UPDATES & ANALYSIS

Names of applicants seeking appointment to Scott County Board of Supervisors are public records, Iowa Supreme Court holds

by Rox Laird | February 21, 2025

Scott County officials violated the Iowa Open Records Act when they made an appointment to fill a mid-term vacancy on the Board of Supervisors without publicly revealing the identities of any of the applicants, the Iowa Supreme Court held in a 4-3 decision handed down Feb. 14.

Scott County officials opted to fill the Board vacancy as provided for under Iowa Code Chapter 69 rather than hold a special election. A committee composed of the Scott County auditor, recorder and treasurer received resumes from 27 applicants who were subsequently offered the option of having their names kept confidential. Thirteen of the 27 said yes, and when the committee met in public to consider the appointments, applicants were identified by numbers and the applicant chosen for the Board seat was not publicly identified until after the committee made its selection.

Scott County residents Allen Diercks and Diane Holst sued the county after it denied their requests for the applicants’ identities and other records related to the appointment process. The Scott County District Court granted summary judgment to the county.

In their appeal, Diercks and Holst argue the district court erred in concluding the applicants’ names were exempt from disclosure under Chapter 22, the Iowa Open Records Act. The Supreme Court agreed in an opinion written by Chief Justice Susan Christensen joined by Justices Edward Mansfield, Matthew McDermott, and Dana Oxley. Justice David May filed a dissenting opinion joined by Justices Thomas Waterman and Christopher McDonald.

The public records statute allows certain records to be shielded from public examination, including those covered by Section 22.7(18): “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.”

The question before the Court, Chief Justice Christensen wrote, is whether Scott County Auditor Kerri Tompkins, who denied the plaintiffs’ request for the documents, could “reasonably believe” that applicants for the Board vacancy would be discouraged from applying if they knew their applications would be made public.

The Court concluded any belief that public disclosure would be a deterrent to applicants was not reasonable.

No promise of confidentiality was made to the applicants before submitting their applications, the Court said, and the fact that 27 candidates applied without a promise of confidentiality “suggests that the prospect of disclosure did not in fact deter people from submitting applications.”

As the Court said in a 2021 case involving a similar question, government officials cannot shield public documents from examination by promising confidentiality for communications that otherwise fall outside section 22.7(18). “It is the expectation of the custodian—not the applicants—that matters concerning confidentiality,” Chief Justice Christensen wrote.

Although the plaintiffs argued members of a county board of supervisors are public officials under state and federal law, not employees, the Court said the case “is not resolved by determining whether Board members are employees and whether applicants for the Board submit employment applications during the appointment process.”

Still, the Chief Justice wrote, even if Board members are employees, the position is a public office “that is regularly filled in a public manner, and it would not be reasonable for Tompkins to believe that people would be deterred from applying because the process is not confidential.”

In his dissenting opinion, Justice May wrote that Scott County acted properly in granting confidentiality to the applications for the vacant Board seat and that the district court was right to refuse to require disclosure of those applications.

Justice May disagreed with the considerations cited by the majority in concluding the county wrongly granted confidentiality to the applicants.

“Neither the statutory text nor our cases suggest that section 22.7(18)’s protection depends on … how zealously the protection is advertised, how many applicants ultimately apply, how many applicants subjectively care about the protection, or whether the protection may be compromised at some point,” he wrote. “Instead, section 22.7(18)’s protection depends on a single issue: whether ‘the record custodian’—Scott County—‘could reasonably believe’ that disclosure of applicants’ information ‘would deter such communications.’” May emphasized the words “could” and “believe” in boldface.

“Scott County could reasonably hold that belief,” he added. “So the protection applies.”

Tags: Iowa Supreme Court 2024-25