CITY OF RIVERDALE, Iowa, Appellant, v. Allen DIERCKS, Marie Randol, and Tammie Picton, Appellees.
No. 09-1670.
Supreme Court of Iowa.
Nov. 18, 2011.
806 N.W.2d 643
Michael J. Meloy of Koos and Meloy, Bettendorf, for appellees.
WATERMAN, Justice.
“Sunlight is said to be the best of disinfectants.” Justice Louis Brandeis, What Publicity Can Do, Harper‘s Weekly, Dec. 20, 1913. This concept animates state and federal laws allowing public scrutiny of government records—shining the light of day on the actions of our public officials deters misconduct that thrives in darkness. But open records laws are complex, replete with valid exceptions, and subject to abuse by serial requesters. Citizens and public officials sometimes must turn to the courts to resolve disputes over access to information. Statutory attorney-fee awards motivate lawyers to step up and fight city hall on behalf of residents whose elected officials refuse requests for disclosure. That happened in this case, which presents our court with the opportunity to clarify the standards for awarding attorney fees under our state Freedom of Information Act,
The plaintiff, City of Riverdale, Iowa, spent sixteen months in district court litigating whether defendants-counterclaimants, Dr. Allen Diercks, Marie Randol, and Tammie Picton, were entitled to view security camera video of a confrontation with Mayor Jeffrey Grindle over earlier records requests at the city clerk‘s counter. The mayor had been advised in writing by the City‘s lead counsel that video from the city
On further review, we hold
I. Background Facts and Proceedings.
Riverdale, a municipality with approximately 600 residents, is home to Alcoa‘s mile-long aluminum sheet rolling mill along U.S. Highway 67 and the sprawling east campus of Scott Community College. Riverdale‘s eastern border is the Mississippi River, and it is surrounded on the remaining sides by the City of Bettendorf. The parties in this eastern Iowa river community have a litigious history that predates the attorney-fee dispute we decide today. Indeed, these parties repeatedly have squared off in court, litigating disputes under
One lawsuit by Diercks alleging violations of
Meanwhile, Riverdale contracted with Per Mar Security Services for the installation of video security cameras at city hall. Grindle testified the cameras were for “the protection of the property, protection of the records, [and] protection of the [two] city clerks.” Vandalism on the exterior grounds had motivated installation of the security cameras. The cameras were operational by March 2008. Grindle asked City Attorney Steve Hunter to provide a legal opinion concerning the video and audio security system in city hall. Hunter responded with a three-page letter dated
Finally, it is likely Riverdale will receive an open records request to review the recordings. The recordings, if preserved in some format, are a public record and thus must be produced if requested. If Riverdale does not preserve the recordings, then there will be nothing to produce. You should carefully review with the security company how the recordings are maintained. Even if Riverdale does not have possession of the recordings but the security company maintains them as an agent for Riverdale, the recordings are still owned by Riverdale and thus subject to an open records request.
Hunter was prescient.
The confrontation that led to this lawsuit occurred on April 24 and was recorded in both sound and video by the security camera trained at the city clerk‘s counter within city hall. Diercks and Picton were at the counter picking up their previously requested records when Grindle approached and urged them to mediate their numerous pending requests. By all accounts, the discussion became heated. Upon leaving, Diercks contacted the Scott County Sheriff‘s Department to file a complaint against Grindle “for harassment by a public official.” Sergeant Charles Muhs came to city hall where he viewed the video. His incident report describes what he saw:
I viewed the tape, which shows Allen [Diercks] and Tammie [Picton] coming in, asking for records, and having Theresa [Ralfs, city clerk] make copies. Jeff [Mayor Grindle] comes back and forth to the counter. He says something about mediation and it appears that Allen doesn‘t want to talk about it. Other comments are exchanged. Things start to get heated. Jeff finally tells Allen and Tammie to leave because of the noise level. They at first refuse, but finally do so.
Muhs’ description is somewhat understated. Grindle testified that Diercks called him a “liar” and accused him of “breaking the law.” Grindle said he repeatedly returned to the counter to try to “bring this to an end ... the persistent hostility.” Diercks and Grindle poked fingers at each other; Grindle is six feet five and 330 pounds. Voices got loud and louder until Diercks and Picton left at Grindle‘s insistence “because of the yelling.” Grindle told Muhs that Diercks and Picton “were constantly coming in and being a nuisance because they knew they could.”
