Friday, February 09, 2007

UI Held Hostage Day 384 - Feb. 9

Feb. 9, 4:15 p.m.

Some of the news from today -- Mary Gilchrist's law suit, Barta's mea culpa regarding his Athletic Department's continuing partnering with the gambling industry (the lottery commercial) but with no promises of reform -- will be dealt with tomorrow. Meanwhile, I continue to struggle with the Iowa open meetings and public records provisions as they impact on Search Committee II -- the subject of today's blog entry. (If you have trouble falling to sleep, this should make great bedtime reading.)

Search Committee II and Confidentiality

A correction to my interpretation of Iowa Code Sec. 22.7 (18)

The confidentiality Search Committee II accords to candidates for the UI presidency is, in large measure, affected by Sec. 22.7(18) of the Code of Iowa. The bottom line is that the Iowa Supreme Court has ruled that the language of that sub-section enables a governmental unit, such as Search Committee II, to accord confidentiality to the documents filed by applicants notwithstanding the "public records" requirements of Iowa law. This little essay explores these issues.

[This is, of course, in addition to the provisions of Sec. 21.5(1)(i), not discussed here. It provides that, "A governmental body may hold a closed session . . . (i)To evaluate the professional competency of an individual whose appointment . . . is being considered when necessary to prevent needless and irreparable injury to that individual's reputation . . .." I have elsewhere argued that for it to become known that someone is under consideration for the presidency of the University of Iowa should not constitute "irreparable injury" to anyone's reputation.]

While my earlier parsing of Sec. 22.7(18) was an entertaining intellectual exercize for me, as noted at the time, it was done solely on the basis of the statutory language alone without representation that it was a "legal opinion" or represented legal research.

Of course, what is, in fact, the law is not what I say it is. It is what the Iowa Supreme Court says it is.
What follows is still not a "legal opinion," for a variety of reasons. If you need one get a lawyer. But this discussion now at least reflects an Iowa Supreme Court opinion interpreting that statutory language.

To back up slightly, and walk through all of this to put it in perspective, here are the steps.

1. "'Governmental body' means . . . (c) A multimembered body formally and directly created by . . . boards . . .." Sec. 21.2. (Search Committee II was "formally and directly created by" the board called the Board of Regents, as recorded in the Regents' minutes. It is, thus, a "governmental body" to which Iowa's open meetings law applies.)

2. "Meetings of governmental bodies . . . shall be held in open session unless closed sessions are expressly permitted by law." Sec. 21.3. (And, "Ambiguity in the construction . . . of this chapter should be resolved in favor of openness." Sec. 21.1.) Thus, Search Committee II must meet in open session -- unless it can come under one of the exceptions, in Sec. 21.5, that permit a governmental body to meet in closed session (after following the statutory procedure for closure).

3. A reasonable interpretation of Iowa's open meetings law -- though an interpretation not likely to be shared by the Supreme Court were it to be litigated -- is that there is no requirement that Search Committee II ever close a session. The section dealing with closed sessions expressly provides, after setting forth the circumstances under which a session can be closed: "Nothing in this section requires a governmental body to hold a closed session to discuss or act upon any matter." Sec. 21.5(5). That would, on first reading, appear to be pretty unambiguous.

Moreover, "A governmental body may hold a closed session only to the extent a closed session is necessary for any of the following reasons . . .." Sec. 21.5(1). (This is consistent with Sec. 21.3 ("meetings . . . shall be held in open session") and the "intent -- declaration of policy" and its "ambiguity" provision in Sec. 21.1. In short, all meetings are to be open, and closure is to be strictly construed.)

4. The relevant open meetings language for our purposes next requires that we consult the public records requirements of Title 22. The open meetings law provides that a meeting may be closed if it is necessary "To review or discuss records which are required or authorized by state or federal law to be kept confidential . . .." Sec. 21.5(1)(a). So we confront the question whether materials sent to the Committee by a candidate are "records which are required or authorized . . . to be kept confidential . . .."

