                 IN THE SUPREME COURT OF IOWA
                                 No. 11–0095

                              Filed July 27, 2012


AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF IOWA, INC.,

      Appellant,

vs.

RECORDS CUSTODIAN, ATLANTIC COMMUNITY SCHOOL DISTRICT,

      Appellee.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Cass County, Richard H.

Davidson, Judge.



      A requestor under the Iowa Open Records Act appeals a decision

granting the record custodian’s motion for summary judgment finding

the   requested    records   exempt    from    production   under   the   Act.

AFFIRMED.


      Randall C. Wilson of ACLU of Iowa Foundation, Inc., Des Moines,

for appellant.



      Brett S. Nitzschke and Emily K. Ellingson of Lynch Dallas, P.C.,

Cedar Rapids, for appellee.
                                     2

WIGGINS, Justice.

      A party requested information pursuant to Iowa Code chapter 22

(2009), Iowa’s Open Records Act (Act), concerning the discipline of two

school district employees after the school district disciplined them for

performing a strip search of five students.     The district court entered

summary judgment in favor of the school district.          The requestor

appealed. On appeal, we hold that the disciplinary information sought is

exempt from disclosure under Iowa Code section 22.7(11). Accordingly,

we affirm the judgment of the district court.

      I. Background Facts and Proceedings.

      The facts are not in dispute. In August 2009, two employees of the

Atlantic Community School District conducted a strip search of five

female students in an attempt to locate $100 reported missing by

another student.    The incident received substantial media coverage.

Initially, the school district superintendent announced the employees

had conducted the search in accordance with school board policies.

However, the superintendent later announced the school district would

discipline the employees.     In doing so, the superintendent did not

disclose the names of the employees or describe the discipline.

      The American Civil Liberties Union of Iowa Foundation (ACLU of

Iowa) submitted an open records request to the school district’s records

custodian seeking the identities of the employees as well as the

disclosure of the “specific consequences they received including duration

or amounts of any penalties or consequences.”         The school district

provided the names of the two employees, but did not describe the

discipline imposed because it believed such information was exempt from

disclosure under section 22.7(11).
                                    3

      The ACLU of Iowa filed a petition in the district court seeking an

injunction ordering the school district to comply with its records request.

The parties filed cross motions for summary judgment. The district court

granted summary judgment in favor of the school district and dismissed

the petition. It found the reports were exempt from disclosure under the

Act as a matter of law. The court of appeals affirmed the decision of the

district court. We granted further review.

      II. Standard of Review.

      Generally, actions brought under the Act are in equity and

reviewed de novo. Gannon v. Bd. of Regents, 692 N.W.2d 31, 37 (Iowa

2005).     However, when a ruling under the Act involves summary

judgment, our review is for correction of errors at law. Id.; see also Iowa

R. App. P. 6.907.

      III. Analytical Framework.

      The general assembly made the decision to open Iowa’s public

records.      See Des Moines Indep. Cmty. Sch. Dist. Pub. Records v.

Des Moines Register & Tribune Co., 487 N.W.2d 666, 669 (Iowa 1992); see

also Iowa Code § 22.2. In deciding which records are public, the general

assembly created and fixed the limitations on disclosure. See Des Moines

Indep. Cmty. Sch. Dist. Pub. Records, 487 N.W.2d at 669. Thus, our job

is to construe the Act to determine whether the requested information is

subject to disclosure.

      The Act allows public examination of government records to ensure

the government’s activities are more transparent to the public it

represents.    Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 45 (Iowa

1999).     In construing the Act, we have said its purpose is “to remedy

unnecessary secrecy in conducting the public’s business.”          City of

Dubuque v. Tel. Herald, Inc., 297 N.W.2d 523, 527 (Iowa 1980),
                                       4

superseded by statute on other grounds, Iowa Code § 22.7(18) (1985), as

recognized in City of Sioux City v. Greater Sioux City Press Club, 421

N.W.2d 895, 897 (Iowa 1988). To that end, the Act’s goal of disclosure

seeks “[t]o facilitate public scrutiny of the conduct of public officers.”

Howard v. Des Moines Register & Tribune Co., 283 N.W.2d 289, 299 (Iowa

1979); accord Iowa Civil Rights Comm’n v. City of Des Moines, 313 N.W.2d

491, 495 (Iowa 1981) (“The purpose of [the Act] is to open the doors of

government to public scrutiny—to prevent government from secreting its

decision-making activities from the public, on whose behalf it is its duty

to act.”).

       The Act essentially gives all persons the right to examine public

records.     Iowa Code § 22.2 (2009).      However, it then lists specific

categories of records that must be kept confidential by those responsible

for keeping records. Id. § 22.7. Accordingly, these records are exempt

from disclosure.     Id.     The general assembly has amended this list

numerous times over the years.         Over sixty categories of records are

currently exempt from disclosure. See id. § 22.7. We have previously

determined the general assembly intended that we broadly interpret the

disclosure    requirement,    but   narrowly   interpret   the   confidentiality

exceptions. DeLaMater v. Marion Civil Serv. Comm’n, 554 N.W.2d 875,

878 (Iowa 1996).       We have also stated, however, that “where the

legislature has used broadly inclusive language in the exception, we do

not mechanically apply the narrow-construction rule.” Id.

