Davenport DCI report must be made public
Decision not to file charges and avoiding the public harm of nondisclosure are at issue
Three months ago, Scott County Attorney Kelly Cunningham said she would not file criminal charges in the partial collapse of a 6-story apartment building in downtown Davenport in 2023.
The decision came after an inquiry by the Iowa Division of Criminal Investigation. In explaining her decision to the Quad-City Times, Cunningham cited the findings of the DCI report.
Now, she wants to keep the report secret.
In a petition filed recently, Cunningham’s office asked the Iowa Public Information Board to keep the report confidential. The Iowa Department of Public Safety, which oversees the DCI, is siding with the analysis by the county attorney’s office.
We’ve heard this song before.
Three decades ago, the county attorney for Burlington decided not to file charges against a police officer who had been accused of using excessive force.
As in Davenport, there was a great deal of public controversy.
As in Davenport, civil suits were filed.
As in Davenport, the decision not to charge came after an inquiry by the DCI. The police chief and city manager also chose not to impose disciplinary measures against the officer after reviewing the DCI inquiry.
Curious about their rationale, the Burlington newspaper, the Hawk Eye, sought access to the DCI report.
As in Davenport, it was denied.
As in Davenport, the state sided with local officials, arguing against disclosure.
The forces urging secrecy in Burlington raised multiple objections to the report’s release: Disclosure might compromise confidentiality and future investigations; potentially libelous revelations could result; the state could be flooded with requests for future reports.
The Hawk Eye persisted.
“The only way to determine the reasonableness of these decisions is to examine the information upon which those officials relied — the DCI report,” the newspaper argued in a brief before the Iowa Supreme Court.
If the report was not released, “local officials will always be able to argue their decisions were reasonable, based on the facts contained in a report, regardless of the report’s actual contents, as that information will not be known to the general public,” the newspaper said.
A district judge had used virtually the same reasoning in ruling in favor of the Hawk Eye.
“The plaintiffs have shown that there are no other means for discovering the information that is sought,” the judge wrote in his opinion. The decisions of the police chief, city manager and county attorney “were explicitly based in large part or whole on the DCI report, the contents of which have not been made available to the public generally.”
“The only manner in which the (Hawk Eye) and the public can examine those decisions made by their appointed and elected local officials is to have access to the contents of the DCI report,” he said.
The Iowa Supreme Court affirmed the decision. It even rejected the claim that private interviews or one of the civil suits, which resulted in a finding at odds with the decisions not to sanction the officer, provided an alternative way to gain the same information.
“So long as it is barred from seeing the report, the newspaper is effectively prevented from assessing the reasonableness of the official action. Like the district court, we believe that neither the trial testimony nor independent witness interviews would shed light on that assessment,” the Supreme Court wrote in Hawk Eye v. Jackson.
These same concerns are present in Davenport.
The civil suits here haven’t come to a conclusion, but whatever the results, they surely won’t provide the same information as the DCI report that Cunningham used in deciding not to file charges.
The public harm of nondisclosure
Unlike in Burlington, the Scott County Attorney’s office argues the report should be kept secret for different reasons than the ones cited in the 1990s. Here, the office refers to a provision in state law that allows confidentiality in those “unusual circumstances where disclosure would … pose a clear and present danger to the safety of an individual.”
The individuals in this case are Andrew Wold, who was the building owner at the time of the collapse, the property manager and unnamed city officials.
Cunningham’s office cites death threats that have been received by Wold and the property manager and threats against city officials, saying release of the DCI report “could result in … potentially violent activity.”
The office said it “desires a decision that the potential harm of releasing the report outweighs the public benefit.”
These threats, obviously, are of serious concern and ought to be dealt with by the authorities.
Still, it is not yet clear the release of the DCI report, by itself, would directly lead to a “clear and present danger” to the safety of the people involved.
In Wold’s case, he has reportedly changed his name and moved out of state.
I’m also not sure the public harm of nondisclosure has been adequately considered in this case.
The benefit of disclosure, as Cunningham’s office puts it in its brief, doesn’t just derive from a general sense of transparency in the operation of government or the idea that the public should be able to see a report its taxpayer dollars paid for.
A central element of this tragedy, in which three people were killed and the leg of a fourth person was amputated to free her from the wreckage, has been oversight of the building by the City of Davenport.
Cunningham’s concern for the safety of Davenport city officials presumably means the report has a bearing on this question. If so, it seems quite possible that the nondisclosure of the DCI report may stop us from learning lessons that could help prevent a future tragedy of the same sort.
In Burlington, the Supreme Court found in favor of the Hawk Eye, writing that “any public harm created by the disclosure of the DCI investigatory report is far outweighed by the public harm accruing from its nondisclosure.”
I believe the same may be true in Davenport.
The public has the right to fully assess Cunningham’s decision not to file charges. If we aren’t able to see the DCI report, how can we judge the “reasonableness of the official action?”
The public also has the right to see a report that might play a role in avoiding a future calamity, thereby avoiding the public harm of nondisclosure.
For both of these reasons, it is in the public’s interest to release the DCI report.
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I have always appreciated creative lawyering But sorry Kelly there is no " public harm "exception.Once you decided there are to be no criminal charges the report becomes public information.
Thanks for your perseverance, Ed. I suspect some people in city hall and county attorney's office are banking on the lack of public interest, as proven by the 2023 election results, for the issue to be swept under the rug. Release of the DCI report could be the atom that sparks a demand for names and accountability; and perhaps absolve any innocent person(s).