IN THE COURT OF APPEALS OF IOWA
No. 18-1068
Filed July 3, 2019
DR. ALLEN DIERCKS,
Plaintiff-Appellant,
vs.
THE CITY OF BETTENDORF, IOWA, and KRISTINE STONE,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mary E. Howes,
Judge.
Allen Diercks appeals the denial of his claim based on the defendants’
alleged failure to provide documents pursuant to the Iowa Open Records Act.
REVERSED AND REMANDED.
Michael J. Meloy of Meloy Law Office, Bettendorf, for appellant.
Sean M. O’Brien and Catherine M. Lucas of Bradshaw, Fowler, Proctor &
Fairgrave, P.C., Des Moines, for appellees.
Alan R. Ostergren of Muscatine County Attorney’s Office, Muscatine,
amicus curiae.
Heard by Tabor, P.J., and Mullins and Bower, JJ.
2
BOWER, Judge.
Allen Diercks appeals the district court’s denial of his claim based on the
alleged failure of the City of Bettendorf and City Attorney Kristine Stone to provide
documents pursuant to Iowa Code chapter 22 (2017) (the Iowa Open Records
Act). Because the district court erred in concluding the records requested were
not public records, we reverse and remand for further proceedings. We leave it to
the district court on remand to consider the City’s claims of privilege and that
statutory exceptions to disclosure exist.
I. Statutory Provisions.
Pursuant to Iowa Code section 22.10, “Any aggrieved person, any taxpayer
to or citizen of the state of Iowa . . . may seek judicial enforcement of the
requirements of this chapter in an action brought against the lawful custodian and
any other persons who would be appropriate defendants under the
circumstances.” A requester has the burden to prove by a preponderance of the
evidence (1) “the defendant is subject to the requirements of chapter 22,” (2) “the
records in question are government records,” and (3) “the defendant refused to
make those government records available for examination and copying by the
plaintiff.” Iowa Code § 22.10(2); Diercks v. Malin, 894 N.W.2d 12, 18 (Iowa Ct.
App. 2016).
II. Background Facts and Proceedings.
Diercks is a taxpayer and resident of Bettendorf. The City of Bettendorf is
subject to chapter 22. Kristine Stone was the Bettendorf city attorney and the
3
“lawful custodian” responsible for implementing the open-records requests.1 We
may refer to Bettendorf and Stone collectively as the City.
The Iowa Communities Assurance Pool (ICAP) is a government risk pool
as allowed under Iowa Code section 670.7. Bettendorf entered into a contract with
ICAP and has paid ICAP for the defense of tort claims against the City.
ICAP hired Michael Walker of Hopkins & Huebner, P.C., to defend the City
in lawsuits concerning its sewer system filed between August 14, 2013, and
January 27, 2017.
On May 24, 2017, Diercks hand-delivered a “Chapter 22 Request for Public
Records” to Stone requesting from the City: “All itemized fee statements submitted
from Attorney Michael C. Walker and/or Hopkins & Huebner, P.C. to the [ICAP] or
the City of Bettendorf, Iowa for legal services rendered to the City from August 14,
2013 through January 27, 2017.” Diercks also wrote, “If you redact any information
please state any reasons for that redaction.”
On June 8, 2017, Stone provided Diercks Bate-stamped pages 01–335 of
billing statements.2 Stone wrote:
1
Iowa Code section 22.1(2) defines the “lawful custodian” as including:
The custodian of a public record in the physical possession of persons
outside a government body is the government body owning that record. . . .
Each government body shall delegate to particular officials or employees
of that government body the responsibility for implementing the
requirements of this chapter and shall publicly announce the particular
officials or employees to whom responsibility for implementing the
requirements of this chapter has been delegated.
Iowa Code § 22.1(2).
2
The billing statements provided to Diercks contained four columns of entries. Redactions
were made to three of the column entries: (1) the “description of services” column entries,
(2) the “hours” column entries and (3) the “amount” column entries of each billing
statement. Diercks asserts more than 2000 redactions were made to the billing
statements before they were provided to him.
4
The redactions noted on these documents are pursuant to the
attorney-work product doctrine and attorney-client privilege. These
redactions are appropriate pursuant to Iowa Code section 22.7(4).
We are withholding additional documents as wholly confidential.
