IN THE SUPREME COURT OF IOWA

No. 10–1719

Filed July 27, 2012

IOWA FILM PRODUCTION SERVICES;

MISSISSIPPI FILMS, INC.; POLYNATION

PICTURES, INC.; FIELD OF SCREAMS, LLC;

UNDERGROUND FILMS, INC.; TICKET OUT

PRODUCTIONS; TRICOAST IOWA PRODUCTIONS,

LLC; GPX DEVELOPMENT, LLC; SEPTEMBER 

PRODUCTIONS LLC; LUCKY MP, LLC; and

RECESS FILM PRODUCTION, LLC,

Appellees,

vs.

IOWA DEPARTMENT OF ECONOMIC

DEVELOPMENT,

Appellant,

and

DES MOINES REGISTER & TRIBUNE

COMPANY,

Intervenor.

Appeal from the Iowa District Court for Polk County, Artis I. Reis, 

Judge.

The State appeals from an order obtained by producers of films 

that registered for state tax credits directing that the films’ final budget 

summaries be kept confidential. DISTRICT COURT JUDGMENT 

REVERSED AND CASE REMANDED.
2

Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Deputy 

Attorney General, Adam Humes, Assistant Attorney General, for 

appellant.

Jonathan C. Wilson, Scott M. Brennan, and Sarah E. Crane of 

Davis, Brown, Koehn, Shors and Roberts, P.C., Des Moines, for 

appellees.
3

MANSFIELD, Justice.

This case requires us to decide whether filmmakers receiving tax 

credits from the State of Iowa under the State’s tax credit program can 

enjoin the State from releasing summaries of their films’ final budgets to 

the public. We conclude they cannot. On this record, the budget 

summaries do not qualify as trade secrets under Iowa Code section 

22.7(3) (2009). Nor can they be considered “[r]eports to governmental 

agencies which, if released, would give advantage to competitors and 

serve no public purpose” under Iowa Code section 22.7(6). Finally, the 

filmmakers have failed to meet section 22.8’s requirements for injunctive 

relief by demonstrating disclosure would “clearly not be in the public 

interest” and would “substantially and irreparably injure any person or 

persons.” Accordingly, we reverse the judgment of the district court and 

remand for further proceedings.

I. Facts and Procedural History.

In 2007, the Iowa General Assembly created the Film, Television, 

and Video Project Promotion Program (the “Film Program”).1 See 2007 

Iowa Acts ch. 162, § 1 (codified as amended at Iowa Code §§ 15.391–.393

(2009)). The purpose of the Film Program was 

to assist legitimate film, television, and video producers in 

the production of film, television, and video projects in the 

state and to increase the fiscal impact on the state’s 

economy of film, television, and video projects produced in 

the state.

Iowa Code § 15.392. In the fall of 2009, after an audit uncovered abuses, 

the governor administratively suspended the Film Program. The program 

 1The State has requested that we take judicial notice of various criminal 

proceedings and a report of the state auditor relating to the Film Program. We deny the 

request and base our factual summary on the record as made below.
4

was legislatively suspended in April 2010. See 2010 Iowa Acts ch. 1138,

§ 5 (codified at Iowa Code § 15.393(5) (2011)).

While it was in operation, the Film Program was administered by 

the Iowa Department of Economic Development (IDED). See Iowa Code

§ 15.393(1) (2009). Filmmakers had to register their projects with IDED. 

Id. To be registered, a project had to be “a legitimate effort to produce an 

entire film . . . or . . . video segment in the state,” had to spend at least 

$100,000 in Iowa, and had to “have an economic impact on the economy 

. . . sufficient to justify assistance under the program.” Id.

§ 15.393(1)(a)–(b).

Projects registered with IDED under the Film Program were eligible 

to receive two separate twenty-five percent transferable tax credits. See 

id. § 15.393(2)(a)(1), (b)(1).2 The Film Program was promoted 

(inaccurately, according to the State) as “half-price filmmaking.”

Plaintiffs Iowa Film Production Services, Mississippi Films, Inc.,

Polynation Pictures, Inc., Field of Screams, LLC, Underground Films, 

Inc., Ticket Out Productions, TriCoast Iowa Productions, LLC, GPX 

Development, LLC, September Productions LLC, Lucky MP, LLC, and 

Recess Film Production, LLC (collectively “Producers”) all sought to take 

part in the Film Program. Each of them completed an “Application for 

Registration” and submitted it to IDED. See Iowa Admin. Code r. 261—

36.3 (2009).

