State board rules IDPH violated records law, but dismisses complaint

The Iowa Public Information Board on Thursday ruled that there was “probable cause” to believe the state health department violated the state’s open records law, then dismissed the complaint anyway. 

Clark Kauffman, deputy editor of Iowa Capital Dispatch, had filed a formal complaint after the Iowa Department of Public Health took nearly four months to partially respond to his request, filed in December, for records about COVID-19 outbreaks at Iowa nursing homes. 

“Perhaps I’m stating the obvious here, but if the Department of Public Health is incapable of complying with the Open Records Law during the pandemic, which arguably is the very time when it should be working hardest to comply with the Open Records Law to get information out to the public, that has really serious implications,” Kauffman told the board Thursday.

“What we were asking for to share with the public was the list of all the (nursing) homes where outbreaks occurred,” Kauffman said. “And, of course, these nursing homes in Iowa are where most of the (COVID-19) deaths were occurring.”

Guilty, but no penalty

The board accepted a recommendation from legal counsel Zachary Goodrich to rule “probable cause exists to believe the IDPH violated Iowa Code chapter 22 as alleged in (Kauffman’s) complaint” but the case “be dismissed as an exercise of administrative discretion.” Board member Joan Corbin of Pella dissented.

Assistant Attorney General Heather Adams, representing IDPH, said an upgrade in the department’s computer system makes it possible to compile the type of list that Kauffman sought, but the document didn’t exist when he requested it. Adams said Chapter 22, the state Open Records Law, does not require a department to compile a document that doesn’t already exist.

Adams added that the health department’s work burden related to the pandemic and an increase in public information requests also contributed to delays. And, department officials told the information board, the department has changed its policies and rules in ways that should improve responses to information requests.

Kauffman said the department gave multiple, changing explanations for taking until late March to provide information he requested in December, and for failing to respond to standing information requests he made. 

Department officials told Kauffman, at various times:

• “The first reason I was given was that the department simply didn’t know why it was taking so long, then that was put in writing.”
• Redactions were needed.
• No list of nursing homes with outbreaks existed.
• The department “was simply too busy and incapable of complying with the law.”

“I’m not sure how to address each of those conflicts, but they are conflicts of the department’s own making,” Kauffman added. 

State: No violation of law

Adams objected to the board’s decision, contending that the department didn’t violate state law. She welcomed the dismissal. 

Several board members agreed that standing information requests aren’t covered by the records law, and suggested Kauffman file individual requests for future updates. 

Kauffman said the health department’s present stance that it won’t respond to standing requests, after taking four months to fulfill a single request, “doesn’t bode well” for public information.

A former spokeswoman for the department, Polly Carver-Kimm, filed a lawsuit alleging she was fired for providing information to reporters in compliance with the open records law.