Mark D. Hall v. Broadlawns Medical Center

IN THE SUPREME COURT OF IOWA
No. 10–0971
Filed March 9, 2012
MARK D. HALL,
Appellee,
vs.
BROADLAWNS MEDICAL CENTER,
Appellee,
and
DES MOINES REGISTER and TRIBUNE COMPANY,
Appellant.
Appeal from the Iowa District Court for Polk County, Michael D.
Huppert, Judge.
The Des Moines Register and Tribune Company asserts the district
court erred in holding an internal audit report created by Broadlawns
Medical Center is not a public record subject to disclosure under the
Iowa Open Records Act. AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED.
Michael A. Giudicessi of Faegre Baker Daniels LLP, Des Moines, for
appellant.
Mark E. Weinhardt and Holly M. Logan of Weinhardt & Logan,
P.C., Des Moines, for appellee Hall.
2
Thomas A. Finley and Stacie M. Codr of Finley, Alt, Smith,
Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellee
Broadlawns Medical Center.
3
APPEL, Justice.
In this case, we consider whether an internal audit created by
Broadlawns Medical Center as a result of the theft of drugs by an
employee is a public record under the Iowa Open Records Act. The
district court concluded that, because the internal audit was provided to
the Iowa Board of Pharmacy in order to assist in its investigation of
licensing matters arising from the theft, the internal audit amounted to
investigative materials in the hands of a licensing board under Iowa Code
section 272C.6(4) (2009) and was not subject to disclosure. Upon our
review of the facts and law, we conclude that the internal pharmacy
audit is a public record, not a confidential record, and that other
statutory exceptions asserted to prevent public disclosure are
inapplicable. As a result, we reverse in part, affirm in part, and remand
the matter to the district court.
I. Procedural and Factual Background.
This case arises out of a dispute involving Broadlawns Medical
Center (Broadlawns); Mark Hall, a licensed pharmacist in charge of the
pharmacy at Broadlawns; and the Des Moines Register and Tribune
Company (Register).
The dispute arose after police in late September 2008 arrested a
pharmacist employed by Broadlawns on suspicion of operating a motor
vehicle while intoxicated. During an interview with law enforcement
authorities, the pharmacist stated she diverted prescription medications,
including controlled substances, from Broadlawns. Broadlawns
discharged the pharmacist in early October 2008. The Iowa Board of
Pharmacy (board) issued an emergency order suspending the
pharmacist’s license indefinitely.
4
After taking its emergency action, the board commenced an
investigation as a result of the incident. During its investigation, the
board contacted Mark Hall. Hall was an employee of Cardinal Health
Care, which had a contract with Broadlawns to provide pharmacy
services to Broadlawns. Pursuant to the contract, Hall was the
pharmacist in charge at Broadlawns. As part of its investigation, the
board asked Hall to provide records from the Broadlawns pharmacy so
that the board could do an audit. Hall cooperated with the board’s
investigation and provided the requested documents.
At this point, Hall decided to conduct an internal audit of
Broadlawns pharmacy, which was completed in December 2008. When
asked why he performed the internal audit, Hall stated:
I wanted immediate answers. I didn’t want to wait for
somebody else to do an audit and wait for their results. If
there was action that needed to be taken, then I wanted to
take it. Also, I felt it was the responsible thing to do.
Once the internal audit was completed, Hall contemporaneously provided
a copy to the Broadlawns chief medical officer, Dr. Vincent Mandracchia;
to the operations manager at Cardinal Health, Ed Nold; and to the board.
Hall stated that he provided a copy of the internal audit to the board
because the information was relevant to its investigation and Hall
thought it important that the board have complete information.
About a year after these events, the board filed charges against
Hall and Broadlawns. The board charged Hall with lack of competency
and inadequate controls for allegedly failing to maintain an adequate
record of controlled substance transactions. The board’s statement of
charges included a reference to the internal audit provided to the board
by Hall and stated that the internal audit confirmed shortages of
controlled substances at Broadlawns.
