ROBERT TEIG v. VANESSA CHAVEZ, ALISSA VAN SLOTEN, PATRICIA G. KROPF, ELIZABETH JACOBI, BRAD HART, and TERESA FELDMANN
No. 23-0833
Supreme Court of Iowa
June 7, 2024
Submitted February 20, 2024—Filed June 7, 2024
ROBERT TEIG, Appellant, vs. VANESSA CHAVEZ, ALISSA VAN SLOTEN, PATRICIA G. KROPF, ELIZABETH JACOBI, BRAD HART, and TERESA FELDMANN, Appellees.
Private citizen appeals summary judgment granted to city officials on his claims for violations of the Iowa Open Records Act. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Oxley, J., delivered the opinion of the court, in which all justices joined.
Robert Teig (argued), Cedar Rapids, pro se.
Andrew T. Tice (argued) and Kristine R. Stone of Ahlers & Cooney, P.C., Des Moines, for appellees.
Cathy S. Trent-Vilim of Lamson Dugan & Murray LLP, Omaha, Nebraska, and Jason Palmer and Ryan Tunink of Lamson Dugan & Murray LLP, West Des Moines, for amicus curiae Iowa League of Cities.
Thomas Story and Rita Bettis Austen of ACLU of Iowa, Des Moines, for amici curiae Iowa Freedom of Information Council and American Civil Liberties Union Foundation of Iowa, Inc.
OXLEY, Justice.
Iowa’s Open Records Act (the Act) prioritizes “free and open examination of public records.”
In 2021, the City of Cedar Rapids (the City) hired a new city clerk and city attorney. Plaintiff Robert Teig took an interest in the City’s hiring processes and submitted open records requests for job applications and several other documents. The City refused to fulfill many of Teig’s requests, claiming the attorney–client privilege and the Act’s confidentiality provisions exempted several documents from disclosure. Teig filed suit, seeking production
On appeal, Teig raises five arguments: (1) job applications submitted to governmental bodies are not confidential under chapter 22, (2) municipalities cannot claim attorney–client privilege in the context of an open records request, (3) search and retrieval fees are not authorized by chapter 22, (4) defendants unreasonably delayed fulfilling certain requests, and (5) the district court should have granted him leave to submit additional interrogatories in the ensuing litigation.
We conclude that the district court correctly found that documents subject to the attorney–client privilege are protected from disclosure under chapter 22 and that chapter 22 authorizes municipalities or governmental bodies to charge search and retrieval fees. While job applications are generally protected from disclosure, that protection extends only to persons “outside of government.”
I. Factual Background.
The City hired longtime employee Alissa Van Sloten as its new city clerk in May 2021. After Van Sloten was hired, City Attorney Jim Flitz wrote a letter expressing his legal opinion that job applications were confidential under Iowa’s Open Records Act. That summer, Flitz retired, and the City advertised the city attorney vacancy through a third-party consultant, Novak Consulting Group. Elizabeth Jacobi and Vanessa Chavez submitted applications. At the time they applied, Jacobi was employed by the City as an assistant city attorney, and Chavez was serving as city attorney for Green Bay, Wisconsin.
Some city attorney candidates requested that their applications not be made public. The city council solicited a legal opinion from outside counsel as to whether it could review applications in a closed session. After receiving assurance that the process was allowed, the city council entered a closed session on October 12, 2021, to review applications. Chavez was ultimately hired, and Jacobi stayed on as assistant city attorney.
After learning about this closed session, Robert Teig requested several documents related to the City’s hiring process for both the city clerk and city attorney positions. Over several months, he submitted requests to Van Sloten, Chavez, Jacobi, and the other defendants in this case: Cedar Rapids Mayor Brad Hart, Human Resources Director Teresa Feldmann, and Assistant City Attorney Patricia Kropf.
