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Des Moines Register gets a win in an uphill fight for transparency

By Deron Lee, CJR

Editor's Note:

This article first ran on August 15, 2016 on the Columbia Journalism Review's website.

Not long after taking over as editor of the Des Moines Register in 2014, Amalie Nash told CJR that she was determined to uphold the paper’s “longstanding tradition of standing up for public records.”

So now, as she prepares to leave the Register after being promoted to the new position of West Region executive editor for Gannett, it’s fitting that the paper has just won a meaningful battle on the open-records front. The state of Iowa announced last week that it would no longer allow companies to unilaterally redact information from the public copies of bids for government contracts. The move was the result of a 2015 story by Register reporter Jason Clayworth that first revealed the practice, and a subsequent complaint Clayworth filed with the Iowa Public Information Board.

It’s the latest in a series of open-records victories during Nash’s tenure, during which the paper has filed numerous complaints with the Public Information Board and multiple lawsuits to gain access to public records. But Nash is the first to admit that the paper has lost some battles in the fight for transparency too, and even the wins can amount to just holding the line.

“I would love to say we’ve made a lot of progress,” Nash says. “We certainly have in many cases. … We continue to claw and claw. Unfortunately, it does continue to be more of a defensive battle.”

Indeed, the fight over better access to bids for state contracts was a defensive one. According to Clayworth, it was only in recent years that the state started to allow companies to choose what to redact from public view in their bids.

In the process of reporting on the state’s newly privatized Medicaid system, Clayworth sought records of public bids and discovered that would-be contractors were being allowed to redact whole pages and sections of documents. Redaction is permitted to protect trade secrets, but the missing material included company mission statements, executive summaries, even the names of executives.

“That Medicaid plan was highly controversial,” he says. “For there not to be complete transparency in the process is ridiculous.”

Last year, after Clayworth reported on the redacted bids and asked for an advisory opinion from the Iowa Public Information Board to resolve the issue, the administration of Gov. Terry Branstad said that it was reevaluating the policy. Last week, Branstad’s office announced that companies bidding on state contracts will no longer be allowed to unilaterally choose what to redact from public view; now, they will have to individually request any redactions they feel are needed to protect trade secrets, and they must cite specific provisions in law to justify each one. Fewer redactions should lead to stronger oversight by the media and the public of the bidding process.

In his effort to get the state to shift course, Clayworth had at least two factors working in his favor. One was the existence of the public information board, an agency that was created by the legislature in 2012 and charged with resolving open-records disputes out of court. Iowa is one of just a few states in which such a board has enforcement powers.

Another motivating factor for Clayworth was the knowledge that Nash, and the Register’s legal team if necessary, would have his back.

Clayworth, who has been at the paper for 18 years, says Nash brought a more aggressive approach to transparency issues, noting that she spearheaded two open-records lawsuits soon after arriving in 2014.

“We hadn’t filed a lawsuit for a number of years before she got here,” he says. “I don’t believe those would have been filed without her.”

Herb Strentz, a longtime transparency advocate and former director of the Iowa Freedom of Information Council, is more measured in his praise. Strentz has been critical of the Register under the Gannett regime, arguing that the paper has never fully regained the commitment to open government that it had under the longtime leadership of the Cowles family, which owned the paper until 1985.

But, he says, “Happily, Amalie has picked up some of that stuff that has gone by the wayside.” Strentz said he sees reason to hope “that Amalie has gotten the paper back on track.”

One of the 2014 lawsuits spearheaded by Nash, for a story also reported by Clayworth, ended in a settlement in which the state released videos and other records related to the death of an inmate in a Taser incident. The Register has also been successful in efforts to open up a hearing in a high-profile sex-abuse case and access meeting records for a nonprofit casino facing an IRS audit.

But not all the transparency fights have led to wins. The second 2014 lawsuit, in which the paper filed suit against the public information board in seeking video footage of alleged abuse at a juvenile home, ended in a court ruling against the Register.

And then there are the ongoing, multi-front struggles that seem to have no end in sight. Nash says she is concerned about access to police investigation records, which have become increasingly inaccessible in recent years as some Iowa law enforcement agencies rely on a narrow reading of the law. Access to investigative records will be the subject of the Register’s third annual transparency roundtable, in September.

“If you look at what’s going on with policing in our nation, the idea that these law enforcement agencies don’t have to turn over anything is just wrong,” Nash says.

The issue has come to the fore in the case of an accidental police shooting in Burlington, Iowa, for which the Burlington Hawk Eye is seeking accessto body-cam video. The Register is not directly involved in the case, butRegister attorney Michael Giudicessi has been representing the Hawk Eye, and Nash and Clayworth have followed the case closely. The same interpretation of the law that police are using to bottle up body-cam footage in Burlington, they say, is also frustrating the Register’s attempt to gain access to investigative files for other, lower-profile stories—even blocking access to such basic information as case-file numbers.

The Register has lobbied for a legislative fix that would open up investigative records to public view, Nash says, but that effort has been blocked in the statehouse so far, and it remains unclear whether the Burlington case, set to be heard in October, will help resolve the issue.

As she prepares to leave the Register, Nash says she plans to make transparency issues a priority in her new role as well. But she knows her new job will probably not give her the opportunity to take such an active part in open-records fights.

“I will miss that aspect of it,” she says. “It’s one of the things that keep me most motivated. I will miss the day-to-day decision-making.”

For the time being, with her start date and even her new location not yet set, she is still at the Register, still serving as vice president of the Iowa Freedom of Information Council. And even if the push for public records often remains an uphill battle, Clayworth says there’s no question that Nash has revitalized a culture of fighting for transparency at the Register.

“From my perspective, that’s her legacy.”

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