       The categorical exemption at issue in this appeal exempts from

disclosure “[p]ersonal information in confidential personnel records of

public bodies including but not limited to cities, boards of supervisors

and school districts.” Iowa Code § 22.7(11).
                                           5

       We have considered the meaning of the “[p]ersonal information in

confidential personnel records” exemption in past cases challenging the

denial of requests for disclosure by records custodians. See Clymer, 601

N.W.2d at 47–48; DeLaMater, 554 N.W.2d at 878–81; Des Moines Indep.

Cmty. Sch. Dist. Pub. Records, 487 N.W.2d at 669–70. In these cases, we

have developed the analytical framework to determine whether this

exemption applies.

       In    Des    Moines    Independent      Community       School       District,   we

determined      performance       evaluations     contained      in    an    employee’s

confidential personnel file were exempt from disclosure under section

22.7(11) based on the plain language of the statute. 487 N.W.2d at 670.1

Because we determined the plain language of the statute exempted

performance evaluations, we declined to apply a balancing test. Id. In

reaching     this   conclusion,     we    acknowledged       the      plaintiff’s   policy

arguments in favor of disclosure:

             We are not unsympathetic to the Register’s public
       policy arguments favoring disclosure. The allegations made
       both by and against [an elementary school principal] led to
       her resignation and her financial settlement with the district.
       These are matters of public interest.           The Register
       understandably seeks to inform the public about all details
       surrounding this payment of public funds.



       1We   discussed Des Moines Independent Community School District Public Records
v. Des Moines Register & Tribune Co., 487 N.W.2d 666 (Iowa 1992), in DeLaMater. See
DeLaMater v. Marion Civil Serv. Comm’n, 554 N.W.2d 875, 879 (Iowa 1996). We stated,
“Without explicitly employing a balancing test [in Des Moines Independent Community
School District], we concluded the documents in question ‘fell within the category of
personal information in personnel records.’ ” Id. (quoting Des Moines Indep. Cmty. Sch.
Dist., 487 N.W.2d at 670). Our reading of Des Moines Independent Community School
District indicates the court did not apply a balancing test and based its decision on the
plain meaning of the statute. As discussed in this opinion, if the plain language of the
exemption includes the category of information sought, we do not apply a balancing
test.
                                     6

Id. However, we directed the Register to make these arguments to the

general assembly because the general assembly created the exemption.

Id. Thus, when we find that a requested piece of information fits into a

category of an exemption, we will not apply a balancing test. Id.

      We have reiterated this rule in response to arguments that we

must nonetheless determine whether the public’s “right to know”

outweighs the government entity’s interest in privacy even where we find

section 22.7 exempts information from disclosure.         See Gabrilson v.

Flynn, 554 N.W.2d 267, 273 (Iowa 1996) (“ ‘[I]t is not our responsibility to

balance competing policy interests.       This balancing is a legislative

function and our role is simply to determine the legislature’s intent about

those policy issues.’ ” (quoting Ne. Council on Substance Abuse, Inc. v.

Iowa Dep’t of Pub. Health, 513 N.W.2d 757, 761 (Iowa 1994))).            In

Gabrilson, we also addressed an argument that section 22.7 did not

protect certain information because it was available for inspection by the

public at the Library of Congress, the plaintiff had previously received a

copy of it, and it had previously been made publicly available. Id. at 271.

We summarily dismissed this argument finding no authority for the

proposition that the Act removes a record from the exemption merely

because it exists in the public domain, regardless of how it got there. Id.

at 272.

      We also analyzed section 22.7(11) in DeLaMater. There, we had to

determine whether section 22.7(11) exempted the disclosure of the

grading scale of a promotional exam given by the Marion Civil Service

Commission and the raw scores of each examinee on each component of

the promotional examination. DeLaMater, 554 N.W.2d at 877. We cited

an American Law Reports annotation for the following test:
                                           7
       [T]he courts will usually first examine the specific statutory
       provision involved to see if the statute delineates exactly
       what types of records or other information are considered
       private and thus subject to the public disclosure exemption.
       If, however, the particular record, report, or other
       information sought to be disclosed is not specifically listed in
       the personal privacy provision as a personal matter, or if the
       provision does not define those matters, the disclosure of
       which would constitute an invasion of personal privacy, the
       courts most often will apply general privacy principles, which
       examination involves a balancing of conflicting interests—the
       interest of the individual in privacy on the one hand against
       the interest of the public’s need to know on the other.

Id. at 879 (citations and internal quotation marks omitted).

