City of Riverdale, Iowa v. Allen Diercks, Marie Randol, and Tammie Picton , 806 N.W.2d 643 ( 2011 )

IN THE SUPREME COURT OF IOWA
No. 09–1670
Filed November 18, 2011
CITY OF RIVERDALE, IOWA,
Appellant,
vs.
ALLEN DIERCKS, MARIE RANDOL, and TAMMIE PICTON,
Appellees.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, Nancy S.
Tabor, Judge.
City appeals award of citizens’ attorney fees in action to obtain
security camera videotape under Iowa’s Freedom of Information Act, Iowa
Code chapter 22. DECISION OF COURT OF APPEALS VACATED,
DISTRICT COURT FEE AWARD AFFIRMED, AND CASE REMANDED.
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.
2
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
3
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.
4
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.
5
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
6
“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
1The mayor had also made the video available to a city councilman, the
associate attorney for the City, and Sergeant Muhs.
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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 defendants,
particularly the recording of the April 24 confrontation, were confidential
under Iowa Code section 22.7(50). 3 The City’s pleadings were supported
by a resolution of the city council declaring records relating to its
security system to be confidential, and by the affidavit of Bradley Toliver,
Per Mar’s general manager for electronic security, stating without
elaboration that release of the video recording of the April 24
confrontation would jeopardize security.
2The defendants also requested video of several later city hall visits.
3Iowa Code section 22.7(50) provides the following records shall be kept
confidential:
Information concerning security procedures or emergency preparedness
information developed and maintained by a government body for the
protection of governmental employees, visitors to the government body,
persons in the care, custody, or under the control of the government
body, or property under the jurisdiction of the government body, if
disclosure could reasonably be expected to jeopardize such employees,
visitors, persons, or property.
a. Such information includes but is not limited to information
directly related to vulnerability assessments; information contained in
records relating to security measures such as security and response
plans, security codes and combinations, passwords, restricted area
passes, keys, and security or response procedures; emergency response
protocols; and information contained in records that if disclosed would
significantly increase the vulnerability of critical physical systems or
infrastructures of a government body to attack.
b. This subsection shall only apply to information held by a
government body that has adopted a rule or policy identifying the specific
records or class of records to which this subsection applies and which is
contained in such a record.
(Emphasis added.)
8
The defendants’ answers denied the requested video was
confidential under section 22.7(50). Defendants counterclaimed, seeking
an order compelling disclosure of the video and payment of all costs and
reasonable attorney fees. Their counterclaim incorporated by reference
Hunter’s March 20 legal opinion that the video was subject to disclosure.
Defendants’ counterclaim specifically alleged, “Mayor Grindle’s actions in
initiating of [sic] filing the lawsuit against Dr. Diercks, was done in bad
faith and for the purpose of avoiding public embarrassment and potential
civil litigation against Grindle by Dr. Diercks.” Riverdale’s answer to the
counterclaim denied bad faith and alleged as affirmative defenses
compliance with chapter 22 and reliance on advice of counsel.
Riverdale moved for summary judgment, which the district court
denied on June 2, 2009, finding a factual dispute “whether the city is
acting reasonably and in good faith in its conclusion that those video
recordings are confidential.”
The parties took depositions of thirteen witnesses before trial.
Eighteen witnesses testified at trial, including out-of-state experts for
each side. Riverdale was represented by two trial lawyers with combined
experience exceeding sixty years. Defendants were represented by
Michael Meloy with thirty years experience in municipal litigation. The
bench trial was completed in three days in August 2009. Both sides
retained outside security experts who gave conflicting opinions on
whether the disclosure of video recordings from the security cameras
would compromise security. The City’s experts testified that disclosure
of the April 24 video would compromise security because a viewer could
determine the area covered by the camera and thereby ascertain security
“blind spots.” The expert for the defendants testified releasing the
videotape would not compromise security. On October 9, 2009, the
9
district court entered a nine-page ruling in favor of defendants,
concluding the video recordings were public records and were not
confidential under section 22.7(50). The ruling stated:
The court has viewed the videos provided by the
parties and finds that the plaintiff has failed to show that the
release of video tapes from still cameras located in and
outside of the building would “significantly increase the
vulnerability of physical systems or infrastructures” of the
City of Riverdale. The videos do not reveal any information
regarding any of the security systems in place at city hall or
any information regarding the infrastructure workings of the
city government or its employees. The employees and
physical plant of the City are no more vulnerable to attack if
these are revealed than they already are by the lack of
complete coverage in all areas of the building and grounds.
Further, as to the video of April 24, 2008, the City has
waived the confidentiality, if there was any, of that tape by
releasing it to third parties, ie: the news media reporter, a
staff attorney in the city attorney’s office and a councilman.
Diercks, Randol and Picton argue that this lawsuit was
brought in bad faith and that they are therefore entitled to
reimbursement for attorney fees. The City argues that they
were merely following the procedure found in Iowa Code
Chapter 22 and the legal advice of their attorney.
