POLK COUNTY ASSESSOR RANDY RIPPERGER, Appellant, vs. IOWA PUBLIC INFORMATION BOARD, Appellee.
No. 20-0902
IN THE SUPREME COURT OF IOWA
Submitted November 16, 2021—Filed December 17, 2021
Appeal from the Iowa District Court for Polk County, Jeffrey Farrell, Judge.
The Polk County Assessor appeals the district court judgment affirming the Public Information Board decision that he violated the Open Records Act. REVERSED AND REMANDED WITH INSTRUCTIONS.
Waterman, J., delivered the opinion of the court, in which Christensen, C.J., and Oxley, J., joined. Mansfield, J., filed an opinion concurring in part and dissenting in part. Appel, McDonald, and McDermott, JJ., took no part in the consideration or decision of the case.
John P. Sarcone, County Attorney, and Meghan L. Gavin (argued), Assistant County Attorney, for appellant.
Thomas J. Miller, Attorney General, and Emily Willits (argued), Assistant Attorney General, for appellee.
In this appeal, we must decide whether a confidentiality provision in Iowa‘s Open Records Act allows a county assessor to refuse to disclose a list of property owners who asked that their names be removed from the public name search function on
On our review, we agree with the Board that the Assessor has the burden to establish that the list, a public record, is exempt under
We reverse the district court on that issue. The open issue, which was neither decided by the Board or the district court nor briefed by both sides on appeal, is who falls “outside of government” within the meaning of
I. Background Facts and Proceedings.
On March 27, 2017, members of the Des Moines Register editorial board met with Polk County officials about upcoming tax assessments. They also discussed the Assessor‘s electronic database of real property records and the ability for property owners to request that their names be removed from the website‘s search-by-name function. After the meeting, Clark Kauffman, then a Des Moines Register reporter, exchanged emails with Randy Ripperger, the Polk County Assessor, who said that “[t]he number of people on our name search disable list is 2,166.”1 Kauffman asked Ripperger to let him see the list of the property owners who had asked to be removed from the search-by-name function, or instead, the property owner‘s written requests, whichever was easier to produce. Ripperger denied Kauffman‘s request on the grounds that the information sought is confidential under
The Assessor‘s core mission is to assess the value of taxable real property within the county to determine the amount of property taxes owed to local government entities, including the county, municipalities, and school districts. Physical records of property ownership and assessed values are available for inspection at the Assessor‘s office during business hours. The Assessor also maintains an electronic database to allow the public 24/7 access to its records. Property owners may request that their namе be disabled from “the name search function for that name and parcel on the internet.” The request can be made by the property owner or by a third party acting for the property owner. Once the request is processed, the name search function is disabled for all names associated
The real property records remain available for public inspection through other means. Persons may phone the Assessor‘s office to ask about property owned by someone on the disabled name list, and the information is provided. Anyone may visit the Assessor‘s office during business hours to examine the records or use the computer in the office to find records by a property owner‘s name—even if the property owner‘s name was on the disabled name list. And persons can remotely search the electronic database by address and thereby get the names of property owners on the disabled name list.
Two decades ago, the Des Moines Register published a news story by its reporter Bert Dalmer about the Assessor‘s policy allowing requests for removal from the search-by-name function. The Assessor disclosed a list of 490 people who made such requests. Dalmer‘s article published some of their names, including police officers, judges, and state officials. The Assessor‘s office subsequently changed its disclosure policy, and since 2002 has informed property owners their requests would be kept confidential. The Assessor‘s legacy website promised confidentiality:
In order to address the concerns of those who do not want us to make it that easy for someone to find where they live, we have decided to disable the name search capability for an individual upon written request. These requests will be considered confidential. The names of the owners will remain on the property record but simply will not appear in an attempt to search the files by name. Those who wish to avail themselves of this option are reminded that there are several private search services that can be utilized to locate individuals. Also the request should be made for a specific parcel and, if the parcel changes by virtue of a consolidation of two parcels or division of an existing parcel, a new request must be submitted. The requests must be signed and made in writing.
