IN THE SUPREME COURT OF IOWA
No. 21–1651
Submitted November 17, 2022—Filed December 16,2022
MICHELLE VACCARO,
Appellee,
vs.
POLK COUNTY, IOWA, and POLK COUNTY SHERIFF KEVIN SCHNEIDER,
Appellants.
Appeal from the Iowa District Court for Polk County, Lawrence P.
McLellan, Judge.
The defendants seek reversal of discovery ruling compelling disclosure of
allegedly confidential records in an enforcement action brought under Iowa Code
chapter 22. REVERSED AND REMANDED WITH INSTRUCTIONS.
Waterman, J., delivered the opinion of the court, in which all justices
joined.
John P. Sarcone, County Attorney, and Julie J. Bussanmas and Meghan
L. Gavin, Assistant County Attorneys, for appellants.
Gary Dickey of Dickey, Campbell, & Sahag Law Firm, PLC, Des Moines,
for appellee.
2
WATERMAN, Justice.
In this interlocutory appeal, we revisit the interplay between our civil
discovery rules and Iowa Code section 22.7(5) (2019), a confidentiality provision
for police investigations in the Open Records Act. The plaintiff’s daughter was a
passenger killed in a motorcycle crash. The plaintiff settled her tort action
against the driver without subpoenaing the county sheriff’s investigative reports.
She later questioned the adequacy of the criminal investigation against the
driver, and requested all the department’s records. The sheriff produced some
information but argued other records were confidential. The plaintiff brought this
enforcement action under chapter 22 to obtain its complete investigation file.
The district court, without ruling on their confidentiality, ordered the records
produced to her in discovery before trial, citing Mitchell v. City of Cedar Rapids,
926 N.W.2d 222, 228–29 (Iowa 2019) (holding discovery rules in tort action
supersede section 22.7(5)). We granted the sheriff’s application for interlocutory
appeal and retained the case.
On our review, we hold the district court erred by relying on civil discovery
rules to compel production of the very records at issue in this chapter 22
enforcement action. Mitchell was a tort action against the municipality and is
inapplicable to this chapter 22 enforcement action against the records
custodian. We reverse the discovery order and remand the case for the district
court to first determine whether the investigation records at issue are
confidential before granting relief, if any, under chapter 22.
3
I. Background Facts and Proceedings.
Michelle Vaccaro’s seventeen-year-old daughter Jordan Leon was fatally
injured in the early hours of October 6, 2019. Jordan was the passenger on a
motorcycle operated by another seventeen-year-old, Kaden Close, who lost
control on NW 6th Drive in rural Polk County near Ankeny. Close suffered minor
injuries; Leon died at the scene. The Polk County Sheriff’s department responded
to the 911 call and investigated the accident, which led to criminal charges
against Close.
Vaccaro had questions about her daughter’s death, and in the ensuing
months received what she alleges were “incomplete and inconsistent
explanations” from the Polk County prosecutor and the Sheriff’s department.
Vaccaro became concerned that the crash investigation was not handled
properly. Specifically, she wanted to know why the department did not
investigate whether the driver was impaired by drugs, why the motorcycle was
destroyed before the criminal case ended, why key facts about his driving record
were initially overlooked, and whether the investigation was handled according
to department policy. On January 17, 2020, she made a public records request
under Iowa Code chapter 22 for records concerning her daughter’s fatal crash.
Within a week, the department provided her with the motor vehicle accident
report, a preliminary criminal complaint, and an event chronology. Vaccaro
continued to seek all of the Sheriff’s investigative materials. On February 4, the
department responded that the remaining records were exempt from public
access as peace officer investigative reports under Iowa Code section 22.7(5).
4
On February 15, Close pleaded guilty to failure to maintain control of his
motorcycle in violation of Iowa Code section 321.288(1), a simple misdemeanor.
Vaccaro was notified that the criminal investigation and prosecution was
complete and that no other charges would be filed. Meanwhile, Vaccaro had
retained a personal injury lawyer to pursue civil claims against Close. On April 4,
the Sheriff’s department provided Vaccaro’s lawyer with audio of the 911 call and
the department’s general policies regarding accident investigations. The
department also provided a log of investigation materials withheld as confidential
under section 22.7(5), including photos, diagrams, witness statements, in-car
camera audio and video, deputy incident reports and supplemental reports,
towing and impound reports and inventory, and a “Victim Resource Incident
Report.”