The application form required information to be provided 

regarding: the project title, a synopsis of the project, the production 

company to receive incentive, lead production names and contacts,

 2The credits could be transferred to “any person or entity” and offset against 

various taxes owed to the State of Iowa. Iowa Code § 15.393(2)(a)(3). Typically, they 

would be sold through a broker to a person or entity with existing state tax liability.
5

production dates, production type, format, distribution, current 

production budget, qualified in-state expenditures, and a schedule of

project investors.

In addition, the application asked the filmmaker to indicate 

whether there was information in the application “for which the business 

[was] requesting confidential treatment.” If so, the application referred 

the filmmaker to the following notice:

NOTICE TO APPLICANTS—OPEN RECORDS

PLEASE NOTE: UPON SUBMISSION OF A SIGNED

APPLICATION, THE CONTENTS AND ATTACHMENTS TO 

THIS APPLICATION FOR REGISTRATION IN THE IOWA 

FILMS TELEVISION AND VIDEO PROJECT PROMOTION 

PROGRAM ARE PUBLIC RECORDS WHICH ARE AVAILABLE 

FOR PUBLIC INSPECTION AND COPYING.

INFORMATION SUBMITTED WITH THIS APPLICATION MAY 

BE TREATED CONFIDENTIAL IF:

(1) IT MEETS THE LEGAL REQUIREMENTS FOR 

CONFIDENTIAL STATUS, AND

(2) THE APPLICANT FILES A WRITTEN REQUEST FOR 

CONFIDENTIALITY, AND

(3) THE DEPARTMENT ISSUES WRITTEN 

CONFIRMATION THAT THE INFORMATION MEETS THESE 

REQUIREMENTS AND WILL BE TREATED AS 

CONFIDENTIAL.

IF NO REQUEST FOR CONFIDENTIAL TREATMENT OF 

RECORDS IS MADE, THE DEPARTMENT WILL PROCEED 

AS IF THE APPLICANT HAS NO OBJECTION TO 

DISCLOSURE TO MEMBERS OF THE PUBLIC.

Iowa’s Open Records Law. The Iowa Department of 

Economic Development (IDED) is a state agency and it is 

subject to Iowa’s Open Records law (Iowa Code, Chapter 22). 

Treatment of information submitted to IDED in this 

application is governed by the provisions of the Open 

Records law. All public records are available for public 

inspection. Some public records are considered confidential 

and will not be disclosed to the public unless ordered by a 

court, the lawful custodian of the record, or by another 

person duly authorized to release the information.
6

Legal requirements for confidential treatment of public 

records.

The information submitted as part of this application 

information will be available for public inspection, unless a 

request for confidentiality has been submitted by the 

applicant in the required form and approved in writing by 

IDED. Following are the classifications of records which are 

recognized as confidential under Iowa law and which are 

most frequently applicable to business information 

submitted to IDED:

Trade secrets [Iowa Code § 22.7(3).]

Reports to governmental agencies which, if released, 

would give advantage to competitors and serve no public 

purpose. [Iowa Code § 22.7(6).]

. . . .

Communications not required by law, rule or 

regulation made to IDED by persons outside the government 

to the extent that IDED could reasonably believe that those 

persons would be discouraged from making them to the 

Department if they were made available for general public

examination. [Iowa Code § 22.7(18).]

In addition, the notice listed “Helpful Resources,” which included links to 

the Iowa Open Records law, IDED administrative rules, and the Iowa 

Attorney General’s website.

After this notice, the application set forth instructions for 

completing a “Request for Confidential Treatment Form.” Both an 

example of a completed form and a blank form were provided. The 

instructions stated, “IDED will review the request and provide written 

confirmation to you of its approval or denial.”

The form required the filmmaker to “state which section(s) of the 

application you want kept confidential” and to indicate a “[l]egal basis for 

[the] request.” Several potential grounds for confidential treatment could 

be checked including the three statutory grounds already noted—Iowa 

Code sections 22.7(3), (6), and (18). A catchall option was also provided:
7

“Other (provide legal citation e.g. reference to a state or federal law not 

listed above).”

