In the Iowa Supreme Court
No. 23–1729
Submitted December 18, 2024—Filed February 14, 2025
Allen Diercks and Diane Holst,
Appellants,
vs.
Scott County, Iowa and Kerri Tompkins, Scott County Auditor,
Appellees.
Appeal from the Iowa District Court for Scott County, Henry W. Latham II,
judge.
Private citizens appeal the district court’s grant of summary judgment to
a county and a county official on their claims for violations of the Iowa Open
Records Act. Reversed and Case Remanded.
Christensen, C.J., delivered the opinion of the court, in which Mansfield,
Oxley, and McDermott, JJ., joined. May, J., filed a dissenting opinion, in which
Waterman and McDonald, JJ., joined.
Michael J. Meloy (argued) of Meloy Law Firm, Bettendorf, for appellants.
Kristina K. Lyon (argued), Assistant Scott County Attorney, for appellees.
Peter E. Larsen of Larsen Law Firm, PLLC, Urbandale, for amicus curiae
Iowa Freedom of Information Council. 2
Christensen, Chief Justice.
When the Scott County Board of Supervisors (Board) experienced a
midterm vacancy, a committee of county officials elected to fill the vacancy by
appointment and kept certain applications confidential during the appointment
process. To maintain confidentiality, the committee referred to applicants by
numbers during its meeting and only revealed the name of the applicant
appointed to fill the vacancy. After the appointment, two individuals submitted
open records requests to Scott County seeking the confidential names and
applications. Scott County denied the requests, citing Iowa Code section 22.7(18)
(2023).
The individuals subsequently filed a petition in district court, which
determined that Scott County and its record custodian were not required to fulfill
the open records requests. We retained the plaintiffs’ appeal. For the reasons
explained below, we reverse the decision of the district court and remand for
further proceedings.
I. Background Facts and Proceedings.
A vacancy occurred on the Board when Tony Knobbe resigned in December
2022 to become the Scott County Treasurer. In accordance with Iowa Code
sections 69.8 and 69.14A, a committee composed of Scott County’s auditor (Kerri
Tompkins), recorder (Rita Vargas), and treasurer (Knobbe) was formed to fill the
vacancy. During its first meeting on January 5, 2023, the committee elected to
fill the vacancy by appointment.1 On January 18, a notice of the committee’s
intent to accept applications for the position was published, and interested
1A vacant Board position may be filled by appointment by a committee of county officials
or by special election. See Iowa Code § 69.8. In this case, no request was made by an elector of Scott County for a special election, so the vacant position was filled by appointment. See id. § 69.14A. 3
applicants were instructed to email a resume and cover letter to Tompkins by
January 24.
The published notice did not state that applications would be kept
confidential, and the committee did not discuss the confidentiality of
applications during its first meeting. However, after the meeting, then-Assistant
Scott County Attorney Robert Cusack advised the committee:
The applications, and all the information they contain, including the names of applicants, are to be considered confidential if the applicants request confidentiality. Because requesting confidentiality is not a standard feature of an application or cover letter, I suggest that a follow up email be sent to each applicant asking if confidentiality is requested.
Confidentiality carries over to the open meeting to be held on January 26th. It will be awkward trying to discuss applicants without using their names, but you will have to determine some way to distinguish them – such as “applicant #1”. Further, there may be a need to narrow down the number of applicants before you even begin if there are a large number of applicants. Just depends on how many apply.
In accordance with Cusack’s advice, applicants were subsequently asked if they
would like their application to remain confidential. Tompkins received twenty-
seven applications for the Board position, and thirteen requested that their
names and applications remain confidential after being prompted.
The committee reconvened on January 26 to appoint a member to the
Board. After discussing five applicants by referencing numbers assigned to each
person, the committee selected applicant number sixteen, Rita Rawson.
Rawson’s name was not revealed until after she was selected.
In accordance with Iowa Code chapter 22, Scott County received two open
records requests regarding the identity of the applicants. On January 27, Diane
Holst requested, “The names of the twenty-seven (27) individuals that submitted
resumes to the Scott County Treasurer, Auditor and Recorder for consideration 4
in their efforts to appoint a county resident to fill the open County Supervisor
seat.” Cusack responded to Holst’s request with a letter that stated:
I am writing in response to your FOIA request dated 1/27/2023. Attached are the names of the applicants for the vacancy on the board of supervisors that did not request confidentiality.