First, Teig requested Van Sloten’s job application for the city clerk position. Kropf informed him that the record was confidential. He then requested city attorney applications, Novak’s job posting for the city attorney position, applicant “requests to close the interviews,” and the legal opinion that precipitated the October 12 closed session. Feldmann asserted attorney–client privilege over the legal opinion, but indicated she would work on producing
Having not yet received these documents, Teig filed this suit the following day on November 24 in Linn County District Court.
On December 14, Mayor Hart sent Teig the job posting. Hart also reasserted the City’s claims of confidentiality over the job applications and privilege over the legal opinion, and he informed Teig there were no responsive documents related to requests for closed interviews. However, Chavez later provided Teig with redacted copies of requests by applicants for the city attorney position that the City review their applications in a closed session.
Teig made additional requests after filing this suit. On December 6, Teig sought information about the November 23 closed session, requesting “the name of the litigation, name of any attorney involved, and bills and expenditures related to the matter.” Jacobi, then serving as acting city attorney, sent Teig minutes from the open portion of the November 23 session. However, she claimed there were no documents related to litigation or billing, and the City would review relevant documents it received for privileged information. Teig received redacted billing documents directly from the City’s outside counsel as part of discovery related to this litigation on March 10, 2022, in a file labeled: “FINAL APPROVED BILLINGS TO SEND TO TEIG APPROVED BY CITY.”
Shortly after the December 6 request, Chavez took over as city attorney and asked Teig to direct all future document requests through her office in light of his litigation against City officials. She sent instructions on this procedure to City employees as well. Teig resisted this arrangement and, on March 11, requested a copy of the instructions. Chavez forwarded them to Teig on March 18. Teig filed an amended petition on March 19, 2022, which included claims related to the November 23 closed session and Chavez’s instructions that all requests go through her.
On October 14, 2022, the defendants filed a motion for summary judgment. They argued that the employment applications were confidential and that the legal opinion regarding the closed-session review of applications was protected by attorney–client privilege. They also defended the City’s search and retrieval fees and rejected Teig’s claims that any disclosures were untimely.
Rather than formally resisting summary judgment, Teig filed a motion to compel and for sanctions against Chavez, seeking to force additional discovery. He also sought to serve additional discovery requests on Van Sloten, Feldmann, Jacobi, and Kropf, and to correct a previous interrogatory sent to Hart. Teig claimed he mistakenly sent requests to the wrong defendants, and this war-ranted exceeding the thirty interrogatories allowed under
The district court granted the defendants’ motion for summary judgment on May 18, 2023. The court found that all employment applications were confidential and that the legal opinion was privileged. It also upheld the City’s search and retrieval fee policy and rejected all claims of refusal and unreasonable delay. Teig appealed, and we retained the appeal.
A. Interrogatories. We start by disposing of Teig’s claim that the district court erred in its discovery ruling by counting subparts of his interrogatories toward the total number allowed. A district court’s evidentiary rulings are reviewed for abuse of discretion. State v. Helmers, 753 N.W.2d 565, 567 (Iowa 2008).
B. Iowa’s Open Records Act. We turn now to Teig’s chapter 22 claims, on which the district court granted summary judgment. We review a district court’s grant of summary judgment for corrections of errors at law. Story Cnty. Wind, LLC v. Story Cnty. Bd. of Rev., 990 N.W.2d 282, 285 (Iowa 2023). “The district court should grant summary judgment if ‘there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.’ ” Id. (omission in original) (quoting
Under section 22.10 of the Act, “[a]ny aggrieved person . . . may seek judicial enforcement of the requirements of [chapter 22] in an action brought against the lawful custodian and any other persons who would be appropriate defendants under the circumstances.”
Here, there is no dispute that the first two requirements are met. As for the third requirement, the defendants refused to disclose job applications and the legal opinion related to the city council’s October 12 closed session, but they claim their refusals complied with chapter 22. They dispute that their actions in response to Teig’s other requests amounted to a refusal under the Act. We address each contention in turn.