This includes a three-page invoice that is not only attorney-work
product and attorney-client privilege, but also confidential pursuant
to Iowa Code section 22.7(11). Moreover, there was one responsive
invoice that is wholly confidential pursuant to Iowa Code section
22.7(4) because it is related to pending litigation.”
Diercks was charged $16.80 for the production.3
On September 7, 2017, Diercks filed a petition pursuant to chapter 22
requesting the court:
(a) declare the requested itemized fee statements from
Hopkins & Huebner, P.C. and Attorney Michael C. Walker are public
records pursuant to Iowa Code chapter 22 and contain multiple illegal
redactions to these public records;
(b) produce all of the public records without redactions or with
valid redactions requested pursuant to [Diercks] May 24, 2017 public
records request including all the requested itemized statements from
Hopkins & Huebner, P.C. and Attorney Walker;
(c) find that [the City’s] claim of privileges or rights to
confidential information do not exist or were waived by [the City].
Riverdale v. Diercks, 806 N.W.2d 643 (Iowa 2011).
(d) find that [Bradshaw, Fowler, Proctor & Fairgrave, P.C.]
could not redact these records;
(e) pay all costs and reasonable attorney fees as mandated
by § 22.10(3)(c) of the Iowa Code;
(f) assess damages against Stone pursuant to § 22.10(3)[(b)].
The City admitted it entered a local risk pool with ICAP; ICAP retained
Walker of Hopkins & Huebner to defend Bettendorf in lawsuits filed between
August 14, 2013, and January 27, 2017; “Bettendorf accepted the legal
representation of Mr. Walker provided pursuant to the ICAP’s local government
risk pool”; and the City had received an open-records request from Diercks
3
Stone stated, “[T]here is a charge of $0.20 per page for copies. The fee to respond to
his request is therefore as follows: 168 pages x$0.20=$33.60/2=$16.80.”
5
“pertain[ing] to fees statements for legal work completed by Hopkins for
Bettendorf.” The City also admitted the fee statements “contained some
redactions consistent [with] Iowa law” and “affirmatively state[d] the redacted
portions of the records are confidential pursuant to Iowa Code section 22.7.” The
City claimed several affirmative defenses, including that “the requested invoices
for legal services provided pursuant to a local government risk pooling agreement
are not public records.”4
The City filed a motion for summary judgment, asserting the records
requested are not public records. In its brief in support of summary judgment, the
City asserted: “Bettendorf was under no legal obligation to produce anything not in
its possession.” It asserted:
It is undisputed Bettendorf did not have nor had it ever seen the
invoices Hopkins and Huebner submitted to ICAP until they were
requested by [Attorney] Meloy. They are not “of or belonging to”
Bettendorf and therefore are not public records subject to disclosure
at all. . . . Moreover, the Legal Defense and Claim Payment
Agreement between Bettendorf and ICAP supports the undisputed
understanding that the billing records submitted to ICAP are not
Bettendorf’s records.
4
Other affirmative defenses included failure to state a claim and:
(3) Some of the requested records contain attorney work product
pursuant to Iowa Code § 22.7(4), and, therefore, as not subject to
disclosure.
(4) Some of the requested records contain confidential information
pursuant to Iowa Code § 22.7(11), as well as other areas of Iowa law, and,
therefore, as not subject to disclosure.
(5) Defendants have a reasonable and good-faith belief they
complied fully with the requirements of Iowa Code chapter 22.
(6) Defendants reasonably relied upon a decision of a court in
determining compliance with the requirements of Iowa Code chapter 22.
(7) Defendants reasonably relied upon the advice of counsel in
determining compliance with the requirements of Iowa Code chapter 22.
(8) Defendants are immune from suit under the Iowa Municipal Tort
Claims Act found in Iowa Code chapter 670.
6
The City provided the court with a paragraph from its contract with ICAP:
N. PRIVILEGED COMMUNICATIONS
The member and the Pool shall be considered as co-clients
of the assigned defense counsel and claims service providers
engaged by the Pool hereunder. Communications between the
member and defense counsel shall be deemed privileged and
confidential information of both the Pool and the member.
Communications between and among the Pool’s administrator,
defense counsel, claims service provider or other consultants shall
be deemed privileged and confidential information of the Pool
exclusively.