There is no doubt in the Court’s mind that Mayor of
Riverdale considered the counter-plaintiff’s requests for
records frivolous and a nuisance. He publicly stated so in a
city council meeting. The April 24, 2008 video is clear and
convincing evidence of the Mayor’s lack of tolerance for
public record requests of both Dr. Diercks and Mrs. Picton.
The district court ordered the City to disclose the video recordings
to defendant and sustained the defendants’ counterclaim. The ruling
ordered the City to pay defendants’ reasonable attorney fees. Neither
side filed a motion to enlarge or amend the court’s October 9 findings
under Iowa Rule of Civil Procedure 1.904(2).
On October 27, defendants filed an application for costs and
attorneys fees supported by Meloy’s affidavit and billing records.
Defendants sought reimbursement for $71,225 in fees and $5904 in
deposition costs. On November 13, defendants amended their
10
application to add a claim for reimbursement of their expert witness fees
of $2736 for consulting time, deposition testimony, and trial testimony.
On November 19, the City filed a resistance to the fee application. The
City argued no fees were recoverable as a matter of law because the court
had made no finding the City acted in bad faith and the ten-day deadline
for defendants to move to enlarge the court’s findings had expired and
because the court found Riverdale had relied on the advice of counsel.
The City conceded Meloy’s $175 hourly rate was reasonable, but
contended the 407 hours he spent was excessive. The City also argued
deposition expenses should not be awarded because the depositions were
not offered or admitted at trial and none of the expert witness fees were
recoverable as costs. Defendants responded that the district court
sustained their counterclaim, therefore the finding of bad faith is implicit
in the ruling. Defendants further argued that the limitations on recovery
of deposition costs in the Iowa Rules of Civil Procedure were superseded
by Iowa Code section 22.10(3)(c).
On November 18, the court conducted a contested hearing on the
fee application. The district court’s ruling on the fee application, filed
November 30, stated:
The Court finds that it did sustain the Defendants’
counterclaim. The Court, however, did not make a specific
finding of bad faith. In fact, the Court did note in its order
that the Petition was filed at the direction of the attorney
representing the City.
(Emphasis added.) The November 30 ruling stated, “When a custodian of
public documents brings a declaratory action in good faith to determine
whether documents are subject to disclosure, it should not face the
sanction of having to pay attorneys fees”—a direct quote from Des Moines
Independent Community School District v. Des Moines Register & Tribune
11
Co., 487 N.W.2d 666, 671 (Iowa 1992), which the district court cited. In
the same paragraph, the district court stated,
Iowa Code section 22.8(4) expressly provides: Good-faith,
reasonable delay by a lawful custodian in permitting the
examination and copying of a government record is not a
violation of this chapter if the purpose of the delay is any of
the following: . . . To determine whether the government
record in question is a public record, or confidential record.
The November 30 ruling, after discussing section 22.10 governing fee
awards and defenses, continued as follows:
The Court after hearing the testimony and reviewing
evidence found that the video portions were public records
as well and ordered that they be provided to the parties.
Therefore, the court found a violation and sustained the
counterclaim for an injunction. However, the custodian also
did not release the video portion due to the conflicting advice
given by counsel and the advice to file the declaratory
judgment action. The defendants were however forced to
defend this lawsuit not only as to the audio portions but the
video portions as well. The court finds that this is one of the
cases where based on the specific facts attorneys fees for
prosecuting the counterclaim should be assessed due to the
violation of the act. However, the fees are assessed to the
governmental entity and not the Mayor or City Clerk
individually.
(Emphasis added.)
The court ordered Riverdale to pay defendants’ attorney fees
totaling $64,732. The court accepted Meloy’s $175 hourly rate, but
disallowed reimbursement for 37.1 hours of posttrial work the court
found unnecessary and declined to award any deposition expenses
because the depositions were not used at trial. The court limited the
expert fee to the $150 allowed for statutory court costs. Defendants had
sought a total of $77,129 in fees and litigation expenses; the court
disallowed $15,133.
On December 7, defendants moved to enlarge or amend the ruling
awarding fees to correct certain typographical and factual errors and to
12
recognize that the counterclaim sustained by the court included the
allegation that “Mayor Grindle’s actions in initiating filing of the lawsuit
against Dr. Diercks was done in bad faith” and that an affirmative
defense to Riverdale’s declaratory judgment action alleged “Riverdale’s
claim of confidentiality of the videos to Dr. Diercks, Marie Randol, and
Tammie Picton has been made in bad faith.” (Emphasis added.) On
December 16, the City filed a response confirming that certain errors
should be corrected, but resisting any clarification to support a fee
award. On December 29, the district court entered a ruling that made
the agreed corrections and noted the bad-faith allegations in defendants’
affirmative defense and counterclaim. The district court did not retreat
from its fee award. At no time did the City file a motion under Iowa Rule
of Civil Procedure 1.904(2) to enlarge or amend any of the district court
rulings to find there was a “good-faith, reasonable delay” by the City in
turning over the video.