5
The statement of charges filed by the board against Hall and
Broadlawns is a public record. Upon reviewing the statement, the
Register on November 23, 2009, sought to obtain Hall’s audit under
Iowa’s Open Records Act. Broadlawns refused to release the audit,
however, claiming it was confidential and exempt from disclosure.
Further, in order to prevent potential disclosure, Hall, on December 11,
2009, filed an action against Broadlawns seeking declaratory and
injunctive relief to prevent Broadlawns from releasing the internal audit.
On December 29, 2009, the district court entered a temporary injunction
restraining Broadlawns from releasing the internal audit. The Register
intervened in the litigation on January 4, 2010.
Following an evidentiary hearing, the district court concluded that
Iowa Code section 272C.6(4) barred the release of the audit because
“[t]he statutory objective of assuring a free flow of information is better
met by extending the confidentiality contained within Iowa Code [section]
272C.6(4) to the audit report.” As a result, an injunction barring release
of the internal audit was granted. The Register appealed.
On appeal, both Hall and Broadlawns assert that the district court
properly concluded the audit is protected from disclosure under Iowa
Code section 272C.6(4). Hall further asserts that, even if Iowa Code
section 272C.6(4) is inapplicable, the audit is exempt from disclosure
pursuant to Iowa Code sections 22.7(61) and 22.8. Further, Broadlawns
argues even if the internal audit is found to be a disclosable public
record, Broadlawns should not be assessed costs and attorney fees
under Iowa Code section 22.10 because of the safe harbor provisions of
Iowa Code section 22.8(4).
The Register counters that because the internal audit was not part
of a complaint or the investigative work product of the board, it is not
6
within the scope of Iowa Code section 272C.6(4). Further, the Register
asserts that Hall failed to meet the elements under Iowa Code section
22.7(61).
For the reasons expressed below, we conclude that, under the facts
and circumstances of this case, the internal audit is not confidential
under Iowa Code section 272C.6(4). We further conclude that Hall has
failed to make the requisite showing for an injunction to restrain
examination of a public record under Iowa Code sections 22.7(61) and
22.8.
II. Standard of Review.
Actions brought under the Iowa open records law are triable in
equity. In this equity trial, our review of the issues properly raised in
this appeal is de novo. US West Commc’ns, Inc. v. Office of Consumer
Advocate, 498 N.W.2d 711, 713 (Iowa 1993). The district court’s
statutory interpretation of Iowa Code section 272C.6(4) is reviewed for
correction of errors at law. DeLaMater v. Marion Civil Serv. Comm’n, 554
N.W.2d 875, 878 (Iowa 1996).
III. Discussion.
A. Applicability of the Confidentiality Provisions of Iowa Code
Section 272C.6(4). We first consider whether the confidentiality
provisions of Iowa Code section 272C.6(4) apply to the internal audit. We
begin our discussion by considering the scope of the statute as reflected
in the language of the statute and the policies underlying it. We then
analyze whether the facts of this case fall within the scope of section
272C.6(4).
Iowa Code chapter 272C generally relates to the regulation of a
lengthy laundry list of licensed professionals. The chapter establishes a
framework for the operation of licensing boards—including provisions
7
related to the authority of licensing boards, the duties of licensing
boards, and certain procedures regarding the manner in which hearings
are conducted. See Iowa Code §§ 272C.3–.4, .6. Among other things, the
chapter authorizes a licensing board to establish and register peer review
committees. Id. § 272C.3(1)(h).
Iowa Code section 272C.6(4) provides, in relevant part:
4. In order to assure a free flow of information for
accomplishing the purposes of this section . . . all complaint
files, investigation files, other investigation reports, and
other investigative information in the possession of a
licensing board or peer review committee acting under the
authority of a licensing board or its employees or agents
which relates to licensee discipline are privileged and
confidential, and are not subject to discovery, subpoena, or
other means of legal compulsion for their release to a person
other than the licensee and the boards, their employees and
agents involved in licensee discipline . . . .
