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In Braunschweig v. Bormann, No. 04-0537, 2005 WL 1224685, at *4 (Iowa Ct. App. May 25, 2005), this court found a county auditor had not "refused" to produce documents where the documents were orally requested in early September, the documents were requested in writing on September 24, the lawsuit was instituted on September 26 when no documents had been produced, and the documents were produced "within a few days thereafter."
Summary of this case from Diercks v. MalinOpinion
No. 5-213 / 04-0537
Filed May 25, 2005
Appeal from the Iowa District Court for Kossuth County, Michael S. Walsh, Judge.
T.J. Braunschweig appeals the order of the district court granting Joann Bormann's motion for summary judgment and dismissing his petition. AFFIRMED.
Timothy Braunschweig of the Braunschweig Law Firm, Algona, for appellant.
James Clarity of Clarity Law Office, Spirit Lake, for appellee.
Heard by Vogel, P.J., and Miller and Hecht, JJ.
In September of 2001, T.J. Braunschweig brought an action under Iowa Code chapter 22 (2001) against Kossuth County Auditor, Joann Bormann, as the custodian of certain public records he was seeking to obtain. In March of 2004 the district court granted Bormann summary judgment and dismissed Braunschweig's petition. Because we find no error in the district court's order, we affirm.
I. Background Facts and Proceedings
The dispute underlying the controversy before the district court is over the office of County Attorney for Kossuth County. The intricacies of this dispute, are not before us. Our concern is much narrower.
In a September 26, 2001, petition Braunschweig sought disclosure of certain public records under the Iowa Open Records Law codified in Iowa Code chapter 22. In this petition Braunschweig alleged that he had, on several occasions beginning in early September, orally requested certain public documents relating to the Kossuth County Attorney position and that on September 24 he had provided a written request for these documents to the custodian of the records, County Auditor Bormann. A copy of this list was attached to Braunschweig's petition as Attachment A and reveals the following items were sought:
1. Resignation by Dave Skilling April 2001.
2. The letter by Dave Skilling to the Board of Supervisors concerning veteran's preference status.
3. The notice of appointment of T.J. Braunschweig.
4. Notice of withdrawal of T.J. Braunschweig.
5. Notice of appointment of Karen Kaufman as Assistant County Attorney.
6. Resignation of Karen Kaufman.
7. Notice of Appointment of Dave Skilling by Todd Holmes as Assistant Kossuth County Attorney.
On December 17, 2003, Bormann moved for summary judgment stating, among other things, that all the documents requested by Braunschweig had been furnished to him. Filed contemporaneously with this motion was an affidavit of Bormann in which she stated (1) that Braunschweig did request public documents relating to the office of Kossuth County Attorney, (2) that at the time of the request Bormann could not locate the documents, (3) that "I ultimately turned over all of the documents I had in my possession, including all tape recordings," and (4) that no documents were intentionally withheld. The documents were given over to Braunschweig a few days after he filed the petition seeking their disclosure.
Braunschweig filed a resistance to this motion for summary judgment. In his statement of undisputed facts accompanying his resistance, Braunschweig asserted "not all requested documents have been provided." In an affidavit filed in conjunction with this statement, Braunschweig elaborated on this by stating, "[A]fter the filing of the petition, the defendant provided items requested in paragraphs 1, 2, 6, and 7 of attachment A of the petition." Therefore, the only documents allegedly withheld are those requested in paragraphs 3, 4, and 5 of Attachment A.
II. Scope and Standard of Review
Although normally our review of an action brought under Iowa Code chapter 22 would be de novo, our review is for correction of errors at law when, as in this case, the appeal is from an entry of summary judgment. Gannon v. Board of Regents, 692 N.W.2d 31, 37 (Iowa 2005). "If there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate." Id. A matter can be resolved on summary judgment if the record reveals a conflict only concerns the legal consequences of undisputed facts. Pecenka v. Fareway Stores, Inc., 672 N.W.2d 800, 802 (Iowa 2003). In reviewing the record, we consider the evidence in the light most favorable to the non-moving party. Hoffnagle v. McDonald's Corp., 522 N.W.2d 808, 811 (Iowa 1994). We indulge in every legitimate inference that the evidence will bear in an effort to ascertain the existence of a fact question. Gannon, 692 N.W.2d at 37 (citation omitted).
