IN THE SUPREME COURT OF IOWA

No. 21–1651

Submitted November 17, 2022—Filed December 16,2022

MICHELLE VACCARO,

Appellee,

vs.

POLK COUNTY, IOWA, and POLK COUNTY SHERIFF KEVIN SCHNEIDER,

Appellants.

Appeal from the Iowa District Court for Polk County, Lawrence P. 

McLellan, Judge.

The defendants seek reversal of discovery ruling compelling disclosure of 

allegedly confidential records in an enforcement action brought under Iowa Code 

chapter 22. REVERSED AND REMANDED WITH INSTRUCTIONS.

Waterman, J., delivered the opinion of the court, in which all justices 

joined.

John P. Sarcone, County Attorney, and Julie J. Bussanmas and Meghan 

L. Gavin, Assistant County Attorneys, for appellants.

Gary Dickey of Dickey, Campbell, & Sahag Law Firm, PLC, Des Moines,

for appellee.
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WATERMAN, Justice. 

In this interlocutory appeal, we revisit the interplay between our civil 

discovery rules and Iowa Code section 22.7(5) (2019), a confidentiality provision 

for police investigations in the Open Records Act. The plaintiff’s daughter was a 

passenger killed in a motorcycle crash. The plaintiff settled her tort action 

against the driver without subpoenaing the county sheriff’s investigative reports. 

She later questioned the adequacy of the criminal investigation against the 

driver, and requested all the department’s records. The sheriff produced some 

information but argued other records were confidential. The plaintiff brought this 

enforcement action under chapter 22 to obtain its complete investigation file. 

The district court, without ruling on their confidentiality, ordered the records 

produced to her in discovery before trial, citing Mitchell v. City of Cedar Rapids, 

926 N.W.2d 222, 228–29 (Iowa 2019) (holding discovery rules in tort action 

supersede section 22.7(5)). We granted the sheriff’s application for interlocutory 

appeal and retained the case.

On our review, we hold the district court erred by relying on civil discovery 

rules to compel production of the very records at issue in this chapter 22 

enforcement action. Mitchell was a tort action against the municipality and is 

inapplicable to this chapter 22 enforcement action against the records 

custodian. We reverse the discovery order and remand the case for the district 

court to first determine whether the investigation records at issue are 

confidential before granting relief, if any, under chapter 22.
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I. Background Facts and Proceedings.

Michelle Vaccaro’s seventeen-year-old daughter Jordan Leon was fatally 

injured in the early hours of October 6, 2019. Jordan was the passenger on a 

motorcycle operated by another seventeen-year-old, Kaden Close, who lost 

control on NW 6th Drive in rural Polk County near Ankeny. Close suffered minor 

injuries; Leon died at the scene. The Polk County Sheriff’s department responded 

to the 911 call and investigated the accident, which led to criminal charges 

against Close. 

Vaccaro had questions about her daughter’s death, and in the ensuing 

months received what she alleges were “incomplete and inconsistent 

explanations” from the Polk County prosecutor and the Sheriff’s department. 

Vaccaro became concerned that the crash investigation was not handled 

properly. Specifically, she wanted to know why the department did not

investigate whether the driver was impaired by drugs, why the motorcycle was 

destroyed before the criminal case ended, why key facts about his driving record 

were initially overlooked, and whether the investigation was handled according 

to department policy. On January 17, 2020, she made a public records request 

under Iowa Code chapter 22 for records concerning her daughter’s fatal crash. 

Within a week, the department provided her with the motor vehicle accident 

report, a preliminary criminal complaint, and an event chronology. Vaccaro 

continued to seek all of the Sheriff’s investigative materials. On February 4, the 

department responded that the remaining records were exempt from public 

access as peace officer investigative reports under Iowa Code section 22.7(5).
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On February 15, Close pleaded guilty to failure to maintain control of his 

motorcycle in violation of Iowa Code section 321.288(1), a simple misdemeanor.

