State panel tables open-records complaints against public health agency

Editor’s note: Reporter Clark Kauffman was covering the Iowa Public Information Board meeting when he was unexpectedly asked to speak to a complaint he filed on behalf of Iowa Capital Dispatch. This article includes an edited version of some of his comments to the board, in italics, that are provided for transparency and clarity.

The Iowa Public Information Board voted Thursday to delay any action on two public-records complaints involving the Iowa Department of Public Health while the department crafts a new policy on responding to information requests.

One of the complaints involves the Iowa Capital Dispatch’s claim that DPH waited until March 31 of this year to  provide records that were requested on Dec. 9, 2020. The request was for an updated version of a cumulative list of all Iowa nursing homes where COVID-19 outbreaks had occurred. The department provided the list only after 16 weeks, and only after a formal complaint was filed with IPIB.

IPIB’s legal counsel, Zach Goodrich, informed the board Thursday there was probable cause to believe the department violated Iowa’s Open Records Law, but recommended the complaint be dismissed as an act of “administrative discretion.” He noted that in response to an unrelated public-records complaint against IDPH, the department was working with him on a new policy that will dictate how the agency responds to public-records requests in the future.

Heather Adams, the assistant attorney general who represents IDPH in many of its public-records disputes, did not attend Thursday’s meeting, and no one from the department was on hand to give the agency’s perspective on the complaints.

Iowa Capital Dispatch reporter Clark Kauffman objected to the proposed dismissal of the news organization’s complaint, arguing that the issue was IDPH’s lack of compliance with state law, not the wording of its policies. State law trumps any policies IDPH might have, and the department’s lawyers are well aware of that, he told the board.

Kauffman argued the Iowa Department of Public Health is a large state agency with the resources to respond to records requests. He questioned whether a new public records policy would result in better compliance with the law.

IPIB Executive Director Margaret Johnson told board members they had only a few alternatives to dismissing the complaint: They could table the matter, refer it back to the staff for more investigation, or refer the case to a prosecutor for enforcement action.

In discussing the matter, board members noted that during the height of the pandemic IDPH was inundated with requests for information, suggesting the agency may have been incapable of meeting the statutory deadlines for providing records to citizens and the media.

Monica McHugh of Zwingle, one of the public’s representatives on the nine-member board, said while she didn’t want to dismiss the complaint, she was concerned about “stacking more and more things on the Iowa Department of Public Health” in terms of complaints, especially since the agency had a lot on its table due to COVID-19.

“I’m all for agencies releasing what needs to be released,” she said. “But with these records being released, and within 90 days — yeah, they should probably have been released sooner. However, you know, we were still under emergency orders, things were still closed down, things were still hectic.”

In response, Kauffman noted that after the formal complaint was filed with IPIB, and after the Capital Dispatch objected to redactions from the list of nursing homes, the department was able to provide the requested information in about 24 hours.

Kauffman said he concluded the information was readily available throughout the nearly four months since the original request but the department was unwilling to provide it.

The board voted to table the matter until it could hear from Adams or someone at IDPH.

During the meeting, the board also heard from Laura Belin of the Bleeding Heartland blog. Last year, Belin requested information from IDPH about the National Guard “strike teams” the agency dispatched to specific businesses to help them deal with the pandemic.

She said at one point IDPH claimed it wasn’t the custodian of the sought-after records, but later offered to turn over relevant records if she first paid $5,000. The agency, she said, also gave her what it suggested was a complete list of strike-team deployments, when in fact the list omitted seven of the 17 deployments.

In her complaint, Belin alleged IDPH provided her with false information to conceal the fact that “the National Guard was dispatched to companies owned by some of Governor Reynolds’ largest campaign contributors.”

The IPIB staff recommended the board dismiss Belin’s complaint as legally insufficient, noting that some records were eventually released, “questions were answered” and the department had been communicating with her. The board voted instead to table Belin’s complaint until it could hear from Adams.

In a separate case, the board voted to dismiss a complaint about the Iowa State Patrol, which denied access to a citizen’s request for a patrol officer’s training certification for the operation of radar.

In refusing that request, the state patrol argued that an Iowa police officer’s training certification is part of “a peace officer’s investigative report,” which can be kept confidential under Iowa law.

The board made note of that particular claim, but did not challenge it.