Open records and government

Mar 19, 2021  | 27 min  | Ep 4830 | Podcast | Transcript

Podcast

On this edition of Iowa Press, Randy Evans, executive director of the Iowa Freedom of Information Council, and Erin Jordan, investigative reporter for The Gazette, discuss open records and open government, including ongoing reports by journalists across the state about public access to law enforcement body cameras.

Joining moderator David Yepsen at the Iowa Press table is Kay Henderson, news director for Radio Iowa.

Program support provided by: Associated General Contractors of Iowa, Iowa Bankers Association and FUELIowa.

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The issues of reporter access and open government are a regular conversation for journalists. We discuss open records and more with the Iowa Freedom of Information Council's Randy Evans and Investigative Reporter Erin Jordan on this edition of Iowa Press.

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Funding for Iowa Press was provided by Friends, the Iowa PBS Foundation. The Associated General Contractors of Iowa, the public's partner in building Iowa's highway, bridge and municipal utility infrastructure. Iowa PBS is supported in part by Wells Fargo. Fuel Iowa is a voice and a resource for Iowa's fuel industry. Our members offer a diverse range of products including fuel, grocery and convenience items. They help keep Iowans on the move in rural and urban communities. Together we Fuel Iowa. Small businesses are the backbone of Iowa's communities and they are backed by Iowa banks. With advice, loans and financial services, banks across Iowa are committed to showing small businesses the way to a stronger tomorrow. Learn more at IowaBankers.com.

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For decades Iowa Press has brought you politicians and newsmakers from across Iowa and beyond. Celebrating nearly 50 years of broadcast excellence on statewide Iowa PBS, this is the Friday, March 19 edition of Iowa Press. Here is David Yepsen.

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Yepsen: News organizations and journalism groups spent this past week advocating for open government during what has been dubbed Sunshine Week. It's the notion that open government makes for good government and includes strong defense of freedom of information laws. To discuss the current state of open government law in Iowa we're joined by Randy Evans, the Executive Director of the Iowa Freedom of Information Council and Erin Jordan is Investigative Reporter for The Gazette. Welcome to you both.

Evans: Thanks, David.

Jordan: Thank you.

Yepsen: Glad to have you with us. And I want our viewers to know that because I'm a journalist I also make a contribution to the Iowa Freedom of Information Council.

Evans: It could be larger.

Yepsen: (laughs)

Yepsen: Also joining us across the table is Radio Iowa News Director Kay Henderson.

Henderson: Randy, let's begin with an assessment of the current state of open records and open meetings in Iowa.

Evans: I think generally the open meetings law is working pretty well. Most of the complaints that reach me are dealing with access to records unfortunately.

Henderson: Erin, as a reporter, would you say things have improved during your tenure or have gotten worse?

Jordan: I would say there have been time periods that there have been improvements, great steps forward in terms of access maybe in one area, like Iowa Courts Online, it's a lot easier to get those records than it was in the past. But I would say in the last few years, particularly during COVID, it has been a lot more challenging to get records.

Yepsen: Why should viewers care? Are we just a bunch of reporters sitting around talking about something that is our own special interest? Erin Jordan, why should viewers care?

Jordan: Because we are trying to keep our eyes on the government in terms of spending of money, in terms of how public school are ran, in terms of just how their government is operating. We see periodically about cases of embezzlement or things like that. Well, journalists are trying to be the watchdogs of our government agencies and the way we do that is be requesting records, by attending meetings and really taking advantage of those laws that allow us to do that.

Yepsen: Randy, same question to you. What is in it for the viewers here?

Evans: Well, I think that the citizens may not think that they have an interest in open government laws, but my experience is that they want the laws to be there and to be working when there is something that comes up that they are deeply concerned about whether it is in the city council or the local school board or whether it is an issue in state government.

Yepsen: Do people understand it? Do they understand the law? Does the average citizen really understand these laws and how they work?

Evans: Oh, I think there are government officials who don't quite understand the fundamental concept which is that everything should be open unless there is a specific reason in the law to keep it confidential.

Henderson: What is the most useful tool for someone in a community to know what their city council is doing? Explain how the law affects agendas and notices because people may not know that.

Evans: Yeah, the law requires that any government board post its agenda at least 24 hours before the meeting. The documents that are made available to city council members, school board members, are public records that the citizens are entitled to have as well. And then the law allows them to attend the meetings. So it's, the law is written in a way that allows the public to engage on whatever level of involvement that they want.

Henderson: Has the digital era helped or hurt?

