City of Riverdale v. Diercks

• Decision Date: 18 November 2011
• Docket Number: No. 09–1670.,09–1670.
• Citation: 806 N.W.2d 643
• Parties: CITY OF RIVERDALE, Iowa, Appellant, v. Allen DIERCKS, Marie Randol, and Tammie Picton, Appellees.
• Court: Iowa Supreme Court

806 N.W.2d 643

CITY OF RIVERDALE, Iowa, Appellant,

v.Allen DIERCKS, Marie Randol, and Tammie Picton, Appellees.

No. 09–1670.

Supreme Court of Iowa.

Nov. 18, 2011.

Michael J. Motto of Bush, Motto, Creen, Koury & Halligan, P.L.C., Davenport, for appellant.

Michael J. Meloy of Koos and Meloy, Bettendorf, for appellees.

WATERMAN, Justice.

“Sunlight is said to be the best of disinfectants.” Justice Louis Brandeis, What Publicity Can Do, Harper's Weekly, Dec. 20, 1913. This concept animates state and federal laws allowing public scrutiny of government records—shining the light of day on the actions of our public officials deters misconduct that thrives in darkness. But open records laws are complex, replete with valid exceptions, and subject to abuse by serial requesters. Citizens and public officials sometimes must turn to the courts to resolve disputes over access to information. Statutory attorney-fee awards motivate lawyers to step up and fight city hall on behalf of residents whose elected officials refuse requests for disclosure. That happened in this case, which presents our court with the opportunity to clarify the standards for awarding attorney fees under our state Freedom of Information Act, Iowa Code chapter 22 (2009).

The plaintiff, City of Riverdale, Iowa, spent sixteen months in district court litigating whether defendants-counterclaimants, Dr. Allen Diercks, Marie Randol, and Tammie Picton, were entitled to view security camera video of a confrontation with Mayor Jeffrey Grindle over earlier records requests at the city clerk's counter. The mayor had been advised in writing by the City's lead counsel that video from the city hall security cameras was subject to disclosure, and the mayor allowed a newspaper reporter to watch the video at issue. The mayor nevertheless balked at turning the video over to defendants after the security firm warned doing so could compromise safety and a junior attorney advised filing a declaratory judgment action. The defendants ultimately won at trial, and the district court awarded them attorney fees of $64,732. Riverdale appealed the fee award only, without challenging the order to turn over a copy of the videotape. The court of appeals reversed and vacated the fee award because the “district court made no finding of bad faith on the part of the City.”

On further review, we hold section 22.10(3)( c ) requires Riverdale to pay defendants' reasonable attorney fees because the district court found the City violated the statute by withholding the video and implicitly rejected the City's defense of a “good-faith, reasonable delay” under section 22.8(4). The district court on this record did not err in awarding fees despite the City's reliance on advice of counsel. We conclude the district court did not abuse its discretion in fixing the amount of fees or denying deposition costs or expert fees. Accordingly, we vacate the decision of the court of appeals, affirm the district court's fee award, and remand for an award of defendants' reasonable appellate attorney fees.

I. Background Facts and Proceedings.

Riverdale, a municipality with approximately 600 residents, is home to Alcoa's mile-long aluminum sheet rolling mill along U.S. Highway 67 and the sprawling east campus of Scott Community College. Riverdale's eastern border is the Mississippi River, and it is surrounded on the remaining sides by the City of Bettendorf. The parties in this eastern Iowa river community have a litigious history that predates the attorney-fee dispute we decide today. Indeed, these parties repeatedly have squared off in court, litigating disputes under chapter 22 in seven earlier lawsuits. Between November 2006 and August 2008, Diercks made fifty-five to sixty open records requests to Riverdale, Picton made sixty to sixty-five requests, and Randol made eighty to ninety. The three of them accounted for eighty percent of all the open records requests made to this city. The City had honored approximately 190 of their requests for records.

One lawsuit by Diercks alleging violations of chapter 22's open meeting notification requirements resulted in payments by Riverdale and its insurer of $9000 for Diercks' legal fees. The Quad–City Times ran a story about the settlement in February 2008 in which reporter Tom Saul noted Diercks “said the city has agreed to ‘re-do’ actions taken by its Water Tower Park Committee and abide by the state open records law.” A correction on March 1 stated, “While the city agreed to pay $9000 to settle the action, it admitted no wrongdoing and acknowledged no liability for any actions alleged by Diercks. It also was not required to take any other actions.”

