), by limiting the order compelling disclosure to
 21

“investigative reports or electronic communications generated or filed

within 96 hours of the incident.” The court directed the parties to handle

remaining confidentiality issues as to specific records by redaction or

further proceedings.

The defendants argue that disclosure would have a chilling effect

on the candor expected for internal investigations. The district court

addressed that concern by excluding from the order compelling

production those “reports or memorandum generated solely for purposes

of a police internal review of the incident.”

The defendants also argue that further disclosure and the resulting

publicity could taint the jury pool. We believe that concern can be

addressed during jury selection. The district court noted, “The alleged

facts of the incident have been the subject of wide media coverage and

broad public discussion.” The court continued, “Public disclosure of

these reports in a county of over 200,000 people may enhance the public

discussion but should not jeopardize any party’s right to a fair trial.” We

agree. We also note that the attorneys must comply with Iowa Rule of

Professional Conduct 32:3.6, which prohibits an attorney from making

extrajudicial statements that “will have a substantial likelihood of

materially prejudicing an adjudicative proceeding.”

Throughout the United States, highly publicized police shootings

have sparked debates nationally about race, policing, and community

relations. “[I]t goes without saying that police misconduct is a matter of

public concern.” Martinez v. Hooper, 148 F.3d 856, 859 (7th Cir. 1998).

As we previously noted,

The image presented by police personnel to the general
public “is vitally important to the police mission.”
Additionally, such image “also permeates other aspects of
the criminal justice system and impacts its overall success.”
 22
For these reasons, “police officers must earn and maintain
the public trust at all times by conducting themselves with
good judgment and sound discretion.”

Civil Serv. Comm’n v. Johnson, 653 N.W.2d 533, 538 (Iowa 2002) (quoting

City of Fort Dodge v. Civil Serv. Comm’n, 562 N.W.2d 438, 440 (Iowa Ct.

App. 1997)). 10 We conclude the district court did not abuse its discretion

in applying the Hawk Eye balancing test.

D. Whether the Defendants Showed Good Cause for a

Protective Order. The defendants argue the district court abused its

discretion by denying their motion for a protective order. They note the

Mitchells are obtaining the police investigative reports for their use in the

litigation, and the proposed protective order simply prevents disclosure

to the news media and other nonparties. The Mitchells have failed to

show how such a protective order would impede their ability to prove

their claims.

But it is the defendants’ burden to establish good cause through “a

particular and specific demonstration of fact, as distinguished from

stereotyped and conclusory statements.” Comes v. Microsoft Corp., 775

N.W.2d 302, 305 (Iowa 2009) (quoting Nat’l Dietary Research, 454

N.W.2d at 823); see also Iowa Film Prod. Servs., 818 N.W.2d at 230

(rejecting argument against disclosure that “was presented entirely at an

abstract level” without evidentiary proof).

A district court should consider three criteria when
evaluating the factual showing establishing good cause:
(1) whether the harm posed by dissemination will be
substantial and serious; (2) whether the protective order is
precisely and narrowly drawn; and (3) whether any
alternative means of protecting the public interest is
available that would intrude less directly on expression.

10TheMitchells’ tort claims are pending, and there has been no adjudication of
misconduct by Officer Jones.
 23

Comes, 775 N.W.2d at 305–06. “[T]hese criteria strike a balance between

the policy favoring discovery and free expression on one side and a

party’s interest in avoiding commercial damage and preventing an abuse

of discovery on the other.” Id. at 306 (alteration in original) (quoting Nat’l

Dietary Research, 454 N.W.2d at 823).

The parties’ arguments for and against the protective order are

addressed in our review of the district court’s application of the

Hawk Eye balancing test. As set forth above, we hold the police

investigative reports at issue are not exempt from public disclosure

under Hawk Eye. A protective order limiting disclosure to third parties

would be pointless here when any member of the public could obtain the

same reports through an Iowa Code chapter 22 open records request.

We determine that the district court did not abuse its discretion by

denying the defendants’ motion for protective order.

IV. Disposition.

For these reasons, we affirm the district court’s ruling denying the

defendants’ motion for a protective order.

AFFIRMED.

All justices concur except Appel, J., who concurs specially.
 24
#18–0124, Mitchell v. City of Cedar Rapids
APPEL, Justice (concurring specially).