The City appealed, and defendants cross-appealed. A three-judge
panel of the court of appeals reversed and vacated the fee award, stating:
The district court made no finding of bad faith on the
part of the City, finding only that it failed to turn over the
records. Absent a finding of bad faith on the part of the City
and violation of chapter 22, it should not have been ordered
to pay the attorney fees for the defendants. See Iowa Code
§ 22.10(3) (requiring a finding the lawful custodian violated
chapter 22 before awarding attorney fees under 22.10(3)(c)).
We granted defendants’ application for further review.
II. Standard of Review.
Riverdale filed its declaratory judgment action in equity, and both
sides contend we should apply de novo review. Gannon v. Bd. of Regents,
692 N.W.2d 31, 37 (Iowa 2005) (“Customarily, our review of an action
brought under chapter 22 would be de novo, the nature of the action
13
being that of mandamus, triable in equity.” (internal quotation marks
omitted)); see also Iowa Code § 22.5 (“The provisions of this chapter and
all rights of persons under this chapter may be enforced by mandamus
or injunction, whether or not any other remedy is also available.”).
Defendants, however, counterclaimed for attorney fees; the district court
noted the counterclaim was “tried as a ‘bad faith’ case.” The court of
appeals in turn concluded “this action was tried as a law action.
Consequently, our review is for correction of errors at law. Iowa R. App.
P. 6.907.” We agree with the court of appeals.
“Our review of actions for declaratory judgment depends upon how
the action was tried to the district court.” Passehl Estate v. Passehl, 712
N.W.2d 408, 414 (Iowa 2006). The fact the action was filed on the equity
docket does not control our review. See id. at 413. The district court
ruled on numerous objections during this three-day bench trial.
“Normally, this is the ‘hallmark of a law trial’ . . . .” Id. at 414 n.6
(quoting Sille v. Shaffer, 297 N.W.2d 379, 381 (Iowa 1980); accord
Van Sloun v. Agans Bros., Inc., 778 N.W.2d 174, 178 (Iowa 2010) (noting
litmus test for determining if action is tried at law is whether the trial
court ruled on evidentiary objections). The City moved for summary
judgment, and each side filed other motions ruled upon by the district
court. This is another indication the case was tried as a law action.
Van Sloun, 779 N.W.2d at 178 (citing Citizens Sav. Bank v. Sac City State
Bank, 315 N.W.2d 20, 24 (Iowa 1982)).
Accordingly, we will review for correction of errors at law the
district court’s ruling defendants were entitled to recover attorney fees.
We are bound by the district court’s findings of fact if supported by
substantial evidence. Iowa R. App. P. 6.904(3)(a).
14
We will review the amount of attorney fees awarded for abuse of
discretion. GreatAmerica Leasing Corp. v. Cool Comfort Air Conditioning &
Refrigeration, Inc., 691 N.W.2d 730, 732 (Iowa 2005).
III. Did the District Court Err in Awarding Attorney Fees to
the Prevailing Defendants Under Iowa Code Chapter 22?
We must decide whether the district court erred in ordering
Riverdale to pay the prevailing defendants’ attorney fees under Iowa Code
chapter 22. Riverdale contends the district court’s failure to expressly
find it acted in bad faith—and indeed the court’s express recognition it
“did not make a specific finding of bad faith”—is fatal to the fee recovery.
Riverdale further contends its reliance on advice of counsel precludes the
fee award as a matter of law. We disagree with Riverdale and hold on
this record whether the City in good faith, reasonably delayed turning
over the video was a question of fact for the district court to decide in the
nonjury trial. As we explain below, the district court necessarily rejected
the City’s “good-faith, reasonable delay” defense by finding Riverdale
violated chapter 22. Defendants, as the successful parties, therefore, are
entitled to recover their reasonable fees without an express finding the
City acted in bad faith.
We begin our analysis with an overview of the purpose of Iowa’s
open records law and the importance of fee awards as an incentive for
private enforcement of the public disclosure obligations of government
officials. We next analyze the statute’s provision for mandatory fee
awards to prevailing parties and the safe harbor for officials who in good
faith litigate disclosure issues on advice of counsel. We then examine
whether the district court erred in awarding fees based on the record
developed at trial.
15
A. The Purpose of Iowa’s Freedom of Information Act and Fee
Awards to Prevailing Parties. Iowa Code chapter 22 is our state’s
freedom of information statute. Rathmann v. Bd. of Dirs., 580 N.W.2d
773, 777 (Iowa 1998). “The purpose of the statute is ‘to open the doors
of government to public scrutiny [and] to prevent government from
secreting its decision-making activities from the public, on whose behalf
it is its duty to act.’ ” Id. (quoting Iowa Civil Rights Comm’n v. City of
Des Moines, 313 N.W.2d 491, 495 (Iowa 1981)). “Accordingly, there is a
presumption of openness and disclosure under this chapter.” Gabrilson
v. Flynn, 554 N.W.2d 267, 271 (Iowa 1996). “Disclosure is the rule, and
one seeking the protection of one of the statute’s exemptions bears the
burden of demonstrating the exemption’s applicability.” Clymer v. City of
Cedar Rapids, 601 N.W.2d 42, 45 (Iowa 1999).