Meanwhile, Riverdale contracted with Per Mar Security Services for the installation of video security cameras at city hall. Grindle testified the cameras were for “the protection of the property, protection of the records, [and] protection of the [two] city clerks.” Vandalism on the exterior grounds had motivated installation of the security cameras. The cameras were operational by March 2008. Grindle asked City Attorney Steve Hunter to provide a legal opinion concerning the video and audio security system in city hall. Hunter responded with a three-page letter dated March 20 that predicted the City would receive open records requests to view the security camera video recordings and opined that the recordings must be produced if requested:

Finally, it is likely Riverdale will receive an open records request to review the recordings. The recordings, if preserved in some format, are a public record and thus must be produced if requested. If Riverdale does not preserve the recordings, then there will be nothing to produce. You should carefully review with the security company how the recordings are maintained. Even if Riverdale does not have possession of the recordings but the security company maintains them as an agent for Riverdale, the recordings are still owned by Riverdale and thus subject to an open records request.

Hunter was prescient.

The confrontation that led to this lawsuit occurred on April 24 and was recorded in both sound and video by the security camera trained at the city clerk's counter within city hall. Diercks and Picton were at the counter picking up their previously requested records when Grindle approached and urged them to mediate their numerous pending requests. By all accounts, the discussion became heated. Upon leaving, Diercks contacted the Scott County Sheriff's Department to file a complaint against Grindle “for harassment by a public official.” Sergeant Charles Muhs came to city hall where he viewed the video. His incident report describes what he saw:

I viewed the tape, which shows Allen [Diercks] and Tammie [Picton] coming in, asking for records, and having Theresa [Ralfs, city clerk] make copies. Jeff [Mayor Grindle] comes back and forth to the counter. He says something about mediation and it appears that Allen doesn't want to talk about it. Other comments are exchanged. Things start to get heated. Jeff finally tells Allen and Tammie to leave because of the noise level. They at first refuse, but finally do so.

Muhs' description is somewhat understated. Grindle testified that Diercks called him a “liar” and accused him of “breaking the law.” Grindle said he repeatedly returned to the counter to try to “bring this to an end ... the persistent hostility.” Diercks and Grindle poked fingers at each other; Grindle is six feet five and 330 pounds. Voices got loud and louder until Diercks and Picton left at Grindle's insistence “because of the yelling.” Grindle told Muhs that Diercks and Picton “were constantly coming in and being a nuisance because they knew they could.”

Within several days, the Quad–City Times reporter, Saul, contacted Grindle. Saul had heard about the incident from Diercks. Grindle met with Saul and played the video for him to defend his actions in light of “false accusations in the newspaper” from earlier problems with Diercks. Grindle did not consult with the city attorney before playing the video for Saul. He offered Saul a copy of the video; Saul declined. Grindle later testified he did not expect the reporter to keep the matter private. He was advised by the City's counsel not to show the video to others ¹ and acknowledged it was a mistake to show it to Saul in light of the City's litigation position that the video was confidential. This mistake would prove consequential.

On April 29, Diercks made the first of several written and oral requests by defendants for a copy of the sound and video recording of the April 24 confrontation. Riverdale and its counsel initially decided to produce the video. Indeed, a dubbed copy of the video recording was left with the receptionist at Hunter's law firm for Diercks to retrieve. Before Diercks picked up the video, however, the mayor asked counsel to check with Per Mar whether the disclosure would violate any proprietary information. A junior associate in Hunter's firm contacted Per Mar and was advised that, although disclosure would not reveal any proprietary information, it could compromise security. Accordingly, the associate attorney advised Grindle to withhold disclosure and file a declaratory judgment action to determine the City's obligations under chapter 22. Sixteen months of litigation ensued before the district court ordered Riverdale to turn over the video to defendants.

The City initially filed a petition for declaratory judgment and injunctive relief against Diercks alone. Subsequent amendments added Randol and Picton in response to their respective requests for this video and others.² The City alleged in “March 2008, Riverdale installed an audio and video surveillance system at city hall because Riverdale officials were concerned about the safety of its employees, visitors, property and infrastructure (the ‘Security System’).” The City sought a declaration that the video recordings requested by defenda...