5. Title 22 defines "public records" as "all records . . . of or belonging to this state . . .." Reference to "this state" would probably be interpreted to include the Regents, the University, and Search Committee II. Correspondence and cv's sent to the Committee by potential candidates would presumably qualify as "of or belonging to" the Committee (and thus the state).

(The public records law defines a covered "government body" differently from the definition of "governmental body" in the open meetings law. Compare Sec. 21.2 (1) (c) (open meetings) with Sec. 22.1(1) (public records). For example, the public records definition does not include reference to the open meetings language defining a "govermental body" as including "A multimembered body formally and directly created by one or more boards . . ..")

6. As with the presumption of openness of meetings, there is a presumption of openness of records. "Every person shall have the right to examine and copy a public record and to publish . . . a public record . . .." Sec. 22.2(1).

7. However, as with the itemization of subjects that may be the basis for meeting in closed session, so the law provides that "The following public records shall be kept confidential . . .." Sec. 22.7. (Note the use of the word "shall" rather than "may." This would seem to remove Search Committee II's discretion; although the Iowa Supreme Court case discussed below does use the "may" language.) This is relevant for open and closed meetings decisions, of course, because of the provision in Sec. 21.5(1)(a) (referenced in paragraph 4, above) that meetings may be closed if confidential records are being discussed.

8. Which brings us to Sec. 22.7(18). Among the records that "shall be kept confidential" are: "Communications not required by law, rule or procedure that are made to a government body . . . by identified persons outside of government, to the extent that the government body . . . could reasonably believe that those persons would be discouraged from making them . . . if they were available for general public examination [unless] (a.). . . the person . . . consents to its treatment as a public record [or] (b.) [the] Information . . . can be disclosed without . . . indicating the identity of the person . . . or enabling others to ascertain [their] identity . . .."

9. Speculation regarding the applicability of Sec. 22.7(18) to applications for employment -- certainly possible given the statutory language, above -- is put to rest because the interpretation of this statutory language, like the language in any other legislative act, is ultimately up to the Iowa Supreme Court.

And in the case of City of Sioux City v. Greater Sioux City Press Club, 421 N.W.2d 895 (Iowa 1988), the Court resolved the matter.

The City of Sioux City received 50 applications for its city manager position. Four ultimately withdrew, nine consented to public disclosure, and 37 requested confidentiality.

A reporter for the Sioux City Journal asked for, and was refused, access to those 37 applications. Ultimately the City agreed to file an action for declaratory judgment to resolve the dispute.

The District Court held that the applications were covered by the Sec. 22.7(18) exception to the public records requirements, and the Supreme Court affirmed. It held that "applications . . . may be maintained with confidentiality . . .." 421 N.W.2d 895, 899. To the petitioners' argument that such applications were "required by law, rule, or procedure" the Court replied that, "The candidates were not required to submit these applications because they were not required to apply for the job." 421 N.W.2d 895, 898.


(a) Search Committee II can, and should maximize openness and transparency. Perhaps the most important observation is that there is nothing that requires the Committee to opt for the most secret proceedings the law allows. Sec. 22.7(18) is unambiguous: "The communication [i.e., the application material] is a public record to the extent that the person [i.e., the applicant] . . . consents to its treatment as a public record." I believe the Committee should express its preference for, and make every effort to obtain, potential candidates' consent to make their material public records. It could make clear that candidates can "opt out" (i.e., request confidentiality) without prejudice, but that unless they feel strongly about the matter the Committee would prefer that they not do so. It is noteworthy in this connection to note again that in the Sioux City case 20% of the applicants had no problem with the City treating their applications as public records.

(b) The authority to close Search Committee II meetings is limited. Whatever Sec. 22.7(18) may provide, and however it may be interpreted, the relevant provision regarding open and closed meetings is Sec. 21.5(1)(a). It only authorizes a closed meeting while the Committee is discussing records (i.e., the materials filed with the Committee by applicants). Discussions of the number of potential candidates, what questions they will be asked, how much they will be told about our Board of Regents, how many are currently university presidents or provosts, how tasks are to be allocated among Search Committee II members, the milepost dates for completion on the Committee's timeline -- in short, anything other than a discussion of confidential records -- are legally required to be discussed in open meetings (as I now read the law).

