Polk County Assessor Randy Ripperger v. Iowa Public Information Board

IN THE SUPREME COURT OF IOWA

No. 20–0902

Submitted November 16, 2021—Filed December 17, 2021

POLK COUNTY ASSESSOR RANDY RIPPERGER,

Appellant,

vs.

IOWA PUBLIC INFORMATION BOARD,

Appellee.

Appeal from the Iowa District Court for Polk County, Jeffrey Farrell, Judge.

The Polk County Assessor appeals the district court judgment affirming

the Public Information Board decision that he violated the Open Records Act.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Waterman, J., delivered the opinion of the court, in which Christensen,

C.J., and Oxley, J., joined. Mansfield, J., filed an opinion concurring in part and

dissenting in part. Appel, McDonald, and McDermott, JJ., took no part in the

consideration or decision of the case.

John P. Sarcone, County Attorney, and Meghan L. Gavin (argued),

Assistant County Attorney, for appellant.

Thomas J. Miller, Attorney General, and Emily Willits (argued), Assistant

Attorney General, for appellee.

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WATERMAN, Justice.

In this appeal, we must decide whether a confidentiality provision in Iowa’s

Open Records Act allows a county assessor to refuse to disclose a list of property

owners who asked that their names be removed from the public name search

function on the assessor’s website. Owners make such requests to attain a

measure of privacy for their home addresses. The list includes police officers,

prosecutors, judges, and crime victims who want to make it harder for criminals

or harassers to find out where the owner lives. A reporter sought the list and the

Polk County Assessor withheld it as exempt from disclosure under Iowa Code

section 22.7(18) (2017), which protects certain voluntary communications from

persons “outside of government” that would be deterred if publicized. The

reporter filed a complaint with the Iowa Public Information Board (Board) under

Iowa Code chapter 23. The Board, after contested case proceedings, ordered the

Assessor to disclose the list. On judicial review, the district court affirmed the

Board’s decision. We retained the Assessor’s appeal.

On our review, we agree with the Board that the Assessor has the burden

to establish that the list, a public record, is exempt under section 22.7(18). But

we agree with the Assessor that the statutory exemption applies and the list is

confidential, subject to resolution of an open issue. In our view, the Assessor

could reasonably believe persons would be deterred from requesting removal

from the website search-by-name function if doing so put them on a public list.

Indeed, the Assessor’s legacy website promised confidentiality and numerous

owners sought removal from the list in 2018 upon learning it may be publicized.

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We reverse the district court on that issue. The open issue, which was neither

decided by the Board or the district court nor briefed by both sides on appeal, is

who falls “outside of government” within the meaning of section 22.7(18). We

remand the case for a determination of that issue.

I. Background Facts and Proceedings.

On March 27, 2017, members of the Des Moines Register editorial board

met with Polk County officials about upcoming tax assessments. They also

discussed the Assessor’s electronic database of real property records and the

ability for property owners to request that their names be removed from the

website’s search-by-name function. After the meeting, Clark Kauffman, then a

Des Moines Register reporter, exchanged emails with Randy Ripperger, the Polk

County Assessor, who said that “[t]he number of people on our name search

disable list is 2,166.”1 Kauffman asked Ripperger to let him see the list of the

property owners who had asked to be removed from the search-by-name

function, or instead, the property owner’s written requests, whichever was easier

to produce. Ripperger denied Kauffman’s request on the grounds that the

information sought is confidential under Iowa Code section 22.7(18).

The Assessor’s core mission is to assess the value of taxable real property

within the county to determine the amount of property taxes owed to local

government entities, including the county, municipalities, and school districts.

Physical records of property ownership and assessed values are available for

1Ripperger later testified that there are approximately 2,100 properties on the disabled

name list and 3,540 property owner names on the list.

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inspection at the Assessor’s office during business hours. The Assessor also

maintains an electronic database to allow the public 24/7 access to its records.

Property owners may request that their name be disabled from “the name search

function for that name and parcel on the internet.” The request can be made by

the property owner or by a third party acting for the property owner. Once the

request is processed, the name search function is disabled for all names

associated with a parcel and a person cannot find that parcel by remotely

searching any of the property owners’ names, including those who personally did

not make the request. The Assessor has honored all requests to have names

disabled from the name search function.

The real property records remain available for public inspection through

other means. Persons may phone the Assessor’s office to ask about property

owned by someone on the disabled name list, and the information is provided.

Anyone may visit the Assessor’s office during business hours to examine the

records or use the computer in the office to find records by a property owner’s

name—even if the property owner’s name was on the disabled name list. And

persons can remotely search the electronic database by address and thereby get

the names of property owners on the disabled name list.

Two decades ago, the Des Moines Register published a news story by its

reporter Bert Dalmer about the Assessor’s policy allowing requests for removal

from the search-by-name function. The Assessor disclosed a list of 490 people

who made such requests. Dalmer’s article published some of their names,

including police officers, judges, and state officials. The Assessor’s office

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subsequently changed its disclosure policy, and since 2002 has informed

property owners their requests would be kept confidential. The Assessor’s legacy

website promised confidentiality:

In order to address the concerns of those who do not want us

to make it that easy for someone to find where they live, we have

decided to disable the name search capability for an individual upon

written request. These requests will be considered confidential. The

names of the owners will remain on the property record but simply

will not appear in an attempt to search the files by name. Those who

wish to avail themselves of this option are reminded that there are

several private search services that can be utilized to locate

individuals. Also the request should be made for a specific parcel

and, if the parcel changes by virtue of a consolidation of two parcels

or division of an existing parcel, a new request must be submitted.

