ELECTRONICALLY FILED

IN THE IOWA DISTRICT COURT FOR STORY COUNTY

2011 Oct 19 AM 10:14 CLERK OF DISTRICT COURT - STORY

CHAD BREWBAKER, Case No. CVCV046802 Plaintiff, v. ISU DAILY PUBLICATIONS BOARD and CITY OF AMES, Defendants. RULING ON DEFENDANT ISU DAILY PUBLICATIONS BOARDS MOTION FOR SUMMARY JUDGMENT

On September 27, 2011, the Court held a hearing regarding the Motion for Summary Judgment filed by the Defendant, ISU Daily Publications Board. The Plaintiff, Mr. Chad Brewbaker, appeared pro se. Attorney Sharon Malheiro appeared on behalf of the moving Defendant, ISU Daily Publications Board (hereinafter, the Publications Board or ISU Daily). Attorney Doug Marek appeared on behalf of the non-moving Defendant, the City of Ames, which is not involved with this specific procedural dispute. The Court must now rule on the pending motion. FACTS The parties dispute started in early 2011. Mr. Jason Arment, the Opinion Editor for the ISU Daily, was covering a story regarding the Ames City Counsel hiring a consulting firm, Lane4, to draft a proposal for new construction in Campustown (an Ames neighborhood just south of Iowa State University). (Pet. pg.1). On February 22, 2011, the Plaintiff sent a letter to the Ames City Clerk requesting copies of correspondence between the City of Ames, ISU Daily Publications Board, and ISU regarding the ISU Dailys coverage of the Campustown redevelopment. (Pet. Ex. 12). The City

of Ames replied that no responsive documents existed. (Pet. Ex. 14). On March 4, 2011, the Plaintiff again sent a letter to the Ames City Clerk making the same request. (Pet. Ex. 13). The City of Ames again replied that no responsive documents existed. (Pet. Ex. 15). On March 25, 2011, the Plaintiff sent a letter to the Publications Board requesting copies of all e-mail correspondence from January 1, 2011, through February 15, 2011, between ISU Daily Staff, the City of Ames and the ISU Foundation. (Pet. Ex. 17). The Plaintiff received no response from the Publications Board concerning this request. (Pet. p.1). On May 4, 2011, the Plaintiff filed his Petition against the ISU Daily Publications Board and the City of Ames, seeking their compliance with the Plaintiffs open records request pursuant to Iowa Code Chapter 22. On May 20, 2011, the Defendants filed a combined Motion to Dismiss, which the Court, the Honorable Judge Steve Oeth, denied on June 28, 2011. The Publications Board moved for summary judgment on August 25, 2011. It asserts that it is not a government body subject to Chapter 22. Plaintiff filed his Resistance on September 23, 2011. This is the issue currently before the Court. The ISU Daily Publications Board is a private, non-profit corporation. The Internal Revenue Service recognizes the Publications Board has having tax-exempt statute under section 501(c)(3) of the Internal Revenue Code. The Publications Boards Articles of Incorporation state that its purposes are to publish and sell the Iowa State University student newspaper and to promote the educational welfare of and providing business and editorial experience for who students who participate in the enterprise. (Def.s Mot. for SJ, App. 10). The ISU Daily Publications Board is comprised of eleven ISU students, two faculty members and one professional (or faculty member) involved in a non-competing business.

The Publications Board contracts with the Government of the Student Body (GSB), which is funded by student activity fees. In 2010, the Publications Board received 7.38% ($107,464) of its total revenue ($1,456,140) from the GSB. In 2011, the Publications Board received 7.44% ($107,561) of its total revenue ($1,446,027) from the GSB. The Publications Board generates its other revenue from subscription sales, advertising and other miscellaneous sources. The Publications Board occupies space in Hamilton Hall on Iowa State Universitys campus. It does not pay rent to ISU for the use of the space. It is responsible for upkeep and remodeling costs. It is disputed whether the maintenance costs are paid by the University or the Publications Board. Plaintiff presents billing records showing that certain maintenance fees were charged to the University and not the Publications Board, after a Publications Board member complained about air being too cold at Hamilton Hall. (Plf.s Resis. Exs. 8, 9). According to various exhibits, the Publications Board pays for its own telephone, IT service and postage. (Def.s Reply to Plf.s Resis. Ex. 3-26). However, these same exhibits also show payments to ISU for health, dental and life insurance plans, as well as flex plans. Certain Publications Board members have e-mail addresses with an Iowa State University name (@iastate.edu), as well as ISU Daily e-mail accounts (@iowastatedaily.com). Plaintiff offers an exhibit consisting of the Iowa State Dailys contact information, in which the Editorial Adviser and General Manger provide iastate.edu e-mail addresses as their contact addresses. (Plf.s Sur-Reply Ex. A). There is a factual dispute whether the Board members use their Iowa State e-mail addresses to conduct ISU Daily business. The e-mail contact for submitting classifieds is listed as class1@iastate.edu.