(c) Records "required by law, rule or procedure."Of course, one could argue -- as I have -- that a reasonable reading of the statutory language would be that Sec. 22.7(18)'s "requirement" goes to the standards to be applied to anyone who does choose to communicate with government. In this case, "If you wish to apply for this job here's what we need from you and the form it should take." It is not that the communication is "required by law, rule or procedure," it is that if there is to be a communication (whether discretionary or mandated) the form it is to take is "required by law, rule or procedure." But of course such analyses are irrelevant once the Iowa Supreme Court has spoken, as it has, in the Sioux City case.

(d) The Sioux City case only dealt with the government body's discretion to withhold, not a mandate that it withhold, employment applications. I don't mean to make too much of this, but it's worth noting that the Sious City case was not one in which the City wished to make employment applications public and the applicants were fighting to force the City to protect their confidentiality. The Court approached the case as one involving the discretion of the City to retain the confidentiality in the face of a journalistic demand that they be made available as public records. The Court held, "The employment applications . . . may be maintained with confidentiality by their public custodians." (emphasis supplied) 421 N.W.2d 895, 899. (1) In a case that did involve a conflict between a government body and an applicant I suspect the Court would find the confidentiality a matter of mandate rather than discretion. (2) Obviously, there needs to be an accommodation between applicants and the body. It would be folly to accept applications understanding them to be confidential and then reveal them to the media. (3) There is absolutely no reason, however, why the body should not indicate a preference for applicants' waiver of confidentiality.

(e) Can the Committee "reasonably believe" confidentiality is necessary? Sec. 22.7(18) does not provide that all "communications" are ipso facto confidential. The government body is required to make a specific finding first. It must "reasonably believe that those persons [i.e., applicants] would be discouraged from [applying] if they [i.e., in this case, their employment applications] were available for public examination." Recall that 9 of the 44 applicants in the Sioux City case had no problem with their applications being treated as public records. Is there any reason to believe that a proportion of the applicants before Search Committee II will be any less willing to go public? At a minimum I believe that (1) the Committee should, either as a matter of law or matter of good faith in making the process as open as possible, make the statutory finding on each applicant rather than as a blanket determination, and (2) that it is reallly inappropriate for it to encourage applicants to request confidentiality.

This is not only enough, it is more than enough for a day. As I come upon more interesting analyses, and errors in my reasoning, I'll continue to lay them out here.

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[Note: If you're new to this blog, and interested in the whole UI President Search story, these blog entries begin with Nicholas Johnson, "UI President Search I," November 18, 2006. Wondering where the "UI Held Hostage" came from? Click here. (As of January 25 the count has run from January 21, 2006, rather than last November.) For any given entry, links to the prior 10 will be found in the left-most column. Going directly to will take you to the latest. Each contains links to the full text of virtually all known media stories and commentary, including mine, since the last blog entry. Together they represent what The Chronicle of Higher Education has called "one of the most comprehensive analyses of the controversy." The last time there was an entry containing the summary of prior entries' commentary (with the heading "This Blog's Focus on Regents' Presidential Search") is Nicholas Johnson, "UI President Search XIII -- Last Week," December 11, 2006. My early proposed solution to the conflict is provided in Nicholas Johnson, "UI President Search VII: The Answer," November 26, 2006. And the fullest collection of basic documents related to the search is contained in Nicholas Johnson, "UI President Search - Dec. 21-25," December 21, 2006 (and updated thereafter), at the bottom of that blog entry under "References". A Blog Index of entries on all subjects since June 2006 is also available. And note that if you know (or can guess at) a word to search on, the "Blogger" bar near the top of your browser has a blank, followed by "SEARCH THIS BLOG," that enables you to search all entries in this Blog since June 2006.]
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