December 21, 2016
DR. ALLEN DIERCKS and PATRICIA LANE, Plaintiffs-Appellants,
CRAIG MALIN, Davenport City Administrator, CITY OF DAVENPORT, IOWA, an Iowa Municipal Corporation, and JACKIE E. HOLECEK, Davenport City Deputy Clerk, Defendants-Appellees.
from the Iowa District Court for Scott County, Stuart P.
plaintiffs appeal the district court's denial of their
claim based on the defendants' alleged failure to provide
documents pursuant to the Iowa Open Records Act. AFFIRMED IN
PART, REVERSED IN PART, AND REMANDED.
Michael J. Meloy of Meloy Law Office, Bettendorf, and John T.
Flynn of Brubaker, Flynn & Darland, Davenport, for
J. O'Rourke of Lane & Waterman, L.L.P., Davenport,
by Vogel, P.J., and Tabor and Mullins, JJ.
Diercks and Patricia Lane (the plaintiffs) appeal the
district court's denial of their claim based on the
alleged failure of Davenport City Administrator Craig Malin,
the City of Davenport, and Davenport City Deputy Clerk Jackie
Holecek (collectively, the City) to provide documents
pursuant to Iowa Code chapter 22 (2013) (the Iowa Open
Records Act). For the reasons set forth below, we affirm in
part, reverse in part, and remand.
Background Facts and Proceedings
case arises from the City of Davenport's inquiry into
acquiring the Isle of Capri's Rhythm City Casino. On
October 15, 2012, Davenport's Mayor, William Gluba,
executed an agreement with the casino, which enabled the City
to examine the casino's financial and operational
information as part of the City's consideration of
potentially acquiring the casino. The casino agreement was
designated private and confidential by the parties, although
the agreement indicated disclosure of the agreement and the
materials exchanged pursuant to the agreement may be required
under the Iowa Open Records Act.
October 2012, the Davenport City Council approved a motion
directing Gluba to sign a proposed asset purchase term sheet
with the casino, "to begin [the] formal process which
may lead to [the] City['s] purchase of [the]
casino." The term sheet provided the casino would afford
the City "reasonable access to records and
information" so the City could "conduct a customary
purchaser's due diligence investigation."
December 2012, Malin signed a contract with Deloitte &
Touche LLP, in which the parties agreed Deloitte would
perform a due diligence evaluation of the casino. The
Deloitte contract restricted the City's ability to
disclose information it received from Deloitte, while noting
those limitations did not apply where disclosure was required
by a subpoena, court order, regulatory authority, or other
City hired attorney John Hintze as a legal consultant and
Gary Buettner as a casino-operations expert. Hintze served as
the primary contact for Deloitte during its due diligence
review. On January 9, 2013, Hintze sent an email to Davenport
City Attorney Thomas Warner, Buettner, and a Deloitte
partner, Ayesha Rafique, with an attached legal memorandum
explaining certain due diligence information might be subject
to a public records request.
January 21, Rafique executed on behalf of Deloitte a document
entitled "Scope of Services, " which was marked
"Appendix B" to the Deloitte contract and outlined
the services Deloitte would provide the City. This document
was sent to Hintze, Buettner, and Malin.
February 18, Rafique sent Warner a bill in the amount of
$207, 900;Rafique also had sent the bill to Hintze
just four days prior. Warner testified he informed Rafique
the City would only pay a final bill at the end of the
transaction. The bill was subsequently cancelled, and Warner
deleted the e-mail containing the February
February or early March, the City ceased its pursuit of
potentially purchasing the casino. As a result, Deloitte was
instructed to stop working on its due diligence
March 12, Deloitte sent an invoice for $387, 500 to the City
for services performed through March 8. The invoice was not
itemized; Warner indicated this was required to protect the
confidential nature of the services performed by Deloitte and
information provided by the casino. Warner stated, "our
outside attorney [(Hintze)] and Gary [Buettner] monitored
[Deloitte's] work for us [(the City)]."
April 10, Warner provided Gluba and the city council a
memorandum marked confidential, which stated an alderman
"would like to see a product or report resulting from
the due diligence work undertaken by Deloitte." Warner
wrote, "The request cannot be readily accommodated due
to the nature of the due diligence work and the
confidentiality agreements executed by the City between
Deloitte and the [casino]." The memorandum further
stated, "Deloitte provided financial preacquisition due
diligence and advice and recommendations . . . . [which]
w[ere] coordinated with the legal work of [Hintze's law
firm], and the operational review and recommendations of
[Buettner]." Warner concludes "[a]s the Asset
Purchase Agreement negotiations were iterative, there is no
single concluding product or report to produce."