1. The confidentiality of job applications under chapter 22. While
section 22.7 provides a long list of exceptions, identifying those public records required to “be kept confidential,”
We first addressed whether applications for government jobs were subject to the Act in City of Dubuque v. Telegraph Herald, Inc. 297 N.W.2d 523, 526 (Iowa 1980), superseded by statute, 1984 Iowa Acts ch. 1185 § 6, as recognized in City of Sioux City v. Greater Sioux City Press Club, 421 N.W.2d 895 (Iowa 1988). At the time we decided Telegraph Herald,
In 1984, the general assembly added a new subsection (18) to section 68A.7. 1984 Iowa Acts ch. 1185, § 6 (originally codified at Iowa Code § 68A.7(11) (1985), now codified as amended at
With this background, we consider the parties’ arguments as applied to the job applications Teig requested.
a. Section 22.7(11). Section 22.7(11) exempts from disclosure “[p]ersonal information in confidential personnel records of government bodies relating to identified or identifiable individuals who are officials, officers, or employees of the government bodies.”
The defendants argue that under Press Club and Clymer, job applications are categorically exempted from disclosure. Their reliance on these cases is
b. Section 22.7(18).
Press Club, we held that employment applications fit within the “broad category of useful incoming communications” protected by subsection (18), limiting our holding to “[t]he employment applications which are involved in the present litigation.” 421 N.W.2d at 898–99.
However, Press Club did not address
As used in this subsection, “persons outside of government” does not include persons or employees of persons who are communicating with respect to a consulting or contractual relationship with a government body or who are communicating with a government body with whom an arrangement for compensation exists.
The scope of this limitation came before us recently in Ripperger v. Iowa Public Information Board, 967 N.W.2d 540 (Iowa 2021). That case involved a request for a list of property owners who asked the Polk County Assessor to remove them from the name search function of the assessor’s website. Id. at 552. Notably, in defining this type of communication as fitting within the “broad category of useful incoming communications [under section 22.7(18)] which might not be
forthcoming if subject to public disclosure,” id. at 553 (alteration in original) (emphasis omitted) (quoting
The broad categories of useful incoming information covered by
The district court addressed the first part of the provision, agreeing with the defendants that “the persons ‘outside of government’ language . . . appears to apply to consultants and contractors,” concluding that nothing in the lan-
guage negated the holding in Press Club that employment applications are confidential. Teig argues the general assembly chose the word “contractual,” not “contractor,” and applications for employment are submitted “with respect to a . . . contractual relationship.”
A familiar principle of statutory construction is that “when identical language is used in several places in an enactment, we ordinarily give it the same meaning.” B.A.A. v. Chief Med. Officer, Univ. of Iowa Hosp., 421 N.W.2d 118, 125 (Iowa 1988). The converse also holds true—use of materially different language indicates different meanings are intended. See Chiodo v. Section 43.24 Panel, 846 N.W.2d 845, 853 (Iowa 2014) (“If the drafters intended the two concepts to be coextensive, different words would not have been used.”); see also Sw. Airlines Co. v. Saxon, 596 U.S. 450, 457–58 (2022) (applying the “meaningful-variation
In section 22.7(18), the general assembly refers separately to “consulting or contractual relationship” and “arrangement for compensation.”
(so not covered by a contract), but by definition it always includes an “arrangement for compensation.” Teig argues that “contractual relationship” also encompasses employment contracts. But we cannot ignore this difference in terminology. See Chiodo, 846 N.W.2d at 853. Nor can we ignore the pairing of “contractual” with “consulting” in the phrase “consulting or contractual relationship,” neither of which suggest an employment relationship—especially when paired together. See Wright v. State Bd. of Eng’g Exam’rs, 250 N.W.2d 412, 413 (Iowa 1977) (“[T]he meaning of a word is ascertained in the light of the meaning of words with which it is associated.”). Given this shift in language, we agree with the district court that “consulting or contractual relationship” refers to consultants and contractors, whose relationship with governmental bodies is different than the compensation arrangements extended to government employees.
