UPDATES & ANALYSIS

Iowa Supreme Court Holds Third Party Records That Relate to an Investigation By a Licensing Board May Be Subject to Disclosure Under the Iowa Open Records Act

by Fran Haas | March 9, 2012

By Fran Haas

In Broadlawns Medical Center v. Des Moines Register and Tribune Company, the Iowa Supreme Court considered whether records in possession of third parties, which contain information under consideration by a licensing board in an investigation, should be shielded from public disclosure. This issue arose in conjunction with an investigation by the Iowa Board of Pharmacy. The Board requested records from a pharmacist, which he provided. The pharmacist also performed his own internal audit of the pharmacy because, in his own words, he wanted “immediate answers” to determine “[i]f there was action that needed to be taken.” After completing the internal audit, the pharmacist provided an unsolicited copy of the audit to the Board.

The Des Moines Register sought a copy of the audit pursuant to the Iowa Open Records Act. The pharmacist refused to produce the audit pursuant to Iowa Code section 272C.6(4), which provides that investigative files maintained by licensing boards are “privileged and confidential” and not subject to “legal compulsion for their release.” The District Court agreed with the pharmacist and held the statute barred release of the audit.

On appeal, the Iowa Supreme Court weighed the competing interests behind disclosure of the audit: “On the one hand, the mere fact that a copy of the document is possessed by a third party should not be determinative of the privilege issue if the privilege is to have any substance. On the other hand, the providing of information to a licensing body or peer review committee should not transform otherwise discoverable information into privileged material.” To determine if the audit was privileged, the Iowa Supreme Court focused on the purpose in creating the audit, which it identified as the pharmacist’s interest in “getting to the bottom of a troublesome situation as rapidly as possible.” The Iowa Supreme Court held that because the pharmacist’s purpose in creating the document was unrelated to the Board’s investigation, it was not privileged. The Iowa Supreme Court remanded the case on this basis and also directed the District Court to consider an attorney fee award for the Des Moines Register under Iowa Code section 22.10.

The Iowa Supreme Court also considered the application of certain exceptions to Iowa Code section 22.7(61), which provides materials may be withheld from the public if they are part of a closed session under Iowa’s Open Meetings Law. The pharmacist contended that the audit fell within the protection of closed session materials pursuant to Iowa Code section 21.5(c), which relates to strategy discussions with counsel for litigated matters, and Iowa Code section 21.5(i), which relates to evaluations of professional competency. The Iowa Supreme Court concluded these exceptions did not apply because the audit was neither a discussion with counsel nor an “evaluation” of professional competency. The Iowa Supreme Court also declined to enjoin disclosure of the audit under Iowa Code section 22.8 because there was no clear and convincing evidence that disclosure was “clearly not in the public interest.”

Tags: Iowa Supreme Court Opinions