Don Pardo, what has Hendrik Van Pelt won?

Game shows have one virtue Iowa’s open-records enforcement system does not: Winners and losers know on the spot what prizes are theirs to keep.

 

Hendrik Van Pelt learned this firsthand. 

 

In February, the Guttenberg man won a case before the Iowa Court of Appeals when the judges affirmed a district court decision in his favor and reversed the Iowa Public Information Board’s dismissal of his public-records complaint against the City of West Des Moines. 

 

The outcome seemed like a citizen just beat the government transparency agency. But not so fast. Don Pardo, tell Mr. Van Pelt what he’s won.

 

That’s right, a no-expense-paid trip back to the IPIB. 

 

The court remanded Van Pelt’s complaint to the very agency that dismissed the case three years ago, appealed when it lost in district court, and then lost again in February. 

 

That is Van Pelt’s prize. At least to this point.

 

In 2023, he used the public records law to ask West Des Moines for a copy of its new contract with Flock Group Inc., a company that installs and operates license-plate-reader cameras. He specifically asked for a copy of the Flock deployment plan and map of Flock camera locations in the city. 

 

Flock has similar agreements to install its surveillance cameras along roads in hundreds of cities and counties in the United States. The cameras record vehicle information and provide it to law enforcement agencies in a mappable database officers can search while investigating crimes.

 

But these data-gathering networks are controversial. The Washington Post reported recently on officers misusing the information for personal purposes. Authorities have accused at least 50 law officers of using the cameras to stalk former spouses and ex-girlfriends. In other communities, Flock has provided local surveillance data to federal agencies without the city’s knowledge. 

 

Van Pelt wants to know where West Des Moines put its cameras. 

 

The city gave him the Flock contract without attaching the deployment plan or map. The city argued it had nothing to produce because Flock created and kept the map. While city staff reviewed it online before approving it, West Des Moines says it never printed or saved a copy. 

 

So, the city claims there is no public record to give Van Pelt.

 

In October 2023, he filed complaint against West Des Moines with the IPIB. The board staff asked a few questions of the city after the IPIB’s December 2023 board meeting. Erika Eckley, the IPIB executive director at the time, then prepared a proposed decision finding Van Pelt’s complaint legally insufficient because the city provided him all records it possessed. 

 

The full board reviewed and approved her proposed dismissal order in January 2024.

 

The shape of that ruling is worth noting. The board decided a public record did not exist and closed the file without requiring the city to prove anything. Instead, the IPIB took the city at its word.

 

The following month, Van Pelt sued in Polk County District Court, asking the court to review the IPIB decision. The district court ruled for him, and the IPIB then appealed its loss.

 

Earlier this year, the Court of Appeals affirmed the district court decision with rationale that sounds self-evident: The Flock deployment plan and map were expressly incorporated into the West Des Moines contract, so the city, as a party to the contract, always has a right to the document. 

 

“Regardless of its decision to retain a physical copy, the contract belongs to the City just as much as it belongs to Flock,” the Court of Appeals said.

 

In effect, the appeals judges said a city cannot make a record disappear simply by arranging for a vendor to hold it.

This is where the irony of Hendrik Van Pelt’s case stops being funny.

 

Because he first took his grievance to the IPIB rather than starting with the district court, the only route for the Court of Appeals was through Iowa’s administrative procedures law. That law says a reviewing court may affirm the agency action or remand the matter to the IPIB for further proceedings. That law also puts the burden of showing prejudice on plaintiffs like Van Pelt.

 

Now, look at what would have occurred if Van Pelt chose to go directly to court to challenge West Des Moines’ action: 

 

There, the open-records law’s enforcement provision would have guided the court. It says that after a requester shows a government body is covered by the law, that records sought are government documents, and that the body refused to produce them, the burden shifts to the government. 

 

And if the court finds the government body violated the law, the court is commanded to issue an injunction directing the government to release the records and also order the government to pay costs and reasonable attorney fees to the requester.

 

The records are the same. The city is the same. The three years are the same. But down one path lies a mandatory fee award and an order to produce the records in question. Down the other path lies a remand back to the government agency that botched the case in the first place, along with the added uncertainty of placing your fate in the hands of a government entity that litigated against you.

 

There is another difference: Van Pelt’s appellate court victory still has not put the requested map in his hands.

That’s because the remanded case has stalled since the Courts of Appeals decision in February. IPIB members last met on Aug. 1, but they did not take action on Van Pelt’s case, despite the appeals court’s clear decision.

 

Compounding this, no one told Van Pelt during his quest for the Flock camera map about the fork in the road that exists when a government agency declines to fulfill a public records request.

 

The Iowa Public Information Board law includes a section captioned, “Election of remedies.” It provides that anyone may seek enforcement of the public meetings or public records statutes by choosing to file a lawsuit challenging the government body’s decision or, in the alternative, by filing a complaint with the IPIB. 

 

The practical consequence is this: If the IPIB rules against people like Van Pelt and they decide to file an appeal in court, a judge will follow Iowa’s administrative procedures law. The burden of proof flips, deference attaches to the IPIB’s decision, and the best possible outcome is a trip back to the IPIB.

 

The IPIB’s materials describe this complaint process as free and efficient. The Iowa attorney general’s “sunshine” guidance refers citizens with complaints to the IPIB. 

 

But nothing highlights how the free and efficient forum can turn out to be a costly choice — as Van Pelt’s case illustrates. 

 

Despite his Court of Appeals victory, his reward, now 1,045 days after he first made his request to West Des Moines, is a line item on an IPIB meeting agenda, filed under matters to be accepted but with the word “Dismiss” still hanging out there to taunt him.

 

That’s a lovely parting gift unlike any Don Pardo ever gave away.

Randy Evans can be reached at DMRevans2810@gmail.com.