Evans: It has made it easier. There are examples across the state where government boards post all sorts of documents on their website, you don't have to go to the meeting to watch, they will have a livestream available. But you would think that digital access would make it easier, but in some respects when you want records it can be a hindrance as well because government officials who are looking for an excuse to keep something from the public will say oh, we're going to have to get an IT specialist to come in.

Henderson: Erin Jordan, how has the pandemic affected your ability to access government information?

Jordan: Yeah, that has been a really big factor I think. I think under the administration of Governor Kim Reynolds there has been a lot of control exerted on other state agencies, particularly the Iowa Department of Public Health, but not limited to that. The Department of Education, others as well, are all having to route a lot of public records requests through the Governor's Office to get approval. Well, that obviously creates a huge bottleneck where you've got to get the sign off of someone on her staff before they are releasing these records and it's not uncommon for a very simple records request to take over a month. And I just, I don’t think that adheres to the law and I don't think that, I don't understand why it needs to be that way.

Yepsen: Why is she doing that?

Jordan: I assume she wants control over what message is coming out about COVID.

Yepsen: She is a politician, she wants to shape her message.

Jordan: Right, but if that doesn't match with what Iowa Code says in terms of the amount of time -- you're supposed to provide records in a certain framework, although our law is not as tight on that as it could be. But if you want to have a reasonable delay it has to be for specific reasons and they can never cite any of those reasons and in fact, they often just don't respond.

Yepsen: What about, going back to Kay's question on digital, what about people who don't have access to computers? We're learning in the pandemic era there are a lot of Iowans who can't go online to get a shot. How are they supposed to go online to access the city council agenda?

Jordan: It would be very difficult and especially with a lot of public buildings closed to foot traffic. I suppose they just need to make phone calls and ask that way, but it would be a very difficult time.

Yepsen: Does the volume of information cause you problems? Back when Randy and I started there wasn't much paper to go through. Now there's pounds.

Jordan: Well, I know I got a public records request fulfilled in the last month or so and it was four files and each one of them was like 1,500 pages. And luckily you can have all that on a little thumb drive or on an FTP file and it's doable, but it's still a lot to go through.

Yepsen: Let's switch gears here to talk about body cameras. Erin, I'll start with you. You've done a lot of work on the issue of police body cameras. What is the current state of police use of body cameras and making that information available?

Jordan: So a project that I've been working on with the Iowa Newspaper Association and several other papers in the state, the Des Moines Register, the Carroll newspaper, we queried Iowa's law enforcement agencies and 200 agencies we had responses from and about 90% of them use body cameras. So it is becoming the standard for law enforcement agencies to have the body worn cameras.

Yepsen: And what about how they make that information accessible? Are they all following the same rules?

Jordan: Well, we got the policies of these agencies and tried to review them and they do have differing rules about when to turn them on, when to turn them off, how long to retain the video. We found that retention policies ranged from as short as 7 days a video could be deleted to as long as indefinitely. So it really runs the gamut.

Yepsen: Randy, how forthcoming do you think authorities are in making this information public?

Evans: This is one of the emerging areas in the law that sooner or later the legislature is going to have to face because I think the citizens of Iowa are wanting access to that video, particularly in those instances when the actions of law enforcement officers have been called into question. I don't think there are people who are clamoring to have access to body camera videos with confidential informants or video that is recorded inside somebody's home. But I think in those instances where police officers are injuring someone, taking someone's life, there should be no excuse at all for not making that available to the citizens. And when government withholds that and refuses to make it available it just invites skepticism about the trustworthiness, the reliability of government officials, police.

Yepsen: So give me an outline of what a bill draft should look like? What should be covered?

Evans: I think that if you start with the presumption that the video is available and that there needs to be a balancing test between where the interests of privacy outweigh the interests of public access. You're starting to see the framework there. But instances when somebody's life has been taken by a police officer it shouldn't take the Iowa FLI Council spending $120,000 to get access to the video and answers to questions about how this shooting occurred.

Henderson: And you're mentioning a case in Burlington, right?

Evans: What I'm referring to is a Polk County case where a motorist was involved in a high speed pursuit, ended on a cul-de-sac in Altoona with a deputy shooting fatally the motorist. Nobody was questioning whether the chase was necessary or not, but when police won't tell you whether the person was shot in the chest or in the back it just invites doubt.

Yepsen: Erin, can we draft a statute in this state that specifies what county attorneys, chiefs of police, sheriffs are supposed to do when they release information, what they are to make available?

Jordan: I guess I'm kind of cynical that our legislature would do that. I think that any law that came out, at least right now, would maybe be worse than the access we have. And I just, I think that they should be determined to be part of that immediate facts and circumstances that right now journalists are entitled to get.

