                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0609
                           Filed December 21, 2016


DR. ALLEN DIERCKS and PATRICIA LANE,
     Plaintiffs-Appellants,

vs.

CRAIG MALIN, Davenport City Administrator,
CITY OF DAVENPORT, IOWA, an Iowa Municipal
Corporation, and JACKIE E. HOLECEK,
Davenport City Deputy Clerk,
      Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Stuart P. Werling,

Judge.



      The plaintiffs appeal the district court’s denial of their claim based on the

defendants’ alleged failure to provide documents pursuant to the Iowa Open

Records Act. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




      Michael J. Meloy of Meloy Law Office, Bettendorf, and John T. Flynn of

Brubaker, Flynn & Darland, Davenport, for appellants.

      Jason J. O’Rourke of Lane & Waterman, L.L.P., Davenport, for appellees.



      Heard by Vogel, P.J., and Tabor and Mullins, JJ.
                                         2


MULLINS, Judge.

      Allen Diercks and Patricia Lane (the plaintiffs) appeal the district court’s

denial of their claim based on the alleged failure of Davenport City Administrator

Craig Malin, the City of Davenport, and Davenport City Deputy Clerk Jackie

Holecek (collectively, the City) to provide documents pursuant to Iowa Code

chapter 22 (2013) (the Iowa Open Records Act). For the reasons set forth below,

we affirm in part, reverse in part, and remand.

      I.     Background Facts and Proceedings

      This case arises from the City of Davenport’s inquiry into acquiring the Isle

of Capri’s Rhythm City Casino.       On October 15, 2012, Davenport’s Mayor,

William Gluba, executed an agreement with the casino, which enabled the City to

examine the casino’s financial and operational information as part of the City’s

consideration of potentially acquiring the casino. The casino agreement was

designated private and confidential by the parties, although the agreement

indicated disclosure of the agreement and the materials exchanged pursuant to

the agreement may be required under the Iowa Open Records Act.

      Also in October 2012, the Davenport City Council approved a motion

directing Gluba to sign a proposed asset purchase term sheet with the casino, “to

begin [the] formal process which may lead to [the] City[’s] purchase of [the]

casino.” The term sheet provided the casino would afford the City “reasonable

access to records and information” so the City could “conduct a customary

purchaser’s due diligence investigation.”

      In December 2012, Malin signed a contract with Deloitte & Touche LLP, in

which the parties agreed Deloitte would perform a due diligence evaluation of the
                                                3


casino. The Deloitte contract restricted the City’s ability to disclose information it

received from Deloitte, while noting those limitations did not apply where

disclosure was required by a subpoena, court order, regulatory authority, or other

legal process.

        The City hired attorney John Hintze as a legal consultant and Gary

Buettner as a casino-operations expert. Hintze served as the primary contact for

Deloitte during its due diligence review. On January 9, 2013, Hintze sent an

email to Davenport City Attorney Thomas Warner, Buettner, and a Deloitte

partner, Ayesha Rafique, with an attached legal memorandum explaining certain

due diligence information might be subject to a public records request.

        On January 21, Rafique executed on behalf of Deloitte a document

entitled “Scope of Services,” which was marked “Appendix B” to the Deloitte

contract and outlined the services Deloitte would provide the City.                          This

document was sent to Hintze, Buettner, and Malin.

        On February 18, Rafique sent Warner a bill in the amount of $207,900;1

Rafique also had sent the bill to Hintze just four days prior. Warner testified he

informed Rafique the City would only pay a final bill at the end of the transaction.

The bill was subsequently cancelled, and Warner deleted the e-mail containing

the February bill.2




1
  The plaintiffs dispute the district court’s classification of this bill as a “progress” bill that
did not need to be paid until the work was completed. The classification of this bill is
irrelevant for our purposes.
2
  The record reflects Warner also received a copy of the bill on February 19 from Hintze,
who asked Warner how the bill should be handled. A number of e-mails were then
exchanged among Warner, Hintze, and Rafique, discussing the possibility of the bill
being paid through Hintze’s law firm.
                                            4


           In late February or early March, the City ceased its pursuit of potentially

purchasing the casino. As a result, Deloitte was instructed to stop working on its

due diligence review.3

           On March 12, Deloitte sent an invoice for $387,500 to the City for services

performed through March 8. The invoice was not itemized; Warner indicated this

was required to protect the confidential nature of the services performed by

Deloitte and information provided by the casino. Warner stated, “our outside

attorney [(Hintze)] and Gary [Buettner] monitored [Deloitte’s] work for us [(the

City)].”

