               IN THE SUPREME COURT OF IOWA
                               No. 10–0971

                           Filed March 9, 2012


MARK D. HALL,

      Appellee,

vs.

BROADLAWNS MEDICAL CENTER,

      Appellee,

and

DES MOINES REGISTER and TRIBUNE COMPANY,

      Appellant.


      Appeal from the Iowa District Court for Polk County, Michael D.

Huppert, Judge.



      The Des Moines Register and Tribune Company asserts the district

court erred in holding an internal audit report created by Broadlawns

Medical Center is not a public record subject to disclosure under the
Iowa Open Records Act.     AFFIRMED IN PART, REVERSED IN PART,

AND CASE REMANDED.



      Michael A. Giudicessi of Faegre Baker Daniels LLP, Des Moines, for

appellant.



      Mark E. Weinhardt and Holly M. Logan of Weinhardt & Logan,

P.C., Des Moines, for appellee Hall.
                                2

     Thomas A. Finley and Stacie M. Codr of Finley, Alt, Smith,

Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellee

Broadlawns Medical Center.
                                         3

APPEL, Justice.

      In this case, we consider whether an internal audit created by

Broadlawns Medical Center as a result of the theft of drugs by an

employee is a public record under the Iowa Open Records Act.                    The

district court concluded that, because the internal audit was provided to

the Iowa Board of Pharmacy in order to assist in its investigation of

licensing matters arising from the theft, the internal audit amounted to

investigative materials in the hands of a licensing board under Iowa Code

section 272C.6(4) (2009) and was not subject to disclosure. Upon our

review of the facts and law, we conclude that the internal pharmacy

audit is a public record, not a confidential record, and that other

statutory   exceptions     asserted     to    prevent   public     disclosure   are

inapplicable. As a result, we reverse in part, affirm in part, and remand

the matter to the district court.

      I. Procedural and Factual Background.

      This case arises out of a dispute involving Broadlawns Medical

Center (Broadlawns); Mark Hall, a licensed pharmacist in charge of the

pharmacy at Broadlawns; and the Des Moines Register and Tribune

Company (Register).

      The dispute arose after police in late September 2008 arrested a

pharmacist employed by Broadlawns on suspicion of operating a motor

vehicle while intoxicated.        During an interview with law enforcement

authorities, the pharmacist stated she diverted prescription medications,

including   controlled    substances,        from   Broadlawns.       Broadlawns

discharged the pharmacist in early October 2008.                The Iowa Board of

Pharmacy     (board)     issued    an   emergency       order    suspending     the

pharmacist’s license indefinitely.
                                   4

      After taking its emergency action, the board commenced an

investigation as a result of the incident.   During its investigation, the

board contacted Mark Hall.    Hall was an employee of Cardinal Health

Care, which had a contract with Broadlawns to provide pharmacy

services to Broadlawns.      Pursuant to the contract, Hall was the

pharmacist in charge at Broadlawns.     As part of its investigation, the

board asked Hall to provide records from the Broadlawns pharmacy so

that the board could do an audit.      Hall cooperated with the board’s

investigation and provided the requested documents.

      At this point, Hall decided to conduct an internal audit of

Broadlawns pharmacy, which was completed in December 2008. When

asked why he performed the internal audit, Hall stated:

      I wanted immediate answers. I didn’t want to wait for
      somebody else to do an audit and wait for their results. If
      there was action that needed to be taken, then I wanted to
      take it. Also, I felt it was the responsible thing to do.

Once the internal audit was completed, Hall contemporaneously provided

a copy to the Broadlawns chief medical officer, Dr. Vincent Mandracchia;

to the operations manager at Cardinal Health, Ed Nold; and to the board.

Hall stated that he provided a copy of the internal audit to the board
because the information was relevant to its investigation and Hall

thought it important that the board have complete information.