Within several days, the Quad-City Times reporter, Saul, contacted Grindle. Saul had heard about the incident from Diercks. Grindle met with Saul and played the video for him to defend his actions in light of “false accusations in the newspaper” from earlier problems with Diercks. Grindle did not consult with the city attorney before playing the video for Saul. He offered Saul a copy of the video; Saul declined. Grindle later testified he did not expect the reporter to keep the matter private. He was advised by the City‘s counsel not to show the video to others1 and acknowledged it was a mistake to show it to Saul in light of the City‘s litigation position that the video was confidential. This mistake would prove consequential.
The City initially filed a petition for declaratory judgment and injunctive relief against Diercks alone. Subsequent amendments added Randol and Picton in response to their respective requests for this video and others.2 The City alleged in “March 2008, Riverdale installed an audio and video surveillance system at city hall because Riverdale officials were concerned about the safety of its employees, visitors, property and infrastructure (the ‘Security System‘).” The City sought a declaration that the video recordings requested by defendants, particularly the recording of the April 24 confrontation, were confidential under
The defendants’ answers denied the requested video was confidential under
Riverdale moved for summary judgment, which the district court denied on June 2, 2009, finding a factual dispute “whether the city is acting reasonably and in good faith in its conclusion that those video recordings are confidential.”
The parties took depositions of thirteen witnesses before trial. Eighteen witnesses testified at trial, including out-of-state experts for each side. Riverdale was represented by two trial lawyers with combined experience exceeding sixty years. Defendants were represented by Michael Meloy with thirty years experience in municipal litigation. The bench trial was completed in three days in August 2009. Both sides retained outside security experts who gave conflicting opinions on whether the disclosure of video recordings from the security cameras would compromise security. The City‘s experts testified that disclosure of the April 24 video would compromise security because a viewer could determine the area covered by the camera and thereby ascertain security “blind spots.” The expert for the defendants testified releasing the videotape would not compromise security. On October 9, 2009, the district court entered a nine-page ruling in favor of defendants, concluding the video recordings were public records and were not confidential under
The court has viewed the videos provided by the parties and finds that the plaintiff has failed to show that the release of video tapes from still cameras located in and outside of the building would “significantly increase the vulnerability of physical systems or infrastructures” of the City of Riverdale. The videos do not reveal any information regarding any of the security systems in place at city hall or any information regarding the infrastructure workings of the city government or its employees. The employees and physical plant of the City are no more vulnerable to attack if these are revealed than they already are by the lack of complete coverage in all areas of the building and grounds.
Further, as to the video of April 24, 2008, the City has waived the confidentiality, if there was any, of that tape by releasing it to third parties, ie: the news media reporter, a staff attorney in the city attorney‘s office and a councilman.
Diercks, Randol and Picton argue that this lawsuit was brought in bad faith and that they are therefore entitled to reimbursement for attorney fees. The City argues that they were merely following the procedure found in
There is no doubt in the Court‘s mind that Mayor of Riverdale considered the counter-plaintiff‘s requests for records frivolous and a nuisance. He publicly stated so in a city council meeting. The April 24, 2008 video is clear and convincing evidence of the Mayor‘s lack of tolerance for public record requests of both Dr. Diercks and Mrs. Picton.
The district court ordered the City to disclose the video recordings to defendant and sustained the defendants’ counterclaim. The ruling ordered the City to pay defendants’ reasonable attorney fees. Neither side filed a motion to enlarge or amend the court‘s October 9 findings under
On October 27, defendants filed an application for costs and attorney fees supported by Meloy‘s affidavit and billing rec-
On November 18, the court conducted a contested hearing on the fee application. The district court‘s ruling on the fee application, filed November 30, stated:
The Court finds that it did sustain the Defendants’ counterclaim. The Court, however, did not make a specific finding of bad faith. In fact, the Court did note in its order that the Petition was filed at the direction of the attorney representing the City.