At first blush, it may appear that the statute only protects
information “in the possession of a licensing board or peer review
committee.” See id. § 272C.6(4). As a result, it could be argued that
information in the possession of third parties is simply not protected
under the statutory language.
Though appealing for its simplicity, the interpretation of the
statute based on possession is problematic. For instance, if a complaint
is filed with a licensing board, it seems doubtful that the document in
the hands of the licensing board is confidential, but the very same
document in the possession of the person who provided the complaint or
in the hands of a challenged professional responding to the complaint, is
not. Similarly, if an expert whose opinion has been requested by a
licensing board submits an expert report to the board, it seems unlikely
that the copy of the report in the board’s file is protected, but a copy of
the same report in the hands of the expert is not.
8
If the purpose of Iowa Code section 272C.6(4) is to “assure a free
flow of information” for accomplishing the purposes of peer review and
discipline, it seems at least doubtful that the legislature intended the
confidentiality provision to apply simply to copies of documents that are
physically possessed by the licensing board and not to the same copies
in the hands of persons working with the licensing board or peer review
committee. Thus, a plausible argument may be made that the statutory
privilege for information possessed by the board does not run solely to
the board as possessor of a particular document but rather runs with the
information provided to the board that allows it to perform its statutory
functions.
There is no controlling Iowa case law on the precise question posed
in this case. In Doe v. Iowa State Board of Physical Therapy &
Occupational Therapy Examiners, 320 N.W.2d 557, 561 (Iowa 1982), we
came to the common sense conclusion that once a disciplinary action
has been initiated, the licensee subject to the action is entitled to the
underlying documents in the hands of the licensing board. The case
involves the narrow issue of providing the licensee with documents and
does not address the broader issue of availability of information to the
public. See Doe, 320 N.W.2d at 561. In Cawthorn v. Catholic Health
Initiatives Iowa Corp., 743 N.W.2d 525, 528 (Iowa 2007), we considered
whether information in the possession of a peer review committee could
be used in a medical malpractice action. We concluded that, under the
terms of the statute involved in that case, it could not. Cawthorn, 743
N.W.2d at 528. Like Doe, however, Cawthorn did not address the specific
issue in this case, namely, whether records in the possession of third
parties that contain information being considered by a licensing board as
part of its investigation are shielded from public disclosure.
9
At least one federal circuit has considered the degree to which a
statute protects confidentiality even though documents are in the hands
of third parties. In Armstrong v. Dwyer, 155 F.3d 211, 213–14 (3d Cir.
1998), the Third Circuit considered whether a malpractice plaintiff could
subpoena peer review documents that were in the hands of the
defendant. The federal statute in question protected from disclosure
medical records “in the possession” of peer review organizations. See id.
(quoting 42 U.S.C. § 1320c-9(d) (1994)). 1 The Third Circuit concluded
that the statutory bar against discovery “runs with the documents or
information, not with the organization or individuals who happen to
posses the documents or information at any given time.” Armstrong, 155
F.3d at 220. The Third Circuit reasoned that the statutory protections
would be a nullity if documents in the hands of the peer review
organization were protected while the same documents in the hands of
the subject physician were subject to disclosure. Id.
On the other hand, the court in Todd v. South Jersey Hospital
System, 152 F.R.D. 676 (D.N.J. 1993), abrogated by Armstrong, 155 F.3d
at 220, recognized other risks in interpreting the federal peer review
statute. In Todd, the court held that medical records in the possession of
a health care provider that were subsequently provided to a peer review
organization were not automatically protected from disclosure. Todd,
152 F.R.D. at 686. “To hold otherwise,” explained the court, “would
encourage health care providers to file a copy of every document” with a
peer review organization “in an attempt to avoid and to obstruct all
legitimate discovery in any litigation.” Id. at 687.