The requests must be signed and made in writing.

(Emphasis added.) In practice, the office accepts requests in writing, in person,

or by phone, and does not keep copies of requests after each one is processed.

In 2017, Kauffman argued to Ripperger (who was not serving as Assessor

in 2000) that the past practice of disclosing such names showed the list is not

confidential. Ripperger responded that the Assessor’s policy since 2002 has been

to keep the names confidential under Iowa Code section 22.7(18). Ripperger then

consulted with two county attorneys who were not on the disabled name list,

and both opined that the names were confidential under section 22.7(18).

Ripperger denied Kaufmann’s request for the list of names based on that statute,

but agreed to preserve a copy of the disabled name list as it existed in 2017.2

2The list the Assessor preserved in 2017 is comprised of all property owner names that

are disabled—not just the individuals who made the request. The list also includes the property

address and date of the request. The Assessor testified three or four people in his office were on

the preserved list.

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On April 16, 2017, Kaufmann made a formal complaint with the Board

alleging Ripperger was violating state law by refusing to provide “the list of 2,166

property owners who had filed written requests with the county asking that their

names be pulled from the assessor’s web site search engine.” The Board’s

executive director investigated and found probable cause for the alleged

violation. The Board issued a probable cause order on January 18, 2018. The

Board initiated a contested case proceeding with an administrative law judge

(ALJ) to preside pursuant to Iowa Code section 17A.11.

On November 15, the parties appeared for a prehearing conference during

a regular Board meeting. The Board granted Ripperger’s request to allow the

parties to pursue informal settlement negotiations. After the Board voted, it took

a short break before resuming the meeting to discuss other matters. The

Assessor’s attorneys left at that time, but Ripperger remained on the meeting’s

conference call. During the break, Board members continued to discuss whether

the disabled name list is a public record and responsive to Kauffman’s request,

whether any decision would be limited to Polk County, and other aspects of the

case. An audio recording of the meeting was submitted as part of the record.

While it is difficult to hear the multiple conversations on the recording, the

Board’s executive director may have participated. On March 20, 2019, Ripperger

filed a motion to disqualify the Board because of the alleged ex parte

communications and asked the Governor’s office to appoint a substitute

decision-maker to review the ALJ’s proposed decision or make the ALJ the final

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decision-maker. The ALJ responded that she lacked the authority to disqualify a

Board member.

The ALJ held a contested case hearing on March 29. The Board called

Kauffman as a witness and submitted exhibits. Kauffman testified that he sought

the disabled name list to determine who opts in to the policy and find out if

developers, landlords, or slumlords are included. Neither he nor any other

witness identified any other reason disclosure of the list was in the public

interest. Ripperger testified that following media coverage of this case, many

property owners responded by seeking removal from the list. Ripperger

elaborated:

That following week my office received numerous phone calls

from people that were on the list that wanted their name removed

from the list because they were afraid that their name and address

would be published in The Des Moines Register.

So to me that really reinforced the idea that they really

expected confidentiality with their name being on our list.

He noted his staff talked to “quite a few” property owners and “had to tell them

that ‘we cannot remove your name from this list because we have to preserve

this list while we go through this complaint process.’ ”

Ripperger called witnesses including a Des Moines Police Department

sergeant, a former Iowa Supreme Court Justice, an Assistant Polk County

Attorney, and a clinical psychologist. They testified they had their names

disabled from the Assessor’s name search function because of safety concerns

attributable to their occupations. Specifically, the psychologist testified:

And I think my primary concern is the risk for a client who is maybe

manic or maybe anxious, wants to contact me, has left several

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voicemails, is calling me, can’t contact me, pulls up the Assessor’s

website, finds my address, and shows up at my front door.

Clients in that state are not going to be safe, they’re not going

to be safe to be around my family, and that’s what I’m primarily

concerned with.

The witnesses explained that they did not want to make it easy for people to find

where they lived, and that those who made the request thought their request

would be confidential.

They appreciated that the disabled name list required disgruntled persons

who sought addresses to appear in person at the Assessor’s office or call during

regular business hours, allowing time to cool off. The psychologist highlighted

the impulsive tendencies of individuals in an anxious or manic state. She

testified that those individuals are more likely to act impulsively if the

information is easily accessible through a computer, as opposed to available only

during regular business hours, because interacting with another person offers

an opportunity for those individuals to calm down.

The witnesses raised concerns that publicizing the names would invite

scrutiny or retaliation because the list could encourage someone to seek them

out again. The psychologist noted her clients and social workers would also be

concerned about their safety. The county attorney also raised concerns about

crime victims and witnesses.

The ALJ issued a proposed decision on July 19, determining Ripperger

committed an open records violation because the disabled name list is a public

record and not a confidential “communication” under section 22.7(18). Ripperger

appealed the proposed decision to the Board.

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On November 21, after additional briefing and oral arguments, the Board

adopted the ALJ’s decision. The Board determined “the party claiming the

exemption . . . bears the burden [of proof]” and the disabled name list “is not the

kind of communication with government that section 22.7(18) is intended to

protect.” In addressing a separate injunction issue, the Board recognized there

are some “legitimate safety concerns,” but found “it is illogical to assume the vast

majority of those with safety concerns would rather be easily found in the

database than be merely listed among those who have opted out.” The Board

denied the Assessor’s disqualification motion, finding the conversations never

rose “to the level of ‘ex parte communication’ which would require the Board to

disqualify itself.”