(Emphasis added.) The November 30 ruling stated, “When a custodian of public documents brings a declaratory action in good faith to determine whether documents are subject to disclosure, it should not face the sanction of having to pay attorney fees“—a direct quote from Des Moines Independent Community School District v. Des Moines Register & Tribune Co., 487 N.W.2d 666, 671 (Iowa 1992), which the district court cited. In the same paragraph, the district court stated,
Iowa Code section 22.8(4) expressly provides: Good-faith, reasonable delay by a lawful custodian in permitting the examination and copying of a government record is not a violation of this chapter if the purpose of the delay is any of the following: ... To determine whether the government record in question is a public record, or confidential record.
The November 30 ruling, after discussing
The Court after hearing the testimony and reviewing evidence found that the video portions were public records as well and ordered that they be provided to the parties. Therefore, the court found a violation and sustained the counterclaim for an injunction. However, the custodian also did not release the video portion due to the conflicting advice given by counsel and the advice to file the declaratory judgment action. The defendants were however forced to defend this lawsuit not only as to the audio portions but the video portions as well. The court finds that this is one of the cases where based on the specific facts attorney fees for prosecuting the counterclaim should be assessed due to the violation of the act. However, the fees are assessed to the governmental entity and not the Mayor or City Clerk individually.
(Emphasis added.)
The court ordered Riverdale to pay defendants’ attorney fees totaling $64,732. The court accepted Meloy‘s $175 hourly
On December 7, defendants moved to enlarge or amend the ruling awarding fees to correct certain typographical and factual errors and to recognize that the counterclaim sustained by the court included the allegation that “Mayor Grindle‘s actions in initiating filing of the lawsuit against Dr. Diercks was done in bad faith” and that an affirmative defense to Riverdale‘s declaratory judgment action alleged “Riverdale‘s claim of confidentiality of the videos to Dr. Diercks, Marie Randol, and Tammie Picton has been made in bad faith.” (Emphasis added.) On December 16, the City filed a response confirming that certain errors should be corrected, but resisting any clarification to support a fee award. On December 29, the district court entered a ruling that made the agreed corrections and noted the bad-faith allegations in defendants’ affirmative defense and counterclaim. The district court did not retreat from its fee award. At no time did the City file a motion under
The City appealed, and defendants cross-appealed. A three-judge panel of the court of appeals reversed and vacated the fee award, stating:
The district court made no finding of bad faith on the part of the City, finding only that it failed to turn over the records. Absent a finding of bad faith on the part of the City and violation of
chapter 22 , it should not have been ordered to pay the attorney fees for the defendants. SeeIowa Code § 22.10(3) (requiring a finding the lawful custodian violatedchapter 22 before awarding attorney fees under22.10(3)(c) ).
We granted defendants’ application for further review.
II. Standard of Review.
Riverdale filed its declaratory judgment action in equity, and both sides contend we should apply de novo review. Gannon v. Bd. of Regents, 692 N.W.2d 31, 37 (Iowa 2005) (“Customarily, our review of an action brought under
“Our review of actions for declaratory judgment depends upon how the action was tried to the district court.” Passehl Estate v. Passehl, 712 N.W.2d 408, 414 (Iowa 2006). The fact the action was filed on the equity docket does not control our review. See id. at 413. The district court ruled on numerous objections during this three-day bench trial. “Normally, this is the ‘hallmark of a law trial’ ...” Id. at 414 n. 6 (quoting Sille v. Shaffer, 297 N.W.2d 379, 381 (Iowa 1980)); accord Van Sloun v. Agans Bros., Inc., 778 N.W.2d 174, 178 (Iowa 2010) (noting litmus test for determining if action is tried at law is whether the trial court ruled on evidentiary objections). The City moved for summary judgment, and each side filed other motions ruled upon by the district court. This is another indication the case was tried as a law action. Van Sloun, 778 N.W.2d at 178 (citing Citizens Sav. Bank v. Sac City State Bank, 315 N.W.2d 20, 24 (Iowa 1982)).
Accordingly, we will review for correction of errors at law the district court‘s ruling defendants were entitled to recover attorney fees. We are bound by the district court‘s findings of fact if supported by substantial evidence.