      About a year after these events, the board filed charges against

Hall and Broadlawns. The board charged Hall with lack of competency

and inadequate controls for allegedly failing to maintain an adequate

record of controlled substance transactions.    The board’s statement of

charges included a reference to the internal audit provided to the board

by Hall and stated that the internal audit confirmed shortages of

controlled substances at Broadlawns.
                                     5

      The statement of charges filed by the board against Hall and

Broadlawns is a public record.       Upon reviewing the statement, the

Register on November 23, 2009, sought to obtain Hall’s audit under

Iowa’s Open Records Act.       Broadlawns refused to release the audit,

however, claiming it was confidential and exempt from disclosure.

Further, in order to prevent potential disclosure, Hall, on December 11,

2009, filed an action against Broadlawns seeking declaratory and

injunctive relief to prevent Broadlawns from releasing the internal audit.

On December 29, 2009, the district court entered a temporary injunction

restraining Broadlawns from releasing the internal audit. The Register

intervened in the litigation on January 4, 2010.

      Following an evidentiary hearing, the district court concluded that

Iowa Code section 272C.6(4) barred the release of the audit because

“[t]he statutory objective of assuring a free flow of information is better

met by extending the confidentiality contained within Iowa Code [section]

272C.6(4) to the audit report.” As a result, an injunction barring release

of the internal audit was granted. The Register appealed.

      On appeal, both Hall and Broadlawns assert that the district court

properly concluded the audit is protected from disclosure under Iowa

Code section 272C.6(4).      Hall further asserts that, even if Iowa Code

section 272C.6(4) is inapplicable, the audit is exempt from disclosure

pursuant to Iowa Code sections 22.7(61) and 22.8. Further, Broadlawns

argues even if the internal audit is found to be a disclosable public

record, Broadlawns should not be assessed costs and attorney fees

under Iowa Code section 22.10 because of the safe harbor provisions of

Iowa Code section 22.8(4).

      The Register counters that because the internal audit was not part

of a complaint or the investigative work product of the board, it is not
                                     6

within the scope of Iowa Code section 272C.6(4). Further, the Register

asserts that Hall failed to meet the elements under Iowa Code section

22.7(61).

        For the reasons expressed below, we conclude that, under the facts

and circumstances of this case, the internal audit is not confidential

under Iowa Code section 272C.6(4). We further conclude that Hall has

failed to make the requisite showing for an injunction to restrain

examination of a public record under Iowa Code sections 22.7(61) and

22.8.

        II. Standard of Review.

        Actions brought under the Iowa open records law are triable in

equity. In this equity trial, our review of the issues properly raised in

this appeal is de novo.     US West Commc’ns, Inc. v. Office of Consumer

Advocate, 498 N.W.2d 711, 713 (Iowa 1993).           The district court’s

statutory interpretation of Iowa Code section 272C.6(4) is reviewed for

correction of errors at law. DeLaMater v. Marion Civil Serv. Comm’n, 554

N.W.2d 875, 878 (Iowa 1996).

        III. Discussion.

        A. Applicability of the Confidentiality Provisions of Iowa Code

Section 272C.6(4).         We first consider whether the confidentiality

provisions of Iowa Code section 272C.6(4) apply to the internal audit. We

begin our discussion by considering the scope of the statute as reflected

in the language of the statute and the policies underlying it. We then

analyze whether the facts of this case fall within the scope of section

272C.6(4).

        Iowa Code chapter 272C generally relates to the regulation of a

lengthy laundry list of licensed professionals. The chapter establishes a

framework for the operation of licensing boards—including provisions
                                     7

related to the authority of licensing boards, the duties of licensing

boards, and certain procedures regarding the manner in which hearings

are conducted. See Iowa Code §§ 272C.3–.4, .6. Among other things, the

chapter authorizes a licensing board to establish and register peer review

committees. Id. § 272C.3(1)(h).

       Iowa Code section 272C.6(4) provides, in relevant part:
              4. In order to assure a free flow of information for
       accomplishing the purposes of this section . . . all complaint
       files, investigation files, other investigation reports, and
       other investigative information in the possession of a
       licensing board or peer review committee acting under the
       authority of a licensing board or its employees or agents
       which relates to licensee discipline are privileged and
       confidential, and are not subject to discovery, subpoena, or
       other means of legal compulsion for their release to a person
       other than the licensee and the boards, their employees and
       agents involved in licensee discipline . . . .

