DR. ALLEN DIERCKS, Plaintiff-Appellant,
THE CITY OF BETTENDORF, IOWA, and KRISTINE STONE, Defendants-Appellees.
from the Iowa District Court for Scott County, Mary E. Howes,
Diercks appeals the denial of his claim based on the
defendants' alleged failure to provide documents pursuant
to the Iowa Open Records Act.
Michael J. Meloy of Meloy Law Office, Bettendorf, for
M. O'Brien and Catherine M. Lucas of Bradshaw, Fowler,
Proctor & Fairgrave, P.C., Des Moines, for appellees.
R. Ostergren of Muscatine County Attorney's Office,
Muscatine, amicus curiae.
by Tabor, P.J., and Mullins and Bower, JJ.
Diercks appeals the district court's denial of his claim
based on the alleged failure of the City of Bettendorf and
City Attorney Kristine Stone to provide documents pursuant to
Iowa Code chapter 22 (2017) (the Iowa Open Records Act).
Because the district court erred in concluding the records
requested were not public records, we reverse and remand for
further proceedings. We leave it to the district court on
remand to consider the City's claims of privilege and
that statutory exceptions to disclosure exist.
to Iowa Code section 22.10, "Any aggrieved person, any
taxpayer to or citizen of the state of Iowa . . . may seek
judicial enforcement of the requirements of this chapter in
an action brought against the lawful custodian and any other
persons who would be appropriate defendants under the
circumstances." A requester has the burden to prove by a
preponderance of the evidence (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." Iowa Code § 22.10(2); Diercks v.
Malin, 894 N.W.2d 12, 18 (Iowa Ct. App. 2016).
Background Facts and Proceedings.
is a taxpayer and resident of Bettendorf. The City of
Bettendorf is subject to chapter 22. Kristine Stone was the
Bettendorf city attorney and the "lawful custodian"
responsible for implementing the open-records
requests. We may refer to Bettendorf and Stone
collectively as the City.
Iowa Communities Assurance Pool (ICAP) is a government risk
pool as allowed under Iowa Code section 670.7. Bettendorf
entered into a contract with ICAP and has paid ICAP for the
defense of tort claims against the City.
hired Michael Walker of Hopkins & Huebner, P.C., to
defend the City in lawsuits concerning its sewer system filed
between August 14, 2013, and January 27, 2017.
24, 2017, Diercks hand-delivered a "Chapter 22 Request
for Public Records" to Stone requesting from the City:
"All itemized fee statements submitted from Attorney
Michael C. Walker and/or Hopkins & Huebner, P.C. to the
[ICAP] or the City of Bettendorf, Iowa for legal services
rendered to the City from August 14, 2013 through January 27,
2017." Diercks also wrote, "If you redact any
information please state any reasons for that
8, 2017, Stone provided Diercks Bate-stamped pages 01-335 of
billing statements. Stone wrote:
The redactions noted on these documents are pursuant to the
attorney-work product doctrine and attorney-client privilege.
These redactions are appropriate pursuant to Iowa Code
section 22.7(4). We are withholding additional documents as
wholly confidential. This includes a three-page invoice that
is not only attorney-work product and attorney-client
privilege, but also confidential pursuant to Iowa Code
section 22.7(11). Moreover, there was one responsive invoice
that is wholly confidential pursuant to Iowa Code section
22.7(4) because it is related to pending litigation."
was charged $16.80 for the production.
September 7, 2017, Diercks filed a petition pursuant to
chapter 22 requesting the court:
(a) declare the requested itemized fee statements from
Hopkins & Huebner, P.C. and Attorney Michael C. Walker
are public records pursuant to Iowa Code chapter 22 and
contain multiple illegal redactions to these public records;
(b)produce all of the public records without redactions or
with valid redactions requested pursuant to [Diercks] May 24,
2017 public records request including all the requested
itemized statements from Hopkins & Huebner, P.C. and
(c) find that [the City's] claim of privileges or rights
to confidential information do not exist or were waived by
[the City]. Riverdale v. Diercks, 806 N.W.2d 643
(d) find that [Bradshaw, Fowler, Proctor & Fairgrave,
P.C.] could not redact these records;
(e) pay all costs and reasonable attorney fees as mandated by
§ 22.10(3)(c) of the Iowa Code;
(f) assess damages against Stone pursuant to §
City admitted it entered a local risk pool with ICAP; ICAP
retained Walker of Hopkins & Huebner to defend Bettendorf
in lawsuits filed between August 14, 2013, and January 27,
2017; "Bettendorf accepted the legal representation of
Mr. Walker provided pursuant to the ICAP's local
government risk pool"; and the City had received an
open-records request from Diercks "pertain[ing] to fees
statements for legal work completed by Hopkins for
Bettendorf." The City also admitted the fee statements
"contained some redactions consistent [with] Iowa
law" and "affirmatively state[d] the redacted
portions of the records are confidential pursuant to Iowa
Code section 22.7." The City claimed several affirmative
defenses, including that "the requested invoices for
legal services provided pursuant to a local government risk
pooling agreement are not public records."
City filed a motion for summary judgment, asserting the
records requested are not public records. In its brief in
support of summary judgment, the City asserted:
"Bettendorf was under no legal obligation to produce
anything not in its possession." It asserted:
It is undisputed Bettendorf did not have nor had it ever seen
the invoices Hopkins and Huebner submitted to ICAP until they
were requested by [Attorney] Meloy. They are not "of or
belonging to" Bettendorf and therefore are not public
records subject to disclosure at all. . . . Moreover, the
Legal Defense and Claim Payment Agreement between Bettendorf
and ICAP supports the undisputed understanding that the
billing records submitted to ICAP are not Bettendorf's
City provided the court with a paragraph from its contract
N. PRIVILEGED COMMUNICATIONS
The member and the Pool shall be considered
as co-clients of the assigned defense counsel and claims
service providers engaged by the Pool hereunder.
Communications between the member and defense
counsel shall be deemed privileged and confidential
information of both the Pool and the
member. Communications between and among the
Pool's administrator, defense counsel, claims
service provider or other consultants shall be deemed
privileged and confidential information of the Pool
the City contended that if the records requested were public
records, they were excepted from disclosure under Iowa Code
section 22.7(4) (attorney work-product) and/or section
22.7(6) (reports of a government agency which if released
would give advantage to a competitor) or the attorney-client
privilege. The City also asserted it had substantially
complied with the requirements of chapter 22.
argument, the district court held the documents were not
public records because they were not "of or belonging
to" the City. The court reasoned:
[Diercks] asserts that Bettendorf delegated the duty to
defend itself and its employees from tort liability to ICAP,
and therefore ICAP is a nongovernment custodian of public
records as discussed in Iowa Code section 22.2(2) and
Gannon [v. Bd. of Regents, 692 N.W.2d 31
(Iowa 2005)]. However, [Diercks] concedes that the
relationship between ...