Vaccaro settled her civil wrongful death claim against Close without
attempting to use civil discovery or subpoena powers to obtain the department’s
investigative materials. Instead, on June 15, she filed this enforcement action
under Iowa Code chapter 22 against the County and Sheriff to obtain the
remaining records. The defendants answered by asserting the records were
exempt from disclosure under section 22.7(5). Vaccaro’s counsel served a
request for production, which met the same objection. Vaccaro filed a motion to
compel discovery, which the defendants resisted. The district court reviewed the
records in camera. On October 5, 2021, without ruling on whether the records
were exempt under section 22.7(5), the court ordered them produced to
Vaccaro’s counsel under the discovery rules, relying on Mitchell. The court
5
imposed a protective order preventing Vaccaro from releasing the records
without court approval pending resolution of the chapter 22 proceeding. The
order stated:
The court is ordering production of these records to plaintiff’s
counsel under the protection set forth in this order so plaintiff can
prosecute her case. The court does not believe a plaintiff who brings
a chapter 22 enforcement action is precluded from reviewing the
documents at issue prior to trial. If that is the law a plaintiff would
be severely handicapped in their ability to prosecute their case.
The court set trial for December 9.
The County filed an application for interlocutory appeal, arguing that
Mitchell is inapplicable in a chapter 22 action and that records should not be
turned over before the court determines whether the section 22.7(5) exemption
applies. We granted the application and retained the case.
II. Standard of Review.
“We review the district court’s interpretation of chapter 22 for correction
of errors at law.” Mitchell, 926 N.W.2d at 228 (quoting Iowa Film Prod. Servs. v.
Iowa Dep’t of Econ. Dev., 818 N.W.2d 207, 217 (Iowa 2012)). We review discovery
rulings for abuse of discretion. Id. at 227. “A ruling based on an erroneous
interpretation of a discovery rule can constitute an abuse of discretion.” Id.
(quoting Mediacom Iowa, L.L.C. v. Inc. City of Spencer, 682 N.W.2d 62, 66 (Iowa
2004)).
III. Analysis.
We must decide whether the district court put the cart before the horse.
The County argues that the records at issue are peace officer investigative reports
6
exempt from disclosure under Iowa Code section 22.7(5).1 Vaccaro, relying on
Mitchell, argues she can obtain the records in discovery in this chapter 22 action
before the district court rules on whether they are exempt from disclosure under
section 22.7(5), and the district court agreed with her. The County argues the
discovery ruling was premature and eviscerates the statutory protection for
police investigative reports and other exempt records. We agree with the County
that the district court first must determine whether the records are exempt
before deciding whether Vaccaro is entitled to obtain them.
We begin with an overview of Iowa Code chapter 22, the Open Records Act,
also known as the Iowa Freedom of Information Act (IFOIA), which “embodies ‘a
liberal policy in favor of access to public records.’ ” Milligan v. Ottumwa Police
Dep’t, 937 N.W.2d 97, 102 (Iowa 2020) (quoting Mitchell, 926 N.W.2d at 229).
“The purpose of [chapter 22] is ‘to open the doors of government to public
scrutiny [and] to prevent government from secreting its decision-making
1Iowa Code section 22.7(5) 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.
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 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.
7
activities from the public, on whose behalf it is its duty to act.’ ” Mitchell, 926
N.W.2d at 229 (alterations in original) (quoting City of Riverdale v. Diercks, 806
N.W.2d 643, 652 (Iowa 2011)). “ ‘The Act essentially gives all persons the right to
examine public records . . . [but] then lists specific categories of records that
must be kept confidential . . . .’ ‘The general assembly [thereby] created and fixed
the limitations on disclosure.’ ” Id. (alterations and omissions in original)
(citation omitted) (quoting ACLU Found. of Iowa, Inc. v. Recs. Custodian, Atl.
Cmty. Sch. Dist., 818 N.W.2d 231, 232–33 (Iowa 2012)). “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.” Id. (quoting Diercks, 806
N.W.2d at 652).
The County acknowledges that it bears the burden to establish the records
withheld from Vaccaro are exempt from disclosure under section 22.7(5). The
problem is the district court short-circuited the proceedings by ordering the
County to produce the records to Vaccaro before ruling on the exemption. The
district court misapplied Mitchell.