           On April 10, Warner provided Gluba and the city council a memorandum

marked confidential, which stated an alderman “would like to see a product or

report resulting from the due diligence work undertaken by Deloitte.” Warner

wrote, “The request cannot be readily accommodated due to the nature of the

due diligence work and the confidentiality agreements executed by the City

between Deloitte and the [casino].” The memorandum further stated, “Deloitte

provided financial preacquisition due diligence and advice and recommendations

. . . . [which] w[ere] coordinated with the legal work of [Hintze’s law firm], and the

operational review and recommendations of [Buettner].” Warner concludes “[a]s

the Asset Purchase Agreement negotiations were iterative, there is no single

concluding product or report to produce.”

           On April 11, the plaintiffs served a public records request on the City,4

pursuant to Iowa Code chapter 22, summarized as follows:


3
 The City contends it would have cost another $50,000 to have Deloitte complete its due
diligence work and draft a report.
                                           5


              The engagement letter with Deloitte and attachments,

              All   e-mails   (and   attachments),     memorandums,        letters,   or

               correspondence between Malin and Deloitte regarding the due

               diligence services,

              All   e-mails   (and   attachments),     memorandums,        letters,   or

               correspondence between Davenport finance director, Brandon

               Wright, and Deloitte regarding the due diligence services,

              All   e-mails   (and   attachments),     memorandums,        letters,   or

               correspondence between Warner and Deloitte regarding the due

               diligence services.

In response, the City produced documents on April 22.5 It is undisputed this

production did not include a copy of the Deloitte Scope of Services document,

despite the plaintiffs’ request. When responding to the request, the City made no

claim of confidentiality, privilege, or exemption.

       The plaintiffs served an additional public records request on April 24

summarized as:

              All invoices and itemized statements detailing the hours spent and

               the services provided by Deloitte,

              All e-mails between Malin and Deloitte,


4
  The plaintiffs served three other public records requests upon the City prior to this
request, but only the three document requests discussed herein are at issue in this
matter.
5
  The City contends it followed its standard operating procedures in responding to all of
the plaintiffs’ requests: logging them as received, assigning them to staff in the
appropriate departments, working with the IT department to search for responsive
documents, and having any potential responsive documents reviewed by Warner for
items that could not be disclosed.
                                              6


                Copies of all reports, letters, analysis, or other information received

                 from Deloitte on the casino deal.

The City responded with documents on May 3 and again made no claim of

confidentiality, privilege, or exemption for undisclosed materials. It is undisputed,

however, that the City did not produce the invoice received from Deloitte in

February or the January 9 Hintze legal memorandum.

          On May 21, Malin signed a “Due Diligence Reimbursement Agreement”

with Rodney A. Blackwell, as the manager of Davenport Casino Group, L.L.C.

(DCG), based on DCG’s intention to purchase and develop a casino in

Davenport. The reimbursement agreement provided the City would “cooperate in

the assignment of any work previously performed by Deloitte on behalf of the City

to DCG” and, in return, DCG would “reimburse the City for the full cost of the due

diligence services of Deloitte previously provided to the City” in the event DCG

could obtain the necessary approval and financing to move ahead with its casino

development plans.6

          On May 23, the plaintiffs made another public records request,

summarized as:

                Any and all reports, memorandums, letters, data analyses, and all

                 other papers received from Deloitte pertaining to due diligence work

                 done by Deloitte,

                Copies of any and all of the due diligence reports, memorandums,

                 data analyses, and all other paperwork from Deloitte regarding the

                 casino.

6
    Ultimately, no assignment occurred, and the City of Davenport paid Deloitte’s fee.
                                               7


The City responded on June 5, again making no claim of confidentiality, privilege,

or exemption.7       It is undisputed the City did not produce any Deloitte due

diligence work product in response to this request.

        On June 7, the plaintiffs’ attorney e-mailed Warner, noting the Deloitte due

diligence work product had not been produced and requesting “all of the

De[l]oitte due diligence information as stated in the May 23, 2013 public records

reque[s]t, including reports, memorandums, data analyses, letters and all other

papers.” Warner responded, “The short answer is no report exists; they never

finished the[ir] work.”

