State agencies keep two sets of inspectors’ reports — one public, one confidential

Last September, a state restaurant inspector named Samuel Pang responded to a complaint about Kelly’s Little Nipper, a bar and grill on Des Moines’ Grand Avenue that was allegedly violating the governor’s order on COVID-19 mitigation.

At the time, the order prohibited establishments from serving alcohol to people not eating food and from allowing patrons to congregate freely.

In an unpublished report, Pang verified the complaint and forwarded his findings to another agency for enforcement action that resulted in a $1,000 fine. He checked two boxes on the report, indicating Kelly’s was not complying with specific elements of the governor’s order: The bar wasn’t preventing patrons from congregating, and it wasn’t serving food to all patrons drinking alcohol. He wrote:

“Observed guest at the bar served 2 drinks without being served food. Person in charge, based on discussion, not limiting patrons from (congregating) together.”

But in a separate, published report posted to the state website for consumers to read, Pang wrote that the complaint was not verified and the owner was following social-distancing guidelines as required. In an area of the report designated for “public comments,” he wrote:

“This was a complaint investigation regarding COVID-19 practices conducted in conjunction with a routine inspection. Firm explained their practices for ensuring they meet social distancing requirements — complaint is closed and unverifiable.”

Why did the state inspector report one thing privately and something else publicly?

Jeff Stark, the bar’s owner, said he’s not sure but he suspects the report aimed at consumers represents a more “human” and business-friendly approach to regulation.

“I feel that’s very cooperative of them, and it’s small-business minded, and it’s not vindictive to a place that’s really a good establishment,” he said.

DIA spokeswoman Stefanie Bond said the problem is that “the inspection form comments are not as clear as they could be and are confusing.” She said the public report’s reference to the complaint being “unverifiable” refers not to what Pang described as “COVID-19 practices” and “social-distancing requirements,” but to “the claim that the restaurant did not safely have the ability to operate as a restaurant with 50 percent or more of its revenue being generated from food sales.”

However, none of the inspector’s written reports makes any mention of that issue or any investigation into the establishment’s sales. In fact, Stark says the inspector never asked him for, or received, any information along those lines.

“They’ve never tapped into our revenue or asked for any reports,” Stark said. “I have a sophisticated cash register system that shows all the revenue and, you know, the sales.”

The only published reference to the DIA inspector having verified the complaint against Kelly’s is in a judge’s decision upholding the $1,000 penalty for violating the governor’s proclamation.

On March 22, in an effort to review other DIA inspectors’ unpublished comments on COVID-19 compliance, the Iowa Capital Dispatch asked the department for copies of all such checklists completed in 2021. In response, Bond said the agency would decide later that same week whether any of them could be released. On April 1, the department indicated it had yet to determine whether the records were public but would respond within the 20 days allowed by state law.

The Capital Dispatch then asked the Iowa Alcoholic Beverages Division for access to its copies of the checklists. In response, the division said that “to the extent that such records exist,” ABD could not disclose them due to a state law that says all “investigative information” must be kept confidential unless, and until, charges are filed in a case.

When the Capital Dispatch asked ABD whether it could release any of the checklists it had received from DIA over the past 13 months, the agency said that since the records are considered confidential unless charges are filed, the news organization should ascertain which of its cases have resulted in charges being filed and then file a request, through an online portal, to have those case files searched for any checklists that might be included in them.

That response prompted the Capital Dispatch to file a complaint with the Iowa Public Information Board, alleging the division was only willing to retrieve public records through an ineffective, costly and time-consuming process. ABD has since said it is reconsidering the matter in an effort to comply with the public-records request.

The law cited by ABD could result in hundreds of complaints about noncompliance with the governor’s orders being kept secret if they were never acted upon. Between March 17, 2020, and Sept. 8, 2020, the division fielded 376 complaints about noncompliance with the governor’s orders, and by Sept. 9 it had opened only 23 cases for investigation.

According to the agency, ABD has fielded 938 complaints alleging violations of the governor’s orders over the past year.