Ripperger filed a petition for judicial review. The Board granted his request

for a stay of its decision while this court action is pending. After additional

briefing and oral argument, the district court, on June 3, 2020, affirmed the

Board’s final decision. The district court concluded even if the alleged ex parte

conversation was improper, it did not require disqualification, and the Board

correctly applied the burden of proof. The district court also concluded the

disabled name list is not confidential even though it “necessarily includes a

communication not required to be made by law,” because the Board made a

“logical assessment of the public safety concerns” when evaluating whether it

was reasonable for the Assessor to determine “property owners would be deterred

from making a request to be removed from the website search function if those

property owners knew their names (as distinguished from their home address)

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would be made public.” The court downplayed the safety concerns over releasing

the names of property owners on the list:

The purpose for the Assessor’s action is to prevent people from easily

accessing an owner’s home address from the search. Many of the

people requesting the protection are police officers, judges,

prosecutors, and public officials. These people are already known to

the public (to various degrees) through their employment. The

production of a list of their names does not raise appreciable public

safety concerns. The claims made by other groups, such as victims

and health care providers, are different because they did not choose

a career in public service. However, their names are known to their

abusers and patients, so it is unclear how their safety would be

compromised by listing their name. For these reasons, the court

agrees with the Board that the Assessor has not met its burden of

proof to meet the exemption in section 22.7(18).

Ripperger appealed and we retained the case. On appeal, he argues the

Board should have disqualified itself because members engaged in prejudicial ex

parte communications, the Board has the burden of proof to demonstrate the

disabled name list is not confidential under section 22.7(18), the disabled name

list is not responsive to the reporter’s request, the Board erroneously determined

that section 22.7(18) does not apply, and the district court should have issued

an injunction preventing disclosure under sections 22.8 and 23.11. The Board

responds that disqualification was not warranted, its final decision was

supported by substantial evidence and a rational interpretation of chapter 22,

and the Assessor failed to prove grounds for an injunction.

II. Standard of Review.

“We review an agency’s interpretation of a statute for errors at law unless

the legislature has clearly vested interpretive authority in the agency.” Calcaterra

v. Iowa Bd. of Med., 965 N.W.2d 899, 903 (Iowa 2021); see also Iowa Code §

17A.19(10)(c), (l). If an agency has been granted interpretive authority, “we will

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reverse an agency’s interpretation only if it is ‘irrational, illogical, or wholly

unjustifiable.’ ” Calcaterra, 965 N.W.2d at 903 (quoting Renda v. Iowa C.R.

Comm’n, 784 N.W.2d 8, 10 (Iowa 2010)). “The question of whether interpretive

discretion has clearly been vested in an agency is easily resolved when the

agency’s enabling statute explicitly addresses the issue.” Renda, 784 N.W.2d at

11.

The legislature expressly empowered the Board to “[a]dopt rules pursuant

to chapter 17A calculated to implement, enforce, and interpret the requirements

of chapters 21 and 22 and to implement any authority delegated to the board by

this chapter.” Iowa Code § 23.6(2) (emphasis added). The Board has not

promulgated any rule interpreting section 22.7(18).3 We therefore review rulings

on statutory interpretation for correction of errors at law.

The Board is empowered to resolve disputes through a “contested case

proceeding conducted according to the provisions of chapter 17A.” Iowa Code

§ 23.6(4). The legislature thereby vested the Board with the authority to make

factual findings and apply law to facts. “If an agency has been clearly vested with

the authority to make factual findings,” we “can only disturb those factual

3Some statutes grant interpretive authority without limiting the exercise of that authority

to rulemaking. See, e.g., Iowa Code § 256.9(16) (authorizing the director of the department of

education to “interpret the school laws and rules relating to the school laws”). By contrast, the

legislature has granted some boards narrower authority to promulgate rules interpreting the

statute administered by the board. See, e.g., Iowa Code § 147.76 (“The boards for the various

[health-related] professions shall adopt all necessary and proper rules to administer and

interpret this chapter and chapters 148 through 158, except chapter 148D.”). Section 23.6(2)

falls in this latter category. We have applied the more deferential standard of review when such

a board exercised its authority by issuing on rule on point. See, e.g., Iowa Med. Soc’y v. Iowa Bd.

of Nursing, 831 N.W.2d 826, 841–43 (Iowa 2013). As noted, the Iowa Public Information Board

has issued no rule interpreting Iowa Code section 22.7(18).

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findings if they are ‘not supported by substantial evidence in the record . . . when

that record is reviewed as a whole.’ ” Burton v. Hilltop Care Ctr., 813 N.W.2d 250,

256 (Iowa 2012) (quoting Iowa Code § 17A.19(10)(f)). “When an agency has been

clearly vested with the authority to make factual determinations,” it also has

been vested with the authority to apply the law to those facts, and “a reviewing

court may only disturb the agency’s application of the law to the facts of the

particular case if that application is ‘irrational, illogical, or wholly unjustifiable.’ ”

Id. (quoting Iowa Code § 17A.19(10)(m)).

