Full Opinion (html_with_citations)

                   IN THE SUPREME COURT OF IOWA

                                 No. 21–1651

            Submitted November 17, 2022—Filed December 16,2022


MICHELLE VACCARO,
    Appellee,

vs.

POLK COUNTY, IOWA, and POLK COUNTY SHERIFF KEVIN SCHNEIDER,
    Appellants.


      Appeal from the Iowa District Court for Polk County, Lawrence P.

McLellan, Judge.

      The defendants seek reversal of discovery ruling compelling disclosure of

allegedly confidential records in an enforcement action brought under Iowa Code

chapter 22. REVERSED AND REMANDED WITH INSTRUCTIONS.

      Waterman, J., delivered the opinion of the court, in which all justices

joined.

      John P. Sarcone, County Attorney, and Julie J. Bussanmas and Meghan

L. Gavin, Assistant County Attorneys, for appellants.

      Gary Dickey of Dickey, Campbell, & Sahag Law Firm, PLC, Des Moines,

for appellee.
                                         2


WATERMAN, Justice.

      In this interlocutory appeal, we revisit the interplay between our civil

discovery rules and Iowa Code section 22.7(5) (2019), a confidentiality provision

for police investigations in the Open Records Act. The plaintiff’s daughter was a

passenger killed in a motorcycle crash. The plaintiff settled her tort action

against the driver without subpoenaing the county sheriff’s investigative reports.

She later questioned the adequacy of the criminal investigation against the

driver, and requested all the department’s records. The sheriff produced some

information but argued other records were confidential. The plaintiff brought this

enforcement action under chapter 22 to obtain its complete investigation file.

The district court, without ruling on their confidentiality, ordered the records

produced to her in discovery before trial, citing Mitchell v. City of Cedar Rapids,
926 N.W.2d 222
, 228–29 (Iowa 2019) (holding discovery rules in tort action

supersede section 22.7(5)). We granted the sheriff’s application for interlocutory

appeal and retained the case.

      On our review, we hold the district court erred by relying on civil discovery

rules to compel production of the very records at issue in this chapter 22

enforcement action. Mitchell was a tort action against the municipality and is

inapplicable to this chapter 22 enforcement action against the records

custodian. We reverse the discovery order and remand the case for the district

court to first determine whether the investigation records at issue are

confidential before granting relief, if any, under chapter 22.
                                           3


      I. Background Facts and Proceedings.

      Michelle Vaccaro’s seventeen-year-old daughter Jordan Leon was fatally

injured in the early hours of October 6, 2019. Jordan was the passenger on a

motorcycle operated by another seventeen-year-old, Kaden Close, who lost

control on NW 6th Drive in rural Polk County near Ankeny. Close suffered minor

injuries; Leon died at the scene. The Polk County Sheriff’s department responded

to the 911 call and investigated the accident, which led to criminal charges

against Close.

      Vaccaro had questions about her daughter’s death, and in the ensuing

months   received   what   she   alleges       were   “incomplete   and   inconsistent

explanations” from the Polk County prosecutor and the Sheriff’s department.

Vaccaro became concerned that the crash investigation was not handled

properly. Specifically, she wanted to know why the department did not

investigate whether the driver was impaired by drugs, why the motorcycle was

destroyed before the criminal case ended, why key facts about his driving record

were initially overlooked, and whether the investigation was handled according

to department policy. On January 17, 2020, she made a public records request

under Iowa Code chapter 22 for records concerning her daughter’s fatal crash.

Within a week, the department provided her with the motor vehicle accident

report, a preliminary criminal complaint, and an event chronology. Vaccaro

continued to seek all of the Sheriff’s investigative materials. On February 4, the

department responded that the remaining records were exempt from public

access as peace officer investigative reports under Iowa Code section 22.7(5).
                                        4


      On February 15, Close pleaded guilty to failure to maintain control of his

motorcycle in violation of Iowa Code section 321.288(1), a simple misdemeanor.

