Des Moines Register and Tribune Co. v. Dwyer

• Decision Date: 17 January 1996
• Docket Number: No. 94-901,94-901
• Citation: 542 N.W.2d 491
• Parties: DES MOINES REGISTER AND TRIBUNE COMPANY and Iowa Freedom of Information Council, Appellants, v. John F. DWYER and Jerry Gamble, Appellees.
• Court: Iowa Supreme Court

Page 491

542 N.W.2d 491

DES MOINES REGISTER AND TRIBUNE COMPANY and Iowa Freedom of Information Council, Appellants, v. John F. DWYER and Jerry Gamble, Appellees.

No. 94-901.

Supreme Court of Iowa.

Jan. 17, 1996.

Michael A. Giudicessi and K.J. Walker of Faegre & Benson, Des Moines, for appellants.

Brent R. Appel and David S. Steward of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines, for appellee Dwyer.

Thomas J. Miller, Attorney General, Julie Pottorff, Deputy Attorney General, and Grant R. Dugdale, Assistant Attorney General, for appellee Gamble.

Considered en banc.

SNELL, Justice.

In this case, we are faced with the issue of whether the Iowa Senate's policy on release of certain long distance phone records falls within its constitutionally-granted power to determine its own rules of proceedings. The Des Moines Register sought access to detailed phone records kept by the senate and the Department of General Services and sought a declaratory judgment when the senate and general services refused to release the records at issue. The district court ruled that the senate's policy involved a textually demonstrable constitutional commitment of power to the senate and therefore the matter constituted a nonjusticiable political question. On this ground the trial court granted appellees' motion for summary judgment. We affirm.

I. Factual and Procedural Background

As secretary of the Iowa Senate, John F. Dwyer oversees all senate administrative matters, including senate recordkeeping. Dwyer functions under the supervision of the leadership of the senate.

General Services, an executive branch agency, provides telephone service to all state agencies and the senate. This service includes processing and storage of data, production of monthly telephone accounts and billing invoices, and servicing of lines and equipment. Outgoing long distance calls pass through general services equipment, and incoming long distance calls pass from a long distance carrier through general services equipment and then to the state body. For incoming long distance telephone calls billed to the senate, general services sends monthly bills to the senate and the senate transfers money to the department through the Department of Revenue and Finance. After receiving the money, General Services then pays the long distance carrier.

General Services provides two types of monthly bills for the senate. The first type is referred to as a "recap" and provides summary information which indicates the total amount due. The other type of bill, referred to as a "call detail," indicates the charges for specific senate telephones, indicates who the telephone is assigned to, shows the telephone number called or the number from which the call was placed, indicates the date and time of the call, and also indicates the length of the call. General Services retains records of the billing information on these two types of bills for three months on computer and then for three years on microfiche in case the senate needs to access the information. Jerry Gamble is currently the administrator of the administrative services division of the Department of General Services, and his responsibilities include billing state agencies for communications services and overseeing accounting for the department.

On March 9, 1993, Tom Witosky, a reporter for the Des Moines Register, sent a written request to Dwyer for production of all bills, records, summaries, or other documents relating to the use of any incoming or outgoing "800-Watts" telephone line paid for by the Iowa Senate or General Assembly during the calendar years 1990 through 1993. Witosky cited Iowa Code chapter 22, Iowa's open records law, as authority for his request.

Dwyer sent the Register copies of "recap" telephone billing summary reports which showed the total long distance charges for each senate telephone. Dwyer, however, indicated by letter the senate did not have "call detail records" which indicated the originating number, location, date, and time of calls made on an incoming "800-Watts line" to the Iowa Senate. Further, Dwyer stated even if the senate did retain such records, it was his position that production of such documents would violate privacy rights and constitutional guarantees of freedom of speech and would have a detrimental chilling effect on citizens' rights and willingness to petition their elected officials.

Witosky subsequently sent Dwyer a letter of clarification which essentially repeated the initial request but broadened the request by deleting the reference to an "800-Watts" telephone line. On June 4, 1993, Dwyer ultimately sent Witosky another letter which included 324 pages of information regarding charges for equipment, outgoing long distance, and miscellaneous charges for the requested time period. In the letter, Dwyer indicated he would not release "call detail" information about long distance calls because he believed such production would violate the constitutional rights of the parties to the conversations and would improperly differentiate between those individuals who communicated with the senate via long distance telephone calls and those who were able to communicate with senate members by other means.