However, that does mean that Press Club protects all employment applications from disclosure, as the district court concluded. The second category of persons excluded from protection under the 2001 revision are persons “who are communicating with a government body with whom an arrangement for compensation exists.”
While subsection (18) is intended to protect a “broad category of useful incoming communications,” Press Club, 421 N.W.2d at 898, we cannot ignore the general assembly’s additional limitation that the protection covers only those
communications received from “persons outside of government,”
Section 22.7(18) protects applications received from external candidates, meaning anyone not employed by the City when the application was submitted. But it does not exempt from disclosure applications submitted by then-current employees of the City, such as Van Sloten and Jacobi.
2. Attorney–client privilege. Next, we address Teig’s claim that the legal opinion solicited by the City about closing city council sessions was not protected from disclosure under chapter 22 by the attorney–client privilege. Teig argues the privilege does not apply to open records requests because chapter 22 protects work product, see
Our cases make clear “that a governmental body may be a client for purposes of invoking the [attorney–client] privilege.” Tausz v. Clarion–Goldfield Cmty. Sch. Dist., 569 N.W.2d 125, 127 (Iowa 1997) (en banc); see also Horsfield, 834 N.W.2d at 463 (recognizing the City of Dyersville “properly asserted the attorney-client privilege”). Iowa has enshrined its attorney–client privilege in Iowa Code
section 622.10, and our caselaw recognizes that this provision effectuates a privilege “of ancient origin.” Bailey v. Chi., Burlington & Quincy R.R., 179 N.W.2d 560, 563 (Iowa 1970). The privilege “bars attorneys from disclosing confidential communications.” Keefe v. Bernard, 774 N.W.2d 663, 669 (Iowa 2009).
As a general rule of disclosure, chapter 22 does not trump other specific statutory privileges protecting the confidentiality of documents. See Burton v. Univ. of Iowa Hosps. & Clinics, 566 N.W.2d 182, 188–89 (Iowa 1997) (holding that physician–patient privilege protected documents held by public hospital despite not being identified in section 22.7). We extended this holding to documents broadly protected by the attorney–client privilege in Horsfield, where we held that
3. Charges for search and retrieval. The City has adopted an open records policy that provides records to the public at no charge if the request takes less than thirty minutes to fulfill. After the first thirty minutes, the City’s policy provides that it may charge $20 per hour, prorated to the nearest fifteen minutes. Teig argues that chapter 22 does not authorize such a policy, claiming it only
allows fees related to “examination and copying.” This interpretation
We held that chapter 22 authorized retrieval fees under an earlier iteration of the Act in Rathmann v. Board of Directors. 580 N.W.2d 773, 778–79 (Iowa 1998). In Rathmann, a schoolboard charged an hourly rate to retrieve documents related to administrative restructuring in the school district. Id. at 775–77. At the time, section 22.3 required that “[a]ll expenses of such work shall be paid by the person desiring to examine or copy.” Id. at 777 (emphasis omitted) (quoting
After the general assembly removed the language identified by Tieg, it again amended section 22.3 in 2005. See 2005 Iowa Acts ch. 103, § 1 (codified at
Thus, while the general assembly expressly refers to “copying,” “examination,” and “supervision” in section 22.3(1), as Teig points out,
The parties and the district court considered the statute as it existed in 2023, after amendments that became effective on July 1, 2022 (after Teig’s requests). See 2022 Iowa Acts ch. 1039, § 1 (codified at
costs incurred in fulfilling a request for public records reveals that it considered such expenses to not be limited to copying costs, as Teig argues.