        The plaintiffs brought this lawsuit on June 20, 2013, seeking, in relevant

part, injunctive relief.8    On July 9, the City filed its answer and asserted no

affirmative defenses. On September 19, Warner mailed an unsigned copy of the

Deloitte Scope of Services to the plaintiffs’ attorney, with an attached letter

containing the subject line “Missing Attachment.” The letter indicated the City

had initially produced an e-mail thread that had no attachments, but it had since

discovered earlier e-mail threads had contained the attachment, and it had

located and was now producing said attachment.

        On January 24, 2014, the plaintiffs issued a subpoena to Deloitte for all

Deloitte due diligence work product. Deloitte, the casino, and the City moved to




7
  The plaintiffs contend a total of 319 pages of record were produced. The City contends
nearly 900 documents were produced, although it appears the City is including the
documents it produced in response to the three record requests that are not at issue in
this case.
8
  Specifically, the plaintiffs requested the district court “issue an injunction prohibiting [the
City] from continuing to violate Chapter 22.”
                                            8


quash the subpoena; the district court denied those motions and granted the

plaintiffs’ motion to compel on April 8. Deloitte then produced the documents.

       In February 2015, a bench trial was held. That same month, the district

court ruled in favor of the City.9 On March 6, the plaintiffs filed a motion to

enlarge or amend, which the district court summarily denied.               The plaintiffs

appeal.

       II.     Standard and Scope of Review

       “Cases commenced under Iowa Code chapter 22 are ordinarily triable in

equity, thus calling for de novo review on appeal.” Iowa Film Prod. Servs. v.

Iowa Dep’t of Econ. Dev., 818 N.W.2d 207, 217 (Iowa 2012) (quoting Clymer v.

City of Cedar Rapids, 601 N.W.2d 42, 45 (Iowa 1999)) (reviewing an “action

seeking injunctive relief and attorneys’ fees under chapter 22 of the Iowa Code”).

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

at law.” Id.; Press-Citizen Co. v. Univ. of Iowa, 817 N.W.2d 480, 484 (Iowa

2012). When applying a de novo review, “the district court’s findings of facts are

not binding, but we will ‘give deference to those findings because the district

court had the opportunity to assess the credibility of the witnesses.’” Horsfield



9
   The plaintiffs take issue with certain factual findings made by the district court;
however, a number of those factual findings are not relevant to the matters now in
dispute, and therefore, we do not address them. The plaintiffs also challenge the district
court’s consideration of a demonstrative exhibit in its order, when the demonstrative
exhibit was not entered into evidence. We note that matters not in evidence cannot be
considered by the district court. See generally State v. Minneapolis & St. L. Ry. Co., 56
N.W. 400, 403 (Iowa 1893) (noting items not in evidence cannot be considered).
Similarly, the plaintiffs allege the district court confused the documents produced in this
litigation with those produced in response to the public record requests when it found “[a]
substantial volume of record w[as] produced for the plaintiffs in response to these
records requests.” Regardless of the veracity of this statement, we do not rely upon it or
the demonstrative exhibit for our analysis on appeal.
                                             9

Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 452 (Iowa 2013) (quoting

Hensler v. City of Davenport, 790 N.W.2d 569, 578 (Iowa 2010)).

       III.         Analysis

       Iowa Code section 22.2(1) states, in relevant part, “Every person shall

have the right to examine and copy a public record.” “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.’” Iowa Film Prod. Servs., 818 N.W.2d at 218

(alteration in original) (quoting City of Riverdale v. Diercks, 806 N.W.2d 643, 652

(Iowa 2011)).           “[T]he Act establishes ‘a presumption of openness and

disclosure.’” Id. (quoting Gabrilson v. Flynn, 554 N.W.2d 267, 271 (Iowa 1996));

see also Gannon v. Bd. of Regents, 692 N.W.2d 31, 38 (Iowa 2005) (“The right of

persons to view public records is to be interpreted liberally to provide broad

public access to public records.” (citation omitted)). “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.”         Diercks, 806 N.W.2d at 652

(quoting Clymer, 601 N.W.2d at 45).

       Iowa Code section 22.10 “authorizes civil suits by citizens to enforce the

statute.”     Id.    In such an action, the initial burden rests with the claimant to

demonstrate “that the defendant is subject to the requirements of [chapter 22],

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.” Iowa Code § 22.10(2); see also Horsfield, 834 N.W.2d

at 460.       The claimant must make this showing by a preponderance of the
                                        10

evidence. See Horsfield, 834 N.W.2d at 460; see also Wings v. Dunlap, 527

N.W.2d 407, 410 (Iowa Ct. App. 1994). “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.” Diercks, 806 N.W.2d

at 653 (citing Iowa Code § 22.10(2)).