April 11, the plaintiffs served a public records request on
the City, pursuant to Iowa Code chapter 22,
summarized as follows:
• The engagement letter with Deloitte and attachments,
• All e-mails (and attachments), memorandums, letters,
or correspondence between Malin and Deloitte
regarding the due diligence services,
• All e-mails (and attachments), memorandums, letters,
or correspondence between Davenport finance director,
Brandon Wright, and Deloitte regarding the due diligence
• All e-mails (and attachments), memorandums, letters,
or correspondence between Warner and Deloitte
regarding the due diligence services.
response, the City produced documents on April
It is undisputed this production did not include a copy of
the Deloitte Scope of Services document, despite the
plaintiffs' request. When responding to the request, the
City made no claim of confidentiality, privilege, or
plaintiffs served an additional public records request on
April 24 summarized as:
• All invoices and itemized statements detailing the
hours spent and the services provided by Deloitte,
• All e-mails between Malin and Deloitte,
• Copies of all reports, letters, analysis, or other
information received from Deloitte on the casino
City responded with documents on May 3 and again made no
claim of confidentiality, privilege, or exemption for
undisclosed materials. It is undisputed, however, that the
City did not produce the invoice received from Deloitte in
February or the January 9 Hintze legal memorandum.
21, Malin signed a "Due Diligence Reimbursement
Agreement" with Rodney A. Blackwell, as the manager of
Davenport Casino Group, L.L.C. (DCG), based on DCG's
intention to purchase and develop a casino in Davenport. The
reimbursement agreement provided the City would
"cooperate in the assignment of any work previously
performed by Deloitte on behalf of the City to DCG" and,
in return, DCG would "reimburse the City for the full
cost of the due diligence services of Deloitte previously
provided to the City" in the event DCG could obtain the
necessary approval and financing to move ahead with its
casino development plans.
23, the plaintiffs made another public records request,
• Any and all reports, memorandums, letters, data
analyses, and all other papers received from
Deloitte pertaining to due diligence work done by Deloitte,
• Copies of any and all of the due diligence reports,
memorandums, data analyses, and all other paperwork
from Deloitte regarding the casino.
City responded on June 5, again making no claim of
confidentiality, privilege, or exemption. It is undisputed
the City did not produce any Deloitte due diligence work
product in response to this request.
7, the plaintiffs' attorney e-mailed Warner, noting the
Deloitte due diligence work product had not been produced and
requesting "all of the De[l]oitte due diligence
information as stated in the May 23, 2013 public records
reque[s]t, including reports, memorandums, data analyses,
letters and all other papers." Warner responded,
"The short answer is no report exists; they never
finished the[ir] work."
plaintiffs brought this lawsuit on June 20, 2013, seeking, in
relevant part, injunctive relief. On July 9, the City filed
its answer and asserted no affirmative defenses. On September
19, Warner mailed an unsigned copy of the Deloitte Scope of
Services to the plaintiffs' attorney, with an attached
letter containing the subject line "Missing
Attachment." The letter indicated the City had initially
produced an e-mail thread that had no attachments, but it had
since discovered earlier e-mail threads had contained the
attachment, and it had located and was now producing said
January 24, 2014, the plaintiffs issued a subpoena to
Deloitte for all Deloitte due diligence work product.
Deloitte, the casino, and the City moved to quash the
subpoena; the district court denied those motions and granted
the plaintiffs' motion to compel on April 8. Deloitte
then produced the documents.
February 2015, a bench trial was held. That same month, the
district court ruled in favor of the City. On March 6, the
plaintiffs filed a motion to enlarge or amend, which the
district court summarily denied. The plaintiffs appeal.
Standard and Scope of Review
commenced under Iowa Code chapter 22 are ordinarily triable
in equity, thus calling for de novo review on appeal."
Iowa Film Prod. Servs. v. Iowa Dep't of Econ.