Alternatively, the City contended that if the records requested were public
records, they were excepted from disclosure under Iowa Code section 22.7(4)
(attorney work-product) and/or section 22.7(6) (reports of a government agency
which if released would give advantage to a competitor) or the attorney-client
privilege. The City also asserted it had substantially complied with the
requirements of chapter 22.
After argument, the district court held the documents were not public
records because they were not “of or belonging to” the City. The court reasoned:
[Diercks] asserts that Bettendorf delegated the duty to defend itself
and its employees from tort liability to ICAP, and therefore ICAP is a
nongovernment custodian of public records as discussed in Iowa
Code section 22.2(2) and Gannon [v. Bd. of Regents, 692 N.W.2d
31 (Iowa 2005)]. However, [Diercks] concedes that the relationship
between Bettendorf and ICAP was not interwoven and symbiotic like
the relationship in Gannon.
The billing statements were not produced by, nor did they
originate from, the City of Bettendorf, and therefore the statements
are not documents of the City. Bettendorf was not provided the
unredacted billing statements, and public officers did not hold the
unredacted billing statements in their official capacity. The billing
statements were instead produced by Walker and provided to and
held by ICAP.
The City contracted with ICAP, a local-government risk pool,
to limit its tort liability as permitted by Iowa Code section 670.7(1).
Pursuant to the contractual agreement, ICAP undertook the City’s
legal defense in exchange for payment of a deductible. The
7
relationship between ICAP and Bettendorf was analogous to that of
an insurer and insured, and was not the result of an elaborate
contractual agreement leading to an interwoven and symbiotic
relationship as contemplated by Iowa Code section 22.2(2) and
Gannon.
The court finds the billing statements are not records of or
belonging to the City. For that reason, the billing statements are not
public records subject to disclosure under Iowa Code chapter 22.
The district court granted the City summary judgment. It did not rule on pending
motions by Diercks to compel, or by the City to quash depositions of ICAP
representatives. Nor did the district court reach any claims of statutory exceptions
to disclosure.
Diercks appeals.
III. Scope and Standard of Review.
Because this matter is before us on appeal from entry of summary
judgment, our task is to determine whether a genuine issue of material fact exists
and whether the district court correctly applied the law. Gannon, 692 N.W.2d at
37.
We view the record in the light most favorable to the resisting party,
affording that party all reasonable inferences that the record will bear.
In sum, we indulge in every legitimate inference that the evidence
will bear in an effort to ascertain the existence of a fact question. An
inference is legitimate if it is rational, reasonable, and otherwise
permissible under the governing substantive law. On the other hand,
an inference is not legitimate if it is based upon speculation or
conjecture.
The burden of showing the nonexistence of a fact question
rests with the moving party. If reasonable minds may differ on the
resolution of an issue, a genuine issue of material fact exists.
Id. (citation omitted).
8
IV. Analysis.
“Iowa’s Open Records Act, codified in chapter 22 of the Iowa Code, grants
citizens the right to examine and copy records maintained by the State and other
local governmental bodies supported by citizens’ property tax revenue.” Sysco
Iowa, Inc. v. Univ. of Iowa, 889 N.W.2d 235, 237 (Iowa Ct. App. 2016); see Iowa
Code § 22.2(1) (“Every person shall have the right to examine and copy a public
record and to publish or otherwise disseminate a public record or the information
contained in a public record.”). The purpose of chapter 22 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.” Iowa Civil
Rights Comm’n v. City of Des Moines, 313 N.W.2d 491, 495 (Iowa 1981).
“The right of persons to view public records is to be interpreted liberally to
provide broad public access to public records.” Rathmann v. Bd. of Dirs. of the
Davenport Cmty. Sch. Dist. 580 N.W.2d 773, 777 (Iowa 1998); accord Gannon,
692 N.W.2d at 38; KMEG Television, Inc. v. Iowa St. Bd. of Regents, 440 N.W.2d
382, 384 (Iowa 1989). “Disclosure is the rule, and one seeking the protection of
one of the statute’s exemptions bears the burden of demonstrating the exemption’s
applicability.” City of Riverdale, 806 N.W.2d at 652 (quoting Clymer v. City of
Cedar Rapids, 601 N.W.2d 42, 45 (Iowa 1999)). “Exceptions to the general rules
of disclosure are to be narrowly construed.” Gannon, 692 N.W.2d at 38; accord
Iowa Film Prod. Servs. v. Iowa Dep’t of Econ. Dev., 818 N.W.2d 207, 219 (Iowa
2012).