      We have previously employed a “substantial compliance” test when

considering if a governmental body complied with chapter 22’s requirements.

See Wings, 527 N.W.2d at 410. In Horsfield Materials, 834 N.W.2d at 462, the

Iowa Supreme Court “utilize[d]” this test “without deciding that it [was] the

appropriate test.”   The Iowa Supreme Court has previously summarized the

“substantial compliance” test as follows:

      “[S]ubstantial compliance” with a statute means actual compliance
      in respect to the substance essential to every reasonable objective
      of the statute. It means that a court should determine whether the
      statute has been followed sufficiently so as to carry out the intent
      for which it was adopted. Substantial compliance with a statute is
      not shown unless it is made to appear that the purpose of the
      statute is shown to have been served. What constitutes substantial
      compliance with a statute is a matter depending on the facts of
      each particular case.

Brown v. John Deere Waterloo Tractor Works, 423 N.W.2d 193, 194 (Iowa

1988); see also Horsfield, 834 N.W.2d at 462 (parenthetically citing Brown for the

proposition that “substantial compliance is a fact-specific inquiry depending on

whether ‘the purpose of the statute is shown to have been served’”).

      It is undisputed the City is subject to the requirements of chapter 22. See

Iowa Code § 22.1(1) (defining a “governmental body” to include a “city”). The

parties dispute, however, what records were actually requested, whether the

requested records at issue are public records, and whether the City “refused” to
                                             11


make them available to the plaintiffs.            Specifically, the parties dispute the

appropriate classification of—and the City’s obligation to produce—four items:

(1) the Deloitte due diligence work product, (2) the invoice the City received from

Deloitte in February, (3) the Deloitte Scope of Services document, and (4) the

January 9 Hintze legal memorandum. We discuss each disputed item in turn.

               A.      The Deloitte Due Diligence Work Product

       On appeal, the parties dispute the following issues regarding the Deloitte

due diligence work product: (1) whether the documents were actually requested

by the plaintiffs, (2) whether the City delegated a duty to Deloitte, (3) whether the

documents are public records, and (4) whether the City refused to produce them.

       Both before the district court and on appeal, the City argues this “work

product” was not specifically sought in the public records request. The relevant

public records request sought:

               1.    Any and all reports, memorandums, letters, data
       analyses and all other papers received from [Deloitte] pertaining to
       due diligence work done by [Deloitte] for Craig Malin and/or the City
       of Davenport from December 12, 2012 through May 23, 2013.
               ....
               3.    Copies of any and all due diligence reports,
       memorandums, data analyses and all other paperwork from
       [Deloitte] regarding [the casino] that the City is proposing to sell to
       Rodney Blackwell for $387,500.00.

(Emphasis added.)10        The City contends, as the work product had not been

transferred to the City and therefore had not been “received from” Deloitte, it did

not fail or refuse to produce documents that were not requested.



10
   Similarly, in the April 24 records request, the plaintiffs sought “[c]opies of all reports,
letters, analysis, or other information received from [Deloitte] on the acquisition,
purchase or lease of the [casino].” (Emphasis added.)
                                        12


      The records request framed by the plaintiffs did not request documents

prepared by and retained by Deloitte that had not been delivered in any manner

to the City. When the plaintiffs did not receive the documents they sought, the

plaintiffs’ attorney sent an e-mail on June 7 stating, “The response the City

provided to our May 23, 2013 public records request does not contain the due

diligence work the City paid $387,500 to [Deloitte] pursuant to the December 12,

2012 alleged contract Mr. Malin signed with Ayesha Rafique of Deloitte.” The

e-mail ended with the plaintiffs’ request for “all of the De[l]oitte due diligence

information as stated in the May 23, 2012 public records reque[s]t.” We do not

interpret the e-mail as requesting information not previously requested but merely

urging compliance with the earlier request. The e-mail did not expand on the

plain language of the requests for information received from Deloitte. Thus, we

find the plaintiffs’ public records request did not request Deloitte’s work product

document or any other documents in Deloitte’s possession that had not been

provided to the City—that is, records that had not been “received from” or

paperwork “from” Deloitte.    The plaintiffs’ complaint of nondisclosure is with

regard to a due diligence report or due diligence work product, which had not in

fact been provided in any way to the City. Warner’s April 10 memorandum to

Gluba and the city council, which explained there was no report to provide in

response to an alderman’s request, supports the City’s assertion there was no

report available to it for production in response to the records request.      The

plaintiffs’ request for public records was not a request for documents in the sole

possession of Deloitte. Therefore, we need not address the question of whether
                                        13


the City delegated a duty to Deloitte or whether any due diligence work product in

the sole possession of Deloitte were public records.