Chapter 22 provides for the recovery of attorney fees by prevailing
parties who are denied access to public records in violation of the Act.
Iowa Code § 22.10(3)(c). The reason an Iowa statute entitles successful
litigants to attorney fees “ ‘is to ensure that private citizens can afford to
pursue the legal actions necessary to advance the public interest
vindicated by the policies’ ” of the statute. Lynch v. City of Des Moines,
464 N.W.2d 236, 239 (Iowa 1990) (quoting Ayala v. Ctr. Line, Inc., 415
N.W.2d 603, 605 (Iowa 1987)); see also Cuneo v. Rumsfeld, 553 F.2d
1360, 1365 (D.C. Cir. 1977) (Congress included an attorney fee provision
in the Federal Freedom for Information Act “to encourage the average
person, who would ordinarily find the barriers of court costs and
attorney fees insurmountable, to pursue legitimate FOIA actions.”),
overruled on other grounds by Burka v. U.S. Dep’t of Health & Human
Servs., 142 F.3d 1286, 1288 (D.C. Cir. 1998).
16
This case aptly illustrates the need for attorney-fee awards to
motivate private attorneys to represent citizens who are improperly
denied access to public records. The defendants were forced to litigate
against their home city for sixteen months before obtaining the video
recording of their confrontation with the mayor.
Against this backdrop, we will now examine the provisions of
chapter 22 governing attorney-fee awards.
B. The Governing Statutory Provisions for Mandatory
Attorney-Fee Awards and Safe Harbors. Iowa Code section 22.10 is
entitled “Civil Enforcement” and authorizes civil suits by citizens to
enforce the statute, see Iowa Code § 22.10(1), as well as declaratory
judgment actions by the public records custodians. Id. § 22.10(4). Once
the citizen shows the city denied his or her request to access government
records, the burden shifts to the city to demonstrate it complied with the
chapter’s requirements. Id. § 22.10(2). 4 Section 22.10(3)(c) requires the
court to award reasonable attorney fees to the prevailing citizen who
proves a violation of the chapter:
Upon a finding by a preponderance of the evidence that a
lawful custodian has violated any provision of this chapter, a
court:
....
c. Shall order the payment of all costs and reasonable
attorney fees, including appellate attorney fees, to any
4Section 22.10(2) provides:
Once a party seeking judicial enforcement of this chapter 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 for
examination and copying by the plaintiff, the burden of going forward
shall be on the defendant to demonstrate compliance with the
requirements of this chapter.
(Emphasis added.)
17
plaintiff successfully establishing a violation of this chapter
in the action brought under this section.
See Des Moines Indep., 487 N.W.2d at 671 (“Iowa Code section 22.10(3)(c)
provides that a district court shall order the payment of reasonable
attorney fees to a plaintiff establishing a violation of chapter 22.”). A
counterclaimant may recover fees in a proper case. Id. (“The question
does not turn on which party is the first to reach the courthouse.”). In
Des Moines Independent, we affirmed a district court order denying a
counterclaimant’s fee request because the record supported “no finding
other than that the [school] district acted in good faith.” Id. We stated,
“When a custodian of public documents brings a declaratory action in
good faith to determine whether documents are subject to disclosure, it
should not face the sanction of having to pay attorney fees.” Id. Our
decision today presents our first opportunity to clarify the standards for
awarding attorney fees under chapter 22.
Riverdale invoked a statutory safe harbor for government bodies
filing declaratory judgment actions in good faith. Section 22.8(4)
provides:
Good-faith, reasonable delay by a lawful custodian in
permitting the examination and copying of a government
record is not a violation of this chapter if the purpose of the
delay is any of the following:
a. To seek an injunction under this section.
....
c. To determine whether the government record in
question is a public record, or confidential record.
....
e. Actions for injunctions under this section may be
brought by the lawful custodian of a government record . . . .
(Emphasis added.)
18
We must read sections 22.8(4) and 22.10(3)(c) together. 5 To
recover fees under section 22.10(3)(c), the requesting party must
establish the government body violated the Act; section 22.8(4) in turn
provides the government body does not violate the Act if it reasonably
delays the citizen’s request by seeking a declaratory judgment in good
faith. Accordingly, a finding of a violation of chapter 22 is inconsistent
with a finding of a good-faith, reasonable delay.
The City agreed the video recordings of security cameras at city
hall are public records. The City bore the burden of proving the
recordings were confidential within the meaning of an exception to
disclosure—section 22.7(50). See Clymer, 601 N.W.2d at 45 (“[O]ne
seeking the protection of one of the statute’s exemptions bears the
burden of demonstrating [its] applicability.”); see also Iowa Code
§ 22.10(2) (burden on party withholding government records to
demonstrate compliance with chapter 22); Iowa R. App. P. 6.904(3)(e)
(“Ordinarily, the burden of proof on an issue is upon the party who
would suffer loss if the issue were not established.”). The district court
ruled against the City by finding the video was not confidential and
ordering that it be turned over to defendants and by finding the City
violated chapter 22. In this setting, defendants did not require an
express finding of bad faith to recover fees from the City under section
22.10(3)(c). Rather, the City needed to prove a “good-faith, reasonable
delay” under section 22.8(4) to avoid a violation of the chapter and
resulting obligation to pay fees.