I write separately to emphasize what I believe is an unstated

assumption in the majority opinion—in determining whether there is

good cause for a protective order, an exemption under the open records

law is merely a factor that may be considered by the district court. That

assumption furthers the legislative intent behind Iowa’s discovery rules

and open records law, and is consistent with our precedent and that of

other jurisdictions.

The open records law, Iowa Code ch. 22 (2018), establishes a

distinct, narrow regime that permits the public access to certain public

records. It provides a conflict resolution mechanism for aggrieved

persons who claim they have been denied access to public records by

governing bodies.

The public records act is generally distinct from our discovery

rules. See Iowa R. Civ. P. 1.500–.517. In Mediacom Iowa, L.L.C. v.

Incorporated City of Spencer, we explained that our open records law

“ordinarily has no application to discovery of [government documents] in

litigation.” 682 N.W.2d 62, 69 (Iowa 2004). A governmental party

engaged in litigation cannot refuse to produce a document requested in

discovery on the basis that the document would be exempt from

production pursuant to an open records request. See id.

Our view in this regard is similar to federal law. Under federal law,

the Freedom of Information Act (FOIA) “was not intended to supplement

or displace rules of discovery.” John Doe Agency v. John Doe Corp., 493

U.S. 146, 153, 110 S. Ct. 471, 475 (1989). Many federal decisions hold

that a document exempt from production through an open record law

may still be produced in discovery. See, e.g., Kamakana v. City of
 25

Honolulu, 447 F.3d 1172, 1185 (9th Cir. 2006) (“[E]xempt documents

[under FOIA] are not automatically privileged in civil discovery.”);

Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1344 (D.C.

Cir. 1984) (“If information in government documents is exempt from

disclosure to the general public under FOIA, it does not automatically

follow the information is privileged . . . and thus not discoverable in civil

litigation.”); Kerr v. U.S. Dist. Ct., 511 F.2d 192, 197 (9th Cir. 1975)

(stating that FOIA exemptions were not intended to create evidentiary

privileges in civil discovery), aff’d, 426 U.S. 394, 96 S. Ct. 2119 (1976);

Pleasant Hill Bank v. United States, 58 F.R.D. 97, 99 (W.D. Mo. 1973)

(“Even if we posit arguendo that the [government] documents are exempt

from disclosure, it does not necessarily follow that they are privileged for

purposes of civil discovery.”).

Other states, too, view their state open records law as separate

from rules of discovery, and therefore, an exemption in the former does

not preclude production pursuant to the latter. See, e.g., Martinelli v.

Dist. Ct., 612 P.2d 1083, 1093–94 (Colo. 1980) (en banc) (“We . . . hold

that the Colorado open records laws . . . do not, ipso facto, exempt the

[government documents] from discovery in civil litigation.”); Fla. House of

Representatives v. Romo, 113 So. 3d 117, 127–28 (Fla. Dist. Ct. App.

2013) (stating that a government document exempt from production

under the state open records law must be produced in discovery unless

otherwise privileged or a balancing of the parties’ interests weighs in

favor of keeping the document confidential), quashed on other grounds by

League of Women Voters of Fla. v. Fla. House of Representatives, 132

So. 3d 135, 138 (Fla. 2013); Tighe v. City of Honolulu, 520 P.2d 1345,

1348 (Haw. 1974) (“The very broad discovery specifically granted to

litigants . . . cannot be said to be limited by the terms of a charter
 26

provision directed toward regulation of the entirely different situation of

the general exploration of public records by any citizen during general

business hours.”); In re Subpoena Duces Tecum, 840 N.E.2d 470, 475

(Mass. 2006) (“Discovery, by its nature, is quite broad. The public

records law does not restrict this breadth.” (Citations omitted.)); Truel v.

City of Dearborn, 804 N.W.2d 744, 748 (Mich. Ct. App. 2010) (“[T]he

discovery rules and the [state open records law] represent ‘two

independent schemes for obtaining information.’ Therefore, discovery in

a civil action and the [state open records law] are subject to different

procedures and enforcement mechanisms.” (quoting Cent. Mich. Univ.

Supervisory-Tech. Ass’n, MEA/NEA v. Bd. of Trs., 567 N.W.2d 696, 698

(Mich. Ct. App. 1997) (Holbrook, J., concurring))). For instance, in

Boston Police Superior Officers Federation v. City of Boston, 608 N.E.2d

1023, 1027 (Mass. 1993), the Massachusetts Supreme Judicial Court

held that a trial judge properly required the City of Boston to produce, in

discovery, logs of the internal affairs division that may be exempt from

production through the state open records law. The court explained that

“the public record law and its exceptions do not restrict the . . . power to

subpoena documents.” Id.