Yepsen: And what do we do about the circumstance where a police officer, oh I forgot to turn it on or it malfunctioned? Is there something to be done to prevent that?

Jordan: I don't know, there could be some penalties that are written in. But I just find since body camera are more the norm and they have been used by these agencies for a number of years that excuse holds less water.

Yepsen: But in fairness to the police, you will hear officers say it makes them behave, there have been examples of where they caught officers lying about what happened, officers who have been disciplined. So it is all a downside for the police?

Jordan: No. And I think it makes both people behave better. As part of our reporting we talked to officers who said they said, would you act differently if I told you I'm recording the camera? Would you pour out your beer when you're not supposed to have it? And immediately the person poured out their beer. I think it makes people on both sides of the camera cognizant of how they're going to come off.

Henderson: Randy Evans, one of the arguments against the long-term preservation of this video evidence has been the cost. Have you done a cost analysis of how much it would cost a small county sheriff's department to retain that data?

Evans: Well, I think the -- no, the direct answer is that we haven't. But this is being done in other states. They have found ways to ensure that the video is there. But it's not like every minute of every video has to be preserved in perpetuity. There are routine interactions that could be erased right away. But it's obvious which ones there needs to be some sort of a policy to preserve.

Henderson: Erin Jordan, what is the largest fee your institution has been charged for access to documents?

Jordan: I don't get all of those bills, my editor would probably know best. But I know we have been charged and we have agreed to pay on rare occasions maybe more than a thousand dollars. We have been quoted figures of tens of thousands of dollars and usually then starts a conversation of, well why are you asking that? Can we reduce that by doing this or that? So it can get up there and The Gazette can afford a thousand dollars in a unique situation. But a lot of newspapers and news outlets cannot.

Yepsen: Is this just a way for government agencies to stifle information, to hide information, make it so expensive to access?

Jordan: I don't know. I know some may have that initial intent but I think others just kind of get mired into well if I have X person doing this for so many hours. But sometimes we can have conversations and say, let's have a lesser paid employee do that and let's be really legitimate about exactly what we need.

Yepsen: And what do you do about a state or city official that is sitting out there watching that there's always the local crank or the local troublemaker or kook who files a chronic number of requests just to pester those offices? Those government officials all say there's people in every community that misuse the law by repeatedly filing requests. What do we do about that?

Jordan: Well, the law does allow for agencies to charge a reasonable amount of money and I think if they did that, if you've got someone who has an excessive number of requests, unless they're pretty wealthy that is going to add up. But I don't think they need to be charging exorbitant fees.

Henderson: Randy Evans, what is your advice to an Iowan sitting out there who wants a document and has found out what the fee is? How do you negotiate?

Evans: I think the public spotlight, what I call public shaming, is the most potent tool that the citizen has. I hear from journalists and ordinary folks who are being quoted more than a thousand dollars for records and it's painfully obvious that if the second largest newspaper in Iowa can't afford it, that Joe Ordinary Iowans is being priced out of access. And I think there are instances when government is doing that to discourage people from asking. But I think the way you do, the way you get around it if you're a citizen is by complaining and complaining publicly, complaining to the board members. It is unreasonable to think that records that the taxpayers have paid to create and maintain are going to cost them $500, $750, $1000 to get copies of them.

Yepsen: Randy, I want to switch gears, cameras in the courtroom. How is Iowa's experience with cameras in the courtroom working out?

Evans: I think it has worked phenomenally well. Iowa was one of the early states to let cameras back into the courtrooms. It has not gone without hiccups but there have not been verdicts that have been overturned because of the publicity. And I think it's a way to take the citizens of Iowa into a venue where few of them ever go.

Yepsen: Senator Grassley has repeatedly called for more cameras in federal courtrooms and for the Supreme Court. What do you make of that?

Evans: I would say right on, Senator. The argument you hear is that cameras are going to encourage grandstanding. I have complete faith in the Justices on the Supreme Court or federal judges to maintain order and decorum in their courtrooms.

Yepsen: Aren't lawyers grandstanding anyway in courtrooms?

Evans: It might have been something that has come up.

Yepsen: Erin, how do you feel about this? The reason I say that is we've all been in situations where once you get a camera in a situation, in a room, it changes the nature of the event. People know they're on. You've just talked about the police officers, they behave more.

Jordan: I've seen a lot of really great collaborations in terms of media outlets working together to share video footage from trials. And I also think particularly in the COVID time period, the concerns of that are not going to be ending immediately, letting people get into these venues to see court proceedings without having to physically be there is very important.