       At first blush, it may appear that the statute only protects

information “in the possession of a licensing board or peer review

committee.”   See id. § 272C.6(4).   As a result, it could be argued that

information in the possession of third parties is simply not protected

under the statutory language.

       Though appealing for its simplicity, the interpretation of the

statute based on possession is problematic. For instance, if a complaint

is filed with a licensing board, it seems doubtful that the document in

the hands of the licensing board is confidential, but the very same

document in the possession of the person who provided the complaint or

in the hands of a challenged professional responding to the complaint, is

not.   Similarly, if an expert whose opinion has been requested by a

licensing board submits an expert report to the board, it seems unlikely

that the copy of the report in the board’s file is protected, but a copy of

the same report in the hands of the expert is not.
                                     8

      If the purpose of Iowa Code section 272C.6(4) is to “assure a free

flow of information” for accomplishing the purposes of peer review and

discipline, it seems at least doubtful that the legislature intended the

confidentiality provision to apply simply to copies of documents that are

physically possessed by the licensing board and not to the same copies

in the hands of persons working with the licensing board or peer review

committee. Thus, a plausible argument may be made that the statutory

privilege for information possessed by the board does not run solely to

the board as possessor of a particular document but rather runs with the

information provided to the board that allows it to perform its statutory

functions.

      There is no controlling Iowa case law on the precise question posed

in this case.    In Doe v. Iowa State Board of Physical Therapy &

Occupational Therapy Examiners, 320 N.W.2d 557, 561 (Iowa 1982), we

came to the common sense conclusion that once a disciplinary action

has been initiated, the licensee subject to the action is entitled to the

underlying documents in the hands of the licensing board.        The case

involves the narrow issue of providing the licensee with documents and

does not address the broader issue of availability of information to the

public.   See Doe, 320 N.W.2d at 561.      In Cawthorn v. Catholic Health

Initiatives Iowa Corp., 743 N.W.2d 525, 528 (Iowa 2007), we considered

whether information in the possession of a peer review committee could

be used in a medical malpractice action. We concluded that, under the

terms of the statute involved in that case, it could not. Cawthorn, 743

N.W.2d at 528. Like Doe, however, Cawthorn did not address the specific

issue in this case, namely, whether records in the possession of third

parties that contain information being considered by a licensing board as

part of its investigation are shielded from public disclosure.
                                         9

       At least one federal circuit has considered the degree to which a

statute protects confidentiality even though documents are in the hands

of third parties. In Armstrong v. Dwyer, 155 F.3d 211, 213–14 (3d Cir.

1998), the Third Circuit considered whether a malpractice plaintiff could

subpoena peer review documents that were in the hands of the

defendant.    The federal statute in question protected from disclosure

medical records “in the possession” of peer review organizations. See id.

(quoting 42 U.S.C. § 1320c-9(d) (1994)). 1        The Third Circuit concluded

that the statutory bar against discovery “runs with the documents or

information, not with the organization or individuals who happen to

posses the documents or information at any given time.” Armstrong, 155

F.3d at 220. The Third Circuit reasoned that the statutory protections

would be a nullity if documents in the hands of the peer review

organization were protected while the same documents in the hands of

the subject physician were subject to disclosure. Id.

       On the other hand, the court in Todd v. South Jersey Hospital

System, 152 F.R.D. 676 (D.N.J. 1993), abrogated by Armstrong, 155 F.3d

at 220, recognized other risks in interpreting the federal peer review

statute. In Todd, the court held that medical records in the possession of

a health care provider that were subsequently provided to a peer review

organization were not automatically protected from disclosure.               Todd,

152 F.R.D. at 686.       “To hold otherwise,” explained the court, “would

encourage health care providers to file a copy of every document” with a

peer review organization “in an attempt to avoid and to obstruct all

legitimate discovery in any litigation.” Id. at 687.



