                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.
                                                7

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.”).