Dev., 818 N.W.2d 207, 217 (Iowa 2012) (quoting
Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 45
(Iowa 1999)) (reviewing an "action seeking injunctive
relief and attorneys' fees under chapter 22 of the Iowa
Code"). "We review the district court's
interpretation of chapter 22 for correction of errors at
law." Id.; Press-Citizen Co. v. Univ. of
Iowa, 817 N.W.2d 480, 484 (Iowa 2012). When applying a
de novo review, "the district court's findings of
facts are not binding, but we will 'give deference to
those findings because the district court had the opportunity
to assess the credibility of the witnesses.'"
Horsfield Materials, Inc. v. City of Dyersville, 834
N.W.2d 444, 452 (Iowa 2013) (quoting Hensler v. City of
Davenport, 790 N.W.2d 569, 578 (Iowa 2010)).
Code section 22.2(1) states, in relevant part, "Every
person shall have the right to examine and copy a public
record." "The purpose of the statute is 'to
open the doors of government to public scrutiny [and] to
prevent government from secreting its decision-making
activities from the public, on whose behalf it is its duty to
act.'" Iowa Film Prod. Servs., 818 N.W.2d
at 218 (alteration in original) (quoting City of
Riverdale v. Diercks, 806 N.W.2d 643, 652 (Iowa 2011)).
"[T]he Act establishes 'a presumption of openness
and disclosure.'" Id. (quoting
Gabrilson v. Flynn, 554 N.W.2d 267, 271 (Iowa
1996)); see also Gannon v. Bd. of Regents, 692
N.W.2d 31, 38 (Iowa 2005) ("The right of persons to view
public records is to be interpreted liberally to provide
broad public access to public records." (citation
omitted)). "Disclosure is the rule, and one seeking the
protection of one of the statute's exemptions bears the
burden of demonstrating the exemption's
applicability." Diercks, 806 N.W.2d at 652
(quoting Clymer, 601 N.W.2d at 45).
Code section 22.10 "authorizes civil suits by citizens
to enforce the statute." Id. In such an action,
the initial burden rests with the claimant to demonstrate
"that the defendant is subject to the requirements of
[chapter 22], that the records in question are government
records, and that the defendant refused to make those
government records available for examination and copying by
the plaintiff." Iowa Code § 22.10(2); see also
Horsfield, 834 N.W.2d at 460. The claimant must make
this showing by a preponderance of the evidence. See
Horsfield, 834 N.W.2d at 460; see also Wings v.
Dunlap, 527 N.W.2d 407, 410 (Iowa Ct. App. 1994).
"Once the citizen shows the city denied his or her
request to access government records, the burden shifts to
the city to demonstrate it complied with the chapter's
requirements." Diercks, 806 N.W.2d at 653
(citing Iowa Code § 22.10(2)).
previously employed a "substantial compliance" test
when considering if a governmental body complied with chapter
22's requirements. See Wings, 527 N.W.2d at 410.
In Horsfield Materials, 834 N.W.2d at 462, the Iowa
Supreme Court "utilize[d]" this test "without
deciding that it [was] the appropriate test." The Iowa
Supreme Court has previously summarized the "substantial
compliance" test as follows:
"[S]ubstantial compliance" with a statute means
actual compliance in respect to the substance essential to
every reasonable objective of the statute. It means that a
court should determine whether the statute has been followed
sufficiently so as to carry out the intent for which it was
adopted. Substantial compliance with a statute is not shown
unless it is made to appear that the purpose of the statute
is shown to have been served. What constitutes substantial
compliance with a statute is a matter depending on the facts
of each particular case.
Brown v. John Deere Waterloo Tractor Works, 423
N.W.2d 193, 194 (Iowa 1988); see also Horsfield, 834
N.W.2d at 462 (parenthetically citing Brown for the
proposition that "substantial compliance is a
fact-specific inquiry depending on whether 'the purpose
of the statute is shown to have been served'").
undisputed the City is subject to the requirements of chapter
22. See Iowa Code § 22.1(1) (defining a
"governmental body" to include a "city").
The parties dispute, however, what records were actually
requested, whether the requested records at issue are public
records, and whether the City "refused" to make
them available to the plaintiffs. Specifically, the parties
dispute the appropriate classification of-and the City's
obligation to produce-four items: (1) the Deloitte due
diligence work product, (2) the invoice the City received
from Deloitte in February, (3) the Deloitte Scope of Services
document, and (4) the January 9 Hintze legal memorandum. We
discuss each disputed item in turn.