We will review the amount of attorney fees awarded for abuse of discretion. GreatAmerica Leasing Corp. v. Cool Comfort Air Conditioning & Refrigeration, Inc., 691 N.W.2d 730, 732 (Iowa 2005).
III. Did the District Court Err in Awarding Attorney Fees to the Prevailing Defendants Under Iowa Code Chapter 22?
We must decide whether the district court erred in ordering Riverdale to pay the prevailing defendants’ attorney fees under
We begin our analysis with an overview of the purpose of Iowa‘s open records law and the importance of fee awards as an incentive for private enforcement of the public disclosure obligations of government officials. We next analyze the statute‘s provision for mandatory fee awards to prevailing parties and the safe harbor for officials who in good faith litigate disclosure issues on advice of counsel. We then examine whether the district court erred in awarding fees based on the record developed at trial.
A. The Purpose of Iowa‘s Freedom of Information Act and Fee Awards to Prevailing Parties.
This case aptly illustrates the need for attorney-fee awards to motivate private attorneys to represent citizens who are improperly denied access to public records. The defendants were forced to litigate against their home city for sixteen months before obtaining the video recording of their confrontation with the mayor.
Against this backdrop, we will now examine the provisions of
B. The Governing Statutory Provisions for Mandatory Attorney-Fee Awards and Safe Harbors.
Upon a finding by a preponderance of the evidence that a lawful custodian has violated any provision of this chapter, a court:
....
c. Shall order the payment of all costs and reasonable attorney fees, including appellate attorney fees, to any plaintiff successfully establishing a violation of this chapter in the action brought under this section.
See Des Moines Indep., 487 N.W.2d at 671 (”
Riverdale invoked a statutory safe harbor for government bodies filing declaratory judgment actions in good faith.
Good-faith, reasonable delay by a lawful custodian in permitting the examination and copying of a government record is not a violation of this chapter if the purpose of the delay is any of the following:
a. To seek an injunction under this section.
....
c. To determine whether the government record in question is a public record, or confidential record.
....
e. Actions for injunctions under this section may be brought by the lawful custodian of a government record....
(Emphasis added.)
We must read
The City agreed the video recordings of security cameras at city hall are public records. The City bore the burden of proving the recordings were confidential within the meaning of an exception to disclosure—
C. The District Court Implicitly Rejected Riverdale‘s “Good-Faith, Reasonable Delay” Defense.
Our review is complicated because the district court made no express finding rejecting Riverdale‘s defense of a “good-faith, reasonable delay” under
The district court unquestionably awarded defendants attorney fees after finding Riverdale violated
This assumption is particularly appropriate because the City failed to file a motion under
Appellate courts in other jurisdictions have affirmed attorney-fee awards based upon implied findings of bad faith. See, e.g., Harlan v. Lewis, 982 F.2d 1255, 1260 (8th Cir.1993) (“Moreover, even if we assume that a finding of bad faith is required, we conclude that the district court‘s order implies a finding of bad faith.“); Baker Indus., Inc. v. Cerberus Ltd., 764 F.2d 204, 209 (3d Cir.1985) (declining to remand “for an explicit finding of bad faith when it is clearly evident from the district court‘s expressions and from the record as a whole, that the district court found, albeit implicitly, Cravath‘s conduct to be in bad faith“).
We conclude the district court‘s attorney-fee award can be upheld based on its implicit rejection of Riverdale‘s good-faith, reasonable delay defense without an express finding the City acted in bad faith.