       1The  statute states: “No patient record in the possession of an organization
having a contract with the Secretary under this part shall be subject to subpoena or
discovery proceeding in a civil action.” 42 U.S.C. § 1320c-9(d).
                                      10

      While the federal law related to peer review organizations is not

identical to Iowa Code section 272C.6(4), we think Armstrong and Todd

demonstrate the need for a nuanced position regarding what information

is protected by privileged statutes related to licensee discipline or peer

review. On the one hand, the mere fact that a copy of the document is

possessed by a third party should not be determinative of the privilege

issue if the privilege is to have any substance. On the other hand, the

providing of information to a licensing body or peer review committee

should not transform otherwise discoverable information into privileged

material.

      Wigmore handles the problem by dividing documents possessed by

peer review organizations, which by analogy are similar to licensing

boards, into three categories. The first category consists of documents

ordinarily generated by the organization that reflect internal deliberations

and functions of the reviewing body. Edward J. Imwinkelried, The New

Wigmore: A Treatise on Evidence § 7.8.2, at 1375–76 (2010) [hereinafter

Wigmore]. These documents are at the core of statutory protection. We

have held that such documents are privileged under Iowa Code section

272C.6(4). See Cawthorn, 743 N.W.2d at 528.

      The second category of documents identified by Wigmore is

comprised of preexisting documents that are submitted to the reviewing

body. Wigmore § 7.8.2, at 1376–77. The case for statutory privilege with

respect to these documents in the hands of a third party is weak. See id.

The need for frankness does not justify protecting preexisting documents

because     the   documents    were   generated   before   the   investigation

commenced.        See Menoski v. Shih, 612 N.E.2d 834, 836 (Ill. App. Ct.

1993) (documents created prior to peer review process are not privileged);

Moretti v. Lowe, 592 A.2d 855, 857–58 (R.I. 1991).
                                     11

      The third category of documents identified by Wigmore includes

those created for the purpose of submission to the reviewing body.

Wigmore § 7.8.2, at 1377.    According to Wigmore, “[j]ust as the core

protection of documents generated by the committee encourages

frankness during the committee’s deliberations, this extension promotes

candid submissions to the committee.” Id.

      In this case, however, the record clearly demonstrates that Hall

had a purpose independent of the board’s investigation in creating the

internal audit. He wanted “immediate answers” so that “[i]f there was

action that needed to be taken,” he could take it. He “didn’t want to wait

for somebody else to do an audit and wait for their results.” Hall was, as

he put it, doing the “responsible thing,” namely, getting to the bottom of

a troublesome situation as rapidly as possible in order to take whatever

corrective action might be needed.

      Hall’s purpose, namely, to find out what was going on in the

pharmacy as rapidly as possible and take appropriate action in light of

what might be discovered in the audit, does not relate in any way to the

board’s deliberative functions.      It relates to the functioning of the

Broadlawns pharmacy where Hall was the pharmacist in charge.

      It was, of course, undisputed that Hall provided a copy of the

internal audit to the board contemporaneously with his providing copies

to Broadlawns and Cardinal Health.         His purpose in providing the

document to the board may have been to provide it with complete

information, but his purpose in creating the document in the first place

was not related to the board’s investigation: Indeed, Hall conceded that

it was independent of the board’s slowly moving processes. Because we

find that the audit was prepared for purposes independent of assisting

the board in its investigation, we conclude that the internal audit falls
                                         12

into the second category of documents identified by Wigmore.                  As a

result, the privilege in Iowa Code section 272C.6(4) does not apply.

      B. Applicability of Iowa Code Section 22.7(61).

      1. Introduction.       We   next    consider   Hall’s   claims   that    the

Broadlawns audit is protected from disclosure by Iowa Code section

22.7(61). This section provides, in relevant part, that material may be

withheld if it amounts to:

             61. Information in a record that would permit a
      governmental body subject to chapter 21 [Open Meetings
      Law] to hold a closed session pursuant to section 21.5 in
      order to avoid public disclosure of that information, until
      such time as final action is taken on the subject matter of
      that information. Any portion of such a record not subject to
      this subsection, or not otherwise confidential, shall be made
      available to the public.