III. Analysis.

The dispositive issue is whether the disabled name list is confidential

under Iowa Code section 22.7(18). Because we hold that Ripperger could

reasonably believe disclosure would deter the communications at issue, reversal

is required.

We begin our analysis by reiterating that chapter 22, the Open Records

Act, is designed “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.” Mitchell v. City of Cedar Rapids, 926 N.W.2d

222, 229 (Iowa 2019) (alteration in original) (quoting City of Riverdale v. Diercks,

806 N.W.2d 643, 652 (Iowa 2011)). “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. (omission and alternation in original) (quoting

ACLU Found. of Iowa, Inc. v. Recs. Custodian, Atl. Cmty. Sch. Dist., 818 N.W.2d

231, 233 (Iowa 2012)). “The general assembly [thereby] created and fixed the

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limitations on disclosure.” Id. (alteration in original) (quoting Recs. Custodian,

Atl. Cmty. Sch. Dist., 818 N.W.2d at 232). Against that familiar backdrop, we turn

to the parties’ dispute over the burden of proof.

A. The Burden of Proof. Ripperger contends the Board has the burden to

prove the disabled name list is a public record and is not exempt under section

22.7(18). The Board argues that Ripperger has the burden to prove the statutory

exemption applies. The Board brought this action as a contested case proceeding

under Iowa Code chapter 23, which is silent as to the burden of proof. But this

is an action to enforce chapter 22, which codifies a burden-shifting framework.

We examine the statutes together to determine the burden of proof.

“The purpose of [chapter 23] is to provide an alternative means by which

to secure compliance with and enforcement of the requirements of chapters 21

and 22 through the provision by the [Board] to all interested parties of an

efficient, informal, and cost-effective process for resolving disputes.” Iowa Code

§ 23.1. The Board has the authority to initiate contested case proceedings under

chapter 17A. Id. § 23.10(3)(a). “Chapter 17A does not dictate how the burden of

proof is allocated. That issue is determined by the legal authority under which

the hearing is held.” Mich. Wis. Pipe Line Co. v. Iowa State Bd. of Tax Rev., 368

N.W.2d 187, 189 (Iowa 1985). Because we are reviewing an action to enforce

chapter 22, we hold chapter 22 controls the burden of proof.

Iowa Code section 22.10(2) provides a shifting burden of proof:

Once a party seeking judicial enforcement of this chapter

demonstrates to the court that the defendant is subject to the

requirements of this chapter, that the records in question are

government records, and that the defendant refused to make those

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government records available for examination and copying by the

plaintiff, the burden of going forward shall be on the defendant to

demonstrate compliance with the requirements of this chapter.

Thus, the Board had the initial burden to prove the Assessor’s disabled name

list is a public record subject to chapter 22 that Ripperger refused to release.

Then, the burden shifts to the Assessor to demonstrate compliance by showing

the list is exempt from disclosure as confidential under section 22.7(18).

“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.”

Mitchell, 926 N.W.2d at 229 (quoting Diercks, 806 N.W.2d at 652).4 We agree with

the Board and the district court rulings that placed the burden of proving the

exemption on the Assessor once the Board established the list is a public record

that Ripperger refused to disclose.

B. The Status of the Disabled Name List Under Chapter 22. Both the

Board and the district court concluded the disabled name list is a public record.

We agree. The Assessor stores the list electronically and the Open Records Act

applies to electronic records, stating that “[a] public record shall not be withheld

from the public because it is combined with data processing software” and “[a]

government body shall not acquire any electronic data processing system for the

storage, manipulation, or retrieval of public records that would impair the

government body’s ability to permit the examination of a public record and the

4Our decision is further supported by the well-established legal proposition that

“[o]rdinarily, the burden of proof on an issue is upon the party who would suffer loss if the issue

were not established.” Iowa R. App. P. 6.904(3)(e); see In re A.S., 906 N.W.2d 467, 475–76 (Iowa

2018) (applying rule 6.904(3)(e) to hold the state has the burden to prove grounds for termination

of parental rights and the parents have the burden to prove an exception to termination).

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copying of a public record in either written or electronic form.” Iowa Code

§ 22.3A(2)(a)–(b). The Assessor acknowledges that the disabled name list “was

information that [he] could extrapolate from [his] database.” We determine that

the disabled name list is a public record subject to chapter 22. The Assessor

denied Kauffman access to the list and bears the burden to show the list is

exempt from disclosure.

“ ‘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)). But as to records

exempt under section 22.7, “[t]he legislature has performed its own balancing

and made the policy choice to protect such records categorically.” Id. at 234; see

also City of Sioux City v. Greater Sioux City Press Club, 421 N.W.2d 895, 897

(Iowa 1988) (“Notwithstanding the spirit of disclosure evidenced by [chapter 22],

the legislature has denoted numerous areas where confidentiality is to be

maintained. In controversies such as the present one [involving section 22.7(18)],

it is not the responsibility of this court to balance the competing policy interests.

The balancing of those interests is the province of the legislature . . . .”).

The Assessor argues the disabled name list is confidential under section

22.7(18). We begin with the text of this statute:

The following public records shall be kept confidential, unless

otherwise ordered by a court, by the lawful custodian of the records,

or by another person duly authorized to release such information:

....

