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Diercks v. The City of Bettendorf

Court of Appeals of Iowa

July 3, 2019

DR. ALLEN DIERCKS, Plaintiff-Appellant,
v.
THE CITY OF BETTENDORF, IOWA, and KRISTINE STONE, Defendants-Appellees.

          Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.

         Allen 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 appellant.

          Sean M. O'Brien and Catherine M. Lucas of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellees.

          Alan R. Ostergren of Muscatine County Attorney's Office, Muscatine, amicus curiae.

          Heard by Tabor, P.J., and Mullins and Bower, JJ.

          BOWER, JUDGE.

         Allen 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.

         I. Statutory Provisions.

         Pursuant 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).

         II. Background Facts and Proceedings.

         Diercks 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.[1] We may refer to Bettendorf and Stone collectively as the City.

         The 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.

         ICAP 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.

         On May 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 redaction."

         On June 8, 2017, Stone provided Diercks Bate-stamped pages 01-335 of billing statements.[2] 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."

         Diercks was charged $16.80 for the production.[3]

         On 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 Attorney Walker;
(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 (Iowa 2011).
(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 § 22.10(3)[(b)].

         The 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."[4]

         The 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 records.

         The City provided the court with a paragraph from its contract with ICAP:

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 exclusively.

         Alternatively, 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.

         After 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 ...

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