5Because the district court did not order the mayor to pay fees personally, we do
not address the defenses against individual liability in section 22.10(3)(b). We note
that, if an individual custodian establishes a defense to personal liability under section
22.10(3)(b), the City remains liable for fees under section 22.10(3)(c).
19
C. The District Court Implicitly Rejected Riverdale’s “Good-
Faith, Reasonable Delay” Defense. Our review is complicated because
the district court made no express finding rejecting Riverdale’s defense of
a “good-faith, reasonable delay” under section 22.8(4), yet expressly
noted it “made no specific finding of bad faith.” We encourage district
courts adjudicating attorney-fee claims under chapter 22 to make
express findings whether a delay was reasonable and in good faith. We
must decide whether this ambiguity or gap in the record requires
reversal of the fee award. We hold the district court’s finding Riverdale
violated chapter 22 is supported by substantial evidence and is sufficient
to affirm the fee award without an express finding the City acted in bad
faith.
The district court unquestionably awarded defendants attorney
fees after finding Riverdale violated chapter 22 by withholding the video
from defendants. It did so after noting our caselaw holding that a
records custodian who brings a declaratory judgment action in good faith
should not face the sanction of attorney fees, after noting section 22.8(4)
provides the statute is not violated by a “good-faith, reasonable delay,”
and after noting the City’s advice-of-counsel defense. The district court
made no finding the City acted in good faith or that the delay was
reasonable. As noted above, a finding the act was violated precludes a
finding the same conduct constituted a good-faith, reasonable delay.
Under these circumstances, we must assume the district court implicitly
rejected the City’s good-faith defense. See Meier v. Senecaut, 641 N.W.2d
532, 539 (Iowa 2002) (“[W]e assume the district court rejected each
defense to a claim on its merits, even though the district court did not
address each defense in its ruling.”). Similarly, we assume the district
court implicitly found the facts necessary to support the fee award,
20
including that the City did not litigate in good faith. Id. at 540 (“[T]his
assumption is not utilized as a means to preserve error, but only to guide
our review of an incomplete or sparse record . . . .”).
This assumption is particularly appropriate because the City failed
to file a motion under Iowa Rule of Civil Procedure 1.904(2) to enlarge or
amend the findings to specifically decide whether it established a “good-
faith, reasonable delay” under section 22.8(4). See Bankers Trust Co. v.
Fidata Trust Co. N.Y., 452 N.W.2d 411, 413 (Iowa 1990) (presuming court
decided facts necessary to support decision when it failed to explain
issue raised and no enlargement of ruling sought); accord State v.
Boelman, 330 N.W.2d 794, 795 (Iowa 1983) (“[W]e presume the court
decided the facts necessary to support its decision in the State’s favor.”);
City of Des Moines v. Huff, 232 N.W.2d 574, 576 (Iowa 1975) (“In review
of any case tried to the court at law, findings of the trial court are to be
broadly and liberally construed, rather than narrowly or technically, and
in case of ambiguity, they will be construed to uphold, rather than
defeat, the judgment.”).
Appellate courts in other jurisdictions have affirmed attorney-fee
awards based upon implied findings of bad faith. See, e.g., Harlan v.
Lewis, 982 F.2d 1255, 1260 (8th Cir. 1993) (“Moreover, even if we
assume that a finding of bad faith is required, we conclude that the
district court’s order implies a finding of bad faith.”); Baker Indus., Inc. v.
Cerberus Ltd., 764 F.2d 204, 209 (3d Cir. 1985) (declining to remand “for
an explicit finding of bad faith when it is clearly evident from the district
court’s expressions and from the record as a whole, that the district
court found, albeit implicitly, Cravath’s conduct to be in bad faith”).
21
We conclude the district court’s attorney-fee award can be upheld
based on its implicit rejection of Riverdale’s good-faith, reasonable delay
defense without an express finding the City acted in bad faith.
D. Did the District Court Err in Rejecting Riverdale’s Advice-
of-Counsel Defense? We must now determine whether the record
supports the district court’s implicit rejection of Riverdale’s good-faith
defense notwithstanding the City’s reliance on advice of legal counsel. To
resolve that issue we must decide whether the City established a “good-
faith, reasonable delay” as a matter of law under section 22.8(4). “Good
faith” is not defined in chapter 22. “ ‘In the absence of legislative
definition, we give words their ordinary meaning.’ ” Anderson v. State,
801 N.W.2d 1, 3 (Iowa 2011) (quoting State v. Hearn, 797 N.W.2d 577,
583 (Iowa 2011)). We have not previously defined the term “good faith”
as used in section 22.8(4), but we have addressed the meaning of that
term in various other Iowa statutes that provide immunity or allow
attorney-fee awards. We surveyed such decisions in Sieg Co. v. Kelly,
568 N.W.2d 794, 804–05 (Iowa 1997). There, we noted that, whether
“good faith” in a particular statute is viewed objectively or subjectively
depends on the context and other terms with which it is used:
The term “good faith” has various meanings;
sometimes it is viewed objectively and at other times,
subjectively. Compare Aalbers v. Iowa Dep’t of Job Serv., 431
N.W.2d 330, 335–36 (Iowa 1988) (holding “good-faith belief”
measured by objective test in unemployment compensation
context), with Garvis v. Scholten, 492 N.W.2d 402, 404 (Iowa
1992) (holding term “good faith” in Iowa Code section 232.72
“rests on a defendant’s subjective honest belief”), Meyers v.