The sample completed form included a request that “[b]udget and 

in-state expenditures sections and all investor contact names and 

numbers” be kept confidential. It had only the section 22.7(18) box 

checked, with the following explanation:

Releasing the exact amounts budgeted for “talent”, 

“producer” or “director” or other above-the-line costs would 

give an unfair advantage to competitors and serves no public 

purpose. If our competitors knew how much of the total 

project budget was allocated to these categories they would 

be able to undercut negotiating strength otherwise present in 

private agreements.

The ensuing paragraphs of the application contained various 

statements and certifications. Among other things, the filmmaker was 

required to acknowledge and agree that its books would be subject to 

audit and that it would be required to sign a contract. Finally, just 

before the signature block, the application contained a multiparagraph 

“Certification & Release of Information”:

Certification & Release of Information

. . . .

I [the applicant] understand that certain information 

submitted to IDED related to this application may be subject 

to Iowa’s Open Record Law (Iowa Code, Chapter 22).

I understand this application is subject to final approval by 

IDED and the Project may not be initiated until final 

approval is secured.

I hereby certify that all representations, warranties, or 

statements made or furnished to IDED in connection with 

this application are true and correct in all material 

respect[s]. 

Below the signature block was a section entitled, “For IDED use 

only.” In that section, IDED could indicate “Application approved” or 
8

“Application denied.” As noted, each of the Producers submitted at least 

one completed application to IDED. In several instances, but not all, 

IDED completed this internal use section and marked “Application 

approved.” In any event, it is not disputed that each of the Producers’ 

applications was approved.3

Each of the Producers also completed a “Request for Confidential 

Treatment” form as part of its application. The legal grounds given for 

the requests were either section 22.7(6)—“[r]eports to governmental 

agencies which, if released, would give advantage to competitors and 

serve no public purpose”—or section 22.7(18):

[c]ommunications not required by law, rule or regulation 

made to IDED by persons outside the government to the 

extent that IDED could reasonably believe that those 

persons would be discouraged from making them to the 

Department if they were made available for general public 

examination.

Although section 22.7(3)’s exemption for trade secrets was provided as 

an additional option, none of the Producers checked this box as a 

requested ground for keeping their information confidential.

As noted above, each Producer was required to execute a contract 

with IDED upon approval of its application. See Iowa Admin. Code r. 

261—36.5(2). Among other things, the contract required the Producer to 

submit a schedule of qualified expenses, known as a “FORM Z: Final 

Budget Expenditure Report,” once the project was completed. The Form 

Z was not part of the application itself, nor logically could it be, since 

actual expenses would not be known until the film had been made.

Form Z’s were used by IDED to verify the eligibility of expenditures 

for the tax credits. See Iowa Code § 15.393(2)(a)(3); Iowa Admin. Code r. 

 3Apparently, when an application was approved, IDED issued an award letter.
9

261—36.7(4). A completed Form Z detailed all qualified expenditures on 

the film project.

In addition, each Form Z contained a two-page summary (the Form 

Z Summary). Instead of the detail provided in the Form Z itself, the 

Form Z Summary set forth totals for forty-six categories of expenses, 

such as “STORY & RIGHTS,” “WRITING,” “PRODUCER & STAFF,” 

“DIRECTOR & STAFF,” and “TALENT & STAFF.”

Of the Producers, six of them—Iowa Film Production Services, 

Mississippi Films, Inc., Polynation Pictures, Inc., Ticket Out Productions, 

Field of Screams, LLC, and Underground Films, Inc.—submitted at least 

one Form Z. However, only the first four of these Producers—Iowa Film 

Production Services, Mississippi Film, Inc., Polynation Pictures, Inc., and 

Ticket Out Productions—received certificates granting the qualified 

expenditure tax credits. See Iowa Code § 15.393(2)(a)(3). These tax 

credits totaled over $14 million. It is not disputed that the overall dollar 

amount of tax credits awarded to any project by IDED is public 

information.

