from the Iowa District Court for Linn County, Patrick R.
in civil action arising from police shooting appeal discovery
rulings denying protective order for police investigative
Wilford H. Stone and Gregory T. Usher of Lynch Dallas, P.C.,
Cedar Rapids, and Elizabeth D. Jacobi, City Attorney's
Office, Cedar Rapids, for appellants.
M. Schultes, Pressley Henningsen, and Emily Anderson of RSH
Legal, P.C., Cedar Rapids, and Larry R. Rogers Jr. of Powers,
Rogers & Smith, LLP, Chicago, Illinois, for appellees.
interlocutory appeal, we revisit the interplay between our
civil discovery rules and a confidentiality provision in the
state Freedom of Information Act, Iowa Code section 22.7(5)
(2018), to determine whether the district court abused its
discretion by compelling the defendants to produce police
investigative reports without a protective order preventing
disclosure to the public. This tort action arises out of a
late-night traffic stop. A Caucasian police officer fired
gunshots while struggling with an African-American motorist.
The gunshot wounds rendered the motorist a quadriplegic. The
police department released the dash cam video of the incident
to the public. The video went viral on social media,
the shooting attracted intense media attention. A year
earlier, the same officer had fatally shot another man, a
Caucasian, fleeing a traffic stop. No criminal charges were
filed in either incident.
plaintiffs, the injured motorist and his wife, sued the
police officer and the City for compensatory and punitive
damages. The plaintiffs sought discovery of the police
investigative reports, which the defendants offered to
produce subject to a protective order prohibiting disclosure
to the media or other nonparties. The district court, noting
the police investigation had been completed and involved no
confidential informants, denied the motion for protective
order but limited the order compelling production to reports
prepared within ninety-six hours of the incident, excluding
police internal review records. We granted the
defendants' application for interlocutory appeal.
review, we affirm. Litigants suing the government ordinarily
may obtain relevant records through discovery notwithstanding
confidentiality provisions in Iowa Code section 22.7, but a
protective order may be required precluding disclosure to
nonparties. Police investigative reports do not lose their
confidential status when the investigation closes. But
section 22.7(5) includes an exemption from confidentiality
for basic facts about the incident, subject to a
legislatively prescribed balancing test. Our precedent also
uses a balancing test. The district court did not abuse its
discretion by denying the requested protective order. The
district court balanced the competing interests in
confidentiality and transparency through its ninety-six-hour
time limit, a carve-out for police internal review records,
and directives to handle remaining confidentiality issues by
redaction or further proceedings.
Background Facts and Proceedings.
November 1, 2016, Police Officer Lucas Jones was on night
shift patrol for the Cedar Rapids Police Department. At 1:17
a.m., he saw a truck driving with a broken rear license plate
light. Officer Jones pulled the truck over,
approached on foot, and asked the driver for his license and
registration. The driver, Jerime Mitchell, complied. Officer
Jones and Mitchell dispute what happened over the next two
minutes.Mitchell got out of the truck and resisted
Officer Jones's efforts to handcuff him. The two men
wrestled to the ground. Officer Jones's police dog, Bane,
joined the fray. Mitchell forced his way up and back into his
driver's seat and began driving off with Officer Jones
clinging to the open door. Officer Jones unholstered his
handgun and fired three shots before jumping or falling off
the moving truck. A bullet wound near Mitchell's cervical
spine left him paralyzed from the neck down.
incident received widespread media coverage and intense
public interest. Protesters marched on city hall demanding
the release of the squad car's dash camera footage, which
the City released to the public. The Linn County Attorney
convened a grand jury to review the incident, but no criminal
charges were filed against Officer Jones or Mitchell.
February 2017, Mitchell and his spouse, Bracken, filed this
civil action against Officer Jones individually and the City
of Cedar Rapids alleging negligence, assault and battery,
intentional infliction of emotional distress and seeking
compensatory and punitive damages. The Mitchells allege that
the City is vicariously liable for Officer Jones's
actions. The defendants filed separate answers denying
liability. The parties proceeded with discovery.
Mitchells requested the law enforcement investigative reports
for the November 2016 shooting, as well as for an October 20,
2015 officer-involved shooting. During the 2015 incident,
Officer Jones responded to another officer's call to
assist with a traffic stop and search of Jonathan Gossman, a
Caucasian. Gossman fled on foot. Officer Jones released Bane.