III. Open Records Law
Iowa's "open records" or "freedom of information" law codified in chapter 22 of the Code provides in pertinent part:
Every person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record. Unless otherwise provided for by law, the right to examine a public record shall include the right to examine a public record without charge while the public record is in the physical possession of the custodian of the public record.
Iowa Code § 22.2(1). The purpose of chapter 22 is "to open the doors of government to public scrutiny-to prevent government from secreting its decision-making activities from the public, on whose behalf it is its duty to act." Iowa Civil Rights Comm'n v. City of Des Moines, 313 N.W.2d 491, 495 (Iowa 1981). Thus, subject to limitations not relevant in this case, "everyone has the right to examine, copy, and disseminate `public records.'" Gannon, 692 N.W.2d at 38.
Braunschweig contends that the district court erred in concluding Bormann substantially complied with chapter 22 in two respects. First, Braunschweig asserts that Bormann's affidavit that she "turned over all the documents I had in my possession" does not warrant the district court's conclusion that Bormann, as a matter of law, complied with chapter 22. Second, Braunschweig contends that there is a genuine issue of disputed fact as to whether Bormann timely and reasonably produced the documents requested.
A. The "Missing" Records and Compliance With Chapter 22
In addition to providing the citizenry with the right to scrutinize public records, chapter 22 provides citizens with a mechanism for enforcing this right. Iowa Code section 22.10 provides that an aggrieved person or citizen of the State of Iowa may seek judicial enforcement of their rights under chapter 22 by bringing a civil action against the lawful custodian of the records. Moreover,
[o]nce a party seeking judicial enforcement . . . demonstrates to the court that the defendant is subject to the requirements of this chapter, that the records in question are government records, and that the defendant refused to make those government records available . . . the burden of going forward shall be on the defendant to demonstrate compliance with the provisions of [chapter 22].
Iowa Code § 22.10(2) (emphasis added).
Bormann concedes that she is subject to the requirements of chapter 22 and that the records requested are public records. Additionally, Bormann concedes that none of the records requested were immediately produced when asked for, and Bormann does not dispute the allegation that some have not yet been provided. Although Bormann accepts the burden of going forward to demonstrate compliance, she also asserts she has never refused to make the documents available.
Bormann in her appellate brief states that the burden has been on her to show she substantially complied. At oral argument Bormann indicated that it is her belief that since not all the records requested were provided to Braunschweig she has the burden of establishing compliance with chapter 22.
Braunschweig argues that Bormann's sworn statement that she turned over all the documents in her possession, cannot establish, as a matter of law, that she complied with the requirements of chapter 22, so that even if this statement is undisputed summary judgment was not proper. In order to demonstrate compliance with chapter 22 a defendant need only show substantial compliance rather than absolute compliance. See Wings v. Dunlap, 527 N.W.2d 407, 410 (Iowa Ct.App. 1994). In making this assessment, chapter 22 is not applied in a vacuum. Id.
In this case Bormann swore by affidavit that she had given Braunschweig all the records that he had requested that she had the ability to give him. Therefore, if this statement is undisputed, it would demonstrate, as a matter of law, substantial compliance with chapter 22 as to the records requested but not provided. This brings us to the issue of whether genuine issues of disputed fact precluded the entry of summary judgment.
In support of her motion for summary judgment, Bormann provided an affidavit indicating that she turned over all the requested documents in her possession and withheld nothing. Under Iowa Rule of Civil Procedure 1.981(5) Braunschweig must, "by affidavits . . . set forth specific facts showing that there is a genuine issue for trial." None of the statements or facts offered by Braunschweig in his affidavit contradicted or disputed Hoffman's statement that she produced all the records in her possession. In fact, Braunschweig offered no evidence indicating that the missing records were actually created or, if they were, that they were ever transferred to the custody of Bormann. Iowa Rule of Civil Procedure 1.981(5) requires the adverse party to, "set forth specific facts showing there is a genuine issue for trial." He must do so with "personal knowledge," and with "such facts as would be admissible in evidence." Iowa R. Civ. P. 1.981(5). His bare assertions are insufficient. Braunschweig's affidavit failed to demonstrate that there is a genuine issue for trial regarding whether Bormann possessed or possesses the missing records in question. Therefore, Braunschweig failed to satisfy the requirements of rule 1.981(5).