This rule of disclosure is statutorily reinforced in section 22.2(2), which
provides, “A government body shall not prevent the examination or copying of a
9
public record by contracting with a nongovernment body to perform any of its duties
or functions.” See Gannon, 692 N.W.2d at 43.
A. Arguments. Diercks asserts the court erred in determining the records
requested were not public records because it is a function of the City to defend
against tort liability and it had access to and an obligation to disclose ICAP’s billing
records created in connection with the City’s legal defense. Diercks contends the
redactions amounted to a refusal to provide public records. He also argues billing
records are not privileged or confidential communications and, even if they are, the
City waived any privilege claims by allowing ICAP full access to the records.
The City continues to assert the fee statements were not “of or belonging
to” Bettendorf and thus it was under no obligation to produce them. It asserts the
communications between ICAP and defense counsel are privileged under its
contract with ICAP. The City also asserts that its financial input to ICAP was in the
amount of a $10,000 deductible, it informed Diercks of that financial outlay, and
“Diercks knows the $10,000 was spent efficiently without seeing the redacted
descriptions because Hopkins and Huebner billed ICAP much more than the
$10,000 deductible.” The City maintains that even if the records are public records,
“the redactions were appropriate under Iowa law.”
The supreme court accepted an amicus curiae brief from the Iowa County
Attorneys Association and the Iowa State Association of Counties. These
associations seek a determination under the supreme court rulings in KMEG and
Gannon that “when a public body has engaged in an arms-length transaction with
a private entity there is no obligation on that private entity to comply with chapter
22 (and, correspondingly, no obligation for the public body to make it comply).”
10
B. Statutory Interpretation. There is no dispute the City is subject to
chapter 22 as it is a “government body” under section 22.1(1). The question we
must answer is “whether the records in controversy are in fact ‘public records.’”
KMEG, 440 N.W.2d at 384.
In interpreting statutes, our ultimate goal is to determine
legislative intent. When the language of a statute is plain and its
meaning is clear, we should not reach for meaning beyond its
express terms. Nor should we resort to statutory rules of
construction to determine legislative intent. When the statute’s
language is not clear and plain, we do resort to well-established rules
of statutory construction. One such rule provides that we are bound
by what the legislature said, rather than what it should or might have
said. We may not, under the guise of statutory construction, enlarge
or otherwise change the terms of a statute. Finally, “[w]e may
consider the language used in the statute, the objects sought to be
accomplished, the evils and mischiefs sought to be remedied and
place a reasonable construction on the statute which will best effect
its purpose rather than one which will defeat it.”
City of West Branch v. Miller, 546 N.W.2d 598, 602 (Iowa 1996) (citations omitted).
We begin with the words of the statute. Iowa Code section 22.1(3) defines
public records:
(a) “Public records” includes all records, documents, tape, or
other information, stored or preserved in any medium, of or belonging
to . . . any . . . city . . . or tax-supported district in this state, or any
branch, department, board, bureau, commission, council, or
committee of any of the foregoing.
(b) “Public records” also includes all records relating to the
investment of public funds including but not limited to investment
policies, instructions, trading orders, or contracts, whether in the
custody of the public body responsible for the public funds or a
fiduciary or other third party.
(Emphasis added.)
The supreme court has explored the contours of the phrase—“of or
belonging to”—in several cases. In City of Dubuque v. Dubuque Racing Ass’n,
11
Ltd., 420 N.W.2d 450, 452 (Iowa 1988),5 the court relied upon the plain meaning
of the words and determined: “A document of the government is a document that
was produced by or originated from the government. Documents belonging to the
government would include those documents that originate from other sources but
are held by public officers in their official capacity.”
The records requested were the minutes of the Dubuque Racing
Association (DRA), “a private nonprofit corporation in accordance with Iowa Code
chapter 504A [(Iowa Nonprofit Corporation Act)]” hired to manage the Dubuque
race track. Dubuque Racing, 420 N.W.2d at 453.