Vaccaro was notified that the criminal investigation and prosecution was 

complete and that no other charges would be filed. Meanwhile, Vaccaro had 

retained a personal injury lawyer to pursue civil claims against Close. On April 4, 

the Sheriff’s department provided Vaccaro’s lawyer with audio of the 911 call and 

the department’s general policies regarding accident investigations. The 

department also provided a log of investigation materials withheld as confidential 

under section 22.7(5), including photos, diagrams, witness statements, in-car 

camera audio and video, deputy incident reports and supplemental reports, 

towing and impound reports and inventory, and a “Victim Resource Incident 

Report.”

Vaccaro settled her civil wrongful death claim against Close without 

attempting to use civil discovery or subpoena powers to obtain the department’s 

investigative materials. Instead, on June 15, she filed this enforcement action 

under Iowa Code chapter 22 against the County and Sheriff to obtain the 

remaining records. The defendants answered by asserting the records were 

exempt from disclosure under section 22.7(5). Vaccaro’s counsel served a 

request for production, which met the same objection. Vaccaro filed a motion to 

compel discovery, which the defendants resisted. The district court reviewed the 

records in camera. On October 5, 2021, without ruling on whether the records 

were exempt under section 22.7(5), the court ordered them produced to 

Vaccaro’s counsel under the discovery rules, relying on Mitchell. The court 
5

imposed a protective order preventing Vaccaro from releasing the records 

without court approval pending resolution of the chapter 22 proceeding. The 

order stated:

The court is ordering production of these records to plaintiff’s 

counsel under the protection set forth in this order so plaintiff can 

prosecute her case. The court does not believe a plaintiff who brings 

a chapter 22 enforcement action is precluded from reviewing the 

documents at issue prior to trial. If that is the law a plaintiff would 

be severely handicapped in their ability to prosecute their case.

The court set trial for December 9. 

The County filed an application for interlocutory appeal, arguing that 

Mitchell is inapplicable in a chapter 22 action and that records should not be 

turned over before the court determines whether the section 22.7(5) exemption 

applies. We granted the application and retained the case.

II. Standard of Review.

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

of errors at law.” Mitchell, 926 N.W.2d at 228 (quoting Iowa Film Prod. Servs. v. 

Iowa Dep’t of Econ. Dev., 818 N.W.2d 207, 217 (Iowa 2012)). We review discovery 

rulings for abuse of discretion. Id. at 227. “A ruling based on an erroneous 

interpretation of a discovery rule can constitute an abuse of discretion.” Id.

(quoting Mediacom Iowa, L.L.C. v. Inc. City of Spencer, 682 N.W.2d 62, 66 (Iowa 

2004)).

III. Analysis.

We must decide whether the district court put the cart before the horse.

The County argues that the records at issue are peace officer investigative reports 
6

exempt from disclosure under Iowa Code section 22.7(5).

1 Vaccaro, relying on 

Mitchell, argues she can obtain the records in discovery in this chapter 22 action 

before the district court rules on whether they are exempt from disclosure under 

section 22.7(5), and the district court agreed with her. The County argues the 

discovery ruling was premature and eviscerates the statutory protection for 

police investigative reports and other exempt records. We agree with the County 

that the district court first must determine whether the records are exempt 

before deciding whether Vaccaro is entitled to obtain them.

We begin with an overview of Iowa Code chapter 22, the Open Records Act, 

also known as the Iowa Freedom of Information Act (IFOIA), which “embodies ‘a 

liberal policy in favor of access to public records.’ ” Milligan v. Ottumwa Police 

Dep’t, 937 N.W.2d 97, 102 (Iowa 2020) (quoting Mitchell, 926 N.W.2d at 229).

“The purpose of [chapter 22] is ‘to open the doors of government to public 

scrutiny [and] to prevent government from secreting its decision-making 

1Iowa Code section 22.7(5) provides:

The following public records shall be kept confidential, unless otherwise 

ordered by a court, by the lawful custodian of the records, or by another person 

duly authorized to release such information:

. . . .