             B.     The February Invoice

      In their April 24 public records request, the plaintiffs sought, in relevant

part, “[a]ll invoices and itemized statements detailing the hours spent and the

services provided by [Deloitte].” It is undisputed by the parties this document

constituted a government record.      The City contends it did not “refuse” to

produce this document because Warner had deleted the document when Deloitte

agreed to cancel the invoice and Warner had no obligation to keep the invoice

after it had been cancelled. The City further argues it substantially complied with

the request by producing the final March bill.         Finally, the City argues the

February invoice was a lump-sum bill that provided no insight into the City’s

decision-making activities, which is the purpose of chapter 22.

      The plaintiffs dispute when Warner deleted the e-mail—although the date

they proffer also predates their public records request—and argue Warner could

have recovered the e-mail with the help of the IT department. Neither party

provides case law on this matter, and we have found no Iowa case law

controlling on this issue.   However, we find persuasive the Supreme Court’s

discussion of the Federal Freedom of Information Act (FOIA) in Kissinger v.

Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980). See Diercks,

806 N.W.2d at 658 (considering the Eighth Circuit Court of Appeals’ discussion of

a FOIA claim when analyzing chapter 22). In Kissinger, the plaintiffs sought

documents that were no longer in the possession of the agency to which the

request had been made. 445 U.S. at 140. The Supreme Court concluded FOIA
                                          14


“does not obligate agencies to create or retain documents; it only obligates them

to provide access to those which it in fact has created and retained.” Id. at 152;

see also Whitaker v. CIA, 31 F. Supp. 3d 23, 46 (D.D.C. 2014). The plaintiffs do

not argue chapter 22 imposes an obligation on the City to keep or create

documents—nor do they cite provisions of the code that would support such an

interpretation—only that the City should also look through those documents it has

discarded electronically. We do not find the plaintiffs’ contention persuasive.

See CareToLive v. FDA, 631 F.3d 336, 344 (6th Cir. 2011) (finding governmental

entity was not required “to recover electronic data that has been deleted in order

to meet its requirement of performing a reasonable search” under FOIA).

       It is clear, however, Hintze and Warner each had an e-mail containing the

invoice, and there is no dispute the invoice is a public record. Regardless of the

status of the copy that had been received by Warner, the invoice received by

Hintze was likewise a public record. Our record shows no indication Hintze was

not in possession of the invoice at all times material to this proceeding. See Iowa

Code § 22.10(2) (placing the burden on the governmental entity to show

compliance with the statute after the party seeking enforcement shows the

governmental entity is subject to chapter 22, the records at issue are government

records, and the defendant refused to produce the documents).         Further, we

know Deloitte still possessed the invoice, because it produced the same in the

litigation. Even if the City was no longer in physical possession of the invoice

because the invoice was a public record and the City had ready access to the

invoice it had destroyed, it had a duty to produce that public record from sources

readily available, to wit: Hintze or Deloitte. See id. § 22.1(2).
                                            15


       Further, we are not persuaded the City “substantially complied” with the

request or the invoice provided “no insight” into the City’s decision-making

activities. The plaintiffs sought “all invoices” from Deloitte. The invoice provided

before the task was complete disclosed the amounts the City was spending

incrementally at tax-payer expense and the City’s willingness to continue said

expense. We cannot find the City’s claim amounted to a liberal interpretation of

chapter 22 that promotes public access to indisputably public records. See id.

§ 22.1(3)(b) (defining “public records” to include “all records relating to the

investment of public funds”). The district court erred in concluding the City had

no duty to produce the invoice in response to the public records request.