1The statute states: “No patient record in the possession of an organization
having a contract with the Secretary under this part shall be subject to subpoena or
discovery proceeding in a civil action.” 42 U.S.C. § 1320c-9(d).
10
While the federal law related to peer review organizations is not
identical to Iowa Code section 272C.6(4), we think Armstrong and Todd
demonstrate the need for a nuanced position regarding what information
is protected by privileged statutes related to licensee discipline or peer
review. On the one hand, the mere fact that a copy of the document is
possessed by a third party should not be determinative of the privilege
issue if the privilege is to have any substance. On the other hand, the
providing of information to a licensing body or peer review committee
should not transform otherwise discoverable information into privileged
material.
Wigmore handles the problem by dividing documents possessed by
peer review organizations, which by analogy are similar to licensing
boards, into three categories. The first category consists of documents
ordinarily generated by the organization that reflect internal deliberations
and functions of the reviewing body. Edward J. Imwinkelried, The New
Wigmore: A Treatise on Evidence § 7.8.2, at 1375–76 (2010) [hereinafter
Wigmore]. These documents are at the core of statutory protection. We
have held that such documents are privileged under Iowa Code section
272C.6(4). See Cawthorn, 743 N.W.2d at 528.
The second category of documents identified by Wigmore is
comprised of preexisting documents that are submitted to the reviewing
body. Wigmore § 7.8.2, at 1376–77. The case for statutory privilege with
respect to these documents in the hands of a third party is weak. See id.
The need for frankness does not justify protecting preexisting documents
because the documents were generated before the investigation
commenced. See Menoski v. Shih, 612 N.E.2d 834, 836 (Ill. App. Ct.
1993) (documents created prior to peer review process are not privileged);
Moretti v. Lowe, 592 A.2d 855, 857–58 (R.I. 1991).
11
The third category of documents identified by Wigmore includes
those created for the purpose of submission to the reviewing body.
Wigmore § 7.8.2, at 1377. According to Wigmore, “[j]ust as the core
protection of documents generated by the committee encourages
frankness during the committee’s deliberations, this extension promotes
candid submissions to the committee.” Id.
In this case, however, the record clearly demonstrates that Hall
had a purpose independent of the board’s investigation in creating the
internal audit. He wanted “immediate answers” so that “[i]f there was
action that needed to be taken,” he could take it. He “didn’t want to wait
for somebody else to do an audit and wait for their results.” Hall was, as
he put it, doing the “responsible thing,” namely, getting to the bottom of
a troublesome situation as rapidly as possible in order to take whatever
corrective action might be needed.
Hall’s purpose, namely, to find out what was going on in the
pharmacy as rapidly as possible and take appropriate action in light of
what might be discovered in the audit, does not relate in any way to the
board’s deliberative functions. It relates to the functioning of the
Broadlawns pharmacy where Hall was the pharmacist in charge.
It was, of course, undisputed that Hall provided a copy of the
internal audit to the board contemporaneously with his providing copies
to Broadlawns and Cardinal Health. His purpose in providing the
document to the board may have been to provide it with complete
information, but his purpose in creating the document in the first place
was not related to the board’s investigation: Indeed, Hall conceded that
it was independent of the board’s slowly moving processes. Because we
find that the audit was prepared for purposes independent of assisting
the board in its investigation, we conclude that the internal audit falls
12
into the second category of documents identified by Wigmore. As a
result, the privilege in Iowa Code section 272C.6(4) does not apply.
B. Applicability of Iowa Code Section 22.7(61).
1. Introduction. We next consider Hall’s claims that the
Broadlawns audit is protected from disclosure by Iowa Code section
22.7(61). This section provides, in relevant part, that material may be
withheld if it amounts to:
61. Information in a record that would permit a
governmental body subject to chapter 21 [Open Meetings
Law] to hold a closed session pursuant to section 21.5 in
order to avoid public disclosure of that information, until
such time as final action is taken on the subject matter of
that information. Any portion of such a record not subject to
this subsection, or not otherwise confidential, shall be made
available to the public.
