The Clinton Herald, Clinton, Iowa

May 1, 2014

Lawmakers don't think rules apply to them

The Des Moines Register April 28
The Clinton Herald

---- — One of the more interesting facets of the controversy over confidential settlement agreements is the Senate Democrats’ retreat into secrecy even while they bludgeon the Branstad administration over a lack of transparency.

The Senate Democrats’ double standard was revealed when Iowa Republican Party Chairman Danny Carroll filed an open-records request with the Senate. He asked for copies of “pertinent documents related to matters before the Oversight Committee” investigating agreements that induced employees to keep quiet about terms of settlements. Carroll wanted to know if emails or documents would reveal whether Senate Democrats were pursuing this issue to score political points in the campaign for governor.

The Senate, which is controlled by Democrats including Sen. Jack Hatch, who is running against Gov. Terry Branstad, summarily denied Carroll’s request in a brief letter signed by Secretary of the Senate Michael Marshall.

Marshall wrote that the records Carroll requested “have not customarily been deemed public documents by the Senate, given that their release would almost certainly have a detrimental chilling effect on citizens’ constitutional rights and willingness to petition their elected officials.” And, in a dig at Carroll, the letter said “as a former member of the Iowa House of Representatives, I am sure you are aware that each house of the Iowa General Assembly has the power under Article III, Section 9, of the Iowa Constitution to determine its own rules of proceedings.”

The Iowa open-records statute does contain an exemption for certain communications from citizens to the government, but Senate Democrats could have redacted the names or deleted the most sensitive communications. Surely not everything Carroll asked for falls under that exemption, and the remaining records could have been release if the Democrats were inclined to do so.

But they were not so inclined, and it’s unlikely that either party in the General Assembly will ever be so inclined. Lawmakers have long taken the position that the open-records and open-meetings laws do not actually apply to the Legislature. And they have an unfortunate 1996 ruling from the Iowa Supreme Court that provides them cover.

The Des Moines Register sued the Senate seeking Senate phone records as part of this newspaper’s investigation into a scandal involving a collapsed investment fund marketed to Iowa cities that had employed a legislator as a salesman. The Supreme Court ruled that it could not force the Senate to comply with the Legislature’s own records law because the Iowa Constitution gave the Senate the authority to determine its own rules.

Three justices who dissented in that case agreed that the Legislature can set its own rules without interference from the courts, but they argued that lawmakers did not explicitly make any exceptions for the General Assembly’s records anywhere in the open-records law when they passed it. Thus, they said, like any other law of general application, the records law should apply to the Legislature.

Alas, they were outnumbered in this case.

Nothing the Supreme Court said in that 1996 decision precluded the Senate from abiding by the open-records law, however. The same is true for the Senate records that were sought by Carroll, and the Senate made the wrong decision in both instances