Plaintiff has submitted exhibits reflecting that certain Publications Board members are listed as Iowa State employees, because they appear in the Des Moines Registers State Salary Database. The Defendant argues that these employees are Publications Board members in addition to part-time instructors at Iowa State University. The Defendant offers affidavits providing testimony that the Publication Board uses an outside company for its payroll operations. CONCLUSIONS OF LAW The principles governing summary judgment dispositions are well-established in Iowa. The party moving for summary judgment has the burden of establishing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3) (2011). The Rules of Civil Procedure further explain:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials in the pleadings, but the response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered.

Iowa R. Civ. P. 1.981(5). If reasonable minds can differ on how a material fact issue should be resolved, summary judgment should not be granted. Feld v. Borkowski, 790 N.W.2d 72, 75 (Iowa 2010). The evidence must be viewed in the light most favorable to the non-moving party. Geisler v. City Council of Cedar Falls, 769 N.W.2d 162, 165 (Iowa 2009). Summary judgment is appropriate if the moving party has met his or her burden of showing the non-existence of a material fact. Bank of the West v. Kline, 782 N.W.2d 453, 456 (Iowa 2010). The non-moving party is afforded every legitimate inference that can be reasonably deduced from the evidence. Id. at 456-57.

Chapter 22 of the Iowa Code governs the examination of public records and is designed to open the doors of government to public scrutiny. Gannon, 692 N.W.2d at 38 (quoting Iowa Civil Rights Commn v. City of Des Moines, 313 N.W.2d 491, 495 (Iowa 1981)). It provides that every person shall have the right to examine and copy a public record. Iowa Code 22.2(1) (2011). A public record is defined as all records, documents, tape or other information, stored or preserved in any medium. Iowa Code 22.1(3)(a). A government body is defined, in relevant part, as follows:
The term government body means this state, or any county, city, township, school corporation, political subdivision, tax-supported district, nonprofit corporation whose facilities or indebtedness are supported in whole or in part with property tax revenue or other entity of this state, or any branch, department, board, bureau, commission, council, committee, official, or officer of any of the foregoing or any employee delegated the responsibility for implementing the requirements of this chapter.

Iowa Code 22.1(1). Chapter 22 further provides that [a] government body shall not prevent the examination or copying of a public record by contracting with a nongovernment body to perform any of its duties or functions. Iowa Code 22.2(2). In other words, if an organization is performing a government function by virtue of a contract, the organization is subject to the open records law, as a government body may not outsourceits functions to a private corporation and thereby secret its doings from the public. Gannon, 692 N.W.2d at 39. In Gannon, the plaintiffs filed a petition pursuant to Chapter 22 seeking financial records from the Iowa State University Foundation, a private, not-for-profit corporation that managed private gift support for the universitys benefit. Gannon, 692 N.W.2d at 33-34. The plaintiffs argued that the Foundations function, history, purpose, activities, and close ties to ISU rendered it a government body subjecting it to the open records law. Id. at 38. The Gannon court did not reach this issue, as it determined that the Foundation was plainly performing a

government function by virtue of its contract with ISU, and therefore [Chapter 22] mandate[d] disclosure. Id. at 39. In reaching its conclusion that the Foundation performed a government function, the Gannon court undertook an intensive factual analysis of the relationship between ISU and the Foundation. The Foundation conducted itself as an independent, private corporation, whose purpose under its Article of Incorporation was to promote the welfare of ISU faculty, students, and alumni and to identify, cultivate and solicit donors for the exclusive benefit of ISU. Id. at 35. ISU and the Foundation had a service agreement in which ISU paid the Foundation $750,000 annually, while the Foundation managed funds donated directly to ISU, as well as funds donated directly to the Foundation in trust for the benefit of ISU. Id. at 36. The service agreement required that the ISU President be a voting member of the Foundations Board of Directors and Executive Committee. Id. The Foundation had access to ISUs telephone systems, computer systems, professional support and services available to University departments, and access to ISUs human resources services and benefit programs. Id. Furthermore, Foundation employees enjoyed privileges given to ISU employees, such as parking privileges, admission to athletic events, access to the ISU library and staff recreation and fitness programs. Id. ISU permitted the Foundations use of the ISU name, logo and website. Id. In light of these facts, the Gannon court concluded that the Foundations activities unmistakably advanced ISUs institutional goals. Id. at 40. ISU contracted away one of its functions: the ability to raise money and manage its finances. Id. at 42. As the Gannon court explained:
This is not to say [that Chapter 22] mandates disclosure whenever a private organization happens to perform a duty or function of a government body. Not every private entity performing an activity that may be characterized as a government function in theory must open its doors to public scrutiny. Cases must also be viewed in their factual context. Here there is an elaborate contractual arrangement between the government body and a

private organization, through which the private organization and the government enjoy a highly interwoven and symbiotic relationship.