(Emphasis added.) In practice, the office accepts requests in writing, in person, or by phone, and does not keep copies of requests after each one is processed.
In 2017, Kauffman argued to Ripperger (who was not serving as Assessor in 2000) that the past practice of disclosing such names showed the list is not confidential. Rippergеr responded that the Assessor‘s policy since 2002 has been to keep the names confidential under
On April 16, 2017, Kaufmann made a formal complaint with the Board alleging Ripperger was violating state law by refusing to provide “the list of 2,166 property owners who had filed written requests with the county asking that their names be pulled from the assessor‘s web site search
On November 15, the parties appeared for a prehearing conference during a regular Board meeting. The Board granted Ripperger‘s request to allow the parties to pursue informal settlement negotiations. After the Board voted, it took a short break before resuming the meeting to discuss other matters. The Assessor‘s attorneys left at that time, but Ripperger remained on the meeting‘s conference call. During the break, Board members continued to discuss whether the disabled name list is a public record and responsive to Kauffman‘s request, whether any decision would be limited to Polk County, and other aspects of the case. An audio recording of the meeting was submitted as part of the record. While it is difficult to hear the multiple conversations on the recording, the Board‘s executive director may have participated. On March 20, 2019, Ripperger filed a motion to disqualify the Board because of the alleged ex parte communications and asked the Governor‘s office to appoint a substitute decision-maker to review the ALJ‘s proposed decision or make the ALJ the final decision-maker. The ALJ responded that she lacked the authority to disqualify a Board member.
The ALJ held a contested case hearing on March 29. The Board called Kauffman as a witness and submitted exhibits. Kauffman testified that he sought the disabled name list to determine who opts in to the policy and find out if developers, landlords, or slumlords are included. Neither he nor any other witness identified any other reason disclosure of the list was in the public interest. Ripperger testified that following media coverage of this case, many property owners responded by seeking removal from the list. Ripperger elaborated:
That following week my office received numerous phone calls from people that were on the list that wanted their name removed from the list beсause they were afraid that their name and address would be published in The Des Moines Register.
So to me that really reinforced the idea that they really expected confidentiality with their name being on our list.
He noted his staff talked to “quite a few” property owners and “had to tell them that ‘we cannot remove your name from this list because we have to preserve this list while we go through this complaint process.‘”
Ripperger called witnesses including a Des Moines Police Department sergeant, a former Iowa Supreme Court Justice, an Assistant Polk County Attorney, and a clinical psychologist. They testified they had their names disabled from the Assessor‘s name search function because of safety concerns attributable to their occupations. Specifically, the psychologist testified:
And I think my primary concern is the risk for a client who is maybe manic or maybe anxious, wants to contact me, has left several voicemails, is calling me, can‘t contact me, pulls up the Assessor‘s website, finds my address, and shows up at my front door.
Clients in that state are not going to be safe, they‘re not going to be safe to be around my family, and that‘s what I‘m primarily concerned with.
The witnesses explained that they did not want to make it easy for people to find where they lived, and that those who made the request thought their request would be confidential.
The witnesses raised concerns that publicizing the names would invite scrutiny or retaliation because the list could encourage someone to seek them out again. The psychologist noted her clients and social workers would also be concerned about their safety. The county attorney also raised concerns about crime victims and witnesses.