The police dog sunk his teeth into Gossman's arm and
brought him to the ground. According to Officer Jones,
Gossman was holding a black handgun pointed at another
officer and Bane. Officer Jones fired sixteen rounds at
Gossman, who died from gunshot wounds. The Linn County
Attorney and the Iowa Department of Criminal Investigation
reviewed the incident, and Officer Jones was not charged with
defendants produced in Mitchell's civil action the police
department's training, policy, and operational manuals
without a protective order. They also agreed to produce the
requested reports to the Mitchells subject to their proposed
protective order modeled after the stipulated protective
order entered early in the case in a federal lawsuit arising
from another highly publicized police shooting. See
Steele v. City of Burlington, 334 F.Supp.3d 972, 975
(S.D. Iowa 2018). The Mitchells offered to stipulate to a
narrower protective order requiring redaction of witness
names, addresses, dates of birth, and social security
numbers. The parties failed to agree on the terms of a
protective order. In July 2017, Officer Jones and the City
filed a motion for a protective order under Iowa Rule of
Civil Procedure 1.504. The defendants sought to prevent
public disclosure of confidential documents including the
police investigative reports. See Iowa Code §
22.7(5). The Mitchells filed a resistance, arguing that the
protective order proposed by the defendants would permit them
to determine unilaterally which documents are confidential
and require the Mitchells to challenge the confidentiality of
each document requested.
hearing, the district court ordered the City and Officer
Jones to produce
any requested law enforcement investigative reports,
including electronic recordings or telephone communications
generated by or in the possession of a defendant or a police
officer acting in the scope of his or her duties that were
compiled as a result of the reporter's own observation or
investigation, including interviews or conversations with law
enforcement at the scene of the incident that resulted in the
injuries to Plaintiff Jerime Mitchell or lay witnesses to
that event. The order covers any investigative reports or
electronic communication generated or filed within 96 hours
of the incident, but does not apply to reports or memorandum
generated solely for purposes of a police internal review of
court relied on the three-part balancing test in Hawk Eye
v. Jackson, 521 N.W.2d 750, 753 (Iowa 1994), to
determine that the reports should be disclosed under Iowa
Code sections 22.7 and 622.11. The district court did not
compel the production of the personnel records, medical
records, the internal police investigation records, or other
documents. Instead, the court directed the parties to attempt
to reach an agreement as to those records. If the
negotiations were unsuccessful, the court would resolve the
defendants filed a motion to reconsider the ruling in light
of American Civil Liberties Union Foundation of Iowa,
Inc. v. Records Custodian, Atlantic Community School
District, 818 N.W.2d 231 (Iowa 2012), in which we held
that a balancing test was unnecessary when "the plain
language of the statute supports the exemption."
Id. at 236. The district court denied the motion,
determining that Atlantic Community School District
was limited to its facts. The district court further stated,
The Court concludes there is some ambiguity in §
22.7(5). The Court construes the statute as providing that
peace officers' investigative reports, privileged records
or information specified in Iowa Code § 80G.2 are to be
kept confidential, but then goes on to set forth its own sort
of "balancing test" language to certain
information. The section creates its own exception to
confidentiality, by stating that "the date, time,
specific location, and immediate facts and circumstances
surrounding a crime or incident shall not be kept
confidential under this section, except in those unusual
circumstances where disclosure would plainly and seriously
jeopardize an investigation or pose a clear and present
danger to the safety of an individual." Iowa Code §
22.7(5) (2017). In this case, there is no apparent ongoing
investigation with respect to the records at issue, and there
has been no allegation that any individual's safety will
be impaired as a result of disclosure of the records. The
Court finds that the temporal limits of its order allows
disclosure of what the Court finds [to be] documents
concerning, "immediate facts and circumstances
surrounding a crime or incident."
Jones and the City filed an application for interlocutory
appeal, which we granted. We retained the appeal.
Scope of Review.
review for an abuse of discretion a district court's
discovery ruling on a motion for protective order. Sioux
Pharm, Inc. v. Eagle Labs., Inc., 865 N.W.2d 528, 535-36
(Iowa 2015). "A district court abuses its discretion
'when the grounds underlying . . . [the] order are
clearly untenable or unreasonable.'" Id. at
535 (quoting Mediacom Iowa, L.L.C. v. Inc. City of
Spencer, 682 N.W.2d 62, 66 (Iowa 2004)). "A ruling
based on an erroneous interpretation of a discovery rule can
constitute an abuse of discretion." Mediacom,
682 N.W.2d at 66 (quoting Shook v. City of
Davenport, 497 N.W.2d 883, 885 (Iowa 1993),
abrogated on other grounds by Wells Dairy, Inc. v. Am.
Indus. Refrigeration, Inc., 690 N.W.2d 38, 44-48 (Iowa
review the district court's interpretation of chapter 22
for correction of errors at law." Iowa Film Prod.
Servs. v. Iowa Dep't of Econ. Dev., 818 N.W.2d 207,
217 (Iowa 2012).
determine whether the district court abused its discretion by
denying the defendants' motion for a protective order.
The defendants agreed to produce the reports to the Mitchells
for use in this lawsuit subject to a protective order
preventing them from disseminating the reports to the media
or other nonparties. The defendants argue that the reports at
issue are confidential within the meaning of Iowa Code
section 22.7(5) and that they established good cause for a
protective order. The Mitchells contend the reports are not
confidential and the defendants failed to meet their burden
to show good cause for a protective order in light of the
high public interest in this officer-involved shooting. We
are mindful that "[p]eople in an open society do not
demand infallibility from their institutions, but it is
difficult for them to accept what they are prohibited from
observing." Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 572, 100 S.Ct. 2814, 2825
begin our analysis with the interplay between our discovery
rules and Iowa Code chapter 22 governing access to public
records. Because litigants' access to
confidential records may be subject to a protective
order, we must decide whether the records at issue are
confidential. We set forth an overview of chapter 22 to
provide context before we interpret section 22.7(5), the
specific exemption applying to police investigative reports.