The names of the individuals that did request confidentiality were derived from their applications for the position and we are required to keep that information confidential at their request. See Iowa Code § 22.7(18) (exempting, with exceptions, communications from persons outside government to extent government could reasonably believe such persons would be discouraged from communicating because of potential for public examination); [City of Sioux City v. Greater Sioux City Press Club], 421 N.W.2d 895 (Iowa 1988) (holding that employment applications for which the applicants did not authorize disclosure may be maintained with confidentiality by their public custodians); Gabrilson v. Flynn, 554 N.W.2d 267, 275 (Iowa 1996) (indicating that a court properly relied on Iowa Code section 22.7(19) in enjoining a school board member from making the “content” of a performance assessment test public; the board member would only have known that “content” from the record itself).
On January 31, Allen Diercks made a similar request through his attorney
Michael Meloy. Diercks’ request asked for six categories of information:
1. A list showing the first and last name of the 27 applicants and copy of each application submitted for the 2022-23 Scott County Supervisor vacancy.
2. The Minutes of the meeting, Motions voted upon and the Video of the January 26, 2023 Special Scott County meeting held by the County Recorder, Treasurer and Auditor.
3. Any and all public notices, postings, published notices, advertisements and/or other notices regarding the Supervisor vacancy and intent of the County to appoint a Scott County resident to fill the position.
4. Any motions, resolutions and/or ordinances approved by the Board of Supervisors regarding the vacancy created by Mr. Knobbe’s resignation from the Scott County Board. 5
5. A signed copy of Tony Knobbe’s resignation letter to Scott County.
6. All E-mails, E-mail attachments and Text messages, on a county cell phone or privately owned cell phone, sent to or received by Scott County Recorder Rita Vargas, Scott County Auditor Kerri Tompkins and/or Scott County Treasurer Tony Knobbe regarding the vacancy on the Board of Supervisors, between November 8, 2022 and January 30, 2023.
Cusack responded that most of the information Diercks requested would be
made available to him through a physical flash drive. However, Cusack once
again maintained that some applications must remain confidential and offered
to request an opinion from the Iowa Public Information Board regarding the
confidentiality of the applications.
In response to Scott County’s denial, Diercks and Holst filed a petition in
district court requesting equitable relief by declaratory judgment and injunctive
relief. After Scott County and Tompkins,2 Scott County’s record custodian, filed
an answer to the petition, both parties filed a motion for summary judgment. On
September 8, the district court granted Scott County’s motion for summary
judgment without a hearing.
The district court determined that Iowa Code section 22.7(18), a statutory
exemption to Iowa’s Open Records Act, applied to this case. Citing City of Sioux
City v. Greater Sioux City Press Club, the district court noted that applications
for employment fall within this exemption, and Diercks and Holst did not provide
“a compelling reason to believe applicants filling this vacancy are not employees.”
Therefore, the names of the nonconsenting applicants remained confidential.
Diercks and Holst filed a timely appeal, which we retained.
2Hereinafter, references to Scott County also reference Tompkins. 6
II. Standard of Review.
“Generally, actions brought under [Iowa’s Open Records Act] are in equity
and reviewed de novo.” ACLU Found. of Iowa, Inc. v. Recs. Custodian, Atl. Cmty.
Sch. Dist., 818 N.W.2d 231, 232 (Iowa 2012) (citing Gannon v. Bd. of Regents,
692 N.W.2d 31, 37 (Iowa 2005)). However, when a district court’s ruling under
the Act is for summary judgment, we review the decision for correction of errors
at law. Id. (citing Iowa R. App. P. 6.907; Gannon, 692 N.W.2d at 37). “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.’ ” Teig v. Chavez, 8 N.W.3d 484, 490 (Iowa 2024) (omission in original)
(quoting Story Cnty. Wind, LLC v. Story Cnty. Bd. of Rev., 990 N.W.2d 282, 285
(Iowa 2023)). The record is reviewed in the light most favorable to Diercks and
Holst. See id. (citing Koster v. Harvest Bible Chapel–Quad Cities, 959 N.W.2d 680,
687 (Iowa 2021)).
III. Analysis.
The issue presented—whether the Press Club holding concerning
section 22.7(18) extends to the applications of individuals seeking appointment
to fill a vacancy for an elected office—is one of first impression for our court.
Diercks and Holst contend that their records requests do not fall within
section 22.7(18)’s exemption to Iowa’s Open Records Act. Scott County argues
that this case is analogous to Press Club and that the district court was correct
to dismiss the plaintiffs’ claims. See 421 N.W.2d at 898.