The ALJ issued a proposed decision on July 19, determining Ripperger committed an open records violation because the disabled name list is a public record and not a confidential “communication” under
On November 21, after additional briefing and oral arguments, the Board adopted the ALJ‘s decision. The Board determined “the party claiming the exemption . . . bears the burden [of proof]” and the disabled name list “is not the kind of communication with government that
Ripperger filed a petition for judicial review. The Board granted his request for a stay of its decision while this court action is pending. After additional briefing and oral argument, the district court, on June 3, 2020, affirmed the Board‘s final decision. The district court concluded even if the alleged ex parte conversation was improper, it did not require disqualification, and the Board correctly applied the burden of proof. The district court also concluded the disabled name list is not confidential even though it “necessarily includes a communication not required to bе made by law,” because the Board made a “logical assessment of the public safety concerns” when evaluating whether it was reasonable for the Assessor to determine “property owners would be deterred from making a request to be removed from the website search function if those property owners knew their names (as distinguished from their home address) would be made public.” The court downplayed the safety concerns over releasing the names of property owners on the list:
The purpose for the Assessor‘s action is to prevent people from easily accessing an owner‘s home address from the search. Many of the people requesting the protection are police officers, judges, prosecutors, and public officials. These people are already known to the public (to various degrees) through their employment. The production of a list of their names does not raise appreciable public safety concerns. The claims made by other groups, such as victims and health care providers, are different because they did not choose a career in public service. However, their names are
known to their abusers and patients, so it is unclear how their safety would be compromised by listing their name. For these reasons, the court agrees with the Board that the Assessor has not met its burden of proof to meet the exemption in section 22.7(18) .
Ripperger appealed and we retained the case. On appeal, he argues the Board should have disqualified itself because members engaged in prejudicial ex parte communications, the Board has the burden of proof to demonstrate the disabled name list is not confidential under
II. Standard of Review.
“We review an agency‘s interpretation of a statute for errors at law unless the legislature has clearly vested interpretive authority in the agency.” Calcaterra v. Iowa Bd. of Med., 965 N.W.2d 899, 903 (Iowa 2021); see also
The legislature expressly empowered the Board to “[a]dopt rules pursuant to
The Board is empowered to resolve disputes through a “contested case proceeding conducted according to the provisions of
III. Analysis.
The dispositive issue is whether the disabled name list is confidential under
We begin our analysis by reiterating that
A. The Burden of Proof. Ripperger contends the Board has the burden to prove the disabled name list is a public record and is not exempt under
“The purpose of [
Once a party seeking judicial enforcement of this chapter demonstrates to the court that the dеfendant 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.
B. The Status of the Disabled Name List Under Chapter 22. Both the Board and the district court concluded the disabled name list is a public record. We agree. The Assessor stores the list electronically and the Open Records Act applies to electronic records, stating that “[a] public record shall not be withheld from the public because it is combined with data processing software” and “[a] government body shall not acquire any electronic data processing system for the storage, manipulation, or retrieval of public records that would impair the government body‘s ability to permit the examination of a public record and the copying of a public record in either written or electronic form.”
“‘There is a presumption in favor of disclosure’ and ‘a liberal policy in favor of access to public records.‘” Mitchell, 926 N.W.2d at 229 (quoting Hall v. Broadlawns Med. Ctr., 811 N.W.2d 478, 485 (Iowa 2012)). But as to records exempt under
The Assessor argues the disabled name list is confidential under
The following public records shall be kept confidential, unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information:
. . . .
18. Communications not required by law, rule, procedurе, or contract that are made to a government body or to any of its employees by identified persons
outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them to that government body if they were available for general public examination.