Finally, we address whether the district court properly
balanced the competing goals of confidentiality and
transparency in denying defendants' motion for a
protective order for the police reports.
The Interplay Between Iowa's Open Records Act and the
philosophy underlying our discovery rules is that
'litigants are entitled to every person's evidence,
and the law favors full access to relevant
information.'" Mediacom, 682 N.W.2d at 66
(quoting State ex rel. Miller v. Nat'l Dietary
Research, Inc., 454 N.W.2d 820, 822-23 (Iowa 1990)). For
that reason, "the district court should liberally
construe our discovery rules." Id. "Upon
motion by a party . . . and for good cause shown,"
however, a court may enter a protective order "to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense." Iowa R. Civ. P.
Mitchells sought the police investigative reports under the
discovery rules as litigants suing Officer Jones and his
employer, the City of Cedar Rapids. We have previously
addressed the tension between our discovery rules and the
confidentiality provisions in Iowa Code section 22.7. In
Mediacom, we observed, "Iowa Code chapter 22
pertains to parties seeking access to government documents
and ordinarily has no application to discovery of such
information in litigation." 682 N.W.2d at 69. Iowa Code
section 22.7 does not create a "true privilege against
discovery of . . . confidential information." See
id. at 66. "[T]here is nothing in section 22.7 that
suggests the legislature intended to limit the discovery
rights of litigants in cases involving governmental
entities." Id. at 69. "To the contrary,
section 22.7 indicates the opposite because it allows
disclosure upon a court order." Id.
"[S]ection 22.7 does not trump our discovery
rules." Id. Nevertheless, the confidentiality
the legislature prescribed for certain government records can
be safeguarded through a protective order allowing the
litigants use of the records in the lawsuit while preventing
disclosure to the public. See id. at 67 (noting
"rule 1.504, regarding protective orders, comes into
play" to shield confidential information from disclosure
An Overview of Iowa's Freedom of Information
Code chapter 22, the Open Records Act, is also known as the
Iowa Freedom of Information Act. City of Riverdale v.
Diercks, 806 N.W.2d 643, 645 (Iowa 2011). "The
general assembly made the decision to open Iowa's public
records." Atlantic Cmty. Sch. Dist., 818 N.W.2d
at 232. "The Act essentially gives all persons the right
to examine public records . . . [but] then lists specific
categories of records that must be kept confidential . . .
." Id. at 233. "The general assembly
[thereby] created and fixed the limitations on
disclosure." Id. at 232.
purpose of [chapter 22] 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.'"
Diercks, 806 N.W.2d at 652 (alteration in original)
(quoting Rathmann v. Bd. of Dirs., 580 N.W.2d 773,
777 (Iowa 1998)). "There is a presumption in favor of
disclosure" and "a liberal policy in favor of
access to public records." Hall v. Broadlawns Med.
Ctr., 811 N.W.2d 478, 485 (Iowa 2012). "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 v. City of Cedar
Rapids, 601 N.W.2d 42, 45 (Iowa 1999)).
Code section 22.7 currently has seventy-three enumerated
exemptions from the disclosure requirements. "Although
we should not thwart legislative intent, the specific
exemptions contained in freedom of information statutes are
to be construed narrowly." Iowa Film Prod.
Servs., 818 N.W.2d at 219 (quoting Hall, 811
N.W.2d at 485). "We have also stated, however, that
'where the legislature has used broadly inclusive
language in the exception, we do not mechanically apply the
narrow-construction rule.'" Atlantic Cmty. Sch.
Dist., 818 N.W.2d at 233 (quoting DeLaMater v.
Marion Civil Serv. Comm'n, 554 N.W.2d 875, 878 (Iowa
1996)). Against that backdrop, we turn to Iowa Code section
The Protection Afforded Police Investigative Reports Under
Iowa Code Section 22.7(5).
the district court nor our court has had the opportunity to
review in camera the police reports at issue. The documents
at the heart of this appeal are not in the court record. We
proceed categorically by addressing the interpretation of the
operative statutory language.
defendants rely on section 22.7(5) together with section
622.11, which provides, "A public officer cannot be
examined as to communications made to the public officer in
official confidence, when the public interests would suffer
by the disclosure." Iowa Code § 622.11; see
id. § 22.7(5). Although we have held other
privileges codified in chapter 622 are testimonial only,
"the privilege [in section 622.11] may be invoked at any
stage of proceedings where confidential communications would
otherwise be disclosed." State ex rel. Shanahan v.
Iowa Dist. Court, 356 N.W.2d 523, 528 (Iowa 1984). Taken
together Iowa Code section 22.7(5) and section 622.11 provide
"assurance to all persons upon whom law enforcement
officials rely that 'official confidentiality attends
their conversations and may protect from public access the