Mitchell is distinguishable. In that case, Cedar Rapids police officer Lucas
Jones was on patrol at night and stopped a truck operated by Jerime Mitchell
for a broken taillight. Id. at 225. What happened next was depicted on the
dashcam:
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 into his driver’s seat and began driving off with Officer Jones
clinging to the open door. Officer Jones unholstered his handgun
8
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. Protesters marched on city hall demanding the
release of the squad car’s dash camera footage, which the City
released to the public.
Id. at 225–26 (footnote omitted). Mitchell filed a tort action against the city and
Officer Jones seeking compensatory and punitive damages. Id. at 226. During
discovery in his tort action, Mitchell sought the police investigative reports; the
city produced some information and withheld other records as confidential under
section 22.7(5). Id. The district court ordered the city to produce reports
generated within ninety-six hours of the incident, and denied the city’s motion
for a protective order. Id. at 226–27. We granted the city’s application for
interlocutory appeal, and affirmed. Id. at 227, 236.
We determined that the civil discovery rules entitled Mitchell to access to
the city’s police investigation in his tort action against the city:
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.” Iowa Code section 22.7 does not create a
“true privilege against discovery of . . . confidential information.”
“[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.” “To the contrary, section 22.7 indicates the
opposite because it allows disclosure upon a court order.”
“[S]ection 22.7 does not trump our discovery rules.” Nevertheless,
the confidentiality the legislature prescribed for certain government
records can be safeguarded through a protective order allowing the
9
litigants use of the records in the lawsuit while preventing disclosure
to the public.
Id. at 228–29 (alterations and omission in original) (quoting Mediacom, 682
N.W.2d at 66–69) (citations omitted). We made clear in Mitchell we were resolving
a civil discovery dispute in a tort action against the city. See id.
By contrast, Vaccaro is not using the discovery rules in her own tort action
against the County. She settled her tort action against the motorcycle driver
without deposing the investigating deputies or subpoenaing their reports,
photos, or video. Her only lawsuit against the County is this enforcement action
under chapter 22. Mitchell is inapposite, and Vaccaro’s reliance on another civil
discovery dispute, Mediacom Iowa, L.L.C. v. Inc. City of Spencer, is equally
misplaced. See Mediacom, 682 N.W.2d at 66, 69 (allowing discovery of
confidential municipal records in declaratory judgment action challenging the
city’s use of tax revenue to finance a communications center). Neither case
involved a direct chapter 22 enforcement action against the records custodian to
adjudicate the exempt status of public records.
“The public records act is generally distinct from our discovery rules.”
Mitchell, 926 N.W.2d at 236 (Appel, J., concurring specially). “Many federal
decisions hold that a document exempt from production through an open
records law may still be produced in discovery.” Id. (collecting cases). The fact a
document is discoverable in a tort action against a municipality does not mean
discovery can be used in a chapter 22 enforcement action to obtain otherwise
exempt records from the same government entity.
10
The district court should have applied the statute’s burden-shifting
procedure set forth in section 22.10(2)2 and allowed the County to show whether
the investigative reports were exempt from disclosure under section 22.7(5).
Neither Vaccaro nor the district court cite any case decided in a state or federal
FOIA-enforcement proceeding that compelled disclosure of allegedly exempt
records through discovery before determining whether the records were exempt.
“While ordinarily the discovery process grants each party access to evidence, in
FOIA and Privacy Act cases discovery is limited because the underlying case
revolves around the propriety of revealing certain documents.” Lane v. Dep’t of
Interior, 523 F.3d 1128, 1134 (9th Cir. 2008) (affirming prediscovery summary
judgment based on government affidavits and FOIA exemption); see also John
Doe Agency v. John Doe Corp., 493 U.S. 146, 153 (1989) (“In deciding whether
[the law enforcement report exemption] applies, . . . a court must be mindful of
this Court’s observations that the FOIA was not intended to supplement or
displace rules of discovery.”). “It is well established that discovery is rare in FOIA
cases.” Cole v. Rochford, 285 F. Supp. 3d 73, 76 (D.D.C. 2018) (denying motion
for limited discovery in FOIA action). “Indeed, in the FOIA context, courts have
permitted discovery only in exceptional circumstances where a plaintiff raises a
2Iowa Code section 22.10(2) provides:
Once a party seeking judicial enforcement of this chapter demonstrates to the
court that the defendant is subject to the requirements of this chapter, that the
records in question are government records, and that the defendant refused to
make those government records available for examination and copying by the
plaintiff, the burden of going forward shall be on the defendant to demonstrate
compliance with the requirements of this chapter.