18. Communications not required by law, rule, procedure, or

contract that are made to a government body or to any of its

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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).5

The legislature enacted section 22.7(18) “to permit public agencies to keep

confidential a broad category of useful incoming communications which might

not be forthcoming if subject to public disclosure.” Press Club, 421 N.W.2d at

898. Section 22.7(18) “is broadly inclusive” and “mechanical application of a

‘narrow’ construction rule does not aid in the ascertainment of the legislature’s

intent.” Id. at 897. We have applied section 22.7(18) to keep confidential

employment applications for the position of a city manager, id. at 896, 899, and

communications related to an investigation of an elementary school principal,

Des Moines Indep. Cmty. Sch. Dist. Pub. Recs. v. Des Moines Reg. & Trib. Co., 487

N.W.2d 666, 667, 670 (Iowa 1992). Both involved useful incoming

communications which could be deterred by public disclosure. Id. at 670 (“A

public agency often conducts investigations by interviewing people who are not

a part of the agency. In order to do so effectively the agency must be able to

provide for confidentiality.”); Press Club, 421 N.W.2d at 898 (“In viewing the

potential category of solicited communications which might be received by public

agencies and for which they may wish to maintain confidentiality, employment

5There are three exclusions to the exemption in section 22.7(18) that “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; see Iowa Code § 22.7(18) (a)–(c). These exclusions are not at issue in this appeal.

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applications come immediately to mind.”). Presumably 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, and some parents would

have been reluctant to criticize their school principal if their names were shared.

The Board in its final decision erroneously rejected Ripperger’s claimed

exemption under section 22.7(18) on grounds that the list itself was not a

“communication” under that provision because it was created by the Assessor

from separate communications by or on behalf of property owners. That

determination was illogical and erroneous as a matter of law. The disabled name

list is itself a compilation of communications to the Assessor from or on behalf

of property owners requesting removal from the public website’s search-by-name

function. We hold that the disabled name list constitutes a “communication”

within the meaning of section 22.7(18). In our view, if the underlying

communications are confidential, the cloak of confidentiality can extend to a list

of those making confidential requests. A contrary holding would lead to absurd

results, such as making public a list of job applicants whose individual

applications are confidential. Cf. Milligan v. Ottumwa Police Dep’t, 937 N.W.2d

97, 102, 109 (Iowa 2020) (holding chapter 22 did not require disclosure of lists

of names of drivers who had or had not been issued automatic traffic

enforcement citations, reasoning that “production of license-plate-and-name

combinations could be used to facilitate stalking—exactly the situation the

[federal Driver’s Privacy Protection Act] was enacted to prevent”).

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The Assessor easily meets several other requirements for confidentiality

under section 22.7(18). Communications requesting removal from the name

search function were “not required by law” because property owners can choose

whether to request removal. See Press Club, 421 N.W.2d at 898 (“The candidates

were not required to submit these applications because they were not required

to apply for the job.”). The parties agree that the Polk County Assessor’s office is

a “government body” within the meaning of section 22.7(18).

Some persons on the list were privately employed or former government

employees at the time of their communications requesting removal from the

name search function. They clearly are “persons outside of government” within

the meaning of section 22.7(18). But what about persons who were employed by

Polk County Assessor’s office at the time of their request? Or any Polk County

employee? Or city, state, or federal employees, or employees of another county?

And what if the privately employed spouse of a government employee made the

request? “[A] public employee has a substantial privacy interest in his or her

address that outweighs the public’s interest in disclosure, unless the information

is necessary to open the government’s actions to the light of public scrutiny.”

Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 47 (Iowa 1999). During the

contested case proceedings, Ripperger argued requests by police officers, judges,

or others employed by any federal, state, or local government are made in their

personal capacity to mask the address of their personal residence, and therefore

their communications qualify for confidentiality. The Board argued that no

employee of any state, local, or federal agency is a person “outside of government”

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entitled to protection under this statute. Cf. Des Moines Indep. Cmty. Sch. Dist.

Pub. Recs., 487 N.W.2d at 670 (protecting communications with persons not

employed by the school district because they “are not a part of the agency” with

custody of the records and by implication indicating the confidentiality extends

to communications with employees of other government agencies).

The “outside of government” issue was thinly briefed below, and the ALJ

did not reach that issue, nor did the Board’s decision. The district court ruled

against Ripperger on other grounds, without deciding this issue. The Board’s

appellate brief is silent on this issue. We consider the issue waived and decline

to reach it in this appeal. See Morris v. Steffes Grp., Inc., 924 N.W.2d 491, 498

(Iowa 2019) (holding appellee waived alternative ground to affirm summary

judgment in its favor when the issue was only minimally briefed below, was not

decided by the district court, and the appellee did not argue the issue on appeal);

Kragnes v. City of Des Moines, 810 N.W.2d 492, 507 n.12 (Iowa 2012)

(determining appellee waived argument on appeal by failing to cite authority);

see also Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an

issue may be deemed waiver of that issue.”), 6.903(3) (appellee’s “brief shall

conform to the requirements of rule 6.903(2)” with exceptions inapplicable here).

A supreme court is “a court of review, not of first view.” Cutter v. Wilkinson, 544

U.S. 709, 718 n.7 (2005). Because this issue was not decided by the district

court, we exercise our discretion to allow the Board to raise the issue on remand.