Canutt, 242 Iowa 692, 698, 46 N.W.2d 72, 76 (1951) (holding
“good faith” required for adverse possession means “the
actual, existing state of mind” and “freedom from a design to
defraud”), In re Marriage of Voyek, 491 N.W.2d 189, 190–91
(Iowa App. 1992) (interpreting “good faith” as used in Iowa
Code section 589.1(2) as referring to actual intent), and Iowa
Code § 554.1201(19) (defining “good faith” under article 2 of
Uniform Commercial Code as “honesty in fact in the conduct
22
or transaction concerned”). We think “good faith” should be
defined with a subjective focus for purposes of determining a
party’s right to attorney fees under section 490.1331 for two
reasons. First, the objective reasonableness of a party’s
conduct is adequately addressed when considering whether
the party acted arbitrarily. See State v. Ahitow, 544 N.W.2d
270, 273 (Iowa 1996) (“We do not interpret statutes in a way
that makes portions of them irrelevant or redundant.”).
Second, a subjective focus is more consistent with the
common, ordinary meaning of the phrase “good faith.” See
State v. Kidd, 562 N.W.2d 764, 765 (Iowa 1997) (“In the
absence of a legislative definition of a term or a particular
meaning in the law, we give words their ordinary meaning.”);
Security State Bank, 554 N.W.2d at 894 (giving word
“arbitrary” in section 490.1331 its ordinary meaning). The
following dictionary definition of “good faith” encompasses
the essential elements of that term for purposes of chapter
490: “In common usage this term is ordinarily used to
describe that state of mind denoting honesty of purpose,
freedom from intention to defraud, and, generally speaking,
means being faithful to one’s duty or obligation.” Black’s
Law Dictionary 693; accord Webster’s Third New
International Dictionary 978 (defining “good faith” as “a state
of mind indicating honesty and lawfulness of purpose . . . :
belief that one’s conduct is not unconscionable or that
known circumstances do not require further investigation:
absence of fraud, deceit, collusion, or gross negligence”).
Sieg Co., 568 N.W.2d at 804–05. Applying the Sieg Co. analysis here, we
note it is significant that “good faith” is paired with “reasonable” in
section 22.8(4) (“good-faith, reasonable delay”). Because whether a delay
is “reasonable” is determined objectively, we conclude the City’s “good
faith” should be viewed subjectively under Sieg Co. Thus, the trier of fact
should determine whether the City had an honest motive, the subjective
component, as well as an objectively reasonable basis for its decision to
withhold the video from defendants pending the outcome of its
declaratory judgment action. There is no indication the district court
misapplied this standard.
Riverdale contends its reliance on advice of counsel establishes its
defense of “good-faith, reasonable delay” as a matter of law. We disagree.
Under Iowa law, advice of counsel does not automatically establish good
23
faith, but it is a factor to consider in determining whether a party acted
in good or bad faith. See, e.g., Ferris v. Emp’rs Mut. Cas. Co., 255 Iowa
511, 518, 122 N.W.2d 263, 267 (1963) (reversing bad-faith judgment
against insurer that relied on attorney who was “able and long
experienced in the handling of this class of cases”); Schnathorst v.
Williams, 240 Iowa 561, 579, 36 N.W.2d 739, 749 (1949) (holding advice
of counsel does not per se immunize a person from a malicious
prosecution suit); Ahrens v. Ahrens, 386 N.W.2d 536, 538 (Iowa Ct. App.
1986) (noting that, in a malicious prosecution case, “[t]he fact that the
proceedings were initiated under the advice of counsel is a factor to be
considered” in determining bad faith (quoting Restatement (Second) of
Torts § 668, cmt. h, at 441 (1977))); see also Barnes v. Okla. Farm Bureau
Mut. Ins. Co., 11 P.3d 162, 174 (Okla. 2000) (“ ‘The advice of counsel is
but one factor to be considered in deciding whether the carrier’s reason
for denying a claim was arguably reasonable.’ ” (quoting Szumigala v.
Nationwide Mut. Ins. Co., 853 F.2d 274, 282 (5th Cir. 1988))); 14 Lee R.
Russ & Thomas F. Segalla, Couch on Insurance 3d § 203:33, at 203–53
(2008) (“[R]eliance on the advice of counsel is not absolute proof of good
faith, but rather it constitutes some evidence of good faith.”); Stephen S.
