Henry County dispute raises new public record questions

MT. PLEASANT - A dispute between the Henry County Sheriff’s Office and a family that was arrested but later released in 2023 has raised new questions about Iowa public record law, after a formal complaint came to the Iowa Public Information Board. An anticipated IPIB order on the matter may have implications for public record procedures across the state.

Danny Cornell, an attorney for the Wagler family, filed the complaint earlier this month, claiming the sheriff’s office unreasonably delayed its reply to a public record request for 95 days, and ultimately failed to turn over the required documents.

Part of the complaint was based on Henry County Sheriff Rich McNamee’s decision to work with a private law firm which said it was not paid by Henry County, rather than collaborating with the county attorney to fulfill the records request. The sheriff argued the county prosecutor’s office had a “conflict of interest” in the matter, a claim the Iowa Public Information Board later concluded was a valid reason for delays.

But Cornell said the decision to share documents with the law firm that was neither a government entity nor a government-hired contractor made them a public record by default. In his formal complaint to the IPIB, the attorney argued that the release of the records to a third party effectively waived any right to keep the records confidential.

“None of these lawyers or their staff had been retained by the Government Body or elected as Henry County Attorney by its citizens,” Cornell said in an email to the sheriff and county attorney Oct. 24. “This unauthorized disclosure was illegal if any information in these 1000-plus pages of Henry County Records was truly confidential under Section 22.7.”

Iowa Code Chapter 22 defines public records as virtually any documents or information held by a taxpayer-funded entity in the state, but in a later subsection gives exemptions for about 75 different types of records, like social security numbers, and identifying information about students.

One of those exceptions allows governments to withhold records of many “communications not required by law, rule, procedure, or contract” sent to officials by “persons outside of government.” But it does not mention communications coming from public officials to non-government recipients, like a hired law firm. Another subsection of Chapter 22 clarifies that government records held by third-party contractors are still subject to public examination.

In a formal response to the IPIB complaint, Des Moines-based Attorney Ryan Ellis - who said he represented McNamee in the matter and assisted the sheriff in answering public record requests - argued that the records remained confidential.

“Clients share privileged documents with attorneys. Attorneys are duty-bound to keep them privileged,” he wrote. “A document cannot be transformed from being a non-public record to a public record simply by being shared within an attorney-client relationship.”

The level of involvement by Ellis Law Offices in the sheriff’s public record responses remains unclear. Staff from the firm sent requested records to Cornell and The Union earlier this year, responding to separate public record requests from the two seeking information about alleged misconduct by a county officer.

In an email to a Union reporter in July, Ryan Ellis said the county had not hired his firm, but clarified that he was “assisting (the sheriff) on matters we believe may be a conflict of interest for the County Attorney.”

When Cornell asked Ellis about the scope and legal basis of his firm’s involvement in the record request response over the summer, the latter did not immediately reply. In the written response to the IPIB compliant, Ellis said his firm had no obligation to do so.

“It is this office’s position that it does not need to answer questions from outside parties about its representation of clients, and it would do clients a disservice to give out information about the work this office performs,” he wrote, adding that the alleged conflict of interest at the county attorney’s office justified the “limited representation.”

Cornell’s complaint also argued that the county’s nine-page response to the request was unfair, given the county’s 109-page reply to a similar request from the local newspaper. Ellis’ reply noted that the requests used different verbiage, and “did not seek the exact same material.”

The Waglers’ attorney also argued Henry County’s 95-day delay in answering his public record request was unreasonable, but an advisory ruling by the board in response to questions from The Southeast Iowa Union last month said McNamee’s delays attributed to third-party consultation didn’t necessarily violate state law.

“We do not have any ability to determine if there is actually any conflict there, that’s beyond our scope,” IPIB Executive Director Erika Eckley said. “But it is clear that, if there is concern with that, it would not be unreasonable for a government custodian to reach out and find a third-party counsel … and there could be a delay in finding somebody without a conflict.”

Further complicating matters, Cornell said in emails to county officials that he didn’t believe the sheriff and his private attorneys had standing in the IPIB case, since the complaint was made against Henry County, not the sheriff himself. But County Attorney Darin Stater said Cornell’s complaint, made against the county’s board of supervisors, should instead apply to the sheriff’s office specifically.

“The Henry County Board of Supervisors does not and cannot oversee (the sheriff’s) office,” Stater wrote in an email to the IPIB, a copy of which was obtained by The Union. “County government is not a system of centralized management with subsidiary departments. Any alleged delay, obstruction or failure cannot be imputed to the board of supervisors.”

The public records in question have to do with Deputy Carlos Lopez, who in 2023 arrested three members of the Wagler family on an accusation of criminal theft through their lumber business in Wayland, but the charges were later dropped by the county attorney.

Henry County Attorney Darin Stater would later cite the Waglers’ arrest in his decision to place Lopez on a “Brady-Giglio list,” a roster of law enforcement professionals government prosecutors deem potentially unreliable, making their testimony less persuasive in court.

A handful of civil cases continue to claim the Waglers have scammed other businesses out of lumber shipments and payment for services in violation of contracts, and the owners of the sawmill filed for chapter 7 bankruptcy earlier this year.

It’s not clear when or how the IPIB will respond to Cornell’s complaint, which was filed Oct. 8. At its last meeting, just over a week later, the dispute was listed under a lineup of pending complaints and advisory opinions.

Among other things, IPIB is tasked with seeking resolutions to public record and public meeting complaints in the state. If needed, it has the authority to issue “declaratory orders with the force of law” requiring government officials to comply with state code chapters 21 and 22. The majority of cases don’t end that way, however. Of the 50 formal complaints sent to the IPIB in 2023, all but 10 were dismissed or informally resolved outside of board meetings.

Comments: Kalen.McCain@southeastiowaunion.com