Soon after Witosky sent his initial request to Dwyer, he sent a request for production of the same long-distance telephone call documents to Jerry Gamble, the director of administrative services at general services. Gamble apparently completely denied the request on the ground he was not the legal custodian of senate telephone records.

In September of 1993, the senate Rules and Administration Committee asked Dwyer to draft a policy regarding public access to senate telephone records. On September 28, 1993, the committee adopted a revised version of Dwyer's recommendation. The adopted policy described the precise policy Dwyer had followed in response to Witosky's request: the public would have unfettered access to all records which did not show itemized call detail, but call detail information would remain confidential. Dwyer circulated the written policy to all members of the senate on September 30, 1993. On October 20, 1993, the senate president and majority leader circulated a memorandum which discussed the details of the written policy.

On November 23, 1993, the Register and Council filed suit against Dwyer and Gamble in the Iowa District Court for Polk County arguing it was their right pursuant to Iowa Code chapter 22 to access senate call detail information and the law required Dwyer and Gamble, as legal custodians of the records, to release them upon a proper request. The Register and Council sought a declaratory judgment that the long distance call detail records were public records and both Dwyer and Gamble violated the open records law by refusing to produce the records. Dwyer ultimately responded by filing a motion for summary judgment in which he asserted the court could not force the release of the records because the senate's policy on release of the records fell within the sphere of the senate's prerogative under article III, section 9 of the Iowa Constitution to determine its rules of proceedings. Gamble later joined in Dwyer's motion.

The Register and Council resisted the motion for summary judgment essentially on the grounds that issues of material fact existed and even if no such issues existed, the court could enforce the provisions of chapter 22 against the senate for numerous reasons including that the policy did not constitute a protected rule of proceeding. The court subsequently granted the defendants' motion for summary judgment on the ground that the senate's policy on release of the records constituted a rule of proceeding and the court could not constitutionally enforce the senate's rules of proceedings. Therefore, the court reasoned, the issue involved a nonjusticiable political question.

On appeal, the Register and Council contend the trial court erred in granting the defendants' motion for summary judgment for the following reasons: (1) the court improperly applied the political question and separation of powers doctrines because it interpreted "rules of proceedings" too broadly; (2) the court erred in granting summary judgment in favor of Gamble on the ground the matter was a nonjusticiable legislative issue because Gamble is an executive branch employee who serves as the lawful custodian of executive branch documents; (3) genuine issues of material fact exist regarding whether the policy at issue is a rule of proceeding and whether such a rule can be applied retroactively; and (4) the court erred in granting the defendants' motion to strike the plaintiffs' jury demand because the essential nature of the case was legal.

II. Scope of Review

In our review of a trial court grant of a motion for summary judgment, we consider the evidence in the entire record in the light most favorable to the non-movant and determine whether any issue as to any material fact exists. Ciha v. Irons, 509 N.W.2d 492, 493 (Iowa 1993); West Bend Mut. Ins. Co. v. Iowa Iron Works, Inc., 503 N.W.2d 596, 598 (Iowa 1993). Summary judgment is appropriate if no issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Ciha, 509 N.W.2d at 493; West Bend Mut. Ins., 503 N.W.2d at 598. An issue of fact is "material" only if the dispute involves facts which might affect the outcome of the suit, given the applicable governing law. Junkins v. Branstad, 421 N.W.2d 130, 132 (Iowa 1988). We additionally review the district court's decision to ensure that the court correctly applied the law. Iowa R.App.P. 4; Ciha, 509 N.W.2d at 493; Keller v. State, 475 N.W.2d 174, 179 (Iowa 1991); Junkins, 421 N.W.2d at 132. We review constitutional issues de novo. State v. Scott, 518 N.W.2d 347, 349 (Iowa 1994); State v. Riley, 501 N.W.2d 487, 488 (Iowa 1993); State v. Hilleshiem, 291 N.W.2d 314, 316 (Iowa 1980); State v. Aschenbrenner...