       In applying this test, we first tried to determine whether the

requested information fit into the category of information exempt from

disclosure under section 22.7(11).             Id.   Our review of the Iowa cases

provided limited assistance.         Id.   We then looked to interpretations by

other courts and reached the same conclusion. Id. at 879–80. Having

determined that the materials sought were not the type of information

our Act categorizes as private, we performed the balancing test. 2 Id. at

880–81.




       2The  annotation we cited in DeLaMater based its test on the fact that “[a]
majority of state freedom of information laws include some form of privacy exemption,
and, with few exceptions, the exemptions closely track the Federal Freedom of
Information Act’s sixth exemption.” Andrea G. Nadel, Annotation, What Constitutes
Personal Matters Exempt from Disclosure by Invasion of Privacy Exemption Under State
Freedom of Information Act, 26 A.L.R. 4th 666, 670 (1983). The Iowa Open Records
Act’s privacy exemption does not track the Federal Freedom of Information Act (FOIA).
FOIA’s provision relating to personnel records exempts from disclosure “personnel and
medical files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6) (2006) (emphasis
added). The exemption for personnel, medical, and similar files is qualified, and a court
must determine whether disclosure of a document would constitute a “clearly
unwarranted” invasion of privacy. See id. This language requires a balancing test. The
Iowa Open Records Act does not have the qualifying language of FOIA. Therefore, we
question whether Iowa even has a balancing test. However, because we decide this case
without applying a balancing test, we will leave that question for another day.
                                         8

       Finally, we most recently considered section 22.7(11) in Clymer.

There, we restated that when “a statutory exemption does not articulate

precisely what records or information the legislature considers private,

courts commonly apply [a balancing test] as a means of weighing

individual privacy interests against the public’s need to know.” Clymer,

601 N.W.2d at 45. As in DeLaMater, we surveyed Iowa cases and cases

from other jurisdictions to determine whether the records sought could

be categorized as information considered private under the Act. Id. at

45–47. After determining the Act did not categorize the records under an

exemption, we applied the balancing test. Id. at 47–48.

       In summary, to determine if requested information is exempt

under section 22.7(11), we must first determine whether the information

fits into the category of “[p]ersonal information in confidential personnel

records.” We do this by looking at the language of the statute, our prior

caselaw, and caselaw from other states. If we conclude the information

fits into this category, then our inquiry ends. If it does not, we will then

apply the balancing test under our present analytical framework. 3

       IV. Application of Analytical Framework.

       The ACLU of Iowa requested records or information describing the
discipline imposed on two employees. Thus, we must first determine if

the Act categorizes this information as “[p]ersonal information in

confidential personnel records.”          Iowa Code § 22.7(11).          Our prior

caselaw is very helpful in making this determination. We concluded that


        3This approach is consistent with our approach under the Iowa Public

Employment Relations Act (PERA) to determine whether a proposed bargaining topic is
a mandatory subject of collective bargaining. See Waterloo Educ. Ass’n v. Iowa Pub.
Emp’t Relations Bd., 740 N.W.2d 418, 429 (Iowa 2007) (limiting the use of a balancing
test to those situations in which a proposed bargaining topic cannot be categorized
according to a specific term listed in section 20.9 of PERA).
                                      9

performance    evaluations   contained    in   an   employee’s    confidential

personnel file were exempt from disclosure under the Act in Des Moines

Independent Community School District without performing a balancing

test. See Des Moines Indep. Cmty. Sch. Dist., 487 N.W.2d at 669. There,

we   characterized   the   performance    evaluations   as    “in-house,     job

performance    documents     exempt   from     disclosure.”      Id.   at   670.

Disciplinary records and information regarding discipline are nothing

more than in-house job performance records or information.

      Our conclusion is consistent with those of other courts that have

considered whether disciplinary action is exempt from disclosure under

their jurisdictions’ open records acts. See, e.g., Copley Press, Inc. v. Bd.

of Educ. for Peoria Sch. Dist. No. 150, 834 N.E.2d 558, 561 (Ill. App. Ct.

2005) (“Given its plain and ordinary meaning, a ‘personnel file’ can

reasonably be expected to include documents such as . . . disciplinary

records.”); Wakefield Teachers Ass’n v. Sch. Comm. of Wakefield, 731

N.E.2d 63, 67 (Mass. 2000) (“It would distort the plain statutory

language to conclude that disciplinary reports are anything but

‘personnel [file] or information.’ ”); Oregonian Publ’g Co. v. Portland Sch.

Dist. No. 1J, 987 P.2d 480, 484 (Or. 1999) (stating that “ ‘personnel files’

would usually include information about . . . disciplinary matters or

other information useful in making employment decisions regarding an

employee”); see also Pivero v. Largy, 722 A.2d 461, 462 (N.H. 1998)

(noting “personnel file” in department of labor regulations “means any

and all personnel records created and maintained by an employer and

pertaining to an employee including and not limited to . . . disciplinary

documentations” (citations and internal quotation marks omitted));

Swinton v. Safir, 720 N.E.2d 89, 91 (N.Y. 1999) (noting that a record of

disciplinary charges and their resolution was part of a personnel file).
                                     10

      Moreover, to suggest that a balancing test should be applied in this

case undermines the categorical determination of the legislature and

rewrites the statute. It also creates a logical problem. Can it be that

discipline in employee A’s personnel file may be treated differently than

the exact same discipline in employee B’s file, based on the degree of

public interest?    Can it be that identical discipline for the son or

daughter of a public official, which might create something of media

frenzy if released, is entitled to less protection under the statute than a

child with a less public family background?