Ashley, Bad Faith Action Liability & Damages § 7:13, at 7–46 (2d ed.
1997) (“The great majority of cases that have alluded to the advice of
counsel have merely held that such advice is a factor the jury may
consider when deciding whether the insurer acted in bad faith.”).
We conclude the district court did not err in rejecting the City’s
advice-of-counsel defense on the record made at trial. First, as the
district court noted, the City received conflicting advice. The city
attorney, Hunter (the senior partner), provided the mayor with a written
opinion advising that security camera recordings “are a public record
24
and, thus, must be produced if requested.” Consistent with that advice,
when Diercks first requested the video of the April 24 confrontation, the
City made a copy of the video and left it in an envelope for Diercks to
retrieve at Hunter’s law office. But, the mayor prevented the disclosure
by directing the associate attorney to inquire with Per Mar as to whether
the video’s disclosure would create a security issue.
We need not decide whether Riverdale could plausibly argue the
security video was confidential under section 22.7(50) because the mayor
waived confidentiality. The district court found Riverdale waived any
confidentiality by disclosing the video to Saul, 6 and this finding is
supported by substantial evidence. Mayor Grindle testified he did not
expect Saul to keep the matter private. He knew Saul had published
other stories about Riverdale’s litigation with Diercks. Grindle later
acknowledged it was a mistake to play the video for Saul and that doing
so was inconsistent with the City’s assertion the video was confidential.
It is untenable for Riverdale to play the video for a reporter
covering the dispute between the parties and yet withhold the same video
from the defendants who requested it. As a federal appellate court
observed:
The selective disclosure exhibited by the government
in this action is offensive to the purposes underlying the
FOIA and intolerable as a matter of policy. Preferential
treatment of persons or interest groups fosters precisely the
distrust of government that the FOIA was intended to
obviate.
State ex rel. Olson v. Andrus, 581 F.2d 177, 182 (8th Cir. 1978). We
share this view. It is axiomatic that disclosure to a third party waives
6We assume without deciding that the mayor did not waive confidentiality by
playing the video for a city councilman, the city attorney, or the sheriff’s deputy
investigating Diercks’ complaint about the April 24 incident.
25
confidentiality. See, e.g., State v. Demaray, 704 N.W.2d 60, 66 (Iowa
2005) (“When [the patient] consented to the hospital’s release of his
medical records to [a deputy], he destroyed the confidentiality between
him and his doctor by allowing the information to be communicated to a
third party.”); Miller v. Cont’l Ins. Co., 392 N.W.2d 500, 504–05 (Iowa
1986) (“[W]e have held that voluntary disclosure of the content of a
privileged communication constitutes waiver as to all other
communications on the same subject.”).
The associate attorney testified at trial that a decision of our court
allowed Riverdale to assert confidentiality and withhold the video from
defendants even after the mayor played it for Saul. See Gabrilson, 554
N.W.2d at 271–72. That case is readily distinguishable. The plaintiff,
Carolyn Gabrilson, a member of the Davenport Community School
Board, opposed a performance assessment test and requested copies of
the testing materials under chapter 22 through a lawsuit against Peter
Flynn, the superintendent and lawful custodian. Id. at 269–70. She
previously obtained an unauthorized copy of the test from a school
secretary and gave the testing materials to a radio talk show host and
other members of the media. Id. at 270. Her goal was to stop the district
from using the test by publicizing the questions and answers to the
students who would be taking it. Flynn declined to produce the testing
materials to her, invoking exemptions for confidential materials in Iowa
Code section 22.7(3) (trade secrets) and (19) (examinations). Id. at 270–
71. Our court expressly rejected Gabrilson’s argument that the school
district waived confidentiality by disclosing the materials to select groups
of children for field testing. Id. at 272. Field testing a student
examination is a far cry from showing a videotape to a newspaper
26
reporter covering the dispute and expected to publish a story about it in
the local newspaper.
In Gabrilson, we also rejected the plaintiff’s argument that the
school district waived confidentiality when the district secretary gave the
plaintiff a copy of the test. Id. We noted the record indicated the
secretary was never authorized to release the assessment and concluded
the erroneous release did not destroy the confidential status of the
documents. Id. Here, Mayor Grindle is Riverdale’s lawful custodian and
unquestionably had authority to disclose the video to Saul. Gabrilson
fails to support Riverdale’s position. Once the mayor played the video for
Saul, a subsequent claim of confidentiality was not even fairly debatable.
The correct legal advice should have been to produce the video to Diercks
and his codefendants, rather than litigate for sixteen months. We decline
to vacate the fee award on this record based on inaccurate legal advice.
See Barnes, 11 P.3d at 174–75 (affirming bad-faith award when insurer
relied on erroneous legal advice); In re Inspection of Titan Tire, 637
N.W.2d 115, 132–33 (Iowa 2001) (affirming contempt finding of willful
disobedience of court order; rejecting defense based on mistaken legal
advice that ten-day stay applied). It was for the district court as trier of
fact to determine whether Riverdale established a “good-faith, reasonable
delay” by relying on advice of the associate attorney.