In the fall of 2009, public interest in the Film Program began to 

mount as certain irregularities came to light. Consequently, IDED 

received requests for public records regarding the Film Program from two 

television stations, a Des Moines attorney, and the Des Moines Register 

& Tribune Company, the intervenor in this case.4 Based on these 

requests, IDED sent letters to all registrants in the Film Program to 

inform them how IDED planned to move forward with the release of their 

information. In its initial letter dated November 20, 2009, IDED 

acknowledged that the registrants had “requested confidential treatment 

 4The Des Moines Register intervened in the action in support of IDED’s position.
10

of some or all of the budget and investor information relating to [their] 

project[s]” and that “[i]nitially, IDED agreed to maintain the information 

as confidential as [they] requested.” However, the November 20 letter 

went on to state:

In light of recent events, IDED has reassessed the 

information you submitted with a request for confidential 

treatment and has concluded that the budget and investor 

documents you submitted should no longer be kept 

confidential. In making this decision, IDED considered 

several factors, in addition to the strong public interest in 

disclosure . . . . These factors include: (1) whether the 

records contain the type of information that qualifies for 

confidential treatment, (2) whether the records contain 

information that could be used by a competitor to gain an 

economic advantage, and (3) whether release of the 

information would result in an adverse financial impact. On 

balance, IDED has concluded that the need for 

confidentiality of budget and investor information is 

outweighed by the public’s right to information about IDED’s 

activities in connection with the Film Program.

In this initial letter, IDED explained its plan to release “all of the budget 

and investor documents [registrants] submitted as part of [their] 

application in the Film Program and either Form Z or another final 

budget expenditure report.” IDED advised that the information would be 

released on December 8, 2009, ten business days from the date of the 

letter, unless the registrants filed a petition requesting an injunction 

under Iowa Code section 22.8.

However, on December 8, 2009, IDED did not disclose the records 

but instead sent another letter to the registrants, which stated:

Since [November 20, 2009], IDED and the AG’s Office 

have been in discussions both with some of the entities that 

made public records requests and with members of the film 

industry. Based on these discussions, IDED, again in 

consultation with the AG’s Office, has decided to change its 

plans in an effort to address the concerns raised by 

representatives of the film industry, while still meeting 

IDED’s responsibilities under Iowa’s Public Record Laws. 

Specifically, IDED only will release the summary section of 
11

Form Z for film projects that have submitted information to 

IDED in order to receive tax credits. . . . A generic summary 

section of a Form Z has been attached for your review.

These records will be released on December 11, 2009, 

unless you file a petition to request an injunction pursuant 

to Iowa Code section 22.8 prior to that date.

A number of registrants responded that they consented to the 

release of their Form Z Summaries. The Producers, however, filed an 

action for a temporary injunction and other relief in the Polk County 

District Court.

In their petition, the Producers maintained that their budget and 

expenditure information was confidential and exempt from disclosure 

under section 22.7(3), (6), (8), and (18) of the Iowa Code. In the 

alternative, the Producers argued they were entitled to injunctive relief 

under Iowa Code section 22.8, because examination of the records 

“would clearly not be in the public interest” and “would substantially and 

irreparably injure” the Producers and third parties. See id. § 22.8(1)(a)–

(b). The Producers also sought an award of costs and attorneys’ fees 

under section 22.10.5

IDED responded that none of the confidentiality exemptions in 

section 22.7 applied to the Form Z Summaries. IDED further argued 

that even if the summaries did qualify as confidential under that section, 

either “a court” or IDED as the “lawful custodian of the records” had 

 5This section provides:

Upon a finding by a preponderance of the evidence that a lawful 

custodian has violated any provision of this chapter, a court:

Shall order the payment of all costs and reasonable attorney fees, 

including appellate attorney fees, to any plaintiff successfully 

establishing a violation of this chapter in the action brought under this 

section.

Iowa Code § 22.10(3)(c).
12

discretion to release them. See id. § 22.7 (“The following public records 

shall be kept confidential, unless otherwise ordered by a court, by the 

lawful custodian of the records . . . .” (emphasis added)). IDED also 

contended that granting an injunction under section 22.8 was not 

warranted because the Producers had not demonstrated disclosure 

“would clearly not be in the public interest” and would result in 

“substantial[] and irreparabl[e] injur[y].” IDED further argued that 

because a violation under the Open Records Act had not occurred, the 

Producers were not entitled to costs and attorneys’ fees under section 

22.10.

The district court held a hearing on March 24, 2010. The court 

decided initially that only the Form Z Summaries were at issue and, 

thus, potentially subject to disclosure. Next, the district court addressed 

the Film Program registrants that had received letters from IDED 

regarding disclosure of their records but had chosen not to contest the 

release of the information. The district court ruled that

as to those filmmakers who are not plaintiffs in this matter, 

who were notified by the IDED as to the release of the form Z 

summaries and did not participate in this lawsuit, [their] 

information could be released by the IDED. 