A. Iowa’s Open Records Act. Chapter 22 of the Iowa Code, Iowa’s Open
Records Act, “is designed ‘to open the doors of government to public scrutiny
[and] prevent government from secreting its decision-making activities from the
public, on whose behalf it is its duty to act.’ ” Ripperger v. Iowa Pub. Info. Bd., 7
967 N.W.2d 540, 549 (Iowa 2021) (alteration in original) (quoting Mitchell v. City
of Cedar Rapids, 926 N.W.2d 222, 229 (Iowa 2019)). “ ‘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)).3 “The Act essentially gives all persons the right to examine
public records . . . [but] then lists specific categories of records that must be kept
confidential . . . . The general assembly [thereby] created and fixed the
limitations on disclosure.” Id. (alterations and omissions in original) (citation
omitted) (quoting ACLU Found. of Iowa, 818 N.W.2d at 232–33).
Under the Act, to sustain a cause of action, claimants must show: “(1) ‘the
defendant is subject to the requirements’ of chapter 22, (2) ‘the records in
question are government records,’ and (3) ‘the defendant refused to make those
government records available for examination and copying by the plaintiff.’ ”
Teig, 8 N.W.3d at 490 (quoting Iowa Code § 22.10(2)) (citing Horsfield Materials,
Inc. v. City of Dyersville, 834 N.W.2d 444, 460 (Iowa 2013)). If these requirements
are met, Iowa Code section 22.10(2) shifts the burden of proof to the defendant.
Here, Diercks and Holst presented evidence that the requested records refused
by Scott County are public records subject to disclosure under chapter 22, and
the burden shifted to Scott County to “demonstrate compliance by showing the
[information] is exempt from disclosure as confidential under section 22.7(18).”
Ripperger, 967 N.W.2d at 550. Thus, we must determine whether Scott County
met its burden of proof for the district court to grant summary judgment.
B. Iowa Code Section 22.7(18). Iowa Code section 22.7 lists seventy-five
types of public records that must remain confidential unless otherwise ordered
3Iowa Code section 22.8(3) states, “[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.” 8
by a court, the lawful record custodian, or another person “authorized to release
such information.” One type of public record that must remain confidential
includes:
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.
Id. § 22.7(18). “There are three exceptions to the area of confidentiality described
in this statute. These relate to (a) consent of the communicating party,
(b) information which may be disclosed without identifying its source, and
(c) information surrounding the occurrence of a crime.” Press Club, 421 N.W.2d
at 898.
We have interpreted section 22.7(18) in several different circumstances,
and Press Club is the most factually similar to this case. See 421 N.W.2d at 896–
97. There, the issue was whether applications for a vacant city manager position
were statutorily exempt from the disclosure requirements of chapter 22. Id. We
noted that subsection (18) uses “broadly inclusive language,” and the
legislature’s goal for the subsection was “to permit public agencies to keep
confidential a broad category of useful incoming communications which might
not be forthcoming if subject to public disclosure.” Id. at 897–98. The
employment applications at issue in Press Club, which were designated as
confidential by the city at the outset of the application process, fell within this
legislative goal and were confidential under section 22.7(18). Id. at 898–99.
Since Press Club, we have further developed subsection (18)’s applicability
to open records cases, establishing four criteria that must be met for a 9
communication to be covered by subsection (18). Specifically, the
communication must “(1) not [be] required by law and (2) made to a government
body (3) by someone outside government, and (4) the [government body] could
reasonably believe that the sender would be discouraged from making such
communications if [the government body] publicly disclosed it.” Teig, 8 N.W.3d
at 492 (second and third alteration in original) (quoting Kirkwood Inst. Inc. v.
Sand, 6 N.W.3d 1, 13 (Iowa 2024)). Only the last criterion is at issue in this case.
We recently expounded on the test for that criterion in Ripperger v. Iowa
Public Information Board. See 967 N.W.2d at 552–53. We held that the Polk
County Assessor could reasonably believe individuals would be deterred from
requesting removal from the public name search function on the assessor’s
website if the list of those individuals was made public. Id. at 544. Whether the
assessor could reasonably believe that publicizing the list of names would deter
property owners from requesting removal is “an objective test, from the
perspective of the record custodian, not the . . . district court.” Id. at 553. We
concluded that “[w]hen, as here, the record custodian could reasonably believe
disclosure of the list would deter such communications, that determination
should be upheld, not second-guessed, even if others could reasonably disagree
with the custodian.” Id.
C. The Record Requests in This Case. Diercks’s and Holst’s main
argument hinges on distinguishing the applications for the vacant Board position
from the applications at issue in Press Club. See 421 N.W.2d at 898–99. They
argue that we should recognize that applications for a vacant county board of
supervisors position are not confidential under section 22.7(18). See id. Scott
County argues that the applications for the vacant Board position are inherently 10
similar to the job applications at issue in Press Club and should be treated as
such. See id.
