Jason Clayworth

jclayworth@dmreg.com

Monica Speaks wants answers about her father’s death 30 years ago.

But like dozens of other Iowans this year, she was shut down by the Iowa Department of Public Safety.

The reason is a controversial and relatively recent interpretation of a 45-year-old Iowa law in which the department claims any document created or collected as part of an investigation can be considered confidential forever.

That includes records involving the apparent 1986 suicide in Oskaloosa of Rick Lynne Davis, Speaks’ father.

Davis was found shot to death in a car. Speaks believes it’s possible the death was related to her father’s involvement in the drug trade.

The agency gave Speaks a synopsis of its work but refused her access to the records.

"It's impossible. It's literally impossible" to know without the records what was reviewed or investigated, Speaks said. "I'm not looking to arrest anybody. I just want to know what happened with my dad."

The Department of Public Safety denied all or parts of 40 out of 59 record requests it received during the first six months of 2016, a Des Moines Register investigation found. And of the 40 denials, 28 were based on the investigative file exemption — regardless of whether the case is closed, remains under investigation or went cold three decades ago.

A spot check showed that local law enforcement agencies rarely use the same exemption. Des Moines police had no record of any requests it has denied citing that exemption in the first six months of 2016. The Polk County sheriff had two.

Des Moines Police Sgt. Paul Parizek said the department generally views most records as public once a case has closed.

“I know that school of thought exists,” Parizek said in reference to agencies that have decided to keep most investigative records off-limits to the public even when cases are closed. “But we tend to take an approach in favor of transparency.”

Some of the other records DPS has denied:

A national group focused on privacy issues sought records showing how Iowa uses facial recognition technology. In that case, the state wouldn’t even acknowledge whether it has written policies or manuals about the matter.

An attorney said a denied records request prevented him from checking what, if anything, the state agency reviewed before clearing a local police chief accused of unlawfully entering a residence.

A journalist was denied access to case numbers assigned to criminal cases.

Public Safety Commissioner Roxann Ryan declined multiple requests for interviews about the records issues, initially referring questions to the Iowa Attorney General’s Office. DPS spokesman Alex Murphy ultimately answered the questions, saying the department’s general policy is to withhold information related to investigations unless it fits the "immediate facts and circumstances" of a case, which Iowa law generally requires to be released.

Murphy also defended the agency’s decisions to release additional information in some cases but not others. He said those decisions are largely strategic and intended to help law enforcement investigate crimes.

"For each request, we review the specific facts and circumstances of the case to determine what, if anything, can be released," Murphy wrote.

An evolving interpretation

The idea that a public record reviewed or collected by an Iowa investigator can be considered forever confidential is a relatively new interpretation of the law, and one that some say is contrary to the intent and spirit of Iowa's public records law.

“That exemption is intended to only be applicable if it is part of an ongoing investigation,” said Arthur Bonfield, a retired University of Iowa law professor who was the principal architect behind the state’s open meetings law in 1978 and has helped legislators write or modify numerous other public transparency measures. “It seems to me that once the investigation is no longer ongoing, that exemption is functionally terminated.”

Some of the first notable examples of that interpretation arose in 2014, when the Iowa Division of Criminal Investigation refused to release records in several cases in which people died after officers shocked them with 50,000-volt electrical weapons known as Tasers.

In another case that same year, Polk County District Court Judge Robert Blink ruled that the placement of a comma in the state's open records law means that records that were once part of a law enforcement agency's investigative files may remain confidential even after the investigation is concluded.

That ruling was prompted by Timothy Wayne Allen's effort to review records pertaining to four Iowa homicides from the 1970s involving young women. Three of the four remain unsolved.

Allen, of Ankeny, argued that routine public records may be released if they are not part of an ongoing investigation, which he said had been a longtime practice under Iowa's open records law.

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But Blink said the comma's placement in the statute's wording means that only electronic mail and telephone billing records of law enforcement agencies must be released following the conclusion of an investigation.

"The initial phrase before the first comma, 'peace officers' investigative reports,' is unqualified; thus, investigative reports are confidential without condition," Blink ruled.

Allen, a former New Orleans homicide detective, said the FBI provided him dozens of documents on the Iowa cases after he filed a similar records request with that agency.

"If the FBI can provide me with responsive documents," Allen said, "why can’t the DCI?" (The Division of Criminal Investigation is part of the public safety department.)

"There’s something clearly, fundamentally wrong in the way they are applying this exemption."

Further court scrutiny

Public record watchdogs are closely monitoring a case that involves the quest for records involving Autumn Steele, a 34-year-old mother accidentally shot and killed in 2015 in front of her toddler by Burlington Police Officer Jesse Hill.

Hill was cleared of wrongdoing and returned to work about two months after the incident.

The family and the Burlington Hawk Eye newspaper have sought 911 call transcripts, emails and footage from police body and dashboard cameras.

The local agencies involved — including the Burlington police and the Des Moines County attorney — claim they turned all their records over to the state, and therefore have no documents in their possession.

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And the Division of Criminal Investigation claims those records are part of its investigation and not among the immediate facts and circumstances required to be released under Iowa law.

All three agencies were charged with public record violations in a case being prosecuted by a public information board appointed by Gov. Terry Branstad. An administrative law judge is set to hear the case against the county attorney in October.

“Police tell a story and just expect the public to take their word for it. It’s unbelievable,” said Gina Colbert, Autumn Steele’s mother. “How does this happen in America?”

The judge and the comma

Iowa’s public records law lists 67 exemptions when records may be withheld. The investigative file exemption has historically been viewed to be applicable to ongoing cases and specifically to the report itself, not public records that were gathered as part of the investigation.

Here’s what the exemption says, and here’s how Polk County District Court Judge Robert Blink interpreted it in March 2014:

Iowa Code 22.7: “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:”

Iowa Code 22.7(5): “Peace officers’ investigative reports, and specific portion of electronic mail and telephone billing records of law enforcement agencies if that information is part of an ongoing investigation, except where disclosure is authorized elsewhere in this Code. However, the date, time specific location, and immediate facts and circumstances surrounding a crime or incident shall not be kept confidential under this section, except in those unusual circumstances where disclosure would plainly and seriously jeopardize an investigation or pose a clear and present danger to the safety of an individual.”

BLINK’S RULING: The plain reading of the law does not support the interpretation that investigative reports must be disclosed if they are not part of an ongoing investigation.

“The phrase ‘if that information is part of an ongoing investigation’ only modifies the immediately preceding phrase ‘specific portion of electronic mail and telephone billing records of law enforcement agencies.’ The initial phrase before the first comma, ‘[p]eace officers’ investigative reports,’ is unqualified; thus, investigative reports are confidential without condition.

Discussion about sealing records

WHAT: Panel discussion — "Investigative records: Forever secret?"

WHEN: 2 to 4 p.m. Thursday, Sept. 29

WHERE: Des Moines Register Community Room, 400 Locust St. (Capital Square)

PANELISTS: State Rep. Kevin Koester, R-Ankeny; Timothy Allen, a records advocate and former homicide detective; Ryan Foley, Associated Press; Erin Jordan, the Cedar Rapids Gazette; and Des Moines Police Sgt. Paul Parizek.

MODERATOR: Lynn Hicks, The Des Moines Register's opinion editor.

QUESTIONS: To submit a question in advance, email: jclayworth@dmreg.com