At the hearing, Kip Konwiser testified as a witness on behalf of two 

of the Producers, GPX Development, LLC and Recess Film Production, 

LLC. Konwiser is a resident of Los Angeles with an M.F.A. from the 

University of Southern California cinema school of television and 

producing. Konwiser explained that he has been involved in the 

entertainment industry for more than twenty years, “in most every aspect 

of making movies, television, and music.” He has experience 

representing actors and writers and has served as a talent agent, 

manager, studio executive, president, and “a full-service producer.” 
13

Konwiser maintains membership in the Academy of Motion Picture Arts 

and Sciences, the Producers Guild of America, and the Directors Guild of 

America; participates in film festivals; and has taught film industry 

courses from the high school to graduate school level.

Konwiser testified that he has produced approximately thirty 

movies, in addition to television movies and series. He stated that trust 

is essential for the film industry to function:

Hollywood, our industry, is built on trust. We’re a small 

community. Those of us that are legitimately making movies 

that get released around the world on the kind of profile that 

the industry needs in order to sustain itself as an industry, 

those of us in that industry—and there is not a lot of us—we 

rely on the trust and confidence between each other. And 

this has never, ever been an issue before, ever, anywhere 

else. This is now suddenly a new thing that Iowa is going to 

put upon our industry, if this shouldn’t be ruled 

appropriately, in our opinion.

Konwiser also testified that “IDED contacted me and asked me to 

bring productions to Iowa,” touting the tax credit as an incentive: “[T]hey 

were going to guarantee in writing, in contract, a 50 percent return.”6 

Konwiser personally submitted two applications to IDED, for movies 

entitled “Field Trip” (later renamed “Blackbeard”) and “Soaked.” He 

claimed he “had the absolute assurance from the IDED office, prior to 

. . . submitting [his applications], that this information would remain 

confidential. It was on that confidence that that information was 

provided.” Konwiser also testified that no other state to his knowledge 

 6As noted, the State disputes the “half-price filmmaking” terminology as an 

accurate summary of the relevant tax credits. It asserts the maximum potential tax 

credit amounted to twenty-five percent of overall expenditures. See Iowa Code 

§ 15.393(2)(b)(1) (stating that a taxpayer “shall not claim” the second twenty-five 

percent tax credit “for qualified expenditures for which” the first twenty-five percent tax 

credit was claimed).
14

has ever released information about film projects in a Form Z Summary 

format.

Konwiser’s applications included requests for confidential 

treatment. These forms were essentially filled out the same way as the 

sample form in the application materials. Konwiser testified that IDED 

personnel advised him not to deviate from the sample form. Konwiser 

also testified that IDED never notified him in writing of an approval or 

denial of his request for information to be kept confidential.

When asked why confidential treatment was necessary, Konwiser 

gave the example of an actor who usually receives $10 million for a movie 

but may act in an independent film for $100,000, expecting this amount 

will be kept confidential. Konwiser also noted that if the total cost of a 

movie became known, this could undermine the ability of the producer to 

make a substantial profit on it or could adversely affect audience 

reaction, because the public tends to believe a movie is worth what it 

cost to make. Konwiser also explained that industry professionals can 

figure out how much certain people are being compensated from the 

overall totals set forth in the Form Z Summary. Konwiser said, “When 

that trust is violated between us and the State, the trust that we’ve 

established within our industry relationships is similarly violated after 

the fact.” Konwiser testified, however, that he has not submitted a Form 

Z to IDED because neither of his films was completed.

On cross-examination, Konwiser admitted that the budget he 

submitted to IDED for one of his Iowa movies was artificially low. He 

wanted the guilds and unions to see a lower budget so they would not 

seek the premium that is associated with a higher-budget film.