The legislature enacted
The Board in its final decision erroneously rejected Ripperger‘s claimed exemptiоn under
Some persons on the list were privately employed or former government employees at the time of their communications requesting removal from the name search function. They clearly are “persons outside of government” within the meaning of
The “outside of government” issue was thinly briefed below, and the ALJ did not reach that issue, nor did the Board‘s decision. The district court ruled against Ripperger on other grounds, without deciding this issue. The Board‘s appellate brief is silent on this issue. We consider the issue waived and decline to reach it in this appeal. See Morris v. Steffes Grp., Inc., 924 N.W.2d 491, 498 (Iowa 2019) (holding appellee waived alternative ground to affirm summary judgment in its favor when the issue was only minimally briefed below, was not decided by the district court, and the appellee did not argue the issue on appeal); Kragnes v. City of Des Moines, 810 N.W.2d 492, 507 n.12 (Iowa 2012) (determining appellee waived argument on appeal by failing to cite authority); see also
In our view, the dispositive issue is whether Ripperger “could reasonably believe” that publicizing the disabled name list would discourage property owners from requesting removal from the search-by-name function. See
We reiterate that “[i]t is the legislative goal to permit public agencies to keep confidential a broad category of useful incoming communications [under
Ripperger concluded that fewer people would request removal from the search-by-name function if doing so placed them on a public list. We agree with his determination for several reasons. First, the list is comprised of property owners who sought greater practical anonymity or privacy, many with good reason, including police officers, prosecutors, and judges, who offered compelling testimony of reasons to fear people they arrested, prosecuted, or sentenced might attack them at home. Naming them publicly could put a target on their back, and as the psychologist testified, publicizing the list would invite unwanted scrutiny from potential perpetrators. Stalking victims who moved away to escape could reasonably fear disclosing the list would alert their stalkers if they live in Polk County. The ALJ cited the testimony of five witnesses to find “[m]any believed that publicizing their names among those who had opted-out of the search function would call attention to them and further jeopardize their safety.”7 That factual finding, adopted by the Board, is supported by substantial evidence and binding on appeal. Burton, 813 N.W.2d at 256.
Second, when the Des Moines Register reported that the list of names might be
Third, the Assessor‘s website promised that their requests would be kept confidential, consistent with
Importantly, for purposes of our standard of review, the Board did not purport to “interpret” the term “could reasonably believe” in
final decision stated: “Although we recognize the legitimate safety concerns among some categories of home owners, it is illogical to assume the vast majority of those with safety concerns would rather be easily found in the database than be merely listed among those who have opted out.” The district court quoted that sentence out of context and misapplied it to reject Ripperger‘s claimed exemption under
Ripperger, on this record, satisfied the far easier showing under
IV. Conclusion.
For those reasons, we reverse the district court ruling and remand the case to the district court for an order remanding the case to the Board to decide the “outside of government” issue, and further proceedings consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Christensen, C.J., and Oxley, J., join this opinion. Mansfield, J., files an opinion concurring in part and dissenting in part. Appel, McDonald, and McDermott, JJ., take no part.
POLK COUNTY ASSESSOR RANDY RIPPERGER, Appellant, vs. IOWA PUBLIC INFORMATION BOARD, Appellee.
No. 20-0902
IN THE SUPREME COURT OF IOWA
MANSFIELD, Justice (concurring in part and dissenting in part).
I respectfully concur in part and dissent in part. I agree with the majority‘s affirmance of the district court on the disqualification issue and with its determination that we cannot resolve the “outsidе of government” issue without a remand to the agency. However, I do not think it is actually necessary to reach the “outside of government” issue and would simply affirm the district court. In my view, the majority opinion fails to give proper deference to the agency whose interpretation it is reviewing; the majority‘s interpretation would be implausible even if no deference were required.
I. The Majority Uses the Wrong Standard of Review.
The majority has applied the wrong standard of review. The Iowa Administrative Procedure Act establishes two standards of review for agency legal interpretations. See
“interpret[ing] the requirements of chapters 21 and 22.”
The majority claims that standard applies only when the agency is engaging in rulemaking and not when it decides a contested case. But I‘m not aware of any prior case drawing such a distinction, and the majority cites none. To the contrary, in Iowa Medical Society v. Iowa Board of Nursing, we characterized a grant of authority to issue interpretive rules as a grant of “interpretive authority.” 831 N.W.2d 826, 827 (Iowa 2013). The agency involved in Iowa Medical Society had statutory authority to “adopt all necessary and proper rules to administer and interpret this chapter and chapters 148 through 158, except chapter 148D.”