The Deloitte Due Diligence Work Product
appeal, the parties dispute the following issues regarding
the Deloitte due diligence work product: (1) whether the
documents were actually requested by the plaintiffs, (2)
whether the City delegated a duty to Deloitte, (3) whether
the documents are public records, and (4) whether the City
refused to produce them.
before the district court and on appeal, the City argues this
"work product" was not specifically sought in the
public records request. The relevant public records request
1. Any and all reports, memorandums, letters, data analyses
and all other papers received from [Deloitte]
pertaining to due diligence work done by [Deloitte] for Craig
Malin and/or the City of Davenport from December 12, 2012
through May 23, 2013.
. . . .
3. Copies of any and all due diligence reports, memorandums,
data analyses and all other paperwork from
[Deloitte] regarding [the casino] that the City is proposing
to sell to Rodney Blackwell for $387, 500.00.
(Emphasis added.) The City contends, as the work product
had not been transferred to the City and therefore had not
been "received from" Deloitte, it did not fail or
refuse to produce documents that were not requested.
records request framed by the plaintiffs did not request
documents prepared by and retained by Deloitte that had not
been delivered in any manner to the City. When the plaintiffs
did not receive the documents they sought, the
plaintiffs' attorney sent an e-mail on June 7 stating,
"The response the City provided to our May 23, 2013
public records request does not contain the due diligence
work the City paid $387, 500 to [Deloitte] pursuant to the
December 12, 2012 alleged contract Mr. Malin signed with
Ayesha Rafique of Deloitte." The e-mail ended with the
plaintiffs' request for "all of the De[l]oitte due
diligence information as stated in the May 23, 2012 public
records reque[s]t." We do not interpret the e-mail as
requesting information not previously requested but merely
urging compliance with the earlier request. The e-mail did
not expand on the plain language of the requests for
information received from Deloitte. Thus, we find the
plaintiffs' public records request did not request
Deloitte's work product document or any other documents
in Deloitte's possession that had not been provided to
the City-that is, records that had not been "received
from" or paperwork "from" Deloitte. The
plaintiffs' complaint of nondisclosure is with regard to
a due diligence report or due diligence work product, which
had not in fact been provided in any way to the City.
Warner's April 10 memorandum to Gluba and the city
council, which explained there was no report to provide in
response to an alderman's request, supports the
City's assertion there was no report available to it for
production in response to the records request. The
plaintiffs' request for public records was not a request
for documents in the sole possession of Deloitte. Therefore,
we need not address the question of whether the City
delegated a duty to Deloitte or whether any due diligence
work product in the sole possession of Deloitte were public
The February Invoice
their April 24 public records request, the plaintiffs sought,
in relevant part, "[a]ll invoices and itemized
statements detailing the hours spent and the services
provided by [Deloitte]." It is undisputed by the parties
this document constituted a government record. The City
contends it did not "refuse" to produce this
document because Warner had deleted the document when
Deloitte agreed to cancel the invoice and Warner had no
obligation to keep the invoice after it had been cancelled.
The City further argues it substantially complied with the
request by producing the final March bill. Finally, the City
argues the February invoice was a lump-sum bill that provided
no insight into the City's decision-making activities,
which is the purpose of chapter 22.
plaintiffs dispute when Warner deleted the e-mail-although
the date they proffer also predates their public records
request-and argue Warner could have recovered the e-mail with
the help of the IT department. Neither party provides case
law on this matter, and we have found no Iowa case law
controlling on this issue. However, we find persuasive the
Supreme Court's discussion of the Federal Freedom of
Information Act (FOIA) in Kissinger v. Reporters Comm.
for Freedom of the Press, 445 U.S. 136 (1980). See
Diercks, 806 N.W.2d at 658 (considering the Eighth
Circuit Court of Appeals' discussion of a FOIA claim when
analyzing chapter 22). In Kissinger, the plaintiffs
sought documents that were no longer in the possession of the
agency to which the request had been made. 445 U.S. at 140.