See also Ripperger v. Iowa Pub. Info. Bd., 967 N.W.2d 540, 549–50 (Iowa 2021) (discussing
shifting burden under section 22.10(2)).
11
sufficient question as to the agency’s good faith in searching for or processing
documents.” Id. Vaccaro presents no such question here.
We have never held the requesting party in a chapter 22 enforcement
action may obtain allegedly exempt government records simply by filing a request
for production before the court rules on the exemption. To the contrary, we have
held that the party opposing release is entitled to an evidentiary hearing first.
In re Langholz, 887 N.W.2d 770, 777–78 (Iowa 2016) (remanding for hearing to
determine confidentiality); see also Gabrilson v. Flynn, 554 N.W.2d 267, 274
(Iowa 1996) (affirming injunction to prevent release of confidential school
records); cf. Calcaterra v. Iowa Bd. of Med., 965 N.W.2d 899, 908 (Iowa 2021)
(holding confidentiality provision in Iowa Code section 272C.6(4)(a) precludes
public release of investigative information in a statement of charges “when there
has been no underlying final decision in the disciplinary proceeding”).
Sequence matters. To require disclosure before a ruling on the exemption
undermines the confidential status the legislature provided police reports under
section 22.7(5). See Arabo v. Mich. Gaming Control Bd., 872 N.W.2d 223, 241
(Mich. Ct. App. 2015) (“In the first instance, merely granting a right to inspect
all of the records would carry the risk of divulging exempt materials and thus
circumvent the very aim of the FOIA to balance the public’s right to disclosure
of public records with the right to shield some ‘affairs of government from public
view.’ ” (quoting King v. Mich. State Police Dep’t, 841 N.W.2d 914, 921 (Mich. Ct.
App. 2013))).
12
We reiterate that “[p]olice investigative reports do not lose their confidential
status when the investigation closes.” Mitchell, 926 N.W.2d at 225 (majority
opinion). We employ a case-specific balancing test to guard against the chilling
effect public disclosure could have 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.
Id. at 233 (quoting Hawk Eye v. Jackson, 521 N.W.2d 750, 753 (Iowa 1994)); see
also State ex rel. Shanahan v. Iowa Dist. Ct., 356 N.W.2d 523, 529–30 (Iowa 1984)
(“[T]he State has a very real interest in protecting the relative secrecy of much of
the information its agents gather, analyze, and record during their investigation
of criminal activity and crimes.”). The Sheriff’s reports were generated in a
criminal investigation into a juvenile’s motorcycle accident that caused a fatality.
It makes little sense to turn over the criminal investigative reports in discovery
in a chapter 22 proceeding before applying the balancing test to adjudicate
whether the records are exempt from disclosure. To do so would grant Vaccaro
relief before determining whether she is entitled to relief. As the United States
Court of Appeals for the Second Circuit aptly observed: “Discovery here would
essentially grant [the plaintiff] the substantive relief it requests: disclosure of
documents that the [defendant] claims are exempt. Thus, [the plaintiff] is not
entitled to discovery of documents claimed to be exempt.” Loc. 3, Int’l Bhd. of
13
Elec. Workers v. NLRB, 845 F.2d 1177, 1179 (2d Cir. 1988) (affirming denial of
motion to compel production of records at issue in a FOIA action). The district
court jumped the gun.
We are not persuaded by the district court’s rationale—that Vaccaro had
to examine the records to prosecute her open records action. To the contrary,
exemption claims under section 22.7 typically are resolved categorically without
examination by the requesting party first, or by the court in camera. See, e.g.,
id. at 1179–80 (noting that in camera review in FOIA action is the exception, not
the rule); Mitchell, 926 N.W.2d at 229–30.
We hold the district court abused its discretion by ordering the Sheriff’s
investigative reports at issue turned over to Vaccaro’s counsel before the court
adjudicated whether the records were exempt from disclosure under
section 22.7(5).
IV. Disposition.
For the foregoing reasons, we reverse the district court’s discovery ruling
compelling disclosure of the Sheriff’s investigation materials to Vaccaro’s
counsel. We remand the case for further proceedings consistent with this
opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.