As we said in Renda v. Iowa Civil Rights Commission, “The question of whether interpretive discretion has clearly been vested in an agency is easily resolved when the agency‘s enabling stаtute explicitly addresses the issue.” 784 N.W.2d 8, 11 (Iowa 2010). Professor Bonfield put it this way, “It would be improper for a court to simply substitute, without any deference to the agency‘s view, the court‘s own view of the meaning of a statutory term that the General Assembly had clearly delegated to the discretion of any agency to elaborate . . . .” Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act (1998) Chapter 17A, Code of Iowa (House File 667 As Adopted) Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 63 (1998).
Moreover, there are logical reasons to accord deference to the Board‘s interpretation of
II. The Board and the District Court Correctly Ruled that the Iowa Code Section 22.7(18) Exemption Does Not Apply.
Communications not required by law, rule, procedure, or contract that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them to that government body if they were available for general public examination.
This provision is meant to protect sensitive information like the identity of private citizens making confidential complaints about government employees and the identity of private citizens applying for government jobs. See Des Moines Indep. Cmty. Sch. Dist. Pub. Recs. v. Des Moines Reg. & Trib. Co., 487 N.W.2d 666, 670-71 (Iowa 1992); City of Sioux City v. Greater Sioux City Press Club, 421 N.W.2d 895 (Iowa 1988). The fundamental question is whether the communication will only occur if it is kept confidential from the public.
I agree with the Board and the district court that the Polk County Assessor‘s position is “illogical.” The communication here enables the citizen to avoid having their address searchable on the internet database. As both the Board and the district court concluded, it is “illogical to assume the vast majority of those with safety concerns would rather be easily found in the database than be merely listed among those who have opted out.”10
The contrary position taken by my colleagues makes no sense to me. According to a majority of this court, victims, prosecutors, police officers, and judges who (1) don‘t want their home address disclosed on the internet would rather (2) have their home address disclosed on the internet than (3) appear on a list of people who
The majority relies on the following testimony from the County Assessor:
[A]fter thе article about me being charged by the Public Information Board, when that came out in The Des Moines Register -- I think it came out on a Saturday.
That following week my office received numerous phone calls from people that were on the list that wanted their name removed from the list because they were afraid that their name and address would be published in The Des Moines Register.
I find the County Assessor‘s testimony unpersuasive, as did the Board and the district court. Among other things, this testimony is hearsay, “numerous” is not quantified, and the testimony is irrelevant because we are only talking about a list of names, not a list of names and addresses. Most importantly, the underlying legal standard we have to apply is an objective one—i.e., “reasonably believe.”
The majority contends that by being identified on a list of people who asked to be removed from the database, a person might call attention to themselves and “put a target on their back.” That seems overstated to me, but regardless it is not the relevant issue. The relevant issue under
The majority fails to mention that the County Assessor‘s searchable internet database serves legitimate public policies. The County Assessor himself acknowledges that the database was meant to “increase transparency.” For example, it allows members of the public, who regularly pay their property taxes, to find out more easily if their representatives in government are also paying their property taxes. It allows property owners, who are assessed every two years, to obtain reassurance that those with power and influence or an inside connection are being assessed similarly.
The list requested in this litigation would also serve legitimate public purposes. It may ferret out commercial property developers who asked to be on the list—not because of a safety concern—but simply because they preferred to limit their transparency to the public. That‘s something the public may want to know. The Open Records Act doesn‘t exist just to uncover fraudulent or illegal conduct, but also to bring to light the need for different laws and policies. See Iowa Film Prod. Servs. v. Iowa Dep‘t of Econ. Dev., 818 N.W.2d 207, 228 (Iowa 2012).11
The broader concerns about safety that overhang this case are legitimate, but as the majority points out they are being addressed by recent legislation. See 2021 Iowa Acts ch. 183, §§ 1–8 (to be codified at
III. Conclusion.
“[T]he policy of this chapter [is] that free and open examination of public records is generally in the public interest even though such examination may cause inconvenience or embarrassment to public officials or others.”