The rationales for those decisions are based on “the essential

differences between the discovery process and the FOIA request.” Janice

Toran, Information Disclosure in Civil Actions: The Freedom of Information

Act and the Federal Discovery Rules, 49 Geo. Wash. L. Rev. 843, 851

(1981) [hereinafter Toran]. While a litigant can obtain discovery of things

“relate[d] to the claim or defense of the party seeking discovery or to the

claim or defense of any other party” so long as the things are “reasonably

calculated to lead to the discovery of admissible evidence,” Iowa R. Civ. P.

1.503(1); see Toran, 49 Geo. Wash. L. Rev. at 851, the relevance of
 27

materials to litigation or other matters is irrelevant to disclosure under

open records laws, see Toran, 49 Geo. Wash. L. Rev. at 852. That

difference requires the court to look beyond the mere presence of an open

records exemption in determining whether to allow discovery. Id.; see,

e.g., Jupiter Painting Contracting Co. v. United States, 87 F.R.D. 593, 597

(E.D. Pa. 1980) (“[A] FOIA exemption cannot even indirectly delimit

claims of privilege since it does not take into account the degree of need

for the information exhibited by the claimant.”). Further, open records

law exemptions do not limit civil discovery because of “the distinction

between open disclosure to the public at large under FOIA and the much

more restricted disclosure which occurs under the discovery rules.”

Mark S. Wallace, Discovery of Government Documents and the Official

Information Privilege, 76 Colum. L. Rev. 142, 153–54 (1976).

The latter consideration bears further consideration because it is

arguably germane to the issue in the case before us. Some courts have

allowed discovery of documents exempt from open records requests

because open records laws apply to disclosure to the public generally as

opposed to private litigants. See, e.g., Denny v. Carey, 78 F.R.D. 370,

373 (E.D. Pa. 1978) (“Exemption from the Freedom of Information Act . . .

does not create independently any evidentiary privilege; the effect of such

exclusion, rather, is only to permit the withholding of these categories of

information from the public generally.”); Douglas v. Windham Super. Ct.,

597 A.2d 774, 776 n.2 (Vt. 1991) (“Petitioner has noted that the Vermont

Access to Public Records Act, 1 V.S.A. § 317(b)(5), has an exception from

public disclosure for ‘disciplinary investigation’ records of a ‘professional

licensing agency.’ This exception deals with disclosure to the public

generally, not disclosure in response to discovery in litigation. It does

not create a privilege.”); Maclay v. Jones, 542 S.E.2d 83, 89 (W. Va. 2000)
 28

(“[W]e hold that the provisions of this state’s FOIA, which address

confidentiality as to the public generally, were not intended to shield law

enforcement investigatory materials from a legitimate discovery request

when such information is otherwise subject to discovery in the course of

civil proceedings.”).

The open records law may inform a district court’s decision on a

protective order, but it “does not trump our discovery rules.” Mediacom,

682 N.W.2d at 69. This is because

there is nothing in [Iowa Code] section 22.7 that suggests the
legislature intended to limit the discovery rights of litigants
in cases involving governmental entities. To the contrary,
section 22.7 indicates the opposite because it allows
disclosure upon a court order.

Id.; see also Laxalt v. McClatchy, 809 F.2d 885, 889 (D.C. Cir. 1987)

(refusing to infer qualified discovery privilege from congressional silence,

especially where Congress expressly permitted court-ordered disclosure).

Moreover, “[i]f a[] FOIA exemption is the prime determinant in the

balancing process, the needs of one party—the non-governmental party—

are effectively disregarded,” Toran, 49 Geo. Wash. L. Rev. at 853, even

though our discovery rules permit consideration of the requesting party’s

need for discovery in decisions allowing or limiting discovery, see Iowa R.

Civ. P. 1.504(1) (stating that a protective order should be granted only

where “justice requires” and “for good cause shown”); see also Iowa R.

Civ. P. 1.503(1) (providing for discovery so long as “the information

sought appears reasonably calculated to lead to the discovery of

admissible evidence”); Mediacom, 682 N.W.2d at 66 (“[T]he philosophy

underlying our discovery rules is that ‘litigants are entitled to every

person’s evidence, and the law favors full access to relevant

information.’ ” (quoting State ex rel. Miller v. Nat’l Dietary Research, Inc.,
 29

454 N.W.2d 820, 822–23 (Iowa 1990))). Therefore, giving conclusive

weight to an open records exemption in deciding on a protective order

would thwart legislative intent.