Iowa Code § 22.7(61). Section 22.7(61) does not apply “more than ninety

days after a record is known to exist by the governmental body, unless it

is not possible for the governmental body to take final action within

ninety days.” Id.

      In interpreting this section, we are guided by several well-

established principles.   There is a presumption in favor of disclosure

under our freedom of information statutes. City of Riverdale v. Diercks,

806 N.W.2d 643, 652 (Iowa 2011); Ne. Council on Substance Abuse, Inc. v.

Iowa Dep’t of Pub. Health, 513 N.W.2d 757, 759 (Iowa 1994). Although

we should not thwart legislative intent, the specific exemptions contained

in freedom of information statutes are to be construed narrowly.               Ne.

Council on Substance Abuse, Inc., 513 N.W.2d at 759.               Freedom of

information acts establish a liberal policy in favor of access to public

records. City of Dubuque v. Tel. Herald, Inc., 297 N.W.2d 523, 526 (Iowa

1980), superseded by statute, Iowa Code § 22.7(18) (1985), as recognized

in City of Sioux City v. Greater Sioux City Press Club, 421 N.W.2d 895,
                                    13

897 (Iowa 1988); Howard v. Des Moines Register & Tribune Co., 283

N.W.2d 289, 299 (Iowa 1979).

      We think the general purpose of section 22.7(61) is clear. It would

make no sense, for example, to be able to hold a closed meeting to

protect certain oral deliberations of government as confidential, but then

impose a requirement that the minutes of a meeting or other documents

revealing the deliberative processes be subject to disclosure under the

public records act.   See Iowa Code § 21.5(4) (stating the minutes of a

closed session are not public records open to public inspection); see also

Tahoe Reg’l Planning Agency v. McKay, 769 F.2d 534, 539–41 (9th Cir.

1985) (holding Nevada’s open meeting law allows closed meetings for

matters within the attorney-client privilege and protects from disclosure

the minutes of those closed meetings); Blethen Me. Newspapers, Inc. v.

Portland Sch. Comm., 947 A.2d 479, 484 (Me. 2008) (holding documents

prepared for use during executive session and notes made during

executive session are not subject to public examination); Cooper v. Bales,

233 S.E.2d 306, 308 (S.C. 1977) (stating authorized closed meetings with

mandated release of records of such meetings would be nonsensical).

      2. Litigation strategy. Hall first seeks to come within Iowa Code

section 22.7(61) through Iowa Code section 21.5(c), which allows for

closed sessions “[t]o discuss strategy with counsel in matters that are

presently in litigation or where litigation is imminent where its disclosure

would be likely to prejudice or disadvantage the position of the

governmental body in that litigation.” Iowa Code § 21.5(c). The district

court held section 21.5(c) was inapplicable because the ninety-day period

under Iowa Code section 22.7(61) had elapsed and Broadlawns had not

met the burden of showing that “final action was not possible within the

ninety-day period.” See id. § 22.7(61).
                                      14

      We do not adopt the district court’s approach to the statute. When

litigation is brought by a third party and is pending, it may not be

possible for the public body, however diligent, to resolve the dispute

within ninety days.      Assuming as the district court found that a

disciplinary action involved in this case was “litigation” under section

21.5(c), it seems reasonable to conclude that Broadlawns was not in a

position to conclude the disciplinary matter within ninety days.

      Nonetheless, we agree with the conclusion of the district court for a

different reason. The internal audit in this case is not a discussion of

legal strategy with counsel.      As a result, release of the internal audit

would not compromise information designed to be protected under Iowa

Code section 21.5(c). The purpose of the exception is to protect attorney-

client privilege resulting from communications that may lawfully be

discussed in a closed meeting, not to throw a shroud around public

documents that might relate to an ongoing controversy. See City of L.A.

v. Super. Ct., 49 Cal. Rptr. 2d 35, 39 (Ct. App. 1996) (nondisclosure

designed “to prevent a litigant from obtaining a greater advantage against

the governmental entity than would otherwise be allowed through normal

discovery channels”).