5. Peace officers’ investigative reports, privileged records or information 

specified in section 80G.2, and specific portions of electronic mail and telephone 

billing records of law enforcement agencies if that information is part of an ongoing 

investigation, except where disclosure is authorized elsewhere in this Code.

However, the date, time, specific location, and immediate facts and circumstances 

surrounding a crime or incident shall not be kept confidential under this section, 

except in those unusual circumstances where disclosure would plainly and 

seriously jeopardize an investigation or pose a clear and present danger to the 

safety of an individual. Specific portions of electronic mail and telephone billing 

records may only be kept confidential under this subsection if the length of time 

prescribed for commencement of prosecution or the finding of an indictment or 

information under the statute of limitations applicable to the crime that is under 

investigation has not expired.
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activities from the public, on whose behalf it is its duty to act.’ ” Mitchell, 926 

N.W.2d at 229 (alterations in original) (quoting City of Riverdale v. Diercks, 806 

N.W.2d 643, 652 (Iowa 2011)). “ ‘The Act essentially gives all persons the right to 

examine public records . . . [but] then lists specific categories of records that 

must be kept confidential . . . .’ ‘The general assembly [thereby] created and fixed 

the limitations on disclosure.’ ” Id. (alterations and omissions in original)

(citation omitted) (quoting ACLU Found. of Iowa, Inc. v. Recs. Custodian, Atl. 

Cmty. Sch. Dist., 818 N.W.2d 231, 232–33 (Iowa 2012)). “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.” Id. (quoting Diercks, 806 

N.W.2d at 652). 

The County acknowledges that it bears the burden to establish the records 

withheld from Vaccaro are exempt from disclosure under section 22.7(5). The 

problem is the district court short-circuited the proceedings by ordering the 

County to produce the records to Vaccaro before ruling on the exemption. The 

district court misapplied Mitchell. 

Mitchell is distinguishable. In that case, Cedar Rapids police officer Lucas 

Jones was on patrol at night and stopped a truck operated by Jerime Mitchell

for a broken taillight. Id. at 225. What happened next was depicted on the 

dashcam:

Mitchell got out of the truck and resisted Officer Jones’s efforts to 

handcuff him. The two men wrestled to the ground. Officer Jones’s 

police dog, Bane, joined the fray. Mitchell forced his way up and 

back into his driver’s seat and began driving off with Officer Jones 

clinging to the open door. Officer Jones unholstered his handgun 
8

and fired three shots before jumping or falling off the moving truck. 

A bullet wound near Mitchell’s cervical spine left him paralyzed from 

the neck down.

The incident received widespread media coverage and intense 

public interest. Protesters marched on city hall demanding the 

release of the squad car’s dash camera footage, which the City 

released to the public.

Id. at 225–26 (footnote omitted). Mitchell filed a tort action against the city and 

Officer Jones seeking compensatory and punitive damages. Id. at 226. During 

discovery in his tort action, Mitchell sought the police investigative reports; the 

city produced some information and withheld other records as confidential under 

section 22.7(5). Id. The district court ordered the city to produce reports 

generated within ninety-six hours of the incident, and denied the city’s motion 

for a protective order. Id. at 226–27. We granted the city’s application for 

interlocutory appeal, and affirmed. Id. at 227, 236.

We determined that the civil discovery rules entitled Mitchell to access to 

the city’s police investigation in his tort action against the city:

The Mitchells sought the police investigative reports under the 

discovery rules as litigants suing Officer Jones and his employer, 

the City of Cedar Rapids. We have previously addressed the tension 

between our discovery rules and the confidentiality provisions in 

Iowa Code section 22.7. In Mediacom, we observed, “Iowa Code 

chapter 22 pertains to parties seeking access to government 

documents and ordinarily has no application to discovery of such 

information in litigation.” Iowa Code section 22.7 does not create a 

“true privilege against discovery of . . . confidential information.” 

“[T]here is nothing in section 22.7 that suggests the legislature 

intended to limit the discovery rights of litigants in cases involving 

governmental entities.” “To the contrary, section 22.7 indicates the 

opposite because it allows disclosure upon a court order.” 