However, Braunschweig does dispute Bormann's statement by correctly noting that Iowa Code section 331.903(2) requires that the records he requested be issued and filed in the auditor's office, which he argues required the district court to infer that the records are in the auditor's office but that Bormann has refused to produce them. Thus, Braunschweig seeks to generate a genuine issue of material fact based on speculation. Yet, his only support for this speculation is the logical fallacy that because the Iowa Code requires certain records be created and filed with the auditor they actually were created and appropriately filed. He offered no admissible evidence capable of proving either. While the district court must indulge every legitimate inference to ascertain the existence of a fact question, it cannot engage in inferences based on conjecture and speculation as they are not legitimate. See Gannon, 692 N.W.2d at 37. Therefore, we agree with the district court's conclusion that no genuine issue of disputed fact was created by the inconsistency between what section 331.903(2) requires and what Bormann stated, under oath, is the reality of the situation. B. Timely Compliance with Chapter 22
Iowa Code section 331.903(2) concerns the appointment of assistant county attorneys, deputies and clerks and provides:
When an appointment has been approved by the board, the principal officer making the appointment shall issue a written certificate of appointment which shall be filed and kept in the office of the auditor. A certificate of appointment may be revoked in writing by the principal officer making the appointment, which revocation shall also be filed and kept in the office of the auditor.
The three records requested by Braunschweig but not received were either notices of appointments or withdrawal of assistant county attorneys.
We note that in making this conclusion the district court incorrectly found Braunschweig "received all of the documents that he requested that exist." (Emphasis added). The evidence does not establish as a matter of law that no other records exist. However, this fact does not alter the conclusion that there is no genuine dispute as to the fact that Bormann has turned over all the documents in her possession.
Braunschweig next argues a genuine issue exists with regard to Bormann's delay in turning over to him the records actually produced. Specifically, he claims the delay in giving him the records until after he filed his lawsuit on September 26 was tantamount to a refusal to produce the records, which he asserts generates a genuine issue as to whether Bormann's delay demonstrated non-compliance with chapter 22. As previously noted, the standard for compliance under chapter 22 is substantial not absolute compliance. See Wings, 527 N.W.2d at 410.
In assessing substantial compliance, chapter 22 is not applied in a vacuum. Id. Braunschweig, by way of deposition, stated he began orally requesting the documents in early September. Although he had no specific recollection of the details of his requests, he asserted, "I got no response." By way of her affidavit Bormann stated that at the time Braunschweig made his request, she could not find the documents as they were in someone else's possession, but that she secured the records and ultimately turned over all of the records in her possession, "as soon as they were available to me in their entirety." Bormann does not distinguish between Braunschweig's oral or written requests for documents in describing her response. She further stated that she did not withhold any documents requested by Braunschweig. Braunschweig's affidavit sets forth no facts contradicting these statements. Therefore, the undisputed facts are that Bormann did not have all the documents requested at the time Braunschweig submitted his written request for them on September 24, but that she gathered and turned over all the documents in her possession within a few days thereafter. Consequently, while it is true that there is no dispute that Braunschweig did not receive any records until after he filed suit, it does not follow that this fact creates a genuine issue for trial. The district court did not err in concluding as a matter of law that Bormann's delay, under the circumstances, was reasonable and she substantially complied with chapter 22.
Braunschweig in his affidavit does assert, "[I]t is believed that the requested documents were in possession of Joann Bormann, at the time the requests were made." This statement however does not set forth a fact but instead advances a belief or opinion. Braunschweig's affidavit also contests Bormann's statement in her affidavit that all tape recordings in her possession have been given to Braunschweig. Braunschweig asserts that he has not received thirty minutes of a recording he requested subsequent to the filing of his petition. This recording is not a subject of this action as it was not made a subject of the petition. Moreover, the fact Braunschweig hasn't received the portion of the recording requested does not refute or dispute the fact that Bormann has turned over all items requested in her possession. Braunschweig once again failed to offer any evidence indicating the record in question was created or that it was ever transferred to the custody of Bormann.
IV. Conclusion
No genuine issue exists for trial regarding whether Bormann substantially complied with chapter 22. Bormann was entitled to judgment as a matter of law. Therefore, because Braunschweig did not successfully establish a violation of chapter 22, he is not entitled to the costs and attorney fees he has requested. See Iowa Code § 22.10(3)(c).