      In   addition,    section   21.5(c)   permits   nondisclosure   by   a

governmental body only where information would “likely . . . prejudice or

disadvantage the position of the governmental body in that litigation.”

Iowa Code § 21.5(c) (emphasis added).          Hall, of course, is not the

governmental body, and prejudice as to him does not establish a basis

for nondisclosure under a litigation strategy theory.

      3.   Professional competence.     Hall next asserts that Broadlawns

may decline to disclose the audit under Iowa Code section 21.5(i). This

provision provides, in relevant part:
                                   15
             i. To evaluate the professional competency of an
       individual whose appointment, hiring, performance or
       discharge is being considered when necessary to prevent
       needless and irreparable injury to that individual’s
       reputation and that individual requests a closed session.

Id. § 21.5(i).

       With respect to this exception, we cannot agree with Hall’s

assertion that the internal audit may be held confidential because it

relates to Hall’s performance in a general fashion. The purpose of the

closed meeting under section 21.5(i) is to “evaluate the professional

competency” of an individual.    Id. (emphasis added).    Nothing in the

internal audit “evaluates” Hall’s performance for the benefit of the

governmental body. Under Hall’s argument, a myriad of documents in a

public agency would no longer be public documents because they “relate”

to some employee’s performance and might at some unspecified time in

the future be considered in a closed meeting.       We decline to create

through interpretation a virtually limitless exception to our public

records law. Burton v. Univ. of Iowa Hosps. & Clinics, 566 N.W.2d 182,

189 (Iowa 1997) (declining to interpret statutes in a fashion that creates

broad exception to public disclosure as contrary to overriding legislative

policy).

       In addition, even if the internal audit did contain information

which could be said to “evaluate the professional competency of an

individual,” we find the ninety-day limitation of Iowa Code section

22.7(61) to be applicable on this claim. We find nothing in the record to

suggest that Broadlawns was not in a position to evaluate the

competency of Hall within ninety days after the board learned of the

existence of the internal audit in December of 2008.       The Register’s

public records request came about a year later. It is, of course, always

possible that after the receipt of a document, additional information in
                                         16

the future might become available that would have a bearing on the

employment status of a public employee. For example, if the board in

the    future   determined   to   take    disciplinary   action   against   Hall,

Broadlawns may wish to revisit the issue of Hall’s employment status

and might consider, among other things, the contents of the internal

audit. The question, however, is whether the governmental entity is in a

position to take any personnel action based on the information contained

in the internal audit within ninety days. We think it clearly was.

       C. Availability of Injunctive Relief Under Iowa Code Chapter

22.8. Finally, Hall urges that an injunction to prevent disclosure of the

internal audit is appropriate under Iowa Code section 22.8. Iowa Code

section 22.8 allows for injunctions to prevent disclosure when the court

finds both that examination is “clearly” not in the public interest and

that examination would “substantially and irreparably injure any person

or persons.” Iowa Code § 22.8(1)(a)–(b). The burden is on the person

resisting disclosure to establish the elements by clear and convincing

evidence. Id. § 22.8(3); Gabrilson v. Flynn, 554 N.W.2d 267, 273 (Iowa

1996). In evaluating a claim under Iowa Code section 22.8, the court

must “take into account the policy of [chapter 22] that free and open

examination of public records is generally in the public interest.” Iowa

Code § 22.8(3); see Ne. Council on Substance Abuse, Inc., 513 N.W.2d at

761.

       We do not believe Hall has met his burden of showing by “clear and

convincing evidence” that disclosure of the audit is “clearly not . . . in the

public interest.”   See Iowa Code § 22.8(1)(a).          The public interest in

information related to the theft of drugs from a pharmacy at a hospital

funded by taxpayers is compelling. Journal/Sentinel, Inc. v. Sch. Bd., 521

N.W.2d 165, 172 (Wis. Ct. App. 1994) (“All officers and employees of
                                    17

government are, ultimately, responsible to the citizens, and those citizens

have a right to hold their employees accountable for the job they do.”).