      Under our prior caselaw and that of other jurisdictions, we can

easily conclude that the plain language of the statute supports the

exemption in this case.     Accordingly, it is unnecessary to apply a

balancing test. Therefore, we agree with the district court that section

22.7(11) exempts the information requested by the ACLU of Iowa from

disclosure under the Open Records Act.

      V. Disposition.

      We affirm the judgment of the district court because we agree with

the district court that the disciplinary records requested are exempt from

disclosure under section 22.7(11).

      AFFIRMED.

      All justices concur except Cady, C.J., Waterman, and Mansfield,

JJ., who dissent.
                                         11
                              #11–0095, ACLU Found. v. Records Custodian

CADY, Chief Justice (dissenting).
      I respectfully dissent. The majority opinion takes a step backward

from the new age of open government in this state. It is a step in the

wrong direction.

      This case goes to the heart of why we have an open records act in

this state: the expectation that government will be better suited to deal

honestly and fairly with its citizens when its citizens have the ability to

examine the records of government business.               While our legislature

understands    that    confidentiality     is   needed   in    some   aspects   of

government work, the facts of this case reveal a substantial public

justification for disclosure of the requested information. The exemptions

enacted   by   our    legislature   were      not   designed   to   capture   such

circumstances. The public nature of the requested information in this

case is supported by the facts.          To defuse public criticism over an

incident in a public school of public concern, the school district

announced that two public employees would be disciplined for their

conduct in connection with the incident. This public declaration, in the

face of public concern and criticism over an initial response by the school

superintendent, made it reasonable for the school district to also let the

public know what discipline was imposed. The public did not just have

an interest in knowing that discipline would be imposed, but also in

knowing whether the discipline was appropriate and meaningful. In this

context, the discipline was “public” from the moment it was announced

and should have been disclosed pursuant to the Open Records Act. In

this dissent, I will first explain why I believe the majority opinion is

inconsistent with decades of caselaw. I will then discuss how the Open

Records Act should have been applied to mandate disclosure in this case.
                                     12

      Over the last thirty-two years, we have developed a solid body of

interpretive law to guide us in applying the “[p]ersonal information in

confidential personnel records” exemption to the public’s right to

examine public records. See Iowa Code § 22.7 (11) (2009). This law has

allowed our state to sort through the thicket of difficult and sensitive

clashes between the individual privacy interests of personnel files on

government employees and the competing right of the public to know.

The majority now inexplicably dumps this law and unravels a long chain

of past cases of this court in favor of an amorphous interpretive

approach built on the premise that the operative statutory phrase we

have been interpreting as a court over the last thirty-two years is now

unambiguous, except when particular circumstances might render it

ambiguous. This confusing approach is not only a dramatic shift that is

inconsistent with the basic way courts develop and apply law, it is

inconsistent with the way we define privacy in the law and the way our

legal tests seek to draw principled lines. Additionally, it is an approach

we specifically rejected long ago.

      Within Iowa’s declared policy of open government records, our

legislature carved out numerous exemptions.             One exemption is

“[p]ersonal information in confidential personnel records.” Id.

      The phrase used by our legislature to articulate this exception is

not without ambiguity.       For example, “personal” can mean several

different things.   It can mean “of, relating to, or affecting a particular

person.”   Merriam-Webster’s Collegiate Dictionary 924 (11th ed. 2005).

Or it can mean “relating to . . . an individual’s . . . private affairs.” Id.

Under the first definition, anything in a confidential personnel record

relating to a particular person would be covered by the exemption; under

the latter, only private matters relating to that individual would be
                                    13

covered.   Until today, we have never adopted the first of these two

definitions of “personal” in interpreting section 22.7(11). Otherwise, we

would never have decided, as we did in past cases, that an employee

severance agreement was subject to disclosure or that information about

individual employees’ sick leave and vacation was subject to disclosure.

A review of these past cases clearly reveals the approach we have taken

to best serve the purpose and intent of the statute.

      Our first opportunity to interpret this exemption was in 1980, not

long after the passage of the Iowa Open Records Act. In City of Dubuque

v. Telegraph Herald, Inc., we were called upon to decide if applications for

an appointive city office were exempt from disclosure as “personal

information in confidential personnel records.”        297 N.W.2d 523, 526

(Iowa 1980) (internal quotation marks omitted), superseded by statute on

other grounds, Iowa Code § 22.8, as recognized in City of Sioux City v.