Teig also argues that the general assembly’s use of the word “retrieval” in
As Teig and the amici note, retrieval fees may in fact hamper access to public documents. However, such fees may also ensure continuing access to public records through increased funding and deterring excessive or overly broad requests. In any event, weighing these policy interests is for the general assembly. See Press Club, 421 N.W.2d at 897. We hold that in allowing for the recovery of expenses incurred in fulfilling requests for public records,
4. Refusal and unreasonable delay. We turn now to Teig’s claim that the defendants either refused or unreasonably delayed producing several requested documents. To sustain a cause of action under chapter 22, claimants must show “that the defendant[s] refused to make [requested] records available for examination and copying.”
of a refusal rather than a delay in production,” Horsfield, 834 N.W.2d at 463 n.6, we have also recognized that a defendant can “refuse” a request “by (1) stating that it won’t produce records, or (2) showing that it won’t produce records,” Belin v. Reynolds, 989 N.W.2d 166, 174 (Iowa 2023). The second category of refusal “can be shown through an unreasonable delay in producing records.” Id.
Chapter 22 requires custodians to provide access to requested documents promptly, but “[i]f the size or nature of the request . . . requires time for compliance, the custodian shall comply with the request as soon as feasible.” Horsfield, 834 N.W.2d at 461 (quoting Iowa Unif. Rules on Agency Proc., No. X.3(4) (17A, 22) (1999)). Because the statute provides no explicit time constraint, “a reasonable time is implied.” Belin, 989 N.W.2d at 175 (quoting 2B Norman J. Singer & Shambie Singer, Statutes and Statutory Construction § 55:3, at 457 (7th ed. 2012)). In Belin, we delineated six factors for determining whether there had been an unreasonable delay:
(1) how promptly the defendant acknowledged the plaintiff’s requests and
follow-up inquiries, (2) whether the defendant assured the plaintiff’s intent to provide the requested records, (3) whether the defendant explained why requested records weren’t immediately available . . . , (4) whether the defendant produced records as they became available . . . , (5) whether the defendant updated the plaintiff on efforts to obtain and produce records, and (6) whether the defendant provided information about when records could be expected.
Teig has three claims of undue delay concerning records we have not yet considered: (1) records related to the city attorney position, (2) instructions to direct Teig’s open records request through the city attorney’s office, and (3) information about the November 23 closed session by the city council. We discuss each in turn.
a. Records related to the city attorney position. Teig originally requested documents related to the city attorney position on October 21. After exchanging multiple emails with Feldmann, he narrowed his request on November 3. This narrowed list included: the legal opinion related to closing the October 12 city council session, applications for the city attorney position, requests by candidates “to close the interviews,” and the job posting for the position. Having already discussed the legal opinion and applications above, we now consider the requests to close the interviews and the job posting.
On December 14, Hart informed Teig there were no responsive documents relating to candidate requests “to close the interviews.” Despite this denial, Teig later received redacted copies of two requests by candidates. Hart’s update was not erroneous though. The City did not close interviews for the city attorney position, nor was it asked to. Rather, applicants submitted requests for their applications to be reviewed in a closed session. Noticing Teig’s inaccuracy, Chavez sent redacted copies of two requests that the applications be considered in a closed session a few weeks after taking office. Because Teig never requested these documents, there can be no finding of undue delay.
Teig also received his request for the city attorney job posting. Feldmann acknowledged the request on November 4, the day after Teig submitted it. She followed up again on November 10 and 24. Hart sent Teig the job posting on December 14. While this delay may not be the most expeditious, several of the relevant factors we identified in Belin weigh in favor of the defendants. See id. Feldmann responded to Teig’s request the day after receiving it, provided multiple updates, and estimated when the documents may be ready. This conduct does not rise to the level of undue delay.
b. Instructions on Teig’s open records requests. After taking over as city attorney in December of 2021, Chavez sent a message to City employees, asking
that all of Teig’s future open records requests go through her office. Teig asked for these instructions on March 11, and Chavez provided them on March 18. Teig claims it should “have taken Defendant Chavez only seconds” to locate these documents. This demand for instantaneous compliance ignores the express language of chapter 22.