Iowa Code § 22.7(61). Section 22.7(61) does not apply “more than ninety
days after a record is known to exist by the governmental body, unless it
is not possible for the governmental body to take final action within
ninety days.” Id.
In interpreting this section, we are guided by several well-
established principles. There is a presumption in favor of disclosure
under our freedom of information statutes. City of Riverdale v. Diercks,
806 N.W.2d 643, 652 (Iowa 2011); Ne. Council on Substance Abuse, Inc. v.
Iowa Dep’t of Pub. Health, 513 N.W.2d 757, 759 (Iowa 1994). Although
we should not thwart legislative intent, the specific exemptions contained
in freedom of information statutes are to be construed narrowly. Ne.
Council on Substance Abuse, Inc., 513 N.W.2d at 759. Freedom of
information acts establish a liberal policy in favor of access to public
records. City of Dubuque v. Tel. Herald, Inc., 297 N.W.2d 523, 526 (Iowa
1980), superseded by statute, Iowa Code § 22.7(18) (1985), as recognized
in City of Sioux City v. Greater Sioux City Press Club, 421 N.W.2d 895,
13
897 (Iowa 1988); Howard v. Des Moines Register & Tribune Co., 283
N.W.2d 289, 299 (Iowa 1979).
We think the general purpose of section 22.7(61) is clear. It would
make no sense, for example, to be able to hold a closed meeting to
protect certain oral deliberations of government as confidential, but then
impose a requirement that the minutes of a meeting or other documents
revealing the deliberative processes be subject to disclosure under the
public records act. See Iowa Code § 21.5(4) (stating the minutes of a
closed session are not public records open to public inspection); see also
Tahoe Reg’l Planning Agency v. McKay, 769 F.2d 534, 539–41 (9th Cir.
1985) (holding Nevada’s open meeting law allows closed meetings for
matters within the attorney-client privilege and protects from disclosure
the minutes of those closed meetings); Blethen Me. Newspapers, Inc. v.
Portland Sch. Comm., 947 A.2d 479, 484 (Me. 2008) (holding documents
prepared for use during executive session and notes made during
executive session are not subject to public examination); Cooper v. Bales,
233 S.E.2d 306, 308 (S.C. 1977) (stating authorized closed meetings with
mandated release of records of such meetings would be nonsensical).
2. Litigation strategy. Hall first seeks to come within Iowa Code
section 22.7(61) through Iowa Code section 21.5(c), which allows for
closed sessions “[t]o discuss strategy with counsel in matters that are
presently in litigation or where litigation is imminent where its disclosure
would be likely to prejudice or disadvantage the position of the
governmental body in that litigation.” Iowa Code § 21.5(c). The district
court held section 21.5(c) was inapplicable because the ninety-day period
under Iowa Code section 22.7(61) had elapsed and Broadlawns had not
met the burden of showing that “final action was not possible within the
ninety-day period.” See id. § 22.7(61).
14
We do not adopt the district court’s approach to the statute. When
litigation is brought by a third party and is pending, it may not be
possible for the public body, however diligent, to resolve the dispute
within ninety days. Assuming as the district court found that a
disciplinary action involved in this case was “litigation” under section
21.5(c), it seems reasonable to conclude that Broadlawns was not in a
position to conclude the disciplinary matter within ninety days.
Nonetheless, we agree with the conclusion of the district court for a
different reason. The internal audit in this case is not a discussion of
legal strategy with counsel. As a result, release of the internal audit
would not compromise information designed to be protected under Iowa
Code section 21.5(c). The purpose of the exception is to protect attorney-
client privilege resulting from communications that may lawfully be
discussed in a closed meeting, not to throw a shroud around public
documents that might relate to an ongoing controversy. See City of L.A.
v. Super. Ct., 49 Cal. Rptr. 2d 35, 39 (Ct. App. 1996) (nondisclosure
designed “to prevent a litigant from obtaining a greater advantage against
the governmental entity than would otherwise be allowed through normal
discovery channels”).