Greater Sioux City Press Club, 421 N.W.2d 895, 897 (Iowa 1988). We first

turned to the language of the statute and observed our legislature wrote

the exemptions to be narrowly construed. Id. at 527. We also observed

that our legislature did not exempt all personnel records, but only

“confidential personnel records.” Id. at 526. Moreover, we observed our

legislature did not just exempt “confidential personnel records,” but only

“personal information” in confidential personnel records.          Id.   We

indicated the “personal information” requirement revealed our legislature

intended to exempt information “that the right of privacy would protect.”

Id. We then concluded that Iowa’s “personal information” exemption is

properly applied and interpreted by balancing the public interests served

by disclosure against the private interests in protecting privacy, a test

used by federal courts in “applying and interpreting” a similar exemption

in the Federal Freedom of Information Act, 5 U.S.C. § 552(b)(6) (2006),
                                      14

that protects information in personnel files from an unwarranted

invasion of personal privacy. Telegraph Herald, 297 N.W.2d at 526–27.

In adopting this test, we rejected the argument made by the city in the

case that the “personal information” component of the exemption was

our “legislature’s effort” to apply “the private business practice of keeping

employment applications confidential” to “public bodies.”            Id. at 527

(emphasis   added).      In   other   words,   we   rejected     a   categorical

interpretation that “personal information” meant matters customarily

kept confidential in private business. Thus, the approach adopted by the

majority today of interpreting “personal information” only as it relates to

a person was specifically rejected by our court in 1980.

      Since Telegraph Herald, we have had several other opportunities to

interpret this exemption and consider its application to the real-world

environment.    In 1992, we held that job performance evaluations of

school employees contained in an investigation file were exempt from

disclosure as “[p]ersonal information in confidential personnel records,”

but a settlement agreement was not similarly exempt as “personal

information.”    Des Moines Indep. Cmty. Sch. Dist. Pub. Records v.

Des Moines Register & Tribune Co., 487 N.W.2d 666, 669–70 (Iowa 1992).

In this case, a school district instituted an investigation into parent–

teacher complaints against a school principal and accusations of racism

and sexism by the principal.          Id. at 667.   The investigation was

conducted by two separate investigative committees.            Id.   During the

course of the investigation, the committees collected documents relating

to the past performance of school employees.            Id. at 670.         The

investigation was halted after a settlement was reached, but the

Des Moines Register then sought disclosure of “all documents related to

the administrative investigation,” including job performance evaluations.
                                     15

Id. at 668. It also sought disclosure of the settlement agreement. Id. at

669.

       The majority reads Des Moines Independent Community School

District to hold that job performance evaluations were categorically

exempt as “personal information” and uses this conclusion to undermine

the need for a balancing test. Yet, we were never asked to decide in the

case if performance evaluations were personal information. Instead, the

relevant dispute in the case over the performance evaluations, and the

one we addressed and resolved, was whether the section 22.7(11)

exemption was lost because the performance evaluations were located in

an investigation file instead of the actual confidential personnel files. Id.

at 670. It is important to recall in the case that the Des Moines Register

sought documents relating to the “administrative investigation.” Id. at

668.   Contrary to the conclusion of the majority, we only held “[t]he

nature of the record is not controlled by its place in a filing system.” Id.

at 670. Thus, we said records that fall “within the category of personal

information in personnel records” do not lose their protection when

“deposited in investigation files.” Id. We did not engage in a balancing

test because the issue of whether performance evaluations fell within the

exemption was not raised on appeal. The majority has misread our prior

case, and it is unfair to use the case as authority for its position that the

balancing test is not used to determine if the section 22.7(11) exemption

applies. In fact, we specifically applied the balancing test in the case to

decide if the settlement agreement was “personal information in a

confidential personnel record.”    Id. at 669.    We noted the competing

public and private characteristics of the settlement agreement, but found

the balance weighed in favor of disclosure. Id. Without question, the
                                         16

balancing test continued as our law following our decision in Des Moines

Independent Community School District.

      We next considered the section 22.7(11) exemption four years later

in DeLaMater v. Marion Civil Service Commission, 554 N.W.2d 875 (Iowa

1996).   In that case, we were called upon to decide if civil service

examination        results   were   exempt     as   “ ‘personal   information   in

confidential personnel records.’ ”            DeLaMater, 554 N.W.2d at 878

(quoting Iowa Code § 22.7).            We found the subject of test scores

implicated both privacy and public interests, but that public interests

supported disclosure when the scores would be disclosed without

identifying the name of the test taker. Id. at 880. Importantly, we not

only applied the balancing test to reach the result, we reviewed the

background and importance of the balancing test in construing the

exemption. Id. at 879. We observed that, when the legislature does not

precisely delineate the types of information considered private and thus

exempt from disclosure,

      “the courts most often will apply general privacy principles,
      which examination involves a balancing of conflicting
      interests—the interest of the individual in privacy on the one
      hand against the interest of the public’s need to know on the
      other.”