Vaccaro was notified that the criminal investigation and prosecution was

complete and that no other charges would be filed. Meanwhile, Vaccaro had

retained a personal injury lawyer to pursue civil claims against Close. On April 4,

the Sheriff’s department provided Vaccaro’s lawyer with audio of the 911 call and

the department’s general policies regarding accident investigations. The

department also provided a log of investigation materials withheld as confidential

under section 22.7(5), including photos, diagrams, witness statements, in-car

camera audio and video, deputy incident reports and supplemental reports,

towing and impound reports and inventory, and a “Victim Resource Incident

Report.”

      Vaccaro settled her civil wrongful death claim against Close without

attempting to use civil discovery or subpoena powers to obtain the department’s

investigative materials. Instead, on June 15, she filed this enforcement action

under Iowa Code chapter 22 against the County and Sheriff to obtain the

remaining records. The defendants answered by asserting the records were

exempt from disclosure under section 22.7(5). Vaccaro’s counsel served a

request for production, which met the same objection. Vaccaro filed a motion to

compel discovery, which the defendants resisted. The district court reviewed the

records in camera. On October 5, 2021, without ruling on whether the records

were exempt under section 22.7(5), the court ordered them produced to

Vaccaro’s counsel under the discovery rules, relying on Mitchell. The court
                                        5


imposed a protective order preventing Vaccaro from releasing the records

without court approval pending resolution of the chapter 22 proceeding. The

order stated:

            The court is ordering production of these records to plaintiff’s
      counsel under the protection set forth in this order so plaintiff can
      prosecute her case. The court does not believe a plaintiff who brings
      a chapter 22 enforcement action is precluded from reviewing the
      documents at issue prior to trial. If that is the law a plaintiff would
      be severely handicapped in their ability to prosecute their case.

The court set trial for December 9.

      The County filed an application for interlocutory appeal, arguing that

Mitchell is inapplicable in a chapter 22 action and that records should not be

turned over before the court determines whether the section 22.7(5) exemption

applies. We granted the application and retained the case.

      II. Standard of Review.

      “We review the district court’s interpretation of chapter 22 for correction

of errors at law.” Mitchell,
926 N.W.2d at 228
 (quoting Iowa Film Prod. Servs. v.

Iowa Dep’t of Econ. Dev.,
818 N.W.2d 207, 217
 (Iowa 2012)). We review discovery

rulings for abuse of discretion.
Id. at 227
. “A ruling based on an erroneous

interpretation of a discovery rule can constitute an abuse of discretion.”
Id.

(quoting Mediacom Iowa, L.L.C. v. Inc. City of Spencer,
682 N.W.2d 62, 66
 (Iowa

2004)).

      III. Analysis.

      We must decide whether the district court put the cart before the horse.

The County argues that the records at issue are peace officer investigative reports
                                               6


exempt from disclosure under Iowa Code section 22.7(5).1 Vaccaro, relying on

Mitchell, argues she can obtain the records in discovery in this chapter 22 action

before the district court rules on whether they are exempt from disclosure under

section 22.7(5), and the district court agreed with her. The County argues the

discovery ruling was premature and eviscerates the statutory protection for

police investigative reports and other exempt records. We agree with the County

that the district court first must determine whether the records are exempt

before deciding whether Vaccaro is entitled to obtain them.

      We begin with an overview of Iowa Code chapter 22, the Open Records Act,

also known as the Iowa Freedom of Information Act (IFOIA), which “embodies ‘a

liberal policy in favor of access to public records.’ ” Milligan v. Ottumwa Police

Dep’t,
937 N.W.2d 97
, 102 (Iowa 2020) (quoting Mitchell,
926 N.W.2d at 229
).