The Supreme Court concluded FOIA "does not obligate
agencies to create or retain documents; it only obligates
them to provide access to those which it in fact has created
and retained." Id. at 152; see also
Whitaker v. CIA, 31 F.Supp.3d 23, 46 (D.D.C. 2014). The
plaintiffs do not argue chapter 22 imposes an obligation on
the City to keep or create documents-nor do they cite
provisions of the code that would support such an
interpretation-only that the City should also look through
those documents it has discarded electronically. We do not
find the plaintiffs' contention persuasive. See
CareToLive v. FDA, 631 F.3d 336, 344 (6th Cir. 2011)
(finding governmental entity was not required "to
recover electronic data that has been deleted in order to
meet its requirement of performing a reasonable search"
clear, however, Hintze and Warner each had an e-mail
containing the invoice, and there is no dispute the invoice
is a public record. Regardless of the status of the copy that
had been received by Warner, the invoice received by Hintze
was likewise a public record. Our record shows no indication
Hintze was not in possession of the invoice at all times
material to this proceeding. See Iowa Code §
22.10(2) (placing the burden on the governmental entity to
show compliance with the statute after the party seeking
enforcement shows the governmental entity is subject to
chapter 22, the records at issue are government records, and
the defendant refused to produce the documents). Further, we
know Deloitte still possessed the invoice, because it
produced the same in the litigation. Even if the City was no
longer in physical possession of the invoice because the
invoice was a public record and the City had ready access to
the invoice it had destroyed, it had a duty to produce that
public record from sources readily available, to wit: Hintze
or Deloitte. See id. § 22.1(2).
we are not persuaded the City "substantially
complied" with the request or the invoice provided
"no insight" into the City's decision-making
activities. The plaintiffs sought "all invoices"
from Deloitte. The invoice provided before the task was
complete disclosed the amounts the City was spending
incrementally at tax-payer expense and the City's
willingness to continue said expense. We cannot find the
City's claim amounted to a liberal interpretation of
chapter 22 that promotes public access to indisputably public
records. See id. § 22.1(3)(b) (defining
"public records" to include "all records
relating to the investment of public funds"). The
district court erred in concluding the City had no duty to
produce the invoice in response to the public records
The Deloitte Scope of Services Document
April 11, 2013, the plaintiffs requested, among other things,
the "engagement letter and any attachments" between
Deloitte and the City. The City admits it did not initially
produce the Deloitte Scope of Services document received in
January 2013. However, the City argues this was an
"inadvertent omission, " which it cured by
providing a copy of the document on September 19 after this
litigation was initiated in June. The City admits the
Deloitte Scope of Services document is a public record
subject to disclosure but argues "inadvertence"
does not amount to a "refusal" to
the City promptly provided the Deloitte contract to which the
Deloitte Scope of Services served as "Appendix B."
The City argues its failure to produce was inadvertent, not a
refusal. The burden rests with the plaintiffs to show by a
preponderance of the evidence the failure to produce the
document constituted a "refusal." The plaintiffs
simply allege the September 19 letter from Warner, with which
the Deloitte Scope of Services was produced, constitutes a
tacit admission the City violated chapter 22. But no such
admission was made. To the contrary, the e-mail indicates the
document was withheld by error, not as an act of refusal.
courts have previously considered whether the mere failure to
produce documents constitutes a refusal. In
Horsfield, the Iowa Supreme Court found
"refusal" encompassed a situation where "a
substantial amount of time ha[d] elapsed since the records
were requested and the records ha[d] not been produced at the
time the requesting party file[d] suit under [chapter
22]." 834 N.W.2d at 463 n.6. Notably, in
Horsfield, the documents were requested in January
2010, the plaintiff brought suit in March 2010, and
no documents were produced until April 2010, when a
617-page production was made. Id. at 462. In
Braunschweig v. Bormann, No. 04-0537, 2005 WL
1224685, at *4 (Iowa Ct. App. May 25, 2005), this court found
a county auditor had not "refused" to produce
documents where the documents were orally requested in early
September, the documents were requested in writing on
September 24, the lawsuit was instituted on September 26 when
no documents had been produced, and the documents
were produced "within a few days thereafter." There
is no evidence the City intentionally failed to produce any
responsive documents; it simply mistakenly omitted an
appendix to the Deloitte contract provided to the plaintiffs.
When the City discovered its error, it provided the document
to the plaintiffs. The plaintiffs have failed to show by a
preponderance of the evidence under these circumstances the
City's failure to produce the documents was a
"refusal" as required by chapter 22.