Section 22.8 allows custodians up to “twenty calendar days” to fulfill requests when it is necessary “[t]o determine whether a confidential record should be available for inspection and copying to the person requesting the right to do so.”
c. Records related to the November 23 closed session. Finally, we consider Teig’s request for documents related to the city council’s November 23 closed session. The city council closed the session “to discuss strategy with legal counsel with regard to pending litigation.” On December 6, Teig requested “records showing the name of the litigation, name of any attorney involved, and bills and expenditures related to the matter.” Jacobi replied on December 8, claiming “the city ha[d] not yet received any invoices regarding this representation,” but agreed to “examine them upon receipt to determine whether any redactions are necessary to preserve the attorney client privilege.”
However, the record shows the City approved a payment of $3,167.50 to the law firm Lynch Dallas P.C. on December 7, with $2,167 of that total being paid the same day. On March 11, Teig acquired a redacted billing document related to the November 23 session directly from Lynch Dallas through discovery in this litigation in a file named: “FINAL APPROVED BILLINGS TO SEND TO TEIG APPROVED BY CITY.” There is no indication the City kept Teig apprised of any updates between December 6 and March 11. On a review of a grant of summary judgment, we view evidence of these facts in the light most favorable to Teig. See Hedlund v. State, 930 N.W.2d 707, 715 (Iowa 2019).
In their brief, the defendants argue Teig did not file his lawsuit until the day after the closed session, and his request related only to “pending litigation.” Thus, the defendants claim they were under no duty to disclose the requested documents that related instead to “imminent litigation.” However, Teig’s December 6 request does not mention “pending litigation.” While there may not have been any “name of the litigation” to disclose, this does not affect Teig’s request for the name of the attorney or billing records.
The defendants also argue that Teig has already received these documents, implying his claim has been mooted. We rejected a similar argument in Belin. See 989 N.W.2d at 171. There, we held that production of documents only mooted claims “to produce the already-produced records.” Id. It does not prevent plaintiffs from pursuing “any other relief that may be available under the Act.” Id.; see also Kirkwood Inst., ___ N.W.3d at ___, 2024 WL 1813027, at * 6 (holding that plaintiff’s “pursuit of a civil penalty, attorney fees, and court costs under chapter 22 based on a refusal to timely produce” requested documents was not mooted by eventual production of documents). Teig has brought claims for damages and injunctive relief, and section 22.10(3) authorizes both remedies.
We have previously declined to set an exact deadline for “undue delay,” but our prior cases are instructive nonetheless. In Belin, delays ranging from five to eighteen months amounted to an undue delay. 989 N.W.2d at 169. In Horsfield, we found a violation of chapter 22 based on a seventy-day delay. 834 N.W.2d at 460, 462. Here, Teig waited more than ninety days to receive the redacted billing records. Reasonableness is often a fact question, and we conclude the district court—as the fact-finder
5. Remedies. Having determined that the defendants withheld some records required to be disclosed, we now consider what remedies are available to Teig. If a custodian refuses or unreasonably delays production, courts must enjoin the custodian to comply with the statute.
Because the defendants failed to disclose job applications from internal applicants, we conclude those applications must be disclosed pursuant to section 22.7(11), and Teig is entitled to costs and attorney fees related to those specific requests. While section 22.10(3)(b) requires courts to assess damages for violations generally, it prohibits such damages when custodians “[r]easonably relied upon a decision of . . . the attorney for the government body, given in
writing.”
As for Teig’s claim of unreasonable delay, on remand he may pursue all relief authorized under the Act for any proved unreasonable delay in the fulfillment of his December 6, 2021 open records request.
Section 22.10(3)(c) requires courts to order a plaintiff’s “costs and reasonable attorney fees, including appellate attorney fees,” to be paid by defendants who are assessed damages.
III. Conclusion.
For these reasons, we affirm in part and reverse in part the district court’s grant of summary judgment. We also affirm the district court’s denial of Teig’s evidentiary motions. We remand for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.