While these arguments may be relevant to our analysis, we reiterate the
limitations of Press Club that we recognized in Teig v. Chavez. Specifically, Press
Club was limited to the “[t]he employment applications which are involved in the
present litigation.” Teig, 8 N.W.3d at 492 (quoting Press Club, 421 N.W.2d at
899). This case is not resolved by determining whether Board members are
employees and whether applicants for the Board submit employment
applications during the appointment process.
Instead, the question that we must answer is whether the record
custodian, Tompkins, could “reasonably believe that [persons outside the
government] would be discouraged from making [the communications] to that
government body if they were available for general public examination.” Iowa
Code § 22.7(18). Again, this test is an objective one that must be applied from
the perspective of the record custodian. Ripperger, 967 N.W.2d at 552–53. If
Tompkins could have reasonably believed that disclosure of the applications
would deter people from outside the government from submitting them, even if
others could reasonably disagree, that decision should stand. See id.
Unlike the applicants in Ripperger and Press Club, whom the government
promised confidentiality before submitting their information, the Scott County
applicants received no such promise beforehand. See Ripperger, 967 N.W.2d at
554; Press Club, 421 N.W.2d at 896. The fact that twenty-seven candidates
applied without a promise of confidentiality suggests that the prospect of
disclosure did not in fact deter people from submitting applications.
Additionally, when the applicants were prompted about the confidentiality
of their applications, only thirteen of the twenty-seven applicants expressed a 11
preference that their applications remain confidential. In other words, more than
half of the applicants were not concerned about their applications being public,
even when subsequently asked. Regardless, as we stressed in Ripperger,
“government officials cannot shield public documents from examination merely
by promising confidentiality for communications that otherwise fall outside
section 22.7(18).” 967 N.W.2d at 554. It is the expectation of the custodian—not
the applicants—that matters concerning confidentiality. See Kirkwood Inst. Inc.,
6 N.W.3d at 12 (“Chapter 22 imposes no duty on government bodies to
affirmatively contact every person who has submitted a record subject to this
statute to obtain consent for disclosure.”).
Further, even if Board members are employees as Scott County argues,
the position remains a public office that is filled in a public process. See Press
Club, 421 N.W.2d at 898. Supervisors are not just public officials, they are
elected officials, elected biennially by the voters of Scott County to serve four-
year terms. See Iowa Code § 39.18. Only when there is a midterm vacancy is an
appointment even possible. See id. §§ 69.8(4) (providing that vacancies for a
county board of supervisors position are filled “as provided in section 69.14A”),
.14A(1)(a)–(b) (providing two processes for filling a vacant board of supervisor
position: “appointment by the committee of county officers designated to fill the
vacancy in section 69.8” or “[b]y special election”). Even then, the committee has
the choice to fill the public office by appointment or special election. See id.
§ 69.14A(1)(a)–(b). And even where, as here, the committee chooses to proceed
by appointment, county electors can, by petition, force the vacancy to be filled
through the special election process. See id. § 69.14A(1)(a)(2), (b)(1) (“The
committee of county officers . . . shall, upon receipt of a petition as provided in
paragraph ‘a’, call for a special election to fill the vacancy in lieu of 12
appointment.”). When the committee here selected the appointment option,
perhaps it considered the cost benefits of the appointment process. Regardless,
there is no evidence in the record that Scott County contemplated that an
appointment would be less public than a special election.
As evidenced by the setting of a public meeting, the committee clearly
expected to provide the public with an opportunity to comment on their selection.
This is further supported by the fact that Scott County took no steps to make
this meeting a closed meeting under Iowa Code chapter 21. It is not reasonable
for Tompkins to believe that people would be deterred from applying when the
applicants were explicitly told that “[t]he appointment will be made during a
special meeting of the Committee” and were directed where to find the location
and timing of the meeting. Twenty-seven people were informed that the selection
would be made in a public meeting and still chose to apply.
Lastly, the vacant Board position is also unique because of the nature of
the position. Federal law and our caselaw have noted the difference between
public officials who are elected and regular employees in several contexts. See,
e.g., 29 U.S.C. § 630(f) (“The term ‘employee’ means an individual employed by
any employer except that the term ‘employee’ shall not include any person
elected to public office in any State or political subdivision of any State . . . .”);
Hutton v. State, 16 N.W.2d 18, 19 (Iowa 1944) (noting five elements that
distinguish a public official from an employee). Unlike the position in Press Club,
this is a public office that is regularly filled in a public manner, and it would not
be reasonable for Tompkins to believe that people would be deterred from
applying because the process is not confidential. See 421 N.W.2d at 896, 899.