In our view, the dispositive issue is whether Ripperger “could reasonably

believe” that publicizing the disabled name list would discourage property

20

owners from requesting removal from the search-by-name function. See Iowa

Code § 22.7(18). This is an objective test, from the perspective of the record

custodian, not the Board or district court. The district court and Board each

erred by substituting its judgment for that of the record custodian. The partial

dissent makes the same mistake.

We reiterate that “[i]t is the legislative goal to permit public agencies to

keep confidential a broad category of useful incoming communications [under

section 22.7(18)] which might not be forthcoming if subject to public disclosure.”

Des Moines Indep. Cmty. Sch. Dist. Pub. Recs., 487 N.W.2d at 670 (emphasis

added) (quoting Press Club, 421 N.W.2d at 898). Communications requesting

removal from the Assessor’s search-by-name function are useful to promote

public safety, especially for those in risky occupations or victims of domestic

abuse who want to make it harder for potential assailants to locate their home

addresses. When, 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.6

6Insurance bad-faith law offers parallels. “[W]here an objectively reasonable basis for

denial of a claim actually exists, the insurer cannot be held liable for bad faith as a matter of

law.” Thornton v. Am. Interstate Ins., 897 N.W.2d 445, 465 (Iowa 2017) (quoting Bellville v. Farm

Bureau Mut. Ins., 702 N.W.2d 468, 473 (Iowa 2005)). “[C]ourts and juries do not weigh the

conflicting evidence that was before the insurer; they decide whether evidence existed to justify

denial of the claim.” Id. (alteration in original) (quoting Bellville, 702 N.W.2d at 474). “In many

cases, a directed verdict or summary judgment for the insurer dismissing the bad-faith claim

may be appropriate because some evidence existed to justify its denial as a matter of law.” Id.

Similarly, courts reviewing a custodian’s determination under Iowa Code section 22.7(18)

should not independently decide whether the communications at issue would be deterred by

disclosure, but rather should decide whether some evidence existed to support the custodian’s

belief.

21

Ripperger concluded that fewer people would request removal from the

search-by-name function if doing so placed them on a public list. We agree with

his determination for several reasons. First, the list is comprised of property

owners who sought greater practical anonymity or privacy, many with good

reason, including police officers, prosecutors, and judges, who offered compelling

testimony of reasons to fear people they arrested, prosecuted, or sentenced might

attack them at home. Naming them publicly could put a target on their back,

and as the psychologist testified, publicizing the list would invite unwanted

scrutiny from potential perpetrators. Stalking victims who moved away to escape

could reasonably fear disclosing the list would alert their stalkers if they live in

Polk County. The ALJ cited the testimony of five witnesses to find “[m]any

believed that publicizing their names among those who had opted-out of the

search function would call attention to them and further jeopardize their safety.”7

That factual finding, adopted by the Board, is supported by substantial evidence

and binding on appeal. Burton, 813 N.W.2d at 256.

Second, when the Des Moines Register reported that the list of names

might be disclosed as a result of this litigation, many owners sought to be

removed from the list to avoid the spotlight. People effectively voted with their

feet, thereby demonstrating the feared chilling effect of disclosure was real.

7The legislature recently enacted additional name search protections for current and

former peace officers, other law enforcement employees, and prosecutors and judges, as well as

victims of stalking, domestic abuse, and human trafficking. 2021 Iowa Acts ch. 183, §§ 1–8 (to

be codified at Iowa Code §§ 9E.1, .2(6)(a), .3(1)(b)(1)(a), .3(1)(e), .7(4A); id. § 22.10(3)(b)(2); id.

§ 331.604(3)(f); id. § 622.10(9)(a)–(b) (2022)). That enactment became effective July 1, 2021. The

parties agree the enactment does not apply retroactively and is not at issue in this appeal.

22

Third, the Assessor’s website promised that their requests would be kept

confidential, consistent with section 22.7(18). Citizens should be able to rely on

their local government’s lawful promise to keep such communications

confidential.8 But we emphasize that government officials cannot shield public

documents from examination merely by promising confidentiality for

communications that otherwise fall outside section 22.7(18).

Importantly, for purposes of our standard of review, the Board did not

purport to “interpret” the term “could reasonably believe” in section 22.7(18) nor

would we give deference to any interpretive authority for such common words.

See Calcaterra, 965 N.W.2d at 903 (holding the Iowa Board of Medicine lacked

interpretive authority over the term “privileged and confidential” in Iowa Code

section 272C.6(4)(a)). And the Board made no factual finding (or application of

law to fact) under section 22.7(18) that Ripperger could not reasonably believe

those communications would be deterred by publicizing the list. The Board’s

8A familiar example is the anonymity or confidentiality promised to citizens contacting

Crime Stopper hotlines. For example, the West Des Moines Police Department promises

confidentiality for callers to its hotline. Crime Tips, City of W. Des Moines,

https://www.wdm.iowa.gov/government/police/online-police-services/crime-tips

[https://perma.cc/5YZR-JU85] (last visited Dec. 13, 2021).

Presumably publicizing the names of callers would break that promise and deter reports

of suspicious activity. Courts have upheld such government promises of confidentiality. See, e.g.,

Rimmer v. Holder, 700 F.3d 246, 261, 264 (6th Cir. 2012) (affirming summary judgment

dismissing a Freedom of Information Act (FOIA) claim, noting that “both the FBI and the

individuals calling the Crime Stoppers hotline intended that the callers’ identities remain

undisclosed at the time of the calls”); Ortiz v. Dep’t of Health & Hum. Servs., 874 F. Supp. 570,

574 (S.D.N.Y. 1995), aff’d., 70 F.3d 729 (2d Cir. 1995) (upholding FOIA exemption claim based

in part on implied assurance of confidentiality for communications to agency’s fraud detection

hotline); see also Iowa Code § 22.7(5) (exemption for police investigatory reports); Iowa ex rel.

