Henry County Sheriff’s public record delay ‘not unreasonable’

DES MOINES — The Iowa Public Information Board issued an advisory opinion on Thursday, Sept. 19, in response to legal questions from the Southeast Iowa Union about delays by the Henry County Sheriff’s Office in fulfilling a public record request over the summer. The legal guidance was inconclusive in places, but did not suggest wrongdoing by county officials.

The Union requested an advisory opinion from IPIB in late July, after a longer-than anticipated wait for public records related to Deputy Carlos Lopez’s placement on the Henry County attorney’s Brady-Giglio list. While the sheriff initially said he hoped to provide the documents — mostly internal communications among county officials — in short order, the department later said it needed extra time to fulfill the request, but didn’t know how long, or what it would cost the newspaper in fees.

The sheriff at first cited the difficulty of gathering the records in question and determining their confidentiality. But in mid-July, he started attributing delays to his own refusal to consult with County Attorney Darin Stater, who McNamee claimed was biased against Lopez. The documents were eventually provided, 61 days after The Union’s initial request, for a $20 fee. A law firm in Indianola said it helped the sheriff fulfill the request, but said it was not hired by the county to do so.

The Iowa Public Information Board is tasked with resolving disputes, offering legal guidance and sometimes ordering compliance with the state’s public record and public meeting laws. The Union asked officials for input on whether Henry County’s delays were “reasonable,” or violated “good-faith” clauses of Iowa code. Both terms are written into state law, but poorly defined.

Regarding the delay stemming from McNamee’s consultation with a third-party attorney, the board said the sheriff’s decisions were likely compliant with the 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.”

As for the earlier delays, attributed to record-gathering and confidentiality screening, the board said Iowa’s code was unclear on the limits of reasonability. The advisory opinion did offer a handful of best practices for governments needing extra time to fulfill record requests, some of which the sheriff’s office followed in June and July.

The list included recommendations to “promptly acknowledge” requests, assure plaintiffs of their intent to provide requested records, explain any reasons for delays, provide “rolling production” of records when one is available before others that fall under the same request, and update request-makers on efforts to produce the documents they ask for.

While at least one Iowa Supreme Court ruling, Belin v. Reynolds in 2023, has sought to better define the term “reasonable delay,” in Iowa’s public record laws, the ruling’s criteria were case-specific, and “should be viewed more as balancing factors than bright line rules,” according to the IPIB advisory opinion.

The board voted 5-0 to approve the advisory opinion on Thursday. While its guidance was somewhat indecisive on Henry County’s issues, members said the questions did offer a chance to clarify an uncharted aspect of Iowa code.

“I think it’s very helpful,” said Barry Lindahl, who is senior counsel for the Dubuque Attorney's Office and one of the IPIB’s three government representatives. “I want to make sure all my city attorney friends get a copy of it, and we may make it available to our city employees generally. We have lots of questions about what a reasonable delay is, so I think it’s a lot of good information.”

Sheriff Rich McNamee did not immediately reply to an email requesting comments.

Comments: Kalen.McCain@southeastiowaunion.com