Although Konwiser was the only live witness, the Producers also 

filed two affidavits—one from Tim Anderson, the president of plaintiff 
15

Mississippi Films, and the other from Isaac Ben-Hamou, the secretary of 

plaintiff Underground Films. In his affidavit, Anderson stated that he 

had two film projects registered with IDED in 2009—“Five Step Credit 

Repair” and “Who’s Your Daddy?” In both applications, he formally 

requested that budget and investor information be kept confidential, “as 

suggested by IDED.” No one from IDED told him the information “would 

not be kept confidential, and I believed that it would remain 

confidential.” Additionally, Anderson’s company had oral agreements 

with top actors and the director that it would keep salary information 

confidential. Anderson believed his company would be irreparably 

harmed by release of the Form Z Summary information because buyers 

would know the true overall cost of the film and because there is often 

little or no staff besides the director, so the “Director and Staff” item 

“essentially reveals the director’s salary information.”

In his affidavit, Ben-Hamou stated that his company’s written 

agreements with its producer, its director, and one of its actors required 

confidentiality. These written agreements were included as attachments. 

Each contained a clause providing that “[a]ll terms and conditions of this 

agreement are to be confidential with no disclosure and on a non quote 

basis other than the financier of the picture and completion bond if any 

is used.” According to Ben-Hamou, disclosure of even a Form Z 

Summary would put Underground Films in breach of those agreements. 

Ben-Hamou added that “public disclosure of the budget expenditure 

information would give a competitive advantage to a competing 

production.” No other Producers submitted individualized evidence in 

support of their claims.

The district court issued its final order on May 19, 2010. The 

court found the Form Z Summaries constituted confidential trade secrets 
16

under Iowa Code section 22.7(3). The court also concluded that release 

of these records would “give advantage to competitors and serve no 

public purpose,” thus rendering them confidential under section 22.7(6). 

Additionally, the district court found the Producers were entitled to relief 

under section 22.8. As the court put it:

How can the State of Iowa expect to attract new 

businesses if the businesses cannot rely on the State’s word 

to keep confidential information which, if released, could 

harm the businesses? Public curiosity cannot override the 

public interest in continuing economic development for the 

State.

The district court’s order prohibited IDED from releasing the Form 

Z Summaries submitted by the Producers. In addition, the court 

awarded costs and attorneys’ fees to the Producers, concluding that 

[a]ttorney fees are recoverable under Iowa Code section 

22.10 by a successful private citizen—any private citizen—

seeking enforcement of Chapter 22, whether the private 

citizen seeks to compel disclosure of properly public 

information or to enjoin disclosure of information properly 

confidential.

The State appeals.

II. Standard of Review.

The Producers brought this action seeking injunctive relief and 

attorneys’ fees under chapter 22 of the Iowa Code. Both sides agree that 

we should apply de novo review. “Cases commenced under Iowa Code 

chapter 22 are ordinarily triable in equity, thus calling for de novo review 

on appeal.” Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 45 (Iowa 

1999). We review the district court’s interpretation of chapter 22 for 

correction of errors at law. Krupp Place 1 Co-op, Inc. v. Bd. of Review, 

801 N.W.2d 9, 13 (Iowa 2011) (citing Braunschweig v. Fahrenkrog, 773 

N.W.2d 888, 890 (Iowa 2009)).
17

III. Legal Analysis.7

A. The Basic Statutory Framework. The Iowa Open Records Act 

(Iowa Code chapter 22) generally requires state and local entities to make 

their records available to the public. See Iowa Code §§ 22.1(3), .2(1). 

“The purpose of the statute is ‘to open the doors of government to public 

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

activities from the public, on whose behalf it is its duty to act.’ ” City of 

Riverdale v. Diercks, 806 N.W.2d 643, 652 (Iowa 2011) (quoting 

Rathmann v. Bd. of Dirs., 580 N.W.2d 773, 777 (Iowa 1998)). We have 

said the Act establishes “a presumption of openness and disclosure.” 

Gabrilson v. Flynn, 554 N.W.2d 267, 271 (Iowa 1996); see also Hall v. 

Broadlawns Med. Ctr., 811 N.W.2d 478, 485 (Iowa 2012).

However, when this litigation was brought, the Open Records Act 

was subject to sixty-one disclosure exemptions as set forth in section 

22.7. The exemptions include “[t]rade secrets which are recognized and 

protected as such by law,” Iowa Code § 22.7(3), and “[r]eports to 

governmental agencies which, if released, would give advantage to 

 7In this appeal, the State contends that five of the eleven Producers have not yet 

submitted Form Zs, and therefore, do not have claims that present a ripe controversy. 

The Producers counter that an actual present controversy exists because all the 

Producers have actual films that received registration from IDED and all would have to 

submit a Form Z to receive tax credits offered by the Film Program.