To make this determination, we consider whether the city council
members on the DRA board of directors were acting in their official
capacity as public servants and whether disclosure of the minutes of
the DRA board meetings will facilitate public scrutiny of the conduct
of public officers. This decision does not turn on the physical location
of the documents in question, rather, the appropriate inquiry is
whether the documents are held by the city officials in their official
capacity.
Id.
The court observed, “The City has no duty to regulate or supervise the
racetrack licensee.” Id. Moreover,
[t]he legislature did not provide for municipalities to become licensed
to operate dog racing tracks. A nonprofit corporation can become a
licensee to operate a dog racing track; a municipal corporation
cannot. We infer from this provision that management of dog racing
facilities was not to be an official function of municipal government.
5
At the time Dubuque Racing was decided, section 22.1 provided, in pertinent part:
Whenever used in this chapter, “public records” include all records,
documents, tapes or other information, stored or preserved in any medium,
of or belonging to this state or any county, city, township, school
corporation, political subdivision, or tax-supported district in this state, or
any branch, department, board, bureau, commission, council, or committee
of any of the foregoing.
Iowa Code § 22.1 (1985).
12
Id. (emphasis added). The court also observed “public examination of DRA board
minutes will not facilitate public scrutiny of the conduct of the city council and city
officials.” Id. at 454. Additionally, “public scrutiny over the affairs of a private
nonprofit corporation” was not the intended result of the public records statutes.
Id. The court concluded, “Although members of the city council and the city
manager may also serve as directors and committee members of the DRA,
minutes of the DRA meetings are not documents that belong to the city” and
chapter 22 furnished no means to access them. Id.
In KMEG, the court again applied the “of or belonging to” test in considering
whether the records of Rasmussen Communications Management Corporation
were public records:
There is no dispute over the fact that the written bid proposals KMEG
seeks are not now, nor have they ever been, in the possession of the
University. Rasmussen, a private corporation, solicited the bids and
oversaw the bidding procedure as part of its contractual obligation to
create a sports network. The records, if any, kept in connection with
that endeavor have not been shared with the University. Neither has
the University indicated an interest in having or reviewing them.
Under its contract with Rasmussen, all network revenues inured to
Rasmussen’s benefit in consideration of its payment of a hefty sum
to the University up front.
440 N.W.2d at 385.6
However, the court also examined the import of Iowa Code section 22.2(2).
Id.
6
After the Dubuque Racing and KMEG decisions, the legislature amended the definitional
provision to include the records of “facilities or indebtedness are supported in whole or in
part with property tax revenue and which is licensed to conduct pari-mutuel wagering
pursuant to chapter 99D, or tax-supported district in this state, or any branch, department,
board, bureau, commission, council, or committee of any of the foregoing.” 1991 Iowa
Acts ch. 258, § 27, now codified at Iowa Code § 22.1(3)(a).
13
Closely linked with KMEG’s . . . argument is its contention that
Iowa Code section 22.2(2) precludes the sort of record concealment
complained of here. That section states:
A government body shall not prevent the
examination or copying of a public record by
contracting with a nongovernment body to perform any
of its duties or functions.
Iowa Code § 22.2(2). When read in harmony with preceding
subsection 22.2(1) (authorizing the right of “[e]very person . . . to
examine and copy public records”), we think the statute conveys an
obvious legislative intent to prevent government agencies from
accomplishing indirectly what they are prevented from doing directly.
In other words, a government body may not delegate or “contract
away” its duties or functions in order to avoid disclosure of what
would otherwise be a public record.
Id.
The KMEG court asked whether the “marketing and production of
intercollegiate sports television broadcasts” was a “duty or function” of
government. Id. at 386. The court acknowledged “a state university advances its
statutory objects and exercises governmental powers when it directs and
administers its intercollegiate athletic program.” Id. (citing Greene v. Athletic
Council of Iowa St. Univ., 251 N.W.2d 559, 561–62 (Iowa 1977)). Nonetheless,
the supreme court found the function of administering an intercollegiate athletic
program “a long leap” from the function of operating a “network television
broadcasting of intercollegiate sports events.” Id. Consequently, the KMEG court
concluded “the network bid proposals received by Rasmussen in connection with
its contract with the University were neither public records as defined in Iowa Code
section 22.1 nor subject to disclosure under section 22.2(1) or (2).” Id.
Taken together, these cases provide a framework: We look to whether the
records requested are “of or belonging to” a covered governmental body under
section 22.1, or whether records are held by a nongovernment body with which the
14
government body has contracted “to perform any of its duties or functions” under
section 22.2(2).