Scott County did not meet its burden to prove that Tompkins could have
reasonably believed that making the applications publicly available would have 13
deterred people outside the government from submitting that type of
communication to Scott County. See Iowa Code § 22.7(18). We hold that an
application from an individual outside of government for a vacant county board
of supervisors position that is being filled through the appointment process, as
described in section 69.14A, is not a confidential record exempt from disclosure
under section 22.7(18). The district court erred when it granted summary
judgment.
D. Remedies. Because Scott County has violated chapter 22, we now
consider the remedies available to Diercks and Holst. Under section 22.10:
Upon a finding by a preponderance of the evidence that a lawful custodian has violated any provision of this chapter, a court:
a. Shall issue an injunction punishable by civil contempt ordering the offending lawful custodian and other appropriate persons to comply with the requirements of this chapter in the case before it and, if appropriate, may order the lawful custodian and other appropriate persons to refrain for one year from any future violations of this chapter.
b. Shall assess the persons who participated in its violation damages in the amount of not more than five hundred dollars and not less than one hundred dollars. . . . A person found to have violated this chapter shall not be assessed such damages if that person proves that the person did any of the following:
....
(3) Reasonably relied upon a decision of a court, a formal opinion of the Iowa public information board, the attorney general, or the attorney for the government body, given in writing, or as memorialized in the minutes of the meeting at which a formal oral opinion was given, or an advisory opinion of the Iowa public information board, the attorney general, or the attorney for the government body, given in writing.
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. 14
Iowa Code § 22.10(3)(a), (b)(3), (c).
Scott County reasonably relied on the prior assistant county attorney’s
written opinion that the applications could not be disclosed and are not liable
for damages under section 22.10(3)(b)(3). However, Diercks and Holst are
entitled to all costs and reasonable attorney fees under section 22.10(3)(c), and
the names of all applicants and the applications must be disclosed. Because no
individual defendant is liable for damages, Scott County will be responsible for
the fees and costs. A one-year injunction is not appropriate given the defendants’
reliance on a written opinion of their assistant county attorney and our previous
guidance concerning applications in Press Club. See Teig, 8 N.W.3d at 500.
IV. Conclusion.
For these reasons, we reverse the district court’s grant of summary
judgment and remand the case for further proceedings.
Reversed and Case Remanded.
Mansfield, Oxley, and McDermott, JJ., join this opinion. May, J., files a
dissenting opinion, in which Waterman and McDonald, JJ., join. 15
#23–1729, Dierks v. Scott Cnty.
May, Justice (dissenting).
I appreciate the majority’s efforts on this case. In my view, though, the law
does not support the majority’s decision to reverse. The plain language of
chapter 22 and our controlling caselaw both point in the same direction. They
both show that Scott County acted properly by extending confidentiality to the
applications at issue here. And they both show that the district court was right
in refusing to require disclosure of those applications. We should affirm the
district court’s order. I respectfully dissent.
I.
Iowa Code chapter 22 is Iowa’s Open Records Act. Its stated policy is that
“free and open examination of public records is generally in the public interest.”
Iowa Code § 22.8(3) (2023). The word “generally” should not be overlooked. “After
all, no statute . . . pursues” a single “ ‘broad purpose’ at all costs.” Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 21 (2012).
Chapter 22 certainly doesn’t. Although some portions of chapter 22 ensure open
access to public records, see, e.g., Iowa Code § 22.2(1), other portions push in
the opposite direction by limiting the disclosure of public records, see, e.g.,
id. § 22.2(4). In other words, like all statutes, chapter 22 reflects the legislature’s
balancing of competing goods. The legislature balanced the virtues of open access
against the also-important virtues of confidentiality.
Confidentiality is clearly and vigorously protected in section 22.7, entitled
“Confidential records.” Id. § 22.7. Each of its seventy-five subsections identifies
categories of public records that are deemed confidential and, therefore,
protected from disclosure. Id.; see also Kirkwood Inst. Inc. v. Sand, 6 N.W.3d 1,
7 (Iowa 2024). Section 22.7 embodies the legislature’s deliberate “policy choice” 16
to protect those records “categorically.” Ripperger v. Iowa Pub. Info. Bd., 967
N.W.2d 540, 550 (Iowa 2021) (quoting Mitchell v. City of Cedar Rapids, 926
N.W.2d 222, 234 (Iowa 2019)). But cf. Iowa Code § 22.7 (permitting the release
of listed documents in circumstances not relevant here).
The question here is whether this categorical protection applies to certain
employment applications because they fell within section 22.7(18). It extends
confidentiality to
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.
Iowa Code § 22.7(18). But see id. § 22.7(18)(a)–(c) (providing exceptions).