Id. (quoting Andrea G. Nadel, Annotation, What Constitutes Personal

Matters Exempt from Disclosure by Invasion of Privacy Exemption Under

Freedom of Information Act, 26 A.L.R.4th 666, 670–71 (1983)). We also

specifically observed that our legislature did not list examples of

“personal records” or define the term, which rendered the balancing test

necessary     to     interpret   the   legislature’s   meaning     of   “personal

information.” Id. at 879.
                                     17

      Finally, we had an opportunity three years later to consider if a city

worker’s sick leave compensation and usage fell within the section

22.7(11) exemption in Clymer v. City of Cedar Rapids, 601 N.W.2d 42

(Iowa 1999). We again observed that section 22.7(11) does not precisely

articulate what information the legislature considers private.      Clymer,

601 N.W.2d at 45.       We also cautioned that precedent is of little

assistance and further recognized that the role of the court was to decide

if information personal to the employee and placed in a confidential

personnel file was intended by the legislature to remain confidential. Id.

As a result, we found the balancing test was required given the

“ambiguity” of the statute. Id. at 47. In applying those tests, we held the

compensation allocated to named employees was not exempt as long as

medical conditions or professional evaluations were not disclosed. Id. at

47–48.    Otherwise, we held the address, gender, and birthdate

information was exempt. Id. at 48.

      In short, we have consistently applied a balancing test to

determine whether a record qualifies as “[p]ersonal information in

confidential personnel records” under section 22.7(11).       The majority

“question[s] whether Iowa even has a balancing test,” but elects to “leave

that question for another day.” Yet, there is no real question that the

majority has overruled Clymer, DeLaMater, Des Moines Independent

Community School District, and Telegraph Herald.

      The majority wants the court to follow Gabrilson v. Flynn, 554

N.W.2d 267 (Iowa 1996), claiming it supports the notion that the

balancing test is not used when the information at issue is the type

commonly viewed in the world outside of government as confidential.

Yet, not only did we specifically reject such an approach in Telegraph

Herald, the majority’s characterization of the Gabrilson holding is
                                    18

misplaced. In Gabrilson, we only held the balancing test is not used to

interpret those exemptions that identify the information with precision.

554 N.W.2d at 273. The rationale for this holding is that the legislature

has already engaged in a balancing test when it specifically identifies the

information sought to be exempt, making it inappropriate for courts to

further apply the balancing test. Id. Importantly, Gabrilson dealt with

the examination exemption under section 22.7(19), which we found was

a precise delineation that needed no balancing test to determine its

meaning. Id. at 272; see also Iowa Code § 22.7(19) (“Examinations . . . to

the extent that their disclosure could reasonably be believed by the

custodian to interfere with the accomplishment of the objectives for

which they are administered.”). The approach we took in Gabrilson was

the same we recognized in broadly discussing the balancing test in

DeLaMater. The balancing test is necessary when the legislature has not

specifically listed the information sought to be exempted under a

personal privacy exemption. DeLaMater, 554 N.W.2d at 879. Thus, it is

inappropriate to read Gabrilson to reject the necessity of a balancing test

under our exemption for “[p]ersonal information in confidential personnel

records.” See Iowa Code § 22.7(11). Moreover, we made it clear in both

DeLaMater and Clymer that our legislature did not define personal

information or list any specific examples that would allow the exemption

to be applied without balancing the competing interests.      If our prior

cases have any meaning, it is that the balancing test is necessary to

interpret the phrase “personal information.” Gabrilson clearly does not

support the position of the majority, but is consistent with our line of

past cases.

      As a result, we have built thirty-two years of jurisprudence

concerning section 22.7(11) with the aid of a balancing test.      During
                                           19

these three decades, our legislature never disagreed with our interpretive

approach by amending the statute to abandon the balancing test.

Recently, the legislature did amend section 22.7(11) to limit the

exemption to records of “identified or identifiable individuals” and to

specifically except certain types of records from the exemption, including

the records concerning the discharge of an individual as a result of the

final disciplinary action. 4 See 2011 Iowa Acts ch. 106, § 10 (codified at

      4Section   22.7(11) now reads:
              11. a. Personal information in confidential personnel records of
      government bodies relating to identified or identifiable individuals who
      are officials, officers, or employees of the government bodies. However,
      the following information relating to such individuals contained in
      personnel records shall be public records:
               (1) The name and compensation of the individual including any
      written agreement establishing compensation or any other terms of
      employment excluding any information otherwise excludable from public
      information pursuant to this section or any other inapplicable provision
      of law. For purposes of this paragraph, “compensation” means payment
      of, or agreement to pay, any money, thing of value, or financial benefit
      conferred in return for labor or services rendered by an official, officer, or
      employee plus the value of benefits conferred or services rendered by an
      official, officer, or employee plus the value of benefits conferred including
      but not limited to casualty, disability, life, or health insurance, other
      health or wellness benefits, vacation, holiday, and sick leave, severance
      payments, retirement benefits, and deferred compensation.
              (2) The dates the individual was employed by the government
      body.
            (3) The positions the individual holds or has held with the
      government body.
             (4) The educational institutions attended by the individual,
      including any diplomas and degrees earned, and the names of the
      individual’s previous employers, positions previously held, and dates of
      previous employment.
             (5) The fact that the individual was discharged as the result of a
      final disciplinary action upon the exhaustion of all applicable
      contractual, legal, and statutory remedies.
            b. Personal information in confidential personnel records of
      government bodies relating to student employees shall only be released
      pursuant to 20 U.S.C. § 1232g.
                                     20