“[S]ection 22.7 does not trump our discovery rules.” Nevertheless, 

the confidentiality the legislature prescribed for certain government 

records can be safeguarded through a protective order allowing the 
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litigants use of the records in the lawsuit while preventing disclosure 

to the public.

Id. at 228–29 (alterations and omission in original) (quoting Mediacom, 682 

N.W.2d at 66–69) (citations omitted). We made clear in Mitchell we were resolving 

a civil discovery dispute in a tort action against the city. See id.

By contrast, Vaccaro is not using the discovery rules in her own tort action 

against the County. She settled her tort action against the motorcycle driver 

without deposing the investigating deputies or subpoenaing their reports, 

photos, or video. Her only lawsuit against the County is this enforcement action 

under chapter 22. Mitchell is inapposite, and Vaccaro’s reliance on another civil 

discovery dispute, Mediacom Iowa, L.L.C. v. Inc. City of Spencer, is equally 

misplaced. See Mediacom, 682 N.W.2d at 66, 69 (allowing discovery of 

confidential municipal records in declaratory judgment action challenging the 

city’s use of tax revenue to finance a communications center). Neither case 

involved a direct chapter 22 enforcement action against the records custodian to 

adjudicate the exempt status of public records.

“The public records act is generally distinct from our discovery rules.” 

Mitchell, 926 N.W.2d at 236 (Appel, J., concurring specially). “Many federal 

decisions hold that a document exempt from production through an open 

records law may still be produced in discovery.” Id. (collecting cases). The fact a 

document is discoverable in a tort action against a municipality does not mean 

discovery can be used in a chapter 22 enforcement action to obtain otherwise 

exempt records from the same government entity.
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The district court should have applied the statute’s burden-shifting 

procedure set forth in section 22.10(2)2 and allowed the County to show whether 

the investigative reports were exempt from disclosure under section 22.7(5).

Neither Vaccaro nor the district court cite any case decided in a state or federal 

FOIA-enforcement proceeding that compelled disclosure of allegedly exempt 

records through discovery before determining whether the records were exempt. 

“While ordinarily the discovery process grants each party access to evidence, in 

FOIA and Privacy Act cases discovery is limited because the underlying case 

revolves around the propriety of revealing certain documents.” Lane v. Dep’t of 

Interior, 523 F.3d 1128, 1134 (9th Cir. 2008) (affirming prediscovery summary 

judgment based on government affidavits and FOIA exemption); see also John 

Doe Agency v. John Doe Corp., 493 U.S. 146, 153 (1989) (“In deciding whether 

[the law enforcement report exemption] applies, . . . a court must be mindful of 

this Court’s observations that the FOIA was not intended to supplement or 

displace rules of discovery.”). “It is well established that discovery is rare in FOIA 

cases.” Cole v. Rochford, 285 F. Supp. 3d 73, 76 (D.D.C. 2018) (denying motion 

for limited discovery in FOIA action). “Indeed, in the FOIA context, courts have 

permitted discovery only in exceptional circumstances where a plaintiff raises a 

2Iowa Code section 22.10(2) provides:

Once a party seeking judicial enforcement of this chapter demonstrates to the 

court that the defendant is subject to the requirements of this chapter, 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, the burden of going forward shall be on the defendant to demonstrate 

compliance with the requirements of this chapter.

See also Ripperger v. Iowa Pub. Info. Bd., 967 N.W.2d 540, 549–50 (Iowa 2021) (discussing 

shifting burden under section 22.10(2)).
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sufficient question as to the agency’s good faith in searching for or processing 

documents.” Id. Vaccaro presents no such question here.

We have never held the requesting party in a chapter 22 enforcement 

action may obtain allegedly exempt government records simply by filing a request 

for production before the court rules on the exemption. To the contrary, we have 

held that the party opposing release is entitled to an evidentiary hearing first.