By its plain terms, section 22.7(18) protects communications that are
voluntarily submitted to a government body if the receiving body “could
reasonably believe that” senders would be discouraged from making such
communications if the communications were publicly disclosed. Id. § 22.7(18);
see also Kirkwood Inst. Inc., 6 N.W.3d at 12–13. Its clear purpose is “to permit
public agencies to keep confidential a broad category of useful incoming
communications which might not be forthcoming if subject to public disclosure.”
Ripperger, 967 N.W.2d at 551 (quoting City of Sioux City v. Greater Sioux City
Press Club, 421 N.W.2d 895, 898 (Iowa 1988)).
That broad category certainly includes applications for employment. We
first reached this conclusion in City of Sioux City v. Greater Sioux City Press Club,
where we held that section 22.7(18)’s confidentiality extends to employment
applications for the position of city manager. 421 N.W.2d at 898–99. 17
We reaffirmed Press Club’s conclusion in Ripperger v. Iowa Public
Information Board, 967 N.W.2d at 551. Like Press Club, Ripperger observed that
employment applications for positions of public responsibility constitute “useful
incoming communications which could be deterred by public disclosure.” Id.;
see also Press Club, 421 N.W.2d at 898. Ripperger also recited Press Club’s
observation that “[i]n viewing the potential category of solicited communications
which might be received by public agencies and for which they may wish to
maintain confidentiality, employment applications come immediately to mind.”
Ripperger, 967 N.W.2d at 551 (quoting Press Club, 421 N.W.2d at 898). After all,
Ripperger noted, “[p]resumably some of those job applicants would have thought
twice about applying if doing so put them on a public list that could be seen by
their current employer.” Id.
We said much the same in Teig v. Chavez, 8 N.W.3d 484 (Iowa 2024). Teig
again reaffirmed Press Club and its conclusion that “employment applications fit
within the ‘broad category of useful incoming communications’ protected” by
section 22.7(18). Id. at 492 (quoting Press Club, 421 N.W.2d at 898). Teig also
recalled Ripperger’s favorable citation of Press Club as well as Ripperger’s
explanation that job applicants might think “twice about applying if doing so put
them on a public list that could be seen by their current employer.” Id. at 493
(quoting Ripperger, 967 N.W.2d at 551); see also Press Club, 421 N.W.2d at 898.
To be sure, Teig clarified that because section 22.7(18) only applies to
submissions by “persons outside of government,” its protections don’t extend to
internal applicants. Id. at 492–95 (quoting Iowa Code § 22.7(18)). But Teig
confirmed that “[s]ection 22.7(18) protects applications received from external
candidates, meaning anyone not employed by the [government-employer] when
the application was submitted.” Id. at 495 (emphasis added). 18
Teig was decided less than a year ago.
II.
Once you’ve read Teig, Ripperger, and Press Club, and once you’ve studied
the plain language of section 22.7(18), the present case becomes fairly
straightforward. The question presented is whether section 22.7(18)’s
protections apply to applications for appointment to Scott County’s county
supervisor position. Under the text of section 22.7(18), the answer depends on
whether Scott County could have reasonably believed that disclosing
applications would deter similar communications. Teig, Ripperger, and Press
Club all suggest that it could. All three opinions suggest that employers can
reasonably believe that disclosure of employment applications would deter
similar communications. All three opinions suggest that those applications are
protected by section 22.7(18). I see no reason to abandon those teachings today.
Rather, we should follow them and conclude that section 22.7(18)’s protections
apply.
III.
This conclusion aligns with the lived experiences of those public servants
who served the people of Scott County in their effort to fill the county supervisor
position. Consider these statements by Scott County Auditor Kerry Tompkins:
My background includes office management experience of over 20 years. Throughout this experience, it is routine to keep job candidate names and information confidential. I believe candidates expect confidentiality as they often do not notify their current employer of the interest. In addition, candidates may have felt more open to apply and learn more about the opportunity knowing their name would not be public. . . .
In meeting with many of the interested candidates [for the open county supervisor position], I found several were very grateful for the confidentiality option. Candidates were interested in learning more about the position and opportunities throughout Scott County. 19
Consider also the affidavit of Scott County Recorder Rita Vargas. Vargas
participated in the process at issue here and also in a prior appointment process
for another supervisor position in 2006. On both occasions, Vargas explains, the
applicants were permitted to “choose for themselves, for whatever personal
reason,” to have their applications kept confidential. Vargas believes that “[i]n
both cases the citizens benefited for allowing the very best to apply without fear
of recourse to themselves.”