“The purpose of [chapter 22] is ‘to open the doors of government to public

scrutiny [and] to prevent government from secreting its decision-making


      1Iowa   Code section 22.7(5) provides:
             The following public records shall be kept confidential, unless otherwise
      ordered by a court, by the lawful custodian of the records, or by another person
      duly authorized to release such information:
               ....
               5. Peace officers’ investigative reports, privileged records or information
      specified in section 80G.2, and specific portions of electronic mail and telephone
      billing records of law enforcement agencies if that information is part of an ongoing
      investigation, except where disclosure is authorized elsewhere in this Code.
      However, the date, time, specific location, and immediate facts and circumstances
      surrounding a crime or incident shall not be kept confidential under this section,
      except in those unusual circumstances where disclosure would plainly and
      seriously jeopardize an investigation or pose a clear and present danger to the
      safety of an individual. Specific portions of electronic mail and telephone billing
      records may only be kept confidential under this subsection if the length of time
      prescribed for commencement of prosecution or the finding of an indictment or
      information under the statute of limitations applicable to the crime that is under
      investigation has not expired.
                                         7


activities from the public, on whose behalf it is its duty to act.’ ” Mitchell,
926 N.W.2d at 229
 (alterations in original) (quoting City of Riverdale v. Diercks,
806 N.W.2d 643, 652
 (Iowa 2011)). “ ‘The Act essentially gives all persons the right to

examine public records . . . [but] then lists specific categories of records that

must be kept confidential . . . .’ ‘The general assembly [thereby] created and fixed

the limitations on disclosure.’ ”
Id.
 (alterations and omissions in original)

(citation omitted) (quoting ACLU Found. of Iowa, Inc. v. Recs. Custodian, Atl.

Cmty. Sch. Dist.,
818 N.W.2d 231
, 232–33 (Iowa 2012)). “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.”
Id.
 (quoting Diercks,
806 N.W.2d at 652
).

      The County acknowledges that it bears the burden to establish the records

withheld from Vaccaro are exempt from disclosure under section 22.7(5). The

problem is the district court short-circuited the proceedings by ordering the

County to produce the records to Vaccaro before ruling on the exemption. The

district court misapplied Mitchell.

      Mitchell is distinguishable. In that case, Cedar Rapids police officer Lucas

Jones was on patrol at night and stopped a truck operated by Jerime Mitchell

for a broken taillight. Id. at 225. What happened next was depicted on the

dashcam:

      Mitchell got out of the truck and resisted Officer Jones’s efforts to
      handcuff him. The two men wrestled to the ground. Officer Jones’s
      police dog, Bane, joined the fray. Mitchell forced his way up and
      back into his driver’s seat and began driving off with Officer Jones
      clinging to the open door. Officer Jones unholstered his handgun
                                          8


      and fired three shots before jumping or falling off the moving truck.
      A bullet wound near Mitchell’s cervical spine left him paralyzed from
      the neck down.

            The incident received widespread media coverage and intense
      public interest. Protesters marched on city hall demanding the
      release of the squad car’s dash camera footage, which the City
      released to the public.

Id. at 225–26 (footnote omitted). Mitchell filed a tort action against the city and

Officer Jones seeking compensatory and punitive damages. Id. at 226. During

discovery in his tort action, Mitchell sought the police investigative reports; the

city produced some information and withheld other records as confidential under

section 22.7(5). Id. The district court ordered the city to produce reports

generated within ninety-six hours of the incident, and denied the city’s motion

for a protective order. Id. at 226–27. We granted the city’s application for

interlocutory appeal, and affirmed. Id. at 227, 236.

      We determined that the civil discovery rules entitled Mitchell to access to

the city’s police investigation in his tort action against the city:

             The Mitchells sought the police investigative reports under the
      discovery rules as litigants suing Officer Jones and his employer,
      the City of Cedar Rapids. We have previously addressed the tension
      between our discovery rules and the confidentiality provisions in
      Iowa Code section 22.7. In Mediacom, we observed, “Iowa Code
      chapter 22 pertains to parties seeking access to government
      documents and ordinarily has no application to discovery of such
      information in litigation.” Iowa Code section 22.7 does not create a
      “true privilege against discovery of . . . confidential information.”
      “[T]here is nothing in section 22.7 that suggests the legislature
      intended to limit the discovery rights of litigants in cases involving
      governmental entities.” “To the contrary, section 22.7 indicates the
      opposite because it allows disclosure upon a court order.”
      “[S]ection 22.7 does not trump our discovery rules.” Nevertheless,
      the confidentiality the legislature prescribed for certain government
      records can be safeguarded through a protective order allowing the
                                          9


      litigants use of the records in the lawsuit while preventing disclosure
      to the public.