In addition, section 21.5(c) permits nondisclosure by a
governmental body only where information would “likely . . . prejudice or
disadvantage the position of the governmental body in that litigation.”
Iowa Code § 21.5(c) (emphasis added). Hall, of course, is not the
governmental body, and prejudice as to him does not establish a basis
for nondisclosure under a litigation strategy theory.
3. Professional competence. Hall next asserts that Broadlawns
may decline to disclose the audit under Iowa Code section 21.5(i). This
provision provides, in relevant part:
15
i. To evaluate the professional competency of an
individual whose appointment, hiring, performance or
discharge is being considered when necessary to prevent
needless and irreparable injury to that individual’s
reputation and that individual requests a closed session.
Id. § 21.5(i).
With respect to this exception, we cannot agree with Hall’s
assertion that the internal audit may be held confidential because it
relates to Hall’s performance in a general fashion. The purpose of the
closed meeting under section 21.5(i) is to “evaluate the professional
competency” of an individual. Id. (emphasis added). Nothing in the
internal audit “evaluates” Hall’s performance for the benefit of the
governmental body. Under Hall’s argument, a myriad of documents in a
public agency would no longer be public documents because they “relate”
to some employee’s performance and might at some unspecified time in
the future be considered in a closed meeting. We decline to create
through interpretation a virtually limitless exception to our public
records law. Burton v. Univ. of Iowa Hosps. & Clinics, 566 N.W.2d 182,
189 (Iowa 1997) (declining to interpret statutes in a fashion that creates
broad exception to public disclosure as contrary to overriding legislative
policy).
In addition, even if the internal audit did contain information
which could be said to “evaluate the professional competency of an
individual,” we find the ninety-day limitation of Iowa Code section
22.7(61) to be applicable on this claim. We find nothing in the record to
suggest that Broadlawns was not in a position to evaluate the
competency of Hall within ninety days after the board learned of the
existence of the internal audit in December of 2008. The Register’s
public records request came about a year later. It is, of course, always
possible that after the receipt of a document, additional information in
16
the future might become available that would have a bearing on the
employment status of a public employee. For example, if the board in
the future determined to take disciplinary action against Hall,
Broadlawns may wish to revisit the issue of Hall’s employment status
and might consider, among other things, the contents of the internal
audit. The question, however, is whether the governmental entity is in a
position to take any personnel action based on the information contained
in the internal audit within ninety days. We think it clearly was.
C. Availability of Injunctive Relief Under Iowa Code Chapter
22.8. Finally, Hall urges that an injunction to prevent disclosure of the
internal audit is appropriate under Iowa Code section 22.8. Iowa Code
section 22.8 allows for injunctions to prevent disclosure when the court
finds both that examination is “clearly” not in the public interest and
that examination would “substantially and irreparably injure any person
or persons.” Iowa Code § 22.8(1)(a)–(b). The burden is on the person
resisting disclosure to establish the elements by clear and convincing
evidence. Id. § 22.8(3); Gabrilson v. Flynn, 554 N.W.2d 267, 273 (Iowa
1996). In evaluating a claim under Iowa Code section 22.8, the court
must “take into account the policy of [chapter 22] that free and open
examination of public records is generally in the public interest.” Iowa
Code § 22.8(3); see Ne. Council on Substance Abuse, Inc., 513 N.W.2d at
761.
We do not believe Hall has met his burden of showing by “clear and
convincing evidence” that disclosure of the audit is “clearly not . . . in the
public interest.” See Iowa Code § 22.8(1)(a). The public interest in
information related to the theft of drugs from a pharmacy at a hospital
funded by taxpayers is compelling. Journal/Sentinel, Inc. v. Sch. Bd., 521
N.W.2d 165, 172 (Wis. Ct. App. 1994) (“All officers and employees of
17
government are, ultimately, responsible to the citizens, and those citizens
have a right to hold their employees accountable for the job they do.”).