Iowa Code § 22.7(11) (Supp. 2011)).       Yet, the amendment limiting the

personnel file exemption to records of identified or identifiable individuals

does not change the need for the balancing test to resolve the continuing

ambiguity in the phrase “personal information.”           Obviously, if an

individual cannot be identified by a document in a confidential personnel

file, there is no individual privacy concern in the document. Thus, the

amendment to limit the exemption to identified or identifiable individuals

merely reveals a privacy interest is implicated only when an identified or

identifiable individual is involved. When an individual is identified, the

exemption applies and a balancing test will be needed to weigh the

individual interest with the public interest, just as before. Furthermore,

the addition of exceptions to the exemption merely eliminates the

balancing test for certain types of records delineated by the legislature as

specifically excluded from the exemption. The amendment reveals our

legislature did precisely what our cases have been saying—exemptions

that are specific and clearly discernible are applied without a balancing

test. See DeLaMater, 554 N.W.2d at 879 (noting the balancing test is not

used when an exemption is described in the statute with precision). Yet,

for those records not excluded, the balancing test is still needed to

resolve the ambiguity of what constitutes “personal information.” Id.

      After thirty-two years of consistent law to the contrary, the

majority concludes the term “personal information” is actually clear,

precise, and specific, which enables courts to decide what information in

a confidential personnel file is exempt as “personal information” by doing

nothing more than looking at the information and deciding it is

“personal.”    Notwithstanding, it apparently attempts to keep the

balancing test in reserve to use in the more difficult cases when the

result might not be so readily apparent. While the majority attempts to
                                       21

eliminate the need for any standard in normally applying the “[p]ersonal

information in confidential personnel records” exemption, in truth, any

application of the phrase “personal information” to particular facts

necessarily balances personal interests against public interests. While

some conclusions may be easier to reach than others, the balancing test

is still applied to the thought process, even if subtly, because the

balancing test is the only principled way to distinguish between personal

information and public information.

       The majority also seeks to support its conclusion that disciplinary

records     in   a   person’s   confidential   personnel   file   are   “personal

information” on their face because such records are nothing more than

personal job evaluations that were conceded by the parties to be

“personal information” in Des Moines Independent Community School

District.    Yet, the majority makes this declaration without any

explanation.     Even conceding that job performance evaluations would

normally be “personal information” under a balancing test, a vast

difference exists between past job performance evaluations and the

publicly announced job discipline in this case.              Job performance

evaluations normally address very personal and intimate information

relating to an array of strengths and weaknesses found at the core of a

person’s character and personality. Discipline imposed by a supervisor,

on the other hand, reflects a judgment by the supervisor about an

incident of wrongdoing by the person. While both types of information

have some privacy interests, performance evaluations of government

employees are much more personal, while discipline of government

employees implicates more public interest.         Moreover, the discipline in

this case was imposed only after an incident of wrongdoing was made

public, and it followed a public clamor for disciplinary action. The school
                                          22

superintendent publicly announced that discipline would be imposed so

that the public would be protected, but expected the public to trust him

that the discipline imposed was sufficient and appropriate instead of

describing the nature of the discipline. These facts made the discipline a

public matter. 5 The two situations found by the majority to be the same

could not be more different. As the balancing test clearly demonstrates,

the discipline imposed by the school superintendent in this case was not

exempt under section 22.7(11).              The factors considered under the

balancing test support this conclusion. See Clymer, 601 N.W.2d at 45

(identifying five factors to weigh the individual privacy interests against

the public’s need to know in deciding what information falls within the

“personal information” exemption).

       The first factor used in the balancing test considers the public

purpose of the party requesting the information. A substantial purpose

for the information weighs in favor of the public’s need to know.

       The arguments of the parties teed up this factor.                   The ACLU

Foundation of Iowa believed the public needs information about the

discipline imposed in this case to be better prepared to scrutinize the

adequacy of the school’s response to the misconduct and better assure

accountability for wrongdoing directed toward students by school staff.

The ACLU Foundation of Iowa also asserted the discipline involved a

subject—school strip searches—in which the public maintains a strong

interest.    The school district responded that the public purpose in

knowing the discipline is diminished because the adequacy of the


       5There  is nothing inherently private about discipline. It can be public. For
example, in our attorney disciplinary system, we impose a “public reprimand” as the
sanction for certain ethical infractions. See, e.g., Iowa Supreme Ct. Att’y Disciplinary
Bd. v. Denton, 814 N.W.2d 548, 549 (Iowa 2012).
                                      23

discipline imposed cannot be properly assessed by the public without

further disclosure of the specific underlying facts of the incident.