The supreme court was tasked with deciding whether records of a private
corporation that managed private gift support for the exclusive benefit of a state
university were “public records.” Gannon, 692 N.W.2d at 33. There, the district
court relied on a federal statute to determine solicitation and management of
private donations was not a duty or function of a state university. Id. at 40. The
supreme court “reject[ed] such a narrow and archaic interpretation of the function
of a university,” which it stated was “based on an overly restrictive reading of our
KMEG decision.” Id. The supreme court stated, “An activity need not be listed in
the statute books to be a function of a university.” Id. Rather, “[t]o qualify, the
activity at issue need only advance the statutory objects of the institution.” Id. The
court noted, “Successful fundraising and management is a very important, if not
vital, function of the modern university and an integral part of its continuing
viability.” Id. at 41. The court pointed out the activities of the Foundation supported
scholarships, projects, and facilities. Id. It concluded, “[T]he solicitation and
receipt of donations for the university, and keeping records of that activity, are
government functions,” which the legislature had recognized by granting authority
to do so to the Board of Regents. Id. (citing Iowa Code § 262.8).
The Gannon court determined the University and the Board of Regents had
“contracted away” one of its functions, avoiding disclosure of public records and
“accomplish[ing] indirectly what [they] are prevented from doing directly,” a result
expressly prevented the Open Records Act. Id. at 42. “Therefore the Foundation’s
records remain subject to disclosure even if it is no longer a government body.” Id.
15
(citing Iowa Code § 22.2(2)).7 The court again stressed the “liberal reading” to be
given the Open Records Act, which is also referred to as the Iowa Freedom of
Information Act. Id. at 43.
C. Application of KMEG-Gannon framework. Are the fee statements of
ICAP requested “of or belonging to” a covered governmental body under section
22.1 or records held by a nongovernment body with which the government body
has contracted “to perform any of its duties or functions” under section 22.2(2)?
Here, the district court stated:
The billing statements were not produced by, nor did they
originate from, the City of Bettendorf, and therefore the statements
are not documents of the City. Bettendorf was not provided the
unredacted billing statements, and public officers did not hold the
unredacted billing statements in their official capacity. The billing
statements were instead produced by Walker and provided to and
held by ICAP.
The court thus concluded the fee statements requested were not “of or belonging
to” the City.
The City generally defends the district court’s reasoning and argues it never
had possession of unredacted billing records, which were exclusively under the
control of ICAP pursuant to the contract. We agree with the district court the
records requested were not of the City nor belonging to the City, as those terms
are used in Dubuque Racing, 420 N.W.2d at 452. Thus, they do not constitute
7
The Gannon court disavowed dicta in KMEG that consideration of the subjective intent
of the government body in outsourcing is duties or functions was relevant to the analysis.
692 N.W.2d at 42. The court stated “our holding in [KMEG] was expressly limited to a
finding that no function was in fact delegated.” Id.
16
“public records” under section 22.1(3)(a). However, our inquiry does not end
there.8
The City asserts the “district court was correct in holding it had no legal
obligation to produce anything not in its possession.” This contention would
require that we ignore at least two code provisions: Iowa Code section 22.1(3)(b)
(“‘Public records’ also includes all records relating to the investment of public funds
. . . whether in the custody of the public body . . . or a fiduciary or other third party.”)
and section 22.2(2) (“A government body shall not prevent the examination or
copying of a public record by contracting with a nongovernment body to perform
any of its duties or functions.”). We do not ignore those provisions. “As written,
Iowa Code section 22.2(2) plainly extends the Act’s reach to records held by
private entities that perform government duties or functions.” Gannon, 692 N.W.2d
at 43.
Diercks asserts this statement in Gannon means section 22.2(2) extends to
“records held by private entities that perform any governmental duty or function.”
This reading of Gannon is overly broad. The Gannon court itself provided the
caveat, “Not every private entity performing an activity that may be characterized
as a government function in theory must open its doors to public scrutiny. Cases
must also be viewed in their factual context.” Id.
8
The City contends Diercks has not adequately preserved the question of whether the
records are public records under Iowa Code section 22.1(3)(b) or otherwise subject to
disclosure under section 22.2(2). We do not agree. Diercks argued those issues below.