Shanahan v. Iowa Dist. Ct., 356 N.W.2d 523, 529 (Iowa 1984) (noting confidentiality

“encourage[s] persons to come forward with information which might be used to solve crimes

and deter criminal activity”).

23

final decision stated: “Although we recognize the legitimate safety concerns

among some categories of home owners, it is illogical to assume the vast majority

of those with safety concerns would rather be easily found in the database than

be merely listed among those who have opted out.” The district court quoted that

sentence out of context and misapplied it to reject Ripperger’s claimed exemption

under section 22.7(18). The Board did not make that statement about section

22.7(18). Rather the Board had moved on to address sections 22.8 and 23.11,

which allow injunctive relief on proof by clear and convincing evidence that

disclosure is not in the public interest and irreparable harm would result from

publicizing the list, a much steeper climb for Ripperger. See Iowa Code § 22.8(1),

(3); id. § 23.11. That showing is not required under section 22.7(18). We do not

reach the injunction issue.

Ripperger, on this record, satisfied the far easier showing under section

22.7(18) to establish that he (not the Board or district court) “could reasonably

believe” publicizing the list would deter requests for removal from the name

search function. We hold the disabled name list of communications from persons

outside of government is a confidential record exempt from disclosure under

section 22.7(18), and we reverse the district court on that ground. We affirm

without opinion the district court’s well-reasoned ruling that Ripperger was not

entitled to disqualify the Board. Iowa R. App. P. 6.1203(d).

IV. Conclusion.

For those reasons, we reverse the district court ruling and remand the case

to the district court for an order remanding the case to the Board to decide the

24

“outside of government” issue, and further proceedings consistent with this

opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Christensen, C.J., and Oxley, J., join this opinion. Mansfield, J., files an

opinion concurring in part and dissenting in part. Appel, McDonald, and

McDermott, JJ., take no part.

25

#20–0902, Polk Cnty. Assessor v. Iowa Pub. Information Bd.

MANSFIELD, Justice (concurring in part and dissenting in part).

I respectfully concur in part and dissent in part. I agree with the majority’s

affirmance of the district court on the disqualification issue and with its

determination that we cannot resolve the “outside of government” issue without

a remand to the agency. However, I do not think it is actually necessary to reach

the “outside of government” issue and would simply affirm the district court. In

my view, the majority opinion fails to give proper deference to the agency whose

interpretation it is reviewing; the majority’s interpretation would be implausible

even if no deference were required.

I. The Majority Uses the Wrong Standard of Review.

The majority has applied the wrong standard of review. The Iowa

Administrative Procedure Act establishes two standards of review for agency legal

interpretations. See Iowa Code § 17A.19(10)(l)–(m) (2017). The more deferential

one applies to agency “interpretation of a provision of law whose interpretation

has clearly been vested by a provision of law in the discretion of the agency.”

Id. § 17A.19(10)(l).9 In 2012, the general assembly established the Iowa Public

Information Board (Board) and gave the Board authority to interpret Iowa Code

chapter 22. See 2012 Iowa Acts ch. 1115 (codified at Iowa Code chs. 21–23

(2013)). Specifically, the 2012 legislation gives the Board authority to adopt rules

9Alternatively, we can treat the issue before us as one of “application of law to fact.” See

Iowa Code § 17A.19(10)(m). The relevant standard of review and the analysis would not change.

26

“interpret[ing] the requirements of chapters 21 and 22.” Id. § 9(2) (codified at

Iowa Code § 23.6(2) (2013)). That should settle the matter that we apply the more

deferential standard of review.

The majority claims that standard applies only when the agency is

engaging in rulemaking and not when it decides a contested case. But I’m not

aware of any prior case drawing such a distinction, and the majority cites none.

To the contrary, in Iowa Medical Society v. Iowa Board of Nursing, we

characterized a grant of authority to issue interpretive rules as a grant of

“interpretive authority.” 831 N.W.2d 826, 827 (Iowa 2013). The agency involved

in Iowa Medical Society had statutory authority to “adopt all necessary and

proper rules to administer and interpret this chapter and chapters 148 through

158, except chapter 148D.” Iowa Code § 147.76. That was deemed by our court

to be “a grant of interpretive authority requir[ing] deferential review of the

agency’s interpretation of the statute and its application of law to fact.” Iowa

Med. Soc’y, 831 N.W.2d at 827.

As we said in Renda v. Iowa Civil Rights Commission, “The question of

whether interpretive discretion has clearly been vested in an agency is easily

resolved when the agency’s enabling statute explicitly addresses the issue.” 784

N.W.2d 8, 11 (Iowa 2010). Professor Bonfield put it this way, “It would be

improper for a court to simply substitute, without any deference to the agency’s

view, the court’s own view of the meaning of a statutory term that the General

Assembly had clearly delegated to the discretion of any agency to elaborate . . . .”

Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act (1998)

27

Chapter 17A, Code of Iowa (House File 667 As Adopted) Report on Selected

Provisions to Iowa State Bar Association and Iowa State Government 63 (1998).