               C.     The Deloitte Scope of Services Document

       On April 11, 2013, the plaintiffs requested, among other things, the

“engagement letter and any attachments” between Deloitte and the City. The

City admits it did not initially produce the Deloitte Scope of Services document

received in January 2013.11 However, the City argues this was an “inadvertent

omission,” which it cured by providing a copy of the document on September 19

after this litigation was initiated in June.12 The City admits the Deloitte Scope of

Services document is a public record subject to disclosure but argues

“inadvertence” does not amount to a “refusal” to produce.13


11
   In its finding of facts, the district court indicated the document was not produced
because it had not been provided to the custodian of the public record. This claim is not
made on appeal.
12
   Warner’s e-mail indicates the document was produced after the City recognized its
“oversight” in failing to produce it with the initial response to the open records request.
In his deposition, Warner stated he provided the document in compliance with the April
11 records request.
13
   “Refusal” means “the act of refusing or denying.” Refusal, Webster’s Third New Int’l
Dictionary (unabridged ed. 2003). In turn, “refuse” is defined as to “deny” or “show or
                                        16


       We note the City promptly provided the Deloitte contract to which the

Deloitte Scope of Services served as “Appendix B.” The City argues its failure to

produce was inadvertent, not a refusal. The burden rests with the plaintiffs to

show by a preponderance of the evidence the failure to produce the document

constituted a “refusal.” The plaintiffs simply allege the September 19 letter from

Warner, with which the Deloitte Scope of Services was produced, constitutes a

tacit admission the City violated chapter 22. But no such admission was made.

To the contrary, the e-mail indicates the document was withheld by error, not as

an act of refusal.

       Iowa courts have previously considered whether the mere failure to

produce documents constitutes a refusal. In Horsfield, the Iowa Supreme Court

found “refusal” encompassed a situation where “a substantial amount of time

ha[d] elapsed since the records were requested and the records ha[d] not been

produced at the time the requesting party file[d] suit under [chapter 22].” 834

N.W.2d at 463 n.6.     Notably, in Horsfield, the documents were requested in

January 2010, the plaintiff brought suit in March 2010, and no documents were

produced until April 2010, when a 617-page production was made. Id. at 462. In

Braunschweig v. Bormann, No. 04-0537, 2005 WL 1224685, at *4 (Iowa Ct. App.

May 25, 2005), this court found a county auditor had not “refused” to produce

documents where the documents were orally requested in early September, the

documents were requested in writing on September 24, the lawsuit was instituted

on September 26 when no documents had been produced, and the documents



express a positive unwillingness to do or comply with (as something asked, demanded,
expected).” Refuse, Webster’s Third New Int’l Dictionary (unabridged ed. 2003).
                                            17


were produced “within a few days thereafter.” There is no evidence the City

intentionally failed to produce any responsive documents; it simply mistakenly

omitted an appendix to the Deloitte contract provided to the plaintiffs. When the

City discovered its error, it provided the document to the plaintiffs. The plaintiffs

have failed to show by a preponderance of the evidence under these

circumstances the City’s failure to produce the documents was a “refusal” as

required by chapter 22.

               D.     The Legal Memorandum

       In the April 24 records request, the plaintiffs requested “[a]ll memo[s],

reports, or other documents received from” Hintze’s law firm sent to Malin or the

City regarding the casino acquisition. It is undisputed the Hintze January 9 legal

memorandum, which Hintze had sent to Warner, Buettner, and Rafique, was not

produced. The records request specifically stated: “If you claim any of these

seven requests pertain to confidential information and are claiming secrecy

please cite the applicable chapter code section you allege applies.” The City

made no claim of confidentiality or privilege in either its response to the public

records request or in its answer to the plaintiffs’ petition.

       The City contends the document was subject to attorney-client privilege

and thus did not need to be produced.14 See Iowa Code § 22.7(4) (noting certain

public records are to be kept confidential, including “[r]ecords which represent

and constitute the work product of an attorney, which are related to litigation or


14
  It is worth noting the plaintiffs first received a copy of this memorandum when it was
produced by Deloitte pursuant to the subpoena the plaintiffs served during this litigation;
accordingly, it would appear Deloitte did not assert any claim that attorney-client
privilege applied.
                                          18

claim made by or against a public body”); see also Horsfield, 834 N.W.2d at 463

(holding chapter 22 “does not affect other specific statutory privileges recognized

by the legislature, such as the attorney-client privilege”).