In re Langholz, 887 N.W.2d 770, 777–78 (Iowa 2016) (remanding for hearing to 

determine confidentiality); see also Gabrilson v. Flynn, 554 N.W.2d 267, 274 

(Iowa 1996) (affirming injunction to prevent release of confidential school 

records); cf. Calcaterra v. Iowa Bd. of Med., 965 N.W.2d 899, 908 (Iowa 2021) 

(holding confidentiality provision in Iowa Code section 272C.6(4)(a) precludes 

public release of investigative information in a statement of charges “when there 

has been no underlying final decision in the disciplinary proceeding”).

Sequence matters. To require disclosure before a ruling on the exemption 

undermines the confidential status the legislature provided police reports under 

section 22.7(5). See Arabo v. Mich. Gaming Control Bd., 872 N.W.2d 223, 241 

(Mich. Ct. App. 2015) (“In the first instance, merely granting a right to inspect 

all of the records would carry the risk of divulging exempt materials and thus 

circumvent the very aim of the FOIA to balance the public’s right to disclosure 

of public records with the right to shield some ‘affairs of government from public 

view.’ ” (quoting King v. Mich. State Police Dep’t, 841 N.W.2d 914, 921 (Mich. Ct. 

App. 2013))).
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We reiterate that “[p]olice investigative reports do not lose their confidential 

status when the investigation closes.” Mitchell, 926 N.W.2d at 225 (majority 

opinion). We employ a case-specific balancing test to guard against the chilling 

effect public disclosure could have on police investigations:

Determining where the line falls between public harm and public 

good requires weighing the relative merits of the interests at stake. 

We have long recognized that confidentiality encourages persons to 

come forward with information, whether substantiated or not, that 

might be used to solve crimes and deter criminal activity. Secrecy is 

especially vital where reports are based on confidential informants, 

persons indispensable to successful police work but who frequently 

fear intimidation and reprisal. Furthermore, nondisclosure permits 

law enforcement officials the necessary privacy to discuss findings 

and theories about cases under investigation.

Id. at 233 (quoting Hawk Eye v. Jackson, 521 N.W.2d 750, 753 (Iowa 1994)); see 

also State ex rel. Shanahan v. Iowa Dist. Ct., 356 N.W.2d 523, 529–30 (Iowa 1984) 

(“[T]he State has a very real interest in protecting the relative secrecy of much of 

the information its agents gather, analyze, and record during their investigation 

of criminal activity and crimes.”). The Sheriff’s reports were generated in a 

criminal investigation into a juvenile’s motorcycle accident that caused a fatality. 

It makes little sense to turn over the criminal investigative reports in discovery 

in a chapter 22 proceeding before applying the balancing test to adjudicate 

whether the records are exempt from disclosure. To do so would grant Vaccaro 

relief before determining whether she is entitled to relief. As the United States 

Court of Appeals for the Second Circuit aptly observed: “Discovery here would 

essentially grant [the plaintiff] the substantive relief it requests: disclosure of 

documents that the [defendant] claims are exempt. Thus, [the plaintiff] is not 

entitled to discovery of documents claimed to be exempt.” Loc. 3, Int’l Bhd. of 
13

Elec. Workers v. NLRB, 845 F.2d 1177, 1179 (2d Cir. 1988) (affirming denial of 

motion to compel production of records at issue in a FOIA action). The district 

court jumped the gun.

We are not persuaded by the district court’s rationale—that Vaccaro had 

to examine the records to prosecute her open records action. To the contrary, 

exemption claims under section 22.7 typically are resolved categorically without

examination by the requesting party first, or by the court in camera. See, e.g.,

id. at 1179–80 (noting that in camera review in FOIA action is the exception, not 

the rule); Mitchell, 926 N.W.2d at 229–30.

We hold the district court abused its discretion by ordering the Sheriff’s 

investigative reports at issue turned over to Vaccaro’s counsel before the court 

adjudicated whether the records were exempt from disclosure under 

section 22.7(5).

IV. Disposition.

For the foregoing reasons, we reverse the district court’s discovery ruling 

compelling disclosure of the Sheriff’s investigation materials to Vaccaro’s 

counsel. We remand the case for further proceedings consistent with this 

opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.