By attorneys Kristine Stone and Logan Brundage
The Iowa Supreme Court issued an opinion in Diercks et al. v. Scott County et al. on February 14, 2025, which affects the confidential treatment of certain voluntary external communications made to the government.
Iowa Code section 22.7 authorizes government bodies to keep various types of records confidential from open records requests. Under Section 22.7(18), records satisfying the following may be kept confidential:
Communications not required by law, rule, procedure, or contract that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them to that government body if they were available for general public examination. . . .
In Diercks, a midterm vacancy occurred on the Scott County Board of Supervisors in 2022, and Scott County formed a committee to fill the seat through an appointment process. The County published notice seeking applications for the vacancy. Following receipt of the applications, Scott County asked each applicant whether they wished for their application to be kept confidential, relying on Section 22.7(18). The County received 27 applications for the Board position and only 13 applicants subsequently requested confidentiality.
After appointing a new supervisor to fill the vacancy, Scott County received open records requests seeking the identity of all the applicants. Scott County withheld from disclosure the 13 applications that had requested confidentiality and the requestors filed suit challenging the withholding of those applications. The district court sided with the County and found that the applications for appointment were covered by Section 22.7(18)’s confidentiality provision. However, the Iowa Supreme Court reversed.
The Supreme Court concluded that Scott County could not have reasonably believed applicants for this vacant Board seat would have been discouraged from submitting their applications by the possibility of disclosure of their materials to the public for examination. Therefore, Section 22.7(18) did not provide proper grounds to withhold the 13 applications in their entirety, and Scott County’s non-disclosure of responsive documents to the open records request was found to violate Iowa Code chapter 22.
In its reasoning, the Supreme Court relied on the following facts:
- There was a lack of a promise for confidentiality to applicants at the outset—before any applied.
- Despite no promise of confidentiality, Scott County still received 27 applications for the position.
- When applicants were subsequently asked, fewer than half of those applying requested confidentiality.
- These particular applicants were seeking an appointment to an elected public office.
- There was no indication in the record or the law that the appointment process was intended to be less open to the public than an election process.
As a result of the Diercks opinion, local governments undertaking an application process and considering confidentiality of applicants’ materials under Section 22.7(18) should contemplate the reasonableness of their belief that a lack of confidentiality would discourage applicants altogether. According to Diercks, that belief is not reasonable where the open position is an elected public office being filled through an appointment process, and that belief is at least less reasonable where confidentiality is not made available to applicants from the outset of the process.
Local governments are encouraged to seek legal advice before responding to a request for records related to applications for appointment to fill vacancies in elected positions. Based on Diercks, those applications should be treated differently than other applications for employment or appointment, and greater scrutiny should occur related to any redactions or withholding of the applications in full.
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