       The City further argues it had no duty to identify an exemption or plead

privilege as an affirmative defense; it concludes it was simply entitled to withhold

the document.     The plaintiffs disagree, alleging the City must both invoke a

section 22.7 exemption in response to a request and affirmatively assert

attorney-client privilege in its answer, the failure of which constitutes waiver.15

       Section 22.7 provides “[t]he following public records shall be kept

confidential, unless otherwise ordered by a court.” The section does not indicate

when the party keeping the documents confidential must also disclose that a

document has been designated as such. However, case law indicates parties

have claimed exemptions prior to litigation and pled aspects of chapter 22 as

affirmative defenses. See Diercks, 806 N.W.2d at 649 (stating the city’s “answer

to the counterclaim denied bad faith and alleged as affirmative defenses

compliance with chapter 22 and reliance on advice of counsel”); Gabrilson, 554

N.W.2d at 270 (noting “the superintendent of the Davenport schools[] refused to

provide the [requested documents]” and, before the institution of any litigation,

“based his refusal on the statutory exceptions to the Iowa open records law,

claiming that the materials were confidential trade secrets and statutorily

protected examinations”). Further, case law supports the conclusion that section

22.7 claims can be waived.         See Diercks, 806 N.W.2d at 657 (finding the

15
  Again, the district court found the document was not produced because it had not
been provided to the custodian of the public record. As before, this factual finding was
not raised on appeal.
                                              19


governmental body “waived confidentiality” when it disclosed the information

sought to a third party).

       Both parties also rely upon Horsfield for support of their respective

positions. In Horsfield, the parties disputed certain e-mails the city had withheld

subject to attorney-client privilege. 834 N.W.2d at 463. Notably, even prior to

the institution of a lawsuit, the city sent the plaintiff “a privilege log for five

emails . . . that the [c]ity considered protected by attorney-client privilege.”16 Id.

at 450. Following the institution of litigation, the city produced 617 documents

and a privilege log for eight e-mails it had withheld.             Id. at 451.     The Iowa

Supreme Court held the city’s subsequent determination to waive its attorney-

client privilege, produce the e-mails, and utilize them at trial did not change that

the city had an initial right to withhold the e-mails.           Id. at 463.     Importantly,

however, the city had invoked privilege as a basis for its refusal. Id.

       In the present case, the record reflects the City failed to notify the plaintiffs

it was claiming privilege as to this document or to argue the exemption before the

district court.17 The City claims:

       There is nothing in chapter 22 that requires a city to specify any
       confidential information it may be withholding from the chapter 22
       request. Similarly, there is nothing in chapter 22 that requires the
       City to plead as an affirmative defense that it withheld a document
       because of the attorney-client privilege. Rather, under chapter 22,
       materials may simply be withheld.




16
   Although use of a privilege log or similar procedure to claim confidentiality in response
to a public records request would promote the objectives of our public records statute,
we find nothing in Iowa Code chapter 22 or our case law that requires such a procedure.
17
   Specifically, the plaintiffs argue in their brief, “Davenport cannot now, for the first time
on appeal, assert that they did not have to provide Plaintiffs attorney Hintze’s January 9,
2013 legal memorandum because of attorney-client privilege.”
                                          20


       The City does not dispute the legal memorandum constitutes a public

record, or that it refused to disclose it, only that attorney-client privilege rendered

it exempt from disclosure. Under chapter 22, the “one seeking the protection of

one of the statute’s exemptions bears the burden of demonstrating the

exemption’s applicability.” Clymer, 601 N.W.2d at 45. Although pleading an

exemption would put the opposing party on fair notice of the claim, we find no

requirement that a governmental body must affirmatively plead an exemption to

disclosure. Regardless, our courts have consistently held the burden of proving

a public record is exempt from disclosure or production is on the governmental

body claiming the exemption.       Id.; see also Diercks, 806 N.W.2d at 652-54.

Based on the parties’ apparent agreement the City did not argue this issue

before the district court, the City cannot now maintain this exemption on appeal.

See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). The City has failed in

its burden; accordingly, we reverse.

       IV.    Conclusion

       For the foregoing reasons, we affirm the district court’s finding there was

no violation of the Iowa Open Records Act with regard to the Deloitte due

diligence work product and the Deloitte Scope of Services document.                We

reverse the district court’s findings there was no violation of the Iowa Open

Records Act with regard to the City’s failure to produce the invoice the City

received from Deloitte in February and the January 9 legal memorandum. We

remand to the district court for further proceedings consistent with this opinion.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
