Polk Cnty. Assessor Randy Ripperger v. Iowa Pub. Info. Bd.
| Decision Date | 17 December 2021 |
| Docket Number | No. 20–0902,20–0902 |
| Citation | 967 N.W.2d 540 |
| Parties | Polk County Assessor Randy RIPPERGER, Appellant, v. IOWA PUBLIC INFORMATION BOARD, Appellee. |
| Court | Iowa Supreme Court |
John P. Sarcone, County Attorney, and Meghan L. Gavin (argued), Assistant County Attorney, for appellant.
Thomas J. Miller, Attorney General, and Emily Willits (argued), Assistant Attorney General, for appellee.
In this appeal, we must decide whether a confidentiality provision in Iowa's Open Records Act allows a county assessor to refuse to disclose a list of property owners who asked that their names be removed from the public name search function on the assessor's website. Owners make such requests to attain a measure of privacy for their home addresses. The list includes police officers, prosecutors, judges, and crime victims who want to make it harder for criminals or harassers to find out where the owner lives. A reporter sought the list and the Polk County Assessor withheld it as exempt from disclosure under Iowa Code section 22.7(18) (2017), which protects certain voluntary communications from persons "outside of government" that would be deterred if publicized. The reporter filed a complaint with the Iowa Public Information Board (Board) under Iowa Code chapter 23. The Board, after contested case proceedings, ordered the Assessor to disclose the list. On judicial review, the district court affirmed the Board's decision. We retained the Assessor's appeal.
On our review, we agree with the Board that the Assessor has the burden to establish that the list, a public record, is exempt under section 22.7(18). But we agree with the Assessor that the statutory exemption applies and the list is confidential, subject to resolution of an open issue. In our view, the Assessor could reasonably believe persons would be deterred from requesting removal from the website search-by-name function if doing so put them on a public list. Indeed, the Assessor's legacy website promised confidentiality and numerous owners sought removal from the list in 2018 upon learning it may be publicized. We reverse the district court on that issue. The open issue, which was neither decided by the Board or the district court nor briefed by both sides on appeal, is who falls "outside of government" within the meaning of section 22.7(18). We remand the case for a determination of that issue.
On March 27, 2017, members of the Des Moines Register editorial board met with Polk County officials about upcoming tax assessments. They also discussed the Assessor's electronic database of real property records and the ability for property owners to request that their names be removed from the website's search-by-name function. After the meeting, Clark Kauffman, then a Des Moines Register reporter, exchanged emails with Randy Ripperger, the Polk County Assessor, who said that "[t]he number of people on our name search disable list is 2,166."1 Kauffman asked Ripperger to let him see the list of the property owners who had asked to be removed from the search-by-name function, or instead, the property owner's written requests, whichever was easier to produce. Ripperger denied Kauffman's request on the grounds that the information sought is confidential under Iowa Code section 22.7(18).
The Assessor's core mission is to assess the value of taxable real property within the county to determine the amount of property taxes owed to local government entities, including the county, municipalities, and school districts. Physical records of property ownership and assessed values are available for inspection at the Assessor's office during business hours. The Assessor also maintains an electronic database to allow the public 24/7 access to its records. Property owners may request that their name be disabled from "the name search function for that name and parcel on the internet." The request can be made by the property owner or by a third party acting for the property owner. Once the request is processed, the name search function is disabled for all names associated with a parcel and a person cannot find that parcel by remotely searching any of the property owners' names, including those who personally did not make the request. The Assessor has honored all requests to have names disabled from the name search function.
The real property records remain available for public inspection through other means. Persons may phone the Assessor's office to ask about property owned by someone on the disabled name list, and the information is provided. Anyone may visit the Assessor's office during business hours to examine the records or use the computer in the office to find records by a property owner's name—even if the property owner's name was on the disabled name list. And persons can remotely search the electronic database by address and thereby get the names of property owners on the disabled name list.
Two decades ago, the Des Moines Register published a news story by its reporter Bert Dalmer about the Assessor's policy allowing requests for removal from the search-by-name function. The Assessor disclosed a list of 490 people who made such requests. Dalmer's article published some of their names, including police officers, judges, and state officials. The Assessor's office subsequently changed its disclosure policy, and since 2002 has informed property owners their requests would be kept confidential. The Assessor's legacy website promised confidentiality:
In order to address the concerns of those who do not want us to make it that easy for someone to find where they live, we have decided to disable the name search capability for an individual upon written request. These requests will be considered confidential. The names of the owners will remain on the property record but simply will not appear in an attempt to search the files by name. Those who wish to avail themselves of this option are reminded that there are several private search services that can be utilized to locate individuals. Also the request should be made for a specific parcel and, if the parcel changes by virtue of a consolidation of two parcels or division of an existing parcel, a new request must be submitted. The requests must be signed and made in writing.
(Emphasis added.) In practice, the office accepts requests in writing, in person, or by phone, and does not keep copies of requests after each one is processed.
In 2017, Kauffman argued to Ripperger (who was not serving as Assessor in 2000) that the past practice of disclosing such names showed the list is not confidential. Ripperger responded that the Assessor's policy since 2002 has been to keep the names confidential under Iowa Code section 22.7(18). Ripperger then consulted with two county attorneys who were not on the disabled name list, and both opined that the names were confidential under section 22.7(18). Ripperger denied Kauffman's request for the list of names based on that statute, but agreed to preserve a copy of the disabled name list as it existed in 2017.2
On April 16, 2017, Kauffman made a formal complaint with the Board alleging Ripperger was violating state law by refusing to provide "the list of 2,166 property owners who had filed written requests with the county asking that their names be pulled from the assessor's web site search engine." The Board's executive director investigated and found probable cause for the alleged violation. The Board issued a probable cause order on January 18, 2018. The Board initiated a contested case proceeding with an administrative law judge (ALJ) to preside pursuant to Iowa Code section 17A.11.
On November 15, the parties appeared for a prehearing conference during a regular Board meeting. The Board granted Ripperger's request to allow the parties to pursue informal settlement negotiations. After the Board voted, it took a short break before resuming the meeting to discuss other matters. The Assessor's attorneys left at that time, but Ripperger remained on the meeting's conference call. During the break, Board members continued to discuss whether the disabled name list is a public record and responsive to Kauffman's request, whether any decision would be limited to Polk County, and other aspects of the case. An audio recording of the meeting was submitted as part of the record. While it is difficult to hear the multiple conversations on the recording, the Board's executive director may have participated. On March 20, 2019, Ripperger filed a motion to disqualify the Board because of the alleged ex parte communications and asked the Governor's office to appoint a substitute decision-maker to review the ALJ's proposed decision or make the ALJ the final decision-maker. The ALJ responded that she lacked the authority to disqualify a Board member.
The ALJ held a contested case hearing on March 29. The Board called Kauffman as a witness and submitted exhibits. Kauffman testified that he sought the disabled name list to determine who opts in to the policy and find out if developers, landlords, or slumlords are included. Neither he nor any other witness identified any other reason disclosure of the list was in the public interest. Ripperger testified that following media coverage of this case, many property owners responded by seeking removal from the list. Ripperger elaborated:
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