We hold the district court did not err by rejecting Riverdale’s
advice-of-counsel defense. We affirm its ruling awarding defendants their
reasonable attorney fees.
IV. Did the Trial Court Abuse Its Discretion in Determining
the Amount of Attorney Fees and Costs?
We now decide whether the district court abused its discretion in
fixing the amount of defendants’ attorney-fee award at $64,732, while
27
denying reimbursement for litigation expenses. Iowa Code section
22.10(3)(c) directs the district court to “order the payment of all costs and
reasonable attorney fees, including appellate attorney fees, to any [party]
successfully establishing a violation of this chapter.” “The district court
is considered an expert in what constitutes a reasonable attorney fee,
and we afford it wide discretion in making its decision.” GreatAmerica
Leasing Corp., 691 N.W.2d at 733. “ ‘An applicant for attorney fees has
the burden to prove that the services were reasonably necessary and that
the charges were reasonable in amount.’ ” Id. (quoting Schaffer v. Frank
Moyer Constr., Inc., 628 N.W.2d 11, 23 (Iowa 2001)). The district court
should consider several factors, including
“the time necessarily spent, the nature and extent of the
service, the amount involved, the difficulty of handling and
importance of the issues, the responsibility assumed and
results obtained, the standing and experience of the attorney
in the profession, and the customary charges for similar
service.”
Schaffer, 628 N.W.2d at 24 (quoting Landals v. George A. Rolfes Co., 454
N.W.2d 891, 897 (Iowa 1990)).
Riverdale concedes that defendants’ attorney Meloy’s $175 hourly
rate was reasonable for the area. The district court correctly approved
that hourly rate. Riverdale, however, disputed whether the number of
hours Meloy spent on the case was reasonable. Meloy, in turn, noted
Riverdale used two different law firms and two experienced trial lawyers
to prosecute its case through the three-day trial. The amount of time
Meloy spent is largely attributable to the positions taken by the City. See
Lynch, 464 N.W.2d at 240 (noting time spent to prosecute the case was
increased by positions taken by the defendant city). The parties deposed
thirteen witnesses before trial. Eighteen witnesses testified at trial,
including experts for each side. The parties engaged in motion practice,
28
including summary judgment proceedings. Meloy’s fee application,
supported by his affidavit, sought recovery of fees totaling $71,225 (407
hours x $175). The district court awarded $64,732 in fees, $6493 less
than sought, because the court reduced the fee award by 37.1 hours for
work on posttrial matters the court found excessive. We conclude this
reduction was within the district court’s discretion. We affirm the fee
award in that amount.
In addition, section 22.10(3)(c) expressly provides for an award of
appellate attorney fees. Defendants prevail on appeal. Accordingly, on
remand, the district court shall determine an award for defendants’
reasonable attorney fees to be paid by the City.
Finally, we address the defendants’ argument raised in their cross-
appeal that the district court erred by denying reimbursement for their
deposition expenses and expert witness fees. The district court limited
the expert fee to the $150 allowed as taxable court costs under Iowa
Code section 622.72 and denied reimbursement for the deposition
expenses because the depositions were not used at trial as required by
Iowa Rule of Civil Procedure 1.716. Defendants contend that the
limitations governing taxable court costs do not apply to a statutory
award under section 22.10(3)(c) for “all costs and reasonable attorney
fees.” We disagree. We have construed “all costs” language in other fee-
shifting statutes to limit reimbursement for litigation expenses to those
allowed as taxable court costs. See, e.g., Iowa Dep’t of Transp. v.
Soward, 650 N.W.2d 569, 572 (Iowa 2002) (defining “all costs” in Iowa
Code section 6B.33 to mean taxable court costs; rejecting reimbursement
for expert-witness fee above $150 per day); City of Ottumwa v. Taylor,
251 Iowa 618, 622, 102 N.W.2d 376, 380 (Iowa 1960) (rejecting
argument that “all costs” in section 472.33 includes “all expenses
29
reasonably necessary in preparation and trial of the appeal”). 7
Defendants cite no authority for construing the “all costs” language in
section 22.10(3)(c) differently. Accordingly, we affirm the district court’s
denial of defendants’ litigation expenses that do not constitute taxable
court costs.
V. Disposition.
We vacate the decision of the court of appeals and affirm the
district court award of trial attorney fees of $64,732 and denial of
litigation expenses. We remand for an award of defendants’ reasonable
appellate attorney fees to be paid by Riverdale.
Costs of this appeal shall be assessed against the City.
DECISION OF COURT OF APPEALS VACATED, DISTRICT
COURT FEE AWARD AFFIRMED, AND CASE REMANDED.
All justices concur except Mansfield, J., who takes no part.
7See also Landals, 454 N.W.2d at 898 (“[C]ourt costs and reasonable attorneys
fees” recoverable under Iowa Civil Rights Act section 601A.5 (now section 216.15) are
limited to “those costs allowed by Iowa Rule of Civil Procedure 157(a) [now rule 1.716]
and Iowa Code chapters 622 and 625.”).