Id. at 228–29 (alterations and omission in original) (quoting Mediacom, 682

N.W.2d at 66–69) (citations omitted). We made clear in Mitchell we were resolving

a civil discovery dispute in a tort action against the city. See id.

      By contrast, Vaccaro is not using the discovery rules in her own tort action

against the County. She settled her tort action against the motorcycle driver

without deposing the investigating deputies or subpoenaing their reports,

photos, or video. Her only lawsuit against the County is this enforcement action

under chapter 22. Mitchell is inapposite, and Vaccaro’s reliance on another civil

discovery dispute, Mediacom Iowa, L.L.C. v. Inc. City of Spencer, is equally

misplaced. See Mediacom,
682 N.W.2d at 66, 69
 (allowing discovery of

confidential municipal records in declaratory judgment action challenging the

city’s use of tax revenue to finance a communications center). Neither case

involved a direct chapter 22 enforcement action against the records custodian to

adjudicate the exempt status of public records.

      “The public records act is generally distinct from our discovery rules.”

Mitchell,
926 N.W.2d at 236
 (Appel, J., concurring specially). “Many federal

decisions hold that a document exempt from production through an open

records law may still be produced in discovery.”
Id.
 (collecting cases). The fact a

document is discoverable in a tort action against a municipality does not mean

discovery can be used in a chapter 22 enforcement action to obtain otherwise

exempt records from the same government entity.
                                                 10


       The district court should have applied the statute’s burden-shifting

procedure set forth in section 22.10(2)2 and allowed the County to show whether

the investigative reports were exempt from disclosure under section 22.7(5).

Neither Vaccaro nor the district court cite any case decided in a state or federal

FOIA-enforcement proceeding that compelled disclosure of allegedly exempt

records through discovery before determining whether the records were exempt.

“While ordinarily the discovery process grants each party access to evidence, in

FOIA and Privacy Act cases discovery is limited because the underlying case

revolves around the propriety of revealing certain documents.” Lane v. Dep’t of

Interior,
523 F.3d 1128, 1134
 (9th Cir. 2008) (affirming prediscovery summary

judgment based on government affidavits and FOIA exemption); see also John

Doe Agency v. John Doe Corp.,
493 U.S. 146, 153
 (1989) (“In deciding whether

[the law enforcement report exemption] applies, . . . a court must be mindful of

this Court’s observations that the FOIA was not intended to supplement or

displace rules of discovery.”). “It is well established that discovery is rare in FOIA

cases.” Cole v. Rochford,
285 F. Supp. 3d 73, 76
 (D.D.C. 2018) (denying motion

for limited discovery in FOIA action). “Indeed, in the FOIA context, courts have

permitted discovery only in exceptional circumstances where a plaintiff raises a


       2Iowa   Code section 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.
See also Ripperger v. Iowa Pub. Info. Bd.,
967 N.W.2d 540
, 549–50 (Iowa 2021) (discussing
shifting burden under section 22.10(2)).
                                       11


sufficient question as to the agency’s good faith in searching for or processing

documents.”
Id.
 Vaccaro presents no such question here.

      We have never held the requesting party in a chapter 22 enforcement

action may obtain allegedly exempt government records simply by filing a request

for production before the court rules on the exemption. To the contrary, we have

held that the party opposing release is entitled to an evidentiary hearing first.