While Hall claims that disclosure would have a chilling effect on

communications, we note that the internal audit merely presents factual

information in a table format related to drug inventories at the

pharmacy.      See Note, The Privilege of Self-Critical Analysis, 96

Harv. L. Rev. 1083, 1094 (1983) (stating when facts presented in

document are independently replicable, the chilling-effect rationale of the

self-critical analysis privilege does not apply). The internal audit does

not contain communications reflecting deliberative processes, does not

make policy recommendations of any kind, and does not implicate

privacy interests of third parties.      Responsible public agencies will

conduct such factual reviews when there are allegations of wrongdoing

because they are necessary to protect the integrity of government

operations.   Under these circumstances, we cannot conclude that any

potential chilling effect caused by release of the document establishes by

“clear and convincing” evidence that disclosure of the audit is “clearly”

not in the public interest.     See Cal. State Univ. v. Super. Ct., 108

Cal. Rptr. 2d 870, 887 (Ct. App. 2001) (holding claim that release of

fundraising records would chill funding too speculative to support public

records injunction).

      Hall further claims that he will be prejudiced in the disciplinary

proceeding before the board by public release of the internal audit. We

reject this claim as well. As noted above, the factual material contained

in the internal audit is already in the hands of the board. Further, the

claim that the board will be improperly swayed by publicity is too

speculative and too insubstantial to establish by “clear and convincing”

evidence that disclosure is “clearly not . . . in the public interest” under
                                      18

Iowa Code section 22.8. See Bd. of Comm’rs v. Las Cruces Sun-News, 76

P.3d 36, 45 (N.M. Ct. App. 2003) (concluding fear that release of

information regarding sex abuse would trigger additional financial

liability was too speculative to override interest in public disclosure);

Local 2489 v. Rock Cnty., 689 N.W.2d 644, 653 n.5 (Wis. Ct. App. 2004)

(rejecting   possible   impact   on   grievance   procedure   as   basis   for

nondisclosure of public documents).

      D. Availability of Attorney Fees Under Iowa Code Section

22.10.   In this case, the Register seeks a remand of the case to the

district court “with instructions to award the Register all remedies

required or permitted under Iowa Code [section] 22.10(3), including trial

and appellate attorneys’ fees and costs.”

      The district court, however, did not address the issue of costs and

attorney fees. When a district court is reversed on the merits and does

not as a result reach the question of whether a party is entitled to

attorney fees, the proper course is to remand the case to the district

court for a determination of what, if any, attorney fees should be

awarded.     Baysden v. Hitchcock, 553 N.W.2d 901, 905 (Iowa Ct. App.

1996) (remanding to district court for determination of entitlement, if

any, to attorney fees under applicable contractual provisions); see also

Phoenix New Times, L.L.C. v. Arpaio, 177 P.3d 275, 289–90 (Ariz. Ct. App.

2008) (remanding to district court in public records action for a ruling

upon pending claim for statutory attorneys’ fees not reached in original

district court action). We therefore do not consider the issue properly

before us on appeal.      On remand, the district court shall in further

proceedings determine the merits of the Register’s claim for fees

consistent with the facts and statutory standards set forth in Diercks.
                                      19

See generally Diercks, 806 N.W.2d at 652–60. We express no view on the

merits of any fee claim.

      IV. Conclusion.

      For the above reasons, the judgment of the district court holding

that the internal audit was not subject to disclosure under Iowa Code

chapter 272C is reversed.     The rulings of the district court that the

plaintiff failed to establish the basis for nondisclosure under Iowa Code

section 22.7(61) are affirmed.       The matter is remanded for further

proceedings in the district court.

      AFFIRMED      IN     PART,     REVERSED   IN   PART,   AND     CASE

REMANDED.

      All justices concur except Mansfield, J., who takes no part.