Also consider the affidavit of Scott County Treasurer Tony Knobbe, who
also participated in the process at issue here. Knobbe offered these observations
about the importance of confidentiality:
I have never been part of a selection process for hiring where the name of any candidate was made public prior to a final decision, background checks, and offer and acceptance of terms of employment. To me it seemed natural that some candidates would want to remain anonymous, unless chosen for the position. I think it is for this reason that we were blessed with 27 great applicants for the job. I’m absolutely convinced that the field would have been much smaller had we not offered confidentiality.
Of course, by citing these observations, I do not mean to imply that
subjective beliefs are determinative here. Instead, as the majority recognizes,
section 22.7(18) requires an objective inquiry as to whether Scott County “could”
reasonably believe that disclosure would discourage applicants. See Iowa Code
§ 22.7(18). Importantly, though, this objective inquiry must be judged “from the
perspective of the record custodian,” Scott County, “not the . . . court[’s].”
Ripperger, 967 N.W.2d at 553 (emphasis added). And so, as Ripperger
emphasizes, a court errs “by substituting its judgment for that of the record
custodian.” Id. So long as “the record custodian could reasonably believe
disclosure . . . would deter such communications, that determination should be 20
upheld, not second-guessed, even if others could reasonably disagree with the
custodian.” Id.
Applying these principles here, we should uphold Scott County’s
reasonable decision to protect the applications from disclosure. We should not
second-guess Scott County or substitute our judgment for its.
IV.
The majority says that a different outcome is justified by several
circumstances, including (1) Scott County’s failure to make the promise of
confidentiality sufficiently explicit from the beginning of the process, (2) the fact
that a good number of applicants (twenty-seven) actually applied nonetheless,
(3) the fact that only about half of those applicants accepted an explicit offer of
confidentiality, and (4) the fact that the selection process involved a public
meeting—although, during that meeting, Scott County’s selection committee
concealed the names of applicants who requested confidentiality by referring to
them by numbers, e.g., applicant fourteen, applicant twenty, applicant twenty-
two.
I respectfully submit that none of these considerations are relevant.
Neither the statutory text nor our cases suggest that section 22.7(18)’s protection
depends on these things. Its protection does not depend on how zealously the
protection is advertised, how many applicants ultimately apply, how many
applicants subjectively care about the protection, or whether the protection may
be compromised at some point. Instead, section 22.7(18)’s protection depends
on a single issue: whether “the record custodian”—Scott County—“could
reasonably believe” that disclosure of applicants’ information “would deter such
communications.” Id. (emphasis added); see also Iowa Code § 22.7(18). As 21
already explained, Scott County could reasonably hold that belief. So the
protection applies.
V.
The majority also worries that although county supervisors are
employees—they receive paychecks and so on—they aren’t regular employees.
They are public officials who are usually chosen through elections. For the
majority, this means that the supervisor selection process should be wholly
public even where, as here, there is no election.
I disagree for three reasons. First, to be clear, although an election was an
option that the county could have chosen, there was nothing improper about its
selection of an appointment process instead. Indeed, Iowa Code
section 69.14A(1) is clear that the county could choose between the two
processes. And nothing in Iowa law requires that if (as here) the appointment
process is chosen, that process must be conducted in the same overtly public
manner as an election.
Second, it is important to realize that although the chosen applicant would
become a public official once chosen, the applicants themselves were not public
officials when they applied. And the twenty-six applicants who weren’t chosen
did not become public officials. There is no good reason that those unsuccessful
applicants couldn’t continue to enjoy confidentiality.
Finally, and perhaps most importantly, nothing in the statute or our cases
suggests that the analysis under section 22.7(18) is different because
applications are made for a higher-profile position rather than a lower-profile
position. If anything, the opposite is true. Press Club said section 22.7(18)
protects applications for city manager, while Teig said section 22.7(18) protects
applications for city clerk and city attorney. Press Club, 421 N.W.2d at 898–89; 22
Teig, 8 N.W.3d at 492–95. All of those are important positions with relatively high
profiles in local government.
VI.
The plaintiffs suggest that we should compare Scott County’s selection
process with the processes used to select judges. This makes sense because both
judges and county supervisors are public officials with somewhat high profiles.
But fair consideration of those processes does not support the plaintiffs’
case. Rather, it supports Scott County’s decision in favor of confidentiality. To
understand why, it is helpful to compare the methods used to select Iowa’s state
court judges with those used to select federal magistrate judges.
Let’s start with the process for state judges. See generally Iowa Const. art.