The Legal Memorandum
April 24 records request, the plaintiffs requested
"[a]ll memo[s], reports, or other documents received
from" Hintze's law firm sent to Malin or the City
regarding the casino acquisition. It is undisputed the Hintze
January 9 legal memorandum, which Hintze had sent to Warner,
Buettner, and Rafique, was not produced. The records request
specifically stated: "If you claim any of these seven
requests pertain to confidential information and are claiming
secrecy please cite the applicable chapter code section you
allege applies." The City made no claim of
confidentiality or privilege in either its response to the
public records request or in its answer to the
City contends the document was subject to attorney-client
privilege and thus did not need to be produced. See
Iowa Code § 22.7(4) (noting certain public records are
to be kept confidential, including "[r]ecords which
represent and constitute the work product of an attorney,
which are related to litigation or claim made by or against a
public body"); see also Horsfield, 834 N.W.2d
at 463 (holding chapter 22 "does not affect other
specific statutory privileges recognized by the legislature,
such as the attorney-client privilege").
City further argues it had no duty to identify an exemption
or plead privilege as an affirmative defense; it concludes it
was simply entitled to withhold the document. The plaintiffs
disagree, alleging the City must both invoke a section 22.7
exemption in response to a request and affirmatively assert
attorney-client privilege in its answer, the failure of which
22.7 provides "[t]he following public records shall be
kept confidential, unless otherwise ordered by a court."
The section does not indicate when the party keeping the
documents confidential must also disclose that a document has
been designated as such. However, case law indicates parties
have claimed exemptions prior to litigation and pled aspects
of chapter 22 as affirmative defenses. See Diercks,
806 N.W.2d at 649 (stating the city's "answer to the
counterclaim denied bad faith and alleged as affirmative
defenses compliance with chapter 22 and reliance on advice of
counsel"); Gabrilson, 554 N.W.2d at 270 (noting
"the superintendent of the Davenport schools refused
to provide the [requested documents]" and, before the
institution of any litigation, "based his refusal on the
statutory exceptions to the Iowa open records law, claiming
that the materials were confidential trade secrets and
statutorily protected examinations"). Further, case law
supports the conclusion that section 22.7 claims can be
waived. See Diercks, 806 N.W.2d at 657 (finding the
governmental body "waived confidentiality" when it
disclosed the information sought to a third party).
parties also rely upon Horsfield for support of
their respective positions. In Horsfield, the
parties disputed certain e-mails the city had withheld
subject to attorney-client privilege. 834 N.W.2d at 463.
Notably, even prior to the institution of a lawsuit, the city
sent the plaintiff "a privilege log for five emails . .
. that the [c]ity considered protected by attorney-client
privilege." Id. at 450. Following the
institution of litigation, the city produced 617 documents
and a privilege log for eight e-mails it had withheld.
Id. at 451. The Iowa Supreme Court held the
city's subsequent determination to waive its
attorney-client privilege, produce the e-mails, and utilize
them at trial did not change that the city had an initial
right to withhold the e-mails. Id. at 463.
Importantly, however, the city had invoked privilege as a
basis for its refusal. Id.
present case, the record reflects the City failed to notify
the plaintiffs it was claiming privilege as to this document
or to argue the exemption before the district
court. The City claims:
There is nothing in chapter 22 that requires a city to
specify any confidential information it may be withholding
from the chapter 22 request. Similarly, there is nothing in
chapter 22 that requires the City to plead as an affirmative
defense that it withheld a document because of the
attorney-client privilege. Rather, under chapter 22,
materials may simply be withheld.
City does not dispute the legal memorandum constitutes a
public record, or that it refused to disclose it, only that
attorney-client privilege rendered it exempt from disclosure.
Under chapter 22, the "one seeking the protection of one
of the statute's exemptions bears the burden of
demonstrating the exemption's applicability."
Clymer, 601 N.W.2d at 45. Although pleading an
exemption would put the opposing party on fair notice of the
claim, we find no requirement that a governmental body must
affirmatively plead an exemption to disclosure. Regardless,
our courts have consistently held the burden of proving a
public record is exempt from disclosure or production is on
the governmental body claiming the exemption. Id.;
see also Diercks, 806 N.W.2d at 652-54. Based on the
parties' apparent agreement the City did not argue this
issue before the district court, the City cannot now maintain
this exemption on appeal. See Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002). The City has failed in its
burden; accordingly, we reverse.
foregoing reasons, we affirm the district court's finding
there was no violation of the Iowa Open Records Act with
regard to the Deloitte due diligence work product and the
Deloitte Scope of Services document. We reverse the district
court's findings there was no violation of the Iowa Open
Records Act with regard to the City's failure to produce
the invoice the City received from Deloitte in February and
the January 9 legal memorandum. We remand to the district
court for further proceedings consistent with this opinion.