D. Did the District Court Err in Rejecting Riverdale‘s Advice-of-Counsel Defense?
We must now determine whether the record supports the district court‘s implicit rejection of Riverdale‘s good-faith defense notwithstanding the City‘s reliance on advice of legal counsel. To resolve that issue we must decide whether the City established a “good-faith, reasonable delay” as a matter of law under
The term “good faith” has various meanings; sometimes it is viewed objectively and at other times, subjectively. Compare Aalbers v. Iowa Dep‘t of Job Serv., 431 N.W.2d 330, 335-36 (Iowa 1988) (holding “good-faith belief” measured by objective test in unemployment compensation context), with Garvis v. Scholten, 492 N.W.2d 402, 404 (Iowa 1992) (holding term “good faith” in
Sieg Co., 568 N.W.2d at 804-05. Applying the Sieg Co. analysis here, we note it is significant that “good faith” is paired with “reasonable” in
Riverdale contends its reliance on advice of counsel establishes its defense of “good-faith, reasonable delay” as a matter of law. We disagree. Under Iowa law, advice of counsel does not automatically establish good faith, but it is a factor to consider in determining whether a party acted in good or bad faith. See, e.g., Ferris v. Emp‘rs Mut. Cas. Co., 255 Iowa 511, 518, 122 N.W.2d 263, 267 (1963) (reversing bad-faith judgment against insurer that relied on attorney who was “able and long experienced in the handling of this class of cases“); Schnathorst v. Williams, 240 Iowa 561, 579, 36 N.W.2d 739, 749 (1949) (holding advice of counsel does not per se immunize a person from a malicious prosecution suit); Ahrens v. Ahrens, 386 N.W.2d 536, 538 (Iowa Ct. App.1986) (noting that, in a malicious prosecution case, “[t]he fact that the proceedings were initiated under the advice of counsel is a factor to be considered” in determining bad faith (quoting Restatement (Second) of Torts § 666, cmt. h, at 441 (1977))); see also Barnes v. Okla. Farm Bureau Mut. Ins. Co., 11 P.3d 162, 174 (Okla.2000) (“The advice of counsel is but one factor to be considered in deciding whether the carrier‘s reason for denying a claim was arguably reasonable.” (quoting Szumigala v. Nationwide Mut. Ins. Co., 853 F.2d 274, 282 (5th Cir.1988))); 14 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 203:33, at 203-53 (2008) (“[R]eliance on the advice of counsel is not absolute proof of good faith, but rather it constitutes some evidence of good faith.“); Stephen S. Ashley, Bad Faith Action Liability & Damages § 7:13, at 7-46 (2d ed. 1997) (“The great majority of cases that have alluded to the advice of counsel have merely held that such advice is a factor the jury may consider when deciding whether the insurer acted in bad faith.“).
We conclude the district court did not err in rejecting the City‘s advice-of-counsel defense on the record made at trial. First, as the district court noted, the City received conflicting advice. The city attorney, Hunter (the senior partner), provided the mayor with a written opinion advising that security camera recordings “are a public record and, thus, must be produced if requested.” Consistent with that advice, when Diercks first requested the video of the April 24 confrontation, the City made a copy of the video and left it in an envelope for Diercks to retrieve at Hunter‘s law office. But, the mayor prevented the disclosure by directing the associate attorney to inquire with Per Mar as to whether the video‘s disclosure would create a security issue.
We need not decide whether Riverdale could plausibly argue the security video was confidential under
The selective disclosure exhibited by the government in this action is offensive to the purposes underlying the FOIA and intolerable as a matter of policy. Preferential treatment of persons or interest groups fosters precisely the distrust of government that the FOIA was intended to obviate.
State ex rel. Olson v. Andrus, 581 F.2d 177, 182 (8th Cir.1978). We share this view. It is axiomatic that disclosure to a third party waives confidentiality. See, e.g., State v. Demaray, 704 N.W.2d 60, 66 (Iowa 2005) (“When [the patient] consented to the hospital‘s release of his medical records to [a deputy], he destroyed the confidentiality between him and his doctor by allowing the information to be communicated to a third party.“); Miller v. Cont‘l Ins. Co., 392 N.W.2d 500, 504-05 (Iowa 1986) (“[W]e have held that voluntary disclosure of the content of a privileged communication constitutes waiver as to all other communications on the same subject.“).