Moreover, there are logical reasons to accord deference to the Board’s

interpretation of Iowa Code section 22.7(18). The Board receives hundreds of

contacts and over one hundred formal complaints annually. It has assembled a

body of experience to help it determine when a government body could

“reasonably believe” that persons outside of government would be discouraged

from making a particular communication if the communication were publicly

available. Iowa Code § 22.7(18).

II. The Board and the District Court Correctly Ruled that the Iowa

Code Section 22.7(18) Exemption Does Not Apply.

Iowa Code section 22.7(18) exempts from public disclosure:

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.

This provision is meant to protect sensitive information like the identity of

private citizens making confidential complaints about government employees

and the identity of private citizens applying for government jobs. See Des Moines

Indep. Cmty. Sch. Dist. Pub. Recs. v. Des Moines Reg. & Trib. Co., 487 N.W.2d

666, 670–71 (Iowa 1992); City of Sioux City v. Greater Sioux City Press Club, 421

N.W.2d 895 (Iowa 1988). The fundamental question is whether the

communication will only occur if it is kept confidential from the public.

28

I agree with the Board and the district court that the Polk County

Assessor’s position is “illogical.” The communication here enables the citizen to

avoid having their address searchable on the internet database. As both the

Board and the district court concluded, it is “illogical to assume the vast majority

of those with safety concerns would rather be easily found in the database than

be merely listed among those who have opted out.”10

The contrary position taken by my colleagues makes no sense to me.

According to a majority of this court, victims, prosecutors, police officers, and

judges who (1) don’t want their home address disclosed on the internet would

rather (2) have their home address disclosed on the internet than (3) appear on

a list of people who don’t want their home address disclosed on the internet.

Really?

The majority relies on the following testimony from the County Assessor:

[A]fter the article about me being charged by the Public Information

Board, when that came out in The Des Moines Register -- I think it

came out on a Saturday.

That following week my office received numerous phone calls

from people that were on the list that wanted their name removed

from the list because they were afraid that their name and address

would be published in The Des Moines Register.

I find the County Assessor’s testimony unpersuasive, as did the Board and

the district court. Among other things, this testimony is hearsay, “numerous” is

not quantified, and the testimony is irrelevant because we are only talking about

10The majority is correct that the Board made this finding with respect to an argument

raised under Iowa Code section 22.8, not section 22.7(18). However, the finding addresses the

critical issue under section 22.7(18).

29

a list of names, not a list of names and addresses. Most importantly, the

underlying legal standard we have to apply is an objective one—i.e., “reasonably

believe.” Iowa Code § 22.7(18).

The majority contends that by being identified on a list of people who asked

to be removed from the database, a person might call attention to themselves

and “put a target on their back.” That seems overstated to me, but regardless it

is not the relevant issue. The relevant issue under Iowa Code section 22.7(18) is

whether the person would rather have their address searchable on the internet

or be listed as someone who asked to have their address not searchable on the

internet. The statute requires us (or, more accurately, the Board) to balance

those specific alternatives, not to weigh the overall public policy benefits of

keeping the list confidential.

The majority fails to mention that the County Assessor’s searchable

internet database serves legitimate public policies. The County Assessor himself

acknowledges that the database was meant to “increase transparency.” For

example, it allows members of the public, who regularly pay their property taxes,

to find out more easily if their representatives in government are also paying

their property taxes. It allows property owners, who are assessed every two years,

to obtain reassurance that those with power and influence or an inside

connection are being assessed similarly.

The list requested in this litigation would also serve legitimate public

purposes. It may ferret out commercial property developers who asked to be on

the list—not because of a safety concern—but simply because they preferred to

30

limit their transparency to the public. That’s something the public may want to

know. The Open Records Act doesn’t exist just to uncover fraudulent or illegal

conduct, but also to bring to light the need for different laws and policies. See

Iowa Film Prod. Servs. v. Iowa Dep’t of Econ. Dev., 818 N.W.2d 207, 228 (Iowa

2012).11

The broader concerns about safety that overhang this case are legitimate,

but as the majority points out they are being addressed by recent legislation. See

2021 Iowa Acts ch. 183, §§ 1–8 (to be codified at Iowa Code §§ 9E.1, .2(6)(a),

.3(1)(b)(1)(a), .3(1)(e), .7(4A); id. § 22.10(3)(b)(2); id. § 331.604(3)(f); id.

§ 622.10(9)(a)–(b) (2022)). Our job is to interpret the law, giving appropriate

deference to the views of the agency.12

III. Conclusion.

“[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.” Iowa Code

§ 22.8(3). For the reasons stated, I respectfully dissent in part and would affirm

the district court’s order in its entirety.

11As Michael Kinsley has famously said, “[T]he scandal isn’t what’s illegal, the scandal is

what’s legal.” Michael Kinsley, Psst! Inside Information! It’s the Scandal—and the Norm, Wash.

Post (June 5, 1986), https://www.washingtonpost.com/archive/politics/1986/06/05/psst-

inside-informationits-the-scandal-and-the-norm/852f8471-66d8-4595-9083-6ab052218605/

[https://perma.cc/95L4-TUBM].

12The majority also notes that the County Assessor promised people who asked to be

removed from the database that they would not have their identities disclosed. But the County

Assessor does not get to unilaterally establish state law through his own promises.