The ripeness doctrine is intended to prevent the courts “ ‘from entangling 

themselves in abstract disagreements over administrative policies.’ ” State v. Tripp, 776 

N.W.2d 855, 859 (Iowa 2010) (quoting State v. Iowa Dist. Ct., 616 N.W.2d 575, 578 

(Iowa 2000)). “A case is ripe for adjudication when it presents an actual, present 

controversy, as opposed to one that is merely hypothetical or speculative.” Id. (citing 

State v. Wade, 757 N.W.2d 618, 626–27 (Iowa 2008)). Given that some of the Producers 

unquestionably have fully developed claims, we believe the controversy is ripe for 

adjudication. The State has advanced at most an argument as to why certain 

Producers may lack standing. In any event, the State’s specific concern is one of 

granting relief to parties who “may never complete their film or submit final 

expenditures to IDED.” In light of our disposition of the appeal, we believe that is no 

longer a concern.
18

competitors and serve no public purpose,” id. § 22.7(6). Section 22.7 

begins with this sentence:

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.

Id. § 22.7.

The next section, section 22.8, gives a court authority to “grant an 

injunction restraining the examination, including copying, of a specific 

public record or a narrowly drawn class of public records.” Id. § 22.8(1). 

An injunction may be issued only if the court finds both “the 

examination would clearly not be in the public interest” and “the 

examination would substantially and irreparably injure any person or 

persons.” Id. § 22.8(1)(a)–(b). The section goes on to state:

In actions brought under this section the district court 

shall take into account the policy of this chapter that free 

and open examination of public records is generally in the 

public interest even though such examination may cause 

inconvenience or embarrassment to public officials or others.

Id. § 22.8(3).

Section 22.5 confers a general right to injunctive relief. It provides 

that the provisions of chapter 22 “and all rights of persons under this 

chapter may be enforced by mandamus or injunction, whether or not any 

other remedy is also available.” Id. § 22.5.

Additionally, sections 22.5, 22.8, and 22.10 make clear that 

judicial review rights under chapter 17A are available to the extent the 

entity holding the records is covered by that chapter. See id. §§ 22.5, 

.8(4)(f), .10(1).

B. The Parties’ Contentions. In many open records cases, the 

agency and the party seeking disclosure are at odds because the agency 
19

wants to keep the requested records confidential. See, e.g., Diercks, 806 

N.W.2d at 645–46; Gannon v. Bd. of Regents, 692 N.W.2d 31, 33–34 

(Iowa 2005); Clymer, 601 N.W.2d at 43–44; Burton v. Univ. of Iowa Hosps. 

& Clinics, 566 N.W.2d 182, 183–85 (Iowa 1997); DeLaMater v. Marion 

Civil Serv. Comm’n, 554 N.W.2d 875, 876–77 (Iowa 1996); Des Moines 

Register & Tribune Co. v. Dwyer, 542 N.W.2d 491, 493 (Iowa 1996); 

Hawk Eye v. Jackson, 521 N.W.2d 750, 751 (Iowa 1994); Brown v. Iowa 

Legislative Council, 490 N.W.2d 551, 552–53 (Iowa 1992); Des Moines 

Indep. Cmty. Sch. Dist. Pub. Records v. Des Moines Register & Tribune Co., 

487 N.W.2d 666, 667–68 (Iowa 1992); AFSCME/Iowa Council 61 v. Iowa 

Dep’t of Pub. Safety, 434 N.W.2d 401, 402 (Iowa 1988); City of Sioux City 

v. Greater Sioux City Press Club, 421 N.W.2d 895, 896 (Iowa 1988). Here, 

however, the State agrees with the Des Moines Register and the other 

intervenors that the Form Z Summaries should be disclosed. The 

Producers have gone to court to prevent their disclosure.8

Below and on appeal, the Producers assert that the Form Z 

Summaries are shielded from disclosure under section 22.7(3) as “[t]rade 

secrets which are recognized and protected as such by law,” and under 

section 22.7(6) as “[r]eports to governmental agencies which, if released, 

would give advantage to competitors and serve no public purpose.”9 The 

Producers also argue that disclosure of the summaries would “clearly not 

 8In the federal vernacular, this would be termed a “reverse-FOIA” or “reverse 

Freedom of Information Act” suit. See Chrysler Corp. v. Brown, 441 U.S. 281, 285, 99 