The associate attorney testified at trial that a decision of our court allowed Riverdale to assert confidentiality and withhold the video from defendants even after the mayor played it for Saul. See Gabrilson, 554 N.W.2d at 271-72. That case is readily distinguishable. The plaintiff, Carolyn Gabrilson, a member of the Davenport Community School Board, opposed a performance assessment test and requested copies of the testing materials under
In Gabrilson, we also rejected the plaintiff‘s argument that the school district waived confidentiality when the district secretary gave the plaintiff a copy of the test. Id. We noted the record indicated the secretary was never authorized to release the assessment and concluded the erroneous release did not destroy the confidential status of the documents. Id. Here, Mayor Grindle is Riverdale‘s lawful custodian and unquestionably had authority to disclose the video to Saul. Gabrilson fails to support Riverdale‘s position. Once the mayor played the video for Saul, a subsequent claim of confidentiality was not even fairly debatable. The correct legal advice should have been to produce the video to Diercks and his codefendants, rather than litigate for sixteen months. We decline to vacate the fee award on this record based on inaccurate legal advice. See Barnes, 11 P.3d at 174-75 (affirming bad-faith award when insurer relied on erroneous legal advice); In re Inspection of Titan Tire, 637 N.W.2d 115, 132-33 (Iowa 2001) (affirming contempt finding of willful disobedience of court order; rejecting defense based on mistaken legal advice
We hold the district court did not err by rejecting Riverdale‘s advice-of-counsel defense. We affirm its ruling awarding defendants their reasonable attorney fees.
IV. Did the Trial Court Abuse Its Discretion in Determining the Amount of Attorney Fees and Costs?
We now decide whether the district court abused its discretion in fixing the amount of defendants’ attorney-fee award at $64,732, while denying reimbursement for litigation expenses.
“the time necessarily spent, the nature and extent of the service, the amount involved, the difficulty of handling and importance of the issues, the responsibility assumed and results obtained, the standing and experience of the attorney in the profession, and the customary charges for similar service.”
Schaffer, 628 N.W.2d at 24 (quoting Landals v. George A. Rolfes Co., 454 N.W.2d 891, 897 (Iowa 1990)).
Riverdale concedes that defendants’ attorney Meloy‘s $175 hourly rate was reasonable for the area. The district court correctly approved that hourly rate. Riverdale, however, disputed whether the number of hours Meloy spent on the case was reasonable. Meloy, in turn, noted Riverdale used two different law firms and two experienced trial lawyers to prosecute its case through the three-day trial. The amount of time Meloy spent is largely attributable to the positions taken by the City. See Lynch, 464 N.W.2d at 240 (noting time spent to prosecute the case was increased by positions taken by the defendant city). The parties deposed thirteen witnesses before trial. Eighteen witnesses testified at trial, including experts for each side. The parties engaged in motion practice, including summary judgment proceedings. Meloy‘s fee application, supported by his affidavit, sought recovery of fees totaling $71,225 (407 hours × $175). The district court awarded $64,732 in fees, $6493 less than sought, because the court reduced the fee award by 37.1 hours for work on posttrial matters the court found excessive. We conclude this reduction was within the district court‘s discretion. We affirm the fee award in that amount.
In addition,
Finally, we address the defendants’ argument raised in their cross-appeal that the district court erred by denying reimbursement for their deposition expenses and expert witness fees. The district court limited the expert fee to the
V. Disposition.
We vacate the decision of the court of appeals and affirm the district court award of trial attorney fees of $64,732 and denial of litigation expenses. We remand for an award of defendants’ reasonable appellate attorney fees to be paid by Riverdale.
Costs of this appeal shall be assessed against the City.
DECISION OF COURT OF APPEALS VACATED, DISTRICT COURT FEE AWARD AFFIRMED, AND CASE REMANDED.
All justices concur except MANSFIELD, J., who takes no part.
STATE of Iowa, Appellee,
v.
Matthew Joseph ELLIOTT, Appellant.
No. 09-0633.
Supreme Court of Iowa.
Dec. 2, 2011.
Notes
(Emphasis added.)Information concerning security procedures or emergency preparedness information developed and maintained by a government body for the protection of governmental employees, visitors to the government body, persons in the care, custody, or under the control of the government body, or property under the jurisdiction of the government body, if disclosure could reasonably be expected to jeopardize such employees, visitors, persons, or property.
a. Such information includes but is not limited to information directly related to vulnerability assessments; information contained in records relating to security measures such as security and response plans, security codes and combinations, passwords, restricted area passes, keys, and security or response procedures; emergency response protocols; and information contained in records that if disclosed would significantly increase the vulnerability of critical physical systems or infrastructures of a government body to attack.
b. This subsection shall only apply to information held by a government body that has adopted a rule or policy identifying the specific records or class of records to which this subsection applies and which is contained in such a record.
(Emphasis added.)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.