      In general, our law recognizes a legitimate public concern over the

discipline imposed for wrongdoing by a public employee. See The Hawk

Eye v. Jackson, 521 N.W.2d 750, 754 (Iowa 1994) (recognizing a

substantial public concern in the discipline of police officers).         This

concern is tied in with the needed public trust in all aspects of

government, including public schools.        In particular, it includes the

extent and manner that students are searched by school officials. See

Iowa Code § 808A.2(4)(a) (prohibiting strip searches of students by school

officials). If adults fail to protect children, children will not be protected.

Moreover, without adequate discipline for wrongs perpetrated by adults

against children, the wrongdoing continues. Clearly, the public concern

in this case is legitimate. While a complete understanding of discipline

needs context, the imposition of discipline normally implies wrongdoing,

and knowledge of the discipline can give understanding to the predicate

wrongdoing. Consequently, I would conclude the subject of this case is a

matter of legitimate public concern and the information sought by the

ACLU Foundation of Iowa is proper.

      The second factor is whether the public purpose can be

accomplished without disclosure of the information. Individual privacy

interests weigh against disclosure when the public purpose can be met

without disclosure.

      In this case, the public cannot assess the seriousness in which the

school district treated the search of the students without knowledge of

the discipline. The public has been given knowledge of a disconcerting

incident, but has no ability to resolve its concern without knowledge of
                                        24

the discipline. Consequently, this factor weighs in favor of disclosing the

information.

       The third factor is the scope of the request. Generally, a narrow or

limited request would weigh in favor of disclosure because the intrusion

into the individual privacy interests would be minimized.                       See

DeLaMater, 554 N.W.2d at 880 (disclosing test scores without disclosing

individual names of test takers). In this case, the ACLU Foundation of

Iowa only sought disclosure of the nature and scope of the discipline, not

the underlying personal information.          Thus, the scope of the request

weighs in favor of disclosure.

       The fourth factor is whether alternative sources for obtaining the

information exist. If multiple sources of the requested information are

available,     individual    privacy     interests    would      be    minimized.

Consequently, the existence of multiple sources of information supports

disclosure.

       Like all the factors, the availability of alternative sources for

obtaining the information is considered to balance the interests between

individual privacy rights and the public’s need to know.              Clymer, 601

N.W.2d at 45. The sources of disclosure in this case appear to be very

limited. The school district only argued the individual employees would

be the alternative source. 6      Thus, the factor would weigh in favor of

protecting the individual privacy right.

       The final factor is the gravity of the invasion of personal privacy. A

substantial invasion of personal privacy would weigh against disclosure.



       6Although   the individual employees are the only alternative source of the
information, it is interesting to note that they never intervened in this action nor
otherwise asserted an objection to the disclosure of their discipline.
                                      25

      In this case, the seriousness of the invasion is minimized by the

limited request for information.        Additionally, the public has been

informed of the incident through news reporting sources, and the school

district released the names of the two staff members who were subjected

to discipline. Thus, the disclosure of the discipline at this point would

not invade the personal privacy of the individual staff in the same

manner as it would if his or her name had not already been disclosed.

The names of the individuals involved in the discipline have already been

associated with the event, and the ACLU Foundation of Iowa only

requested that the discipline imposed be disclosed. Our legislature has

specifically instructed that “free and open examination of public records

is generally in the public interest” even if it results in “embarrassment” to

others.   Iowa Code § 22.8(3).    This admonition applies not only to the

individual privacy interest, but also to the school district.              Any

embarrassment or other negative response visited on the school district

as a result of the disclosure of its discipline is not a factor to consider.

      Applying the five factors, I would conclude the district court erred

in granting summary judgment for the school district and failing to grant

summary judgment for the ACLU Foundation of Iowa. The factors weigh

in favor of disclosing the discipline imposed by the superintendent of the

school district.   The factors reveal our legislature did not intend the

discipline imposed on school employees for conducting a strip search of

female students in a gym locker room to be exempt from disclosure

under section 22.7(11).

      Without the balancing test, courts will only be able to apply the

section 22.7(11) exemption through their own personal assessment of the

personal nature of the information at issue, divorced from any legitimate

public need for the information. The goal of transparency in government
                                   26

will surely be thwarted by those in government who, in the face of public

criticism over the handling of employee misconduct concerning matters

of legitimate public interest, will be able to quell public discourse and

end controversies over employee misconduct of public concern with no

public scrutiny by simply announcing that discipline has been imposed.

Thus, the public will have no means to measure the appropriateness of

the government’s response to misconduct in matters of legitimate public

interest. This approach is a return to the government of the past and a

danger to our future.

      Waterman and Mansfield, JJ., join this dissent.
