This afternoon in Des Moines, the Register hosted a panel discussion with reporters and public officials called “Investigative records: Forever secret?” The inspiration for the topic was a controversial ruling in March 2014 by Polk County District Court Judge Robert Blink that effectively means that records from police investigations are forever exempt from the state’s public record disclosure laws.
Iowa Code Chapter 22 lists 67 exemptions to the disclosure of records kept by a government agency. At issue in Blink’s ruling was a line that exempts from disclosure “Peace officers’ investigative reports, and specific portions of electronic mail and telephone billing records of law enforcement agencies if that information is part of an ongoing investigation, except where disclosure is authorized elsewhere in the Code.”
Because of the comma placement after “reports,” Blink ruled, “The phrase ‘if that information is part of an ongoing investigation’ only modifies the immediately preceding phrase ‘specific portions of electronic mail and telephone billing records of law enforcement agencies.’ The initial phrase before the first comma, ‘Peace officers’ investigative reports,’ is unqualified; thus, investigative reports are confidential without condition.”
As the Register and others have reported, Blink’s interpretation has frustrated journalists and government transparency advocates, among others, who believe the disclosure of such information is often in the public’s interest. Arthur Bonfield, a retired University of Iowa law professor who helped construct the state’s transparency laws, told the paper Blink’s ruling was contrary to the intent of the law, which was meant “to only be applicable if it is part of an ongoing investigation.”
On Monday at a debate watch party at the Democratic Party HQ in Ames, the Informer asked Attorney General Tom Miller, who backed the state in the case, about Blink’s ruling. “My view is that investigative reports of law enforcement should generally be kept confidential for two reasons,” Miller said.
“One is that if people that are interviewed in criminal investigations know that whatever they say to law enforcement is going to be released to the public and to people that they’re talking about, that’s going to have an enormous chilling effect on the ability to interview people if they know what they say is going to be made public.
“And the other thing is that in these kinds of investigations, you talk to everybody, get a lot of information, and a lot of it is false, but if there’s false information that’s in a file of law enforcement and it’s released, it gives a great deal of credibility [to that information] and could be very harmful to people.”
The Informer also asked Miller about his decision to advise the Iowa Public Information Board to not take action on a complaint asking it to declare illegal a Department of Public Health administrative rule adopted in December 2015 that makes the publication of vital records, such as publicly available information about deaths and marriages, punishable by up to 30 days in jail and a $625 fine. Journalists in Iowa have been threatened with arrest because of the rule (although some continue to disregard it anyway), and Randy Evans, a former Register opinion editor who now heads the Iowa Freedom of Information Council, has argued that the rule amounts to unconstitutional prior restraint.
“This is something we’re working [on] with the Health Department and the Public Information Board to clarify,” Miller said. “There’s been a great deal of confusion and misinformation on this issue.” Asked what the misinformation has been, he replied, “Just generally.”
IPIB, he added, didn’t have the “jurisdiction to hear the complaint” in his office’s view.