How accountable are private groups that conduct public business?

By: - February 17, 2020 6:00 am

This radio tower north of Denison, Iowa, was built with public money, but is privately owned by an organization that says it’s not subject to the Iowa Open Records Law. (Photo by Clark Kauffman/Iowa Capital Dispatch)

A tiny, four-acre plot of land in western Iowa is at the center of a dispute that could have major implications for private organizations that perform basic governmental functions.

Under Iowa law, private organizations that are paid by cities and counties to conduct the business of government are typically treated as public entities subject to disclosure laws that ensure public oversight of their operations and spending.

But not all private organizations believe that law applies to them.

The Crawford County Firefighters Association is one such entity. It owns a radio transmitting tower located just north of Denison, Iowa. The tower was built with more than $100,000 in public money, but the association owns it, maintains it and insures it, and is using it to generate revenue for itself through leases with local governments, Mid-American Energy, John Deere and other entities.

Last year, the association fielded several public-records requests from three area citizens who asked to see a variety of documents in the possession of the association. The organization refused access to its financial records, arguing that it was not a governmental body and therefore not subject to the Iowa Open Records Law.

The three citizens, including the former mayor of Denison and a city council member from a nearby town, then filed a complaint with the Iowa Public Information Board.

The IPIB staff says the complaint could have merit, noting that the association provides or receives services from the local E-911 Board, the county board of supervisors, the county emergency management agency, the county hospital and at least 10 other governmental entities.

Also, three of the association’s board members are government officials and its property manager, Duane Zenk, is a member of the Denison Fire Department and serves as the Crawford County assessor.

It was Zenk, as chairman of the E-911 board, who applied for a $100,000 state grant for the tower in 2016. In the grant application, he characterized the project as being carried out by Crawford County — not the private association — for the benefit of the county’s emergency services.

But the association’s attorney, Derrick Franck, argues that the use of public funds, even for governmental purposes, isn’t sufficient reason to consider the firefighters association a governmental body that’s subject to public-disclosure laws.

“While its members may individually perform a public function of fighting fires, the association has not ever fought a single fire,” Franck said in papers filed with IPIB. “If the mere receipt of public funds make an entity or a person subject to the Open Records Law, then any recipient of public funds would be subject to the act.”

Franck noted that one function of government is to alleviate hunger, which is accomplished in part through the Supplemental Nutrition Assistance Program, more commonly referred to as food stamps. He said that under IPIB’s proposed reading of Iowa law, anyone could demand that every recipient of food stamps publicly disclose precisely how they use that assistance.

Beth Ann Vogt, one of of the three citizens who filed the complaint with IPIB, says the record requests she and the others made with the association were prompted by concerns about how public money is being spent through contracts and agreements that are approved by the association.

“These are tax dollars we’re talking about, and yet they’ve sat on these records for months and months, and it’s just absurd,” Vogt said. “And this is a trend across the state, with public fire departments operating in connection with these private nonprofit associations of firefighters.”

The Iowa Public Information Board could take up the matter at its next meeting, which is scheduled for Feb. 20.

Public access to information held by private entities is a growing issue in Iowa and other states as state, federal and local agencies increasingly outsource their work to for-profit companies and nonprofit organizations.

In 2005, the Iowa Supreme Court ruled that a nonprofit foundation created for the express purpose of soliciting, and then providing, funding for Iowa State University was essentially a governmental body due to the “symbiotic relationship” between the school and the foundation.

Last year, the Iowa Court of Appeals expanded on that decision when it found that records held by the Iowa Communities Assurance Pool, which was hired to defend Bettendorf from claims made against the eastern Iowa city, were public documents.

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Clark Kauffman
Clark Kauffman

Deputy Editor Clark Kauffman has worked during the past 30 years as both an investigative reporter and editorial writer at two of Iowa’s largest newspapers, the Des Moines Register and the Quad-City Times. He has won numerous state and national awards for reporting and editorial writing. His 2004 series on prosecutorial misconduct in Iowa was named a finalist for the Pulitzer Prize for Investigative Reporting. From October 2018 through November 2019, Kauffman was an assistant ombudsman for the Iowa Office of Ombudsman, an agency that investigates citizens’ complaints of wrongdoing within state and local government agencies.