S. Ct. 1705, 1709, 60 L. Ed. 2d 208, 215 (1979).

9The Producers also alleged in their petition that disclosure was barred by 

sections 22.7(8) and 22.7(18). However, they did not submit proposed findings or 

conclusions on those contentions, the district court did not discuss them in its ruling, 

and we therefore deem them abandoned. Weise v. Land O’ Lakes Creameries, Inc., 191 

N.W.2d 619, 621 (Iowa 1971) (“[d]isregarding one division of the [plaintiff’s] petition 

which was abandoned at trial”).
20

be in the public interest” and would “substantially and irreparably 

injure” a person or persons within the meaning of section 22.8.

The State, by contrast, argues the records do not fall under either 

section 22.7 exemption. Moreover, the State maintains that even if the 

records came within one of these exemptions, the “lawful custodian” 

would still have discretion to order them released under the first 

sentence of section 22.7, as quoted above. According to the State, a 

party that wishes to enjoin the release of records by a lawful custodian 

who intends to release them must meet the requirements of section 22.8. 

The State further asserts that the requirements for injunctive relief under 

section 22.8 were not met.

We do not reach the State’s argument regarding how the first 

sentence of section 22.7 should be interpreted. Instead, on our de novo 

review, we conclude the Producers failed to establish that the Form Z 

Summaries were confidential under section 22.7(3) or section 22.7(6), or

that they were entitled to relief under section 22.8.

C. Applying Section 22.7(3) to This Case. We first turn to the 

question of whether the film budget summaries are exempt from 

disclosure under Iowa Code section 22.7(3) as trade secrets. “Although 

we should not thwart legislative intent, the specific exemptions contained 

in freedom of information statutes are to be construed narrowly.” Hall, 

811 N.W.2d at 485.

When applying section 22.7(3), we have previously relied on the 

definition of “trade secret” found in our Uniform Trade Secrets Act 

(UTSA). See, e.g., US W. Commc’ns, Inc. v. Office of Consumer Advocate, 

498 N.W.2d 711, 714 (Iowa 1993); Brown, 490 N.W.2d at 553–54. This 

makes sense because the disclosure exemption is for trade secrets 
21

“which are recognized and protected as such by law.” See Iowa Code 

§ 22.7(3). We will follow the same approach here.

According to Iowa’s codification of the UTSA:

“Trade secret” means information, including but not 

limited to a formula, pattern, compilation, program, device, 

method, technique, or process that is both of the following:

a. Derives independent economic value, actual or 

potential, from not being generally known to, and not being 

readily ascertainable by proper means by a person able to 

obtain economic value from its disclosure or use.

b. Is the subject of efforts that are reasonable under 

the circumstances to maintain its secrecy.

Id. § 550.2(4). When the legislature originally enacted its version of the 

UTSA in 1990, elements (a) and (b) were disjunctive. The party claiming 

trade secret status only had to establish one or the other. See 1990 Iowa 

Acts ch. 1201, § 2. In the next session, the legislature revised the 

definition so that both elements had to be proved. See 1991 Iowa Acts 

ch. 35, § 1.10 The 1991 amendment conformed Iowa’s UTSA to the 

uniform act on which it was based. See Uniform Trade Secrets Act 

§ 1(4), 14 U.L.A. 538 (1979).

The definition of a trade secret under section 550.2(4) is “a mixed 

question of law and fact.” Econ. Roofing & Insulating Co. v. Zumaris, 538 

N.W.2d 641, 648 (Iowa 1995). The first part of the definition—

“ ‘information, including but not limited to a formula, pattern, 

compilation, program, device, method, technique, or process’ ”—is the 

 10Iowa’s UTSA is based on a model act passed by the National Conference of 

Commissioners on Uniform State Laws in 1979. All but four states have passed some 

version of that uniform act. See Thomas W. Foley, Keeping a Company’s Confidences 

Secret: Trade Secret Enforcement Under Iowa’s Uniform Trade Secrets Act, 59 Drake L. 

Rev. 1, 2 (2010). The four states that have not adopted the uniform act have statutory 

or common law tests that employ similar standards. See Matthew J. Frankel, Secret 

Sabermetrics: Trade Secret Protection in the Baseball Analytics Field, 5 Alb. Gov’t L. Rev. 