While Hall claims that disclosure would have a chilling effect on
communications, we note that the internal audit merely presents factual
information in a table format related to drug inventories at the
pharmacy. See Note, The Privilege of Self-Critical Analysis, 96
Harv. L. Rev. 1083, 1094 (1983) (stating when facts presented in
document are independently replicable, the chilling-effect rationale of the
self-critical analysis privilege does not apply). The internal audit does
not contain communications reflecting deliberative processes, does not
make policy recommendations of any kind, and does not implicate
privacy interests of third parties. Responsible public agencies will
conduct such factual reviews when there are allegations of wrongdoing
because they are necessary to protect the integrity of government
operations. Under these circumstances, we cannot conclude that any
potential chilling effect caused by release of the document establishes by
“clear and convincing” evidence that disclosure of the audit is “clearly”
not in the public interest. See Cal. State Univ. v. Super. Ct., 108
Cal. Rptr. 2d 870, 887 (Ct. App. 2001) (holding claim that release of
fundraising records would chill funding too speculative to support public
records injunction).
Hall further claims that he will be prejudiced in the disciplinary
proceeding before the board by public release of the internal audit. We
reject this claim as well. As noted above, the factual material contained
in the internal audit is already in the hands of the board. Further, the
claim that the board will be improperly swayed by publicity is too
speculative and too insubstantial to establish by “clear and convincing”
evidence that disclosure is “clearly not . . . in the public interest” under
18
Iowa Code section 22.8. See Bd. of Comm’rs v. Las Cruces Sun-News, 76
P.3d 36, 45 (N.M. Ct. App. 2003) (concluding fear that release of
information regarding sex abuse would trigger additional financial
liability was too speculative to override interest in public disclosure);
Local 2489 v. Rock Cnty., 689 N.W.2d 644, 653 n.5 (Wis. Ct. App. 2004)
(rejecting possible impact on grievance procedure as basis for
nondisclosure of public documents).
D. Availability of Attorney Fees Under Iowa Code Section
22.10. In this case, the Register seeks a remand of the case to the
district court “with instructions to award the Register all remedies
required or permitted under Iowa Code [section] 22.10(3), including trial
and appellate attorneys’ fees and costs.”
The district court, however, did not address the issue of costs and
attorney fees. When a district court is reversed on the merits and does
not as a result reach the question of whether a party is entitled to
attorney fees, the proper course is to remand the case to the district
court for a determination of what, if any, attorney fees should be
awarded. Baysden v. Hitchcock, 553 N.W.2d 901, 905 (Iowa Ct. App.
1996) (remanding to district court for determination of entitlement, if
any, to attorney fees under applicable contractual provisions); see also
Phoenix New Times, L.L.C. v. Arpaio, 177 P.3d 275, 289–90 (Ariz. Ct. App.
2008) (remanding to district court in public records action for a ruling
upon pending claim for statutory attorneys’ fees not reached in original
district court action). We therefore do not consider the issue properly
before us on appeal. On remand, the district court shall in further
proceedings determine the merits of the Register’s claim for fees
consistent with the facts and statutory standards set forth in Diercks.
19
See generally Diercks, 806 N.W.2d at 652–60. We express no view on the
merits of any fee claim.
IV. Conclusion.
For the above reasons, the judgment of the district court holding
that the internal audit was not subject to disclosure under Iowa Code
chapter 272C is reversed. The rulings of the district court that the
plaintiff failed to establish the basis for nondisclosure under Iowa Code
section 22.7(61) are affirmed. The matter is remanded for further
proceedings in the district court.
AFFIRMED IN PART, REVERSED IN PART, AND CASE
REMANDED.
All justices concur except Mansfield, J., who takes no part.