Weak transparency laws leave Iowans in the dark4/29/2013
DES MOINES — When it comes to transparency in government, Iowa agencies face few consequences if they break the state’s open records and meetings laws, some state officials say.
Under state law, the only way for Iowans to remedy potential violations is to take taxpayer-funded agencies to court, which is a slow and costly process. County attorneys and the Iowa attorney general also can bring civil charges, but that rarely happens, according to state documents and interviews.
Iowans only other option is to lodge a complaint with Iowa Attorney General Tom Miller. However, Miller is also charged with representing Iowa’s agencies in open records and meetings disputes, creating a potential conflict of interest.
This comes at a time when fewer individuals are relying on financially-struggling, short-staffed media outlets to take public entities to task and, instead, choose to file their own lawsuits, said Ruth Cooperrider, Iowa ombudsman.
When asked how many open records and meetings cases Miller has taken to court, Geoff Greenwood, spokesman for Miller’s office, could not provide any examples. He did, however, list a handful of cases where the state successfully intervened. Those instances, however, were resolved without legal action.
“I cannot speak in regards to the decisions regarding whether the attorney general’s office investigates,” Cooperrider said. “They have just elected not to investigate them. I don’t know if it’s a resource issue or conflict of interest issue.”
Iowa isn’t alone when it comes to conflicts of interest involving attorney generals. How the state opts to handle it, though, differs.
For instance, Greenwood said the state no longer attaches a criminal penalty to those who break transparency laws; they can only be sued in civil court. Previously, officials who ignored the law faced misdemeanor charges.
“If they are found to violate the law, they have to pay the city,” said John McCormally, assistant attorney general. “We are unusual in that regard.”
Kenneth Bunting, executive director of the National Freedom of Information Coalition, said a majority of attorney generals across the nation have the authority to opine on government matters, but very few have any real enforcement powers.
One exception is Texas, where the attorney general’s opinions carry the weight of law unless an appellate court overturns the decision. However, the law doesn’t deter agencies from blatant disregard for open government rules, Bunting said.
“Unfortunately, I’m aware of more cases where AG’s have had to defend state agencies or local governments, even when they were claiming an unsupportable position,” Bunting said.
“The strength of the attorney general’s influence in open government matters is more often than not the strength of the individual who is the leader of the open government section or an ombudsman,” he added.
Cooperrider said her office rarely refers complaints to the attorney general’s office. The last time Miller received a case from the ombudsman’s office was 2011, according to officials in his office.
Iowa lawmakers created the ombudsman’s office nearly two decades ago in an effort to increase transparency. It receives a majority of complaints – some of which are referred by Miller’s office – but lacks the ability to force compliance among public entities.
Additionally, Miller recently ruled that the ombudsman’s office lacked authority to access information from closed door meetings, further eroding their ability to investigate cases and seek resolutions, Cooperrider said.
Legislators last year added another layer to the state’s enforcement efforts. They created the Iowa Public Information Board, which has the authority to enforce the laws without the court, the only problem is funding. Lawmakers are now debating funding levels for the board, with proposals ranging from $100,000 in the Iowa House to $450,000 in the Iowa Senate.
Last year the ombudsman’s office received more than 300 cases and had a staff of 15 full-time employees.
Members of both houses have formed a joint committee to iron out the details of the appropriations bill that includes funding levels for the new agency. In order for the board to succeed and meet the demand, it needs more than $100,000, said Bill Monroe, chair of the public information board.
“A vast majority of cases either fall away or are resolved,” said McCormally. “A lot of the activity we get isn’t complaints. Some of these agencies don’t know they have done things wrong, mostly because of the fact that they didn’t know how to do things right. That’s one of the problems in the state. They simply haven’t been trained.”