Henderson: Erin, could you walk through viewers who may not know. Iowa Courts Online has a huge volume of information that is accessible to the public. So what is accessible to the public? And there is part of it that is accessible for a fee.

Jordan: Yes, that's right. So Iowa Courts Online's basic level of access, which I think is fantastic that it includes all the counties of Iowa, I have looked for court records in other states and you have to go to one website for this county and another website. All of ours is together at Iowa Courts Online and the basic case search allows you to find a case number, it allows you to see the disposition of the case, what happened, it lets you check individual's dates of birth to make sure you have maybe the right person. It can be a very good introductory search.

Henderson: And now when you have a Supreme Court ruling it even has video embedded in that link which is kind of remarkable.

Jordan: Yeah, it's fascinating, except the time when the video didn't work recently with the U of I case. But yeah.

Henderson: Exactly. So let's talk about something that is a huge debate in the Iowa Statehouse and elsewhere. Randy Evans, big tech censorship. What is your view as the leader of the Freedom of Information Council on companies like Facebook and Twitter deplatforming President Trump and others?

Evans: I don't think that lawmakers have fully thought through where this could lead. I'm greatly reluctant to have the government dictating what a business has to do in terms of having access for information. I write a weekly newspaper column and I'd love to have it distributed on the New York Times website but that is not the way the First Amendment is intended to work. And I don't think we want government to be strong-arming businesses telling them what they can and they can't do.

Henderson: So, the argument that republicans make is Facebook and Twitter have become the public square. You disagree?

Evans: Well, I think that you see all the time there are new entities springing up. I'm more troubled by, and this is less of a First Amendment concern, I'm more concerned about the scope and the size of these businesses, the potential monopolistic control that they might exert rather -- and that is probably the way I would like to see some exploration done rather than --

Henderson: So break them up?

Evans: Or stop them from growing further. You see platforms that start up and start getting some support out there among the public and the next thing you know there has been a merger and you have one corporate entity controlling a large segment of the platforms.

Yepsen: Erin, I'd like to get your thoughts on Kay's question. How do you come down on this question? Should the big companies like this have the right to shut of the President of the United States because they don't like his tweets?

Jordan: Well, I think that the way that the tech companies have established the review panels about some of these decisions I think allows for the ability for maybe decisions to be reconsidered and it doesn't necessarily mean that if they make a decision to shut someone down temporarily that it can't be reinstated. I think it makes sense for that sort of review to happen and it is an evolving topic.

Yepsen: We've got just a couple of minutes left. Erin, there's a move underfoot to allow public officials to secret certain names of prominent people from public view in records, say the name or the address of a judge on property tax records. What do you think of that?

Jordan: I don't like that. I really think it opens the door for really anyone to want that whether they are just wealthy and they don't want someone to be looky loo and come by their house and see their mansion. I just think that is kind of a slippery slope and we shouldn't do that.

Yepsen: Randy?

Evans: Yeah, I worry that --

Yepsen: I mean, we have judges who have threats on their lives. There are examples of where people have gone, most recently a federal judge her son was shot.

Henderson: In New Jersey.

Evans: Yeah, I think there are certainly concerns out there but when you start cutting off the public's access, the person who is intent on committing a crime can go down to the courthouse and get the same information.

Henderson: Randy Evans, the Iowa Public Information Board, do you want the legislature to tweak any of its authority?

Evans: I think there ought to be more time allowed for people to file complaints. It's 60 days right now, which is often times catches people unaware. But I think the board serves an important role in being a way for Joe Ordinary Citizen to get a resolution without having to hire a lawyer.

Yepsen: And my role here is to shut this conversation down when we run out of time. Thank you both for being with us today, appreciate the work you're doing. And we'll be back next week with another edition of Iowa Press at our regular times, 7:30 Friday night and Noon on Sunday. For all of us here at Iowa PBS, I'm David Yepsen. Thanks for joining us today.

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Funding for Iowa Press was provided by Friends, the Iowa PBS Foundation. The Associated General Contractors of Iowa, the public's partner in building Iowa's highway, bridge and municipal utility infrastructure. Iowa PBS is supported in part by Wells Fargo. Fuel Iowa is a voice and a resource for Iowa's fuel industry. Our members offer a diverse range of products including fuel, grocery and convenience items. They help keep Iowans on the move in rural and urban communities. Together we Fuel Iowa. Small businesses are the backbone of Iowa's communities and they are backed by Iowa banks. With advice, loans and financial services, banks across Iowa are committed to showing small businesses the way to a stronger tomorrow. Learn more at IowaBankers.com.

Iowa Bankers Association
Associated General Contractors of Iowa