Freedom of information advocates baffled by state Supreme Court justice's ruling

By John Breslin | Dec 26, 2017

DES MOINES (Legal Newsline) - Freedom of information advocates remain baffled by the decision from a state Supreme Court justice to bar a newspaper from publishing publicly available information.

DES MOINES (Legal Newsline) - Freedom of information advocates remain baffled by the decision from a state Supreme Court justice to bar a newspaper from publishing publicly available information.

Iowa Supreme Court Justice David Wiggins issued an injunction against the Des Moines Register ordering it to not publish court filed documents in a case of a lawyer involved in a personal injury suit against the city.

Justice Wiggins lifted the ban a week later, but some are asking how he could have made his initial decision that is, on its face, contrary to state and federal law, precedent and the first amendment.

Wiggins, in his initial decision or even when reversing it, did not clearly explain the rationale behind the actions, one Iowa freedom of speech activist said.


Randy Evans, of the Iowa Freedom of Information Council, told Legal Newsline: "Quite frankly, I am baffled by it."

"Justice Wiggins is no babe in the woods," Evans added. "I am just stumped by it because the precedents at the national level and in Iowa do not indicate that this particular case rose to the level of allowing prior restraint."

If the newspaper reporter had broken into the lawyer's office and stolen documents containing the information, that could lead to an order banning publication, Evans explained.

"Absent any articulation of the rationale leaves the people of Iowa still in the dark for a justification," Evans said.  

On Dec. 11, Wiggins issued a temporary injunction ordering the Des Moines Register not to publish information the paper obtained from court records. The judge said that he needed time to decide on the wider aspects of the case. 

The court records included information about Jaysen McCleary, a lawyer suing the city of Des Moines. McCleary had asked that the information be sealed. A lower court ruled that it was publicly available information and should not be sealed. 

"The stay was strictly temporary in nature, its duration limited to the time necessary for the filing of the defendants’ response, the plaintiff’s reply and this court’s entry of a ruling on the plaintiff’s combined applications,” Wiggins said in his order overturning the injunction. 

In an email, McCleary told the Des Moines Register he plans to petition the U.S. Supreme Court, He believes "the prospect of obtaining justice is low."

"I anticipated Justice Wiggins to fold under the pressure from the media, especially given the last time our justices led the nation in doing the right thing three of them lost their job," McCleary wrote.

The attorney was referring to three justices losing their positions following a unanimous Iowa Supreme Court ruling that the state's ban on gay marriage was unconstitutional.

Wayne Giampietro, of the Chicago-based First Amendment Lawyers Association,  said the order "clearly and absolutely violated precedent, settled law and the first amendment."

And a temporary restraining order does not work, Giampietro told Legal Newsline, because the "U.S. Supreme Court has made clear you cannot put that in place even for a short period of time."

"This was an unusual act but ultimately he did the right thing and fixed it," Giampietro said.

This view that it was temporary and that it ended properly was echoed by Evans, of the Iowa Freedom of Information Council.

"But the rationale that he outlined when lifting the injunction certainly was not present in the initial order," Evans added.

According to the plaintiff's lawyer, the information, some of which was personal in nature, was filed by mistake. A judge later sealed the documents but not before they were obtained by the newspaper.

"Blame rests solely with the plaintiff's lawyer and then Justice Wiggins," said Evans. "I am uncertain as to why Wiggins made the decision but believe he would then regain his good name after the national hue and cry."

Evans questioned how Wiggins could be oblivious to the ramifications of such a restraining order, even for a week. "This was truthful information legally obtained and in the U.S. that is sacrosanct," Evans said. "Maybe he did not fully think it out."

While describing the order as a "very troubling blot" on the standard for a free press in Iowa, Evans said he hopes this is "our inoculation...against this occurring again for many years to come."

But it "still leave distaste in the mouth despite reversal," Evans added.

Two cases decided by the Iowa Supreme Court stand out as it relates to the state's freedom of information standards. Both involved the Des Moines Register and were decided decades ago. 

One involved a ward of the state who was involuntarily sterilized. The individual objected to publication on the grounds of invasion of privacy,  The court ruled that the information published related to what the government was doing and that outweighed privacy concerns.

The second case involving prior restraint related to naming jurors in the trial of a biker gang member. The court said it was not comfortable restraining publication of factual information.

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