V, §§ 15–16; Iowa Code ch. 46; Iowa Code §§ 602.6201, .6304, .6305; see also
Iowa JNC, About Merit Selection, Appointing Authority, and Accountability,
https://www.iowajnc.gov/about [https://perma.cc/VFV3-NRY8] (discussing
Iowa’s merit selection process). Every applicant for a state judicial position must
submit an application that is a nonconfidential public record. The names of all
applicants are publicized on the internet and elsewhere. A judicial nomination
commission studies the applications and interviews applicants. Ultimately, the
commission sends a list of nominees, which is also publicized, to the Governor’s
office. The Governor selects from that list.
This very public approach has benefits. By publicizing the names of
applicants, Iowa’s process encourages the flow of information about the
applicants from citizens to decision-makers. But there are costs, too, particularly
for private practice attorneys. If partners and clients know that a lawyer is trying
to leave the practice of law to become a judge, they may think twice about
sending new projects to that lawyer. Meanwhile, the applying lawyer has no 23
guarantee of being nominated—much less selected—for a judgeship. We know
that these concerns deter some good candidates from applying.
Conversely, more good candidates would apply if they could do so while
maintaining at least a degree of anonymity. The federal judicial system has
recognized this for a long time. So the processes for selecting federal magistrate
judges include rigorous confidentiality requirements to protect the identities of
applicants. These confidentiality requirements are imposed for the express
purpose of “encourag[ing] the greatest number of applicants and to protect their
privacy.” 2 Admin. Off. of the U.S. Cts., The Selection, Appointment, and
Reappointment of United States Magistrate Judges 23 (2010),
https://www.nced.uscourts.gov/pdfs/Selection-Appointment-Reappointment-
of-Magistrate-Judges.pdf.
If the federal judicial system believes that confidentiality tends to
encourage the greatest number of applicants for magistrate judge positions,
wouldn’t it be reasonable for Scott County to reach the same conclusion when
appointing a county supervisor? Surely it would.
VII.
The federal judicial system isn’t the only major public employer that
understands the importance of providing confidentiality to applicants. Far from
it. Consider the University of Iowa (University), which has more than 30,000
employees on staff, including most of Iowa’s highest paid public employees. See
Univ. of Iowa, 2023–2024 Data Digest 55 (2024); Tim Webber, Database Reveals
State of Iowa’s Highest-Paid Employees, Des Moines Reg. (Aug. 5, 2024),
https://www.desmoinesregister.com/story/news/2024/07/16/salary-
database-how-much-do-state-of-iowas-highest-paid-employees-make-kim-
reynolds/74408408007/ [https://perma.cc/Y36A-K3QB]. 24
On its webpage—under the heading “Job Applicant Confidentiality”—the
University notes this:
Judges, legislators, and researchers have concluded that many . . . applicants would be deterred from seeking public employment in an open search process. The University of Iowa’s own experience confirms those conclusions. The best . . . applicants frequently hold positions of respect and authority with other employers. Those individuals may decline to participate in a personnel search due to legitimate and reasonable concerns that disclosure of the individual’s participation in the search may adversely impact the individual’s ability to perform the individual’s present job.
Hum. Res., Univ. of Iowa, Job Applicant Confidentiality,
https://hr.uiowa.edu/policies/job-applicant-confidentiality
[https://perma.cc/F5M3-5N2S].
The University goes on to state its official determination that “qualified
outside candidates would be discouraged from applying for university positions”
if their applications were made public. Id. The University also worries that those
applicants “may suffer needless and irreparable injury to their reputation” if their
applications were made public. Id. Accordingly, the University concludes that
applications from outside of Iowa state government “shall be maintained as
confidential in accordance with the terms of the Iowa open records law.” Id.
Surely Scott County could reach similar conclusions concerning county
supervisor applicants. And surely it was reasonable for Scott County to keep
their applications confidential.
VIII.
Until today, Iowa law offered a safe harbor for public employers like Scott
County and the University. They could trust our pronouncements in Teig,
Ripperger, and Press Club. They could certainly trust Teig’s 2024 pronouncement
that “22.7(18) protects applications received from external candidates, meaning 25
anyone not employed by the [government-employer] when the application was
submitted.” Teig, 8 N.W.3d at 495 (emphasis added).
After today, things will be more complicated. With all respect, I do not
think the majority opinion makes it clear which employment applications will be
protected by section 22.7(18) and which will be subject to public disclosure.
This new uncertainty will have consequences. It will cause public
employers to hesitate before promising confidentiality to applicants. It will also
cause applicants to think twice before believing any promises of confidentiality.
This may well result in smaller pools of qualified applicants for positions of
responsibility in government.
IX.
The majority’s decision is inconsistent with the text of Iowa Code
section 22.7(18) and our controlling caselaw. I respectfully dissent.
Waterman and McDonald, JJ., join this dissent.