Id. at 43. Thus, the court held that the Foundation performed a government function on behalf of ISU, which thereby mandated disclosure of the Foundations public records. Id. at 44. ANALYSIS In its Motion for Summary Judgment, the Defendant asserts that the Publications Board does not qualify as a government body defined by Chapter 22.1, Code of Iowa. Furthermore, it asserts that it does not perform any government functions for ISU, and thus, this case is distinguishable from Gannon. The Court will address each argument in succession. Plaintiff offers as legal authority a district court opinion from 1997, in which a trial judge held that the Publications Board was a government body for the purposes of Chapter 22. See Partnership Press, Inc. v. Iowa State Daily Publication Board et al., No. EQCV036893 at 8 (Iowa Dist. Ct. Story County March 21, 1997). While the Defendant accurately notes that this opinion is not binding precedent in this case, the district courts decision may provide persuasive authority to the court. In fact, as the court stated in Partnership Press, the court finds persuasive the notion that the Publications Board would likely not exist without its affiliation with the University. While certainly subscriptions and advertising fees comprise a substantial portion of the Publications Boards revenue, a genuine issue of material fact exists to the level of financial support from the University, including building space, maintenance and student activity fees. The Court concludes that a fact-finder must weigh the evidence to determine whether the amount of University support is so significant as to render the Publications Board a government body.

Defendant asserts that the Board is not a government body due its selfproclamation of such in the Memorandum of Agreement establishing Relationship between Iowa State University and the Iowa State Daily Publications Board. The Memorandum states that the Publication Board agrees to adhere to general standards applicable to the University, including [t]he general spirit and intent of the Iowa Open Meetings and Public Records laws. The parties current understanding is that the [Board] is not a governmental body as defined in Iowa Code Chapters 21 and 22, and is therefore not subject to adherence to the Iowa Open meetings and Public Records laws, or the remedial portions of those laws. (Def.s Mot. for SJ, App. 3). However, the Defendant has provided no authority to the Court supporting the theory that an entity may self-proclaim itself exempt from the definition of a government body, nor has the Court found any case law supportive of this proposition. It would appear unlikely that an entity can self-proclaim itself exempt from certain general laws merely by saying said laws do not apply to it. Moreover, a factual dispute also exists as to whether the Publications Board performs a government function. Certainly this case is distinguishable from Gannon, in that the Publications Board does not function for the exclusive benefit of the ISU, but rather for ISU students. However, the purposes outlined in the Publications Boards Articles of Incorporation further the goals of ISU, as it advances the educational experience for its students. Furthermore, certain facts are quite analogous to those in Gannon, including the Publications Boards access to ISUs human resources services and benefit programs, privileges given to ISU employees, (such as parking privileges, admission to athletic events), the use of the ISU name and logo and the ISU faculty members presence on the Board.

The Court is compelled to note that the Plaintiff has submitted numerous exhibits, many of which are largely irrelevant to the specific issue at this hearing. Plaintiffs lack of legal representation does not excuse him from adherence to the Rules of Civil Procedure and the Rules of Evidence. However, the Court determines that Plaintiff has supplied the record with enough relevant exhibits to create a genuine issue of material fact when viewed in the light most favorable to the Plaintiff. IT IS, THEREFORE, THE ORDER OF THE COURT that the Defendant ISU Daily Publications Boards Motion for Summary Judgment is hereby DENIED. IT IS FURTHER ORDERED that hearing on Defendants Motion for Summary Judgment, which was filed after the hearing on September 27, 2011, shall be held on Friday, October 28, 2011, at 10:00 a.m. in the Story County Courthouse in Nevada, Iowa.

Clerk to provide copies to: Attorneys of Record Parties Appearing Pro Se

State of Iowa Courts

Case Title: Case Number: Type:

CHAD BREWBAKER VS ISU DAILY PUBLICATIONS BD & CITY OF AMES CVCV046802 OTHER ORDER

So Ordered

Electronically signed on 2011-10-19 10:14:34

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