In re Langholz,
887 N.W.2d 770
, 777–78 (Iowa 2016) (remanding for hearing to

determine confidentiality); see also Gabrilson v. Flynn,
554 N.W.2d 267, 274

(Iowa 1996) (affirming injunction to prevent release of confidential school

records); cf. Calcaterra v. Iowa Bd. of Med.,
965 N.W.2d 899
, 908 (Iowa 2021)

(holding confidentiality provision in Iowa Code section 272C.6(4)(a) precludes

public release of investigative information in a statement of charges “when there

has been no underlying final decision in the disciplinary proceeding”).

      Sequence matters. To require disclosure before a ruling on the exemption

undermines the confidential status the legislature provided police reports under

section 22.7(5). See Arabo v. Mich. Gaming Control Bd.,
872 N.W.2d 223, 241

(Mich. Ct. App. 2015) (“In the first instance, merely granting a right to inspect

all of the records would carry the risk of divulging exempt materials and thus

circumvent the very aim of the FOIA to balance the public’s right to disclosure

of public records with the right to shield some ‘affairs of government from public

view.’ ” (quoting King v. Mich. State Police Dep’t,
841 N.W.2d 914, 921
 (Mich. Ct.

App. 2013))).
                                         12


      We reiterate that “[p]olice investigative reports do not lose their confidential

status when the investigation closes.” Mitchell,
926 N.W.2d at 225
 (majority

opinion). We employ a case-specific balancing test to guard against the chilling

effect public disclosure could have on police investigations:

      Determining where the line falls between public harm and public
      good requires weighing the relative merits of the interests at stake.
      We have long recognized that confidentiality encourages persons to
      come forward with information, whether substantiated or not, that
      might be used to solve crimes and deter criminal activity. Secrecy is
      especially vital where reports are based on confidential informants,
      persons indispensable to successful police work but who frequently
      fear intimidation and reprisal. Furthermore, nondisclosure permits
      law enforcement officials the necessary privacy to discuss findings
      and theories about cases under investigation.
Id.
 at 233 (quoting Hawk Eye v. Jackson,
521 N.W.2d 750, 753
 (Iowa 1994)); see

also State ex rel. Shanahan v. Iowa Dist. Ct.,
356 N.W.2d 523
, 529–30 (Iowa 1984)

(“[T]he State has a very real interest in protecting the relative secrecy of much of

the information its agents gather, analyze, and record during their investigation

of criminal activity and crimes.”). The Sheriff’s reports were generated in a

criminal investigation into a juvenile’s motorcycle accident that caused a fatality.

It makes little sense to turn over the criminal investigative reports in discovery

in a chapter 22 proceeding before applying the balancing test to adjudicate

whether the records are exempt from disclosure. To do so would grant Vaccaro

relief before determining whether she is entitled to relief. As the United States

Court of Appeals for the Second Circuit aptly observed: “Discovery here would

essentially grant [the plaintiff] the substantive relief it requests: disclosure of

documents that the [defendant] claims are exempt. Thus, [the plaintiff] is not

entitled to discovery of documents claimed to be exempt.” Loc. 3, Int’l Bhd. of
                                         13


Elec. Workers v. NLRB,
845 F.2d 1177, 1179
 (2d Cir. 1988) (affirming denial of

motion to compel production of records at issue in a FOIA action). The district

court jumped the gun.

      We are not persuaded by the district court’s rationale—that Vaccaro had

to examine the records to prosecute her open records action. To the contrary,

exemption claims under section 22.7 typically are resolved categorically without

examination by the requesting party first, or by the court in camera. See, e.g.,
id.
 at 1179–80 (noting that in camera review in FOIA action is the exception, not

the rule); Mitchell, 926 N.W.2d at 229–30.

      We hold the district court abused its discretion by ordering the Sheriff’s

investigative reports at issue turned over to Vaccaro’s counsel before the court

adjudicated   whether    the   records   were   exempt   from   disclosure   under

section 22.7(5).

      IV. Disposition.

      For the foregoing reasons, we reverse the district court’s discovery ruling

compelling disclosure of the Sheriff’s investigation materials to Vaccaro’s

counsel. We remand the case for further proceedings consistent with this

opinion.

      REVERSED AND REMANDED WITH INSTRUCTIONS.