Other courts have considered an open records exemption as

influencing, but not controlling, a decision on whether to issue a

protective order preventing public dissemination of materials produced in

discovery. In Henry v. Centeno, No. 10 C 6364, 2011 WL 3796749, at *3

(N.D. Ill. Aug. 23, 2011), the court said that a state FOIA exemption does

not necessarily mean that documents obtained through discovery cannot

be disseminated to the public, but it may provide guidance. The court

explained,

The question before the court in ruling on this
proposed protective order . . . is not the FOIA-conferred right
of “merely curious members of the public” to access certain
information, but rather a litigant’s (albeit limited) First
Amendment right to disseminate information properly
obtained through pre-trial discovery. The court must take
care not to conflate rules regarding a universal “public right
to know” with rules regarding a litigant’s right to
disseminate. “Such conflation, like any other Pavlovian-type
generalization, is likely to generate an overly simplistic
answer to the more precise question posed in a particular
case.” That a FOIA exemption may curtail the general right
of access to information that FOIA otherwise bestows upon
the public does not necessarily restrain an individual’s right
to share the same information obtained by other means.

FOIA can, nevertheless, provide guidance as to
whether good cause exists for a proposed protective order, as
well as guidance as to the nature of the public’s interest.
Therefore, having rejected as a matter of law defendants
assertion that IFOIA “requires” a protective order to be
entered, the court will next consider what guidance IFOIA
offers as to whether a protective order should be entered.

Id. (citations omitted) (quoting Brown v. City of Chicago, No. 09 C 6506,

2011 WL 222840, at *2 (N.D. Ill. Jan. 24, 2011)). In Laxalt, the D.C.

Circuit explained that while a statutory ban on publication by a
 30

government agency does not delimit the ability to obtain a government

document through discovery,

[t]he fact that a document is subject to the Privacy Act is not,
however, irrelevant to the manner in which discovery should
proceed. Although discovery standards . . . permit access to
relevant documents protected by the Act, those
same . . . standards give the District Court ample discretion
to fashion appropriate protective orders upon a showing of
“good cause.” . . .

....

. . . [A]s is true with respect to other statutory
publication bans, the applicability of the Privacy Act to the
materials requested is a relevant factor for the District Court
to consider in determining the appropriate scope and
manner of discovery in a given case.

809 F.2d at 889 (citation omitted). The court then suggested that, in

fashioning a protective order, a court could consider a party’s ability to

make documents public. Id. at 890 n.23. Another decision viewing an

open records exemption as influential but not controlling is In re National
Prescription Opiate Litigation, 325 F. Supp. 3d 833, 838–40 (N.D. Ohio

2018).

Similarly, courts considering the converse situation find an open

records law persuasive but not controlling. In Pansy v. Borough of

Stroudsburg, 23 F.3d 772, 775 (3d Cir. 1994), a group of newspapers

sought access to a settlement agreement made confidential by a

protective order. The court said,

[W]e hold that where it is likely that information is accessible
under a relevant freedom of information law, a strong
presumption exists against granting or maintaining an order
of confidentiality whose scope would prevent disclosure of
that information pursuant to the relevant freedom of
information law. In the good cause balancing test, this
strong presumption tilts the scales heavily against entering
or maintaining an order of confidentiality.

Id. at 791.
 31

Viewing the open records law as informing—but not controlling—a

district court’s decision on a protective order is, I think, implicit in the

majority opinion. The majority opinion explains that “[l]itigants suing the

government ordinarily may obtain relevant records through discovery

notwithstanding confidentiality provisions in Iowa Code section 22.7, but

a protective order may be required precluding disclosure to nonparties,”

(emphasis added), “litigants’ access to confidential records may be

subject to a protective order,” (second emphasis added), and “[f]ederal

authorities likewise recognize that statutory confidentiality provisions do

not generally create privileges against civil discovery but may warrant

judicial protective orders” (second emphasis added). The majority

concludes that “[t]he district court did not abuse its discretion by

denying the requested protective order . . . [and] balanc[ing] the

competing interests in confidentiality and transparency.” The majority’s

reasoning, it seems to me, provides that an exemption from the open

records law does not control the decision on a protective order.

Accordingly, I specially concur.