IN PART, REVERSED IN PART, AND REMANDED.
 The plaintiffs dispute the district
court's classification of this bill as a
"progress" bill that did not need to be paid until
the work was completed. The classification of this bill is
irrelevant for our purposes.
 The record reflects Warner also
received a copy of the bill on February 19 from Hintze, who
asked Warner how the bill should be handled. A number of
e-mails were then exchanged among Warner, Hintze, and
Rafique, discussing the possibility of the bill being paid
through Hintze's law firm.
 The City contends it would have cost
another $50, 000 to have Deloitte complete its due diligence
work and draft a report.
 The plaintiffs served three other
public records requests upon the City prior to this request,
but only the three document requests discussed herein are at
issue in this matter.
 The City contends it followed its
standard operating procedures in responding to all of the
plaintiffs' requests: logging them as received, assigning
them to staff in the appropriate departments, working with
the IT department to search for responsive documents, and
having any potential responsive documents reviewed by Warner
for items that could not be disclosed.
 Ultimately, no assignment occurred,
and the City of Davenport paid Deloitte's fee.
 The plaintiffs contend a total of 319
pages of record were produced. The City contends nearly 900
documents were produced, although it appears the City is
including the documents it produced in response to the three
record requests that are not at issue in this case.
 Specifically, the plaintiffs requested
the district court "issue an injunction prohibiting [the
City] from continuing to violate Chapter 22."
 The plaintiffs take issue with certain
factual findings made by the district court; however, a
number of those factual findings are not relevant to the
matters now in dispute, and therefore, we do not address
them. The plaintiffs also challenge the district court's
consideration of a demonstrative exhibit in its order, when
the demonstrative exhibit was not entered into evidence. We
note that matters not in evidence cannot be considered by the
district court. See generally State v. Minneapolis &
St. L. Ry. Co., 56 N.W. 400, 403 (Iowa 1893) (noting
items not in evidence cannot be considered). Similarly, the
plaintiffs allege the district court confused the documents
produced in this litigation with those produced in response
to the public record requests when it found "[a]
substantial volume of record w[as] produced for the
plaintiffs in response to these records requests."
Regardless of the veracity of this statement, we do not rely
upon it or the demonstrative exhibit for our analysis on
 Similarly, in the April 24 records
request, the plaintiffs sought "[c]opies of all reports,
letters, analysis, or other information received
from [Deloitte] on the acquisition, purchase or lease of
the [casino]." (Emphasis added.)
 In its finding of facts, the
district court indicated the document was not produced
because it had not been provided to the custodian of the
public record. This claim is not made on appeal.
 Warner's e-mail indicates the
document was produced after the City recognized its
"oversight" in failing to produce it with the
initial response to the open records request. In his
deposition, Warner stated he provided the document in
compliance with the April 11 records request.
 "Refusal" means "the
act of refusing or denying." Refusal,
Webster's Third New Int'l Dictionary
(unabridged ed. 2003). In turn, "refuse" is defined
as to "deny" or "show or express a positive
unwillingness to do or comply with (as something asked,
demanded, expected)." Refuse, Webster's
Third New Int'l Dictionary (unabridged ed.
 It is worth noting the plaintiffs
first received a copy of this memorandum when it was produced
by Deloitte pursuant to the subpoena the plaintiffs served
during this litigation; accordingly, it would appear Deloitte
did not assert any claim that attorney-client privilege
 Again, the district court found the
document was not produced because it had not been provided to
the custodian of the public record. As before, this factual
finding was not raised on appeal.
 Although use of a privilege log or
similar procedure to claim confidentiality in response to a
public records request would promote the objectives of our
public records statute, we find nothing in Iowa Code chapter
22 or our case law that requires such a procedure.
 Specifically, the plaintiffs argue
in their brief, "Davenport cannot now, for the first
time on appeal, assert that they did not have to provide
Plaintiffs attorney Hintze's January 9, 2013 legal
memorandum because of attorney-client