ICAP was performing a government function in defending the City against tort liability. The
district court discussed the issue and made an erroneous finding that Diercks conceded
Gannon did not apply, which we will discuss later.
17
The Gannon court determined, “The Foundation is performing a
government function in both a theoretical and factual sense.” Id. The court noted
the “elaborate contractual arrangement between the government body and a
private organization, through which the private organization and the government
enjoy a highly interwoven and symbiotic relationship.” Id. It also noted the
“significant public interest in knowing from whom donations come and how that
relates to where the university, as a public institution, chooses to spend its money.”
Id. (citation omitted). “The plain and unambiguous language of the statute states
that a government body shall not prevent examination or copying of a public record
by contracting with a nongovernment body.” Id.
The City insists—and the district court apparently accepted—Diercks
“conceded” the relationship between the City and ICAP did not have an
“interwoven and symbiotic relationship” like that in Gannon. We find no such
concession was made. In his brief in resistance to summary judgment, Diercks
argued the City waived its right to confidentiality in its defense attorney’s fee
statements when those statements were provided to ICAP, a third party. Diercks
stated, “The release of the information to ICAP was not as a result of an
‘interwoven and symbiotic relationship.’” This is not a concession that ICAP was
not performing a government duty or function.
We are persuaded Diercks accurately portrays the “defense of lawsuits filed
against Bettendorf” as a government duty or function. Chapter 670 of the Iowa
18
Code outlines the tort liability of government subdivisions. 9 “Except as otherwise
provided by this chapter, every municipality is subject to liability for its torts and
those of its officers and employees, acting within the scope of their employment or
duties, whether arising out of a government or proprietary function.” Iowa Code
§ 670.2(1). “[M]unicipalities have a duty to defend and indemnify officers and
employees against any tort claims arising out of their employment.” Miller, 546
N.W.2d at 603 (citing Iowa Code § 670.8).
In light of potential liability in tort, section 670.7 authorizes municipalities to
participate in a government risk pool:
The governing body of a municipality may join and pay funds into a
local government risk pool to protect the municipality against any or
all liability, loss of property, or any other risk associated with the
operation of the municipality. The governing body of a municipality
may enter into insurance agreements obligating the municipality to
make payments beyond its current budget year to provide or procure
the policies of insurance, self-insurance program, or local
government risk pool. The premium costs of the insurance, the costs
of a self-insurance program, the costs of a local government risk
pool, and the amounts payable under the insurance agreements may
be paid out of the general fund or any available funds or may be
levied in excess of any tax limitation imposed by statute.
ICAP is a risk pool as outlined in section 670.7, and the City has expended
public funds to join it. If ICAP was not providing a legal defense for the City, the
City would still be required to defend against its liability. The public has an interest
9
In Miller, 546 N.W.2d at 600–01, our supreme court reviewed the law before enactment
of chapter 670:
Before enactment of statutes waiving governmental immunity, counties
were not as a rule liable for torts committed by them in the exercise of a
governmental function. The rule was otherwise if the tort was committed
in the exercise of a county’s proprietary or private function. County
employees were still liable for their own torts even though such employees
were engaged in a governmental function and even though the county was
exempt under governmental immunity.
(Citations omitted.)
19
in knowing how public monies are being expended. Because we conclude ICAP
is performing a government function by virtue of its contract with the City, as
specifically applied to the facts of this case, its records are “public records” subject
to examination. The district court granted summary judgment on the ground the
records were not public records subject to disclosure. This ruling was in error, and
we reverse and remand for further proceedings.
The City argues that its contract with ICAP states the some material is
confidential as to the risk pool. The City also argues that if the records are public
records, they are exempt from disclosure pursuant to statutory exemptions and
rules of civil procedure. “Exceptions to the general rules of disclosure are to be
narrowly construed.” Gannon, 692 N.W.2d at 38. Moreover, “our courts have
consistently held the burden of proving a public record is exempt from disclosure
or production is on the governmental body claiming the exemption.” Diercks, 894
N.W.2d at 23.
We conclude the billing records requested are subject to disclosure
pursuant to Iowa Code section 22.2(2). We do not rule on the City’s claims of
privilege and exemption but leave such questions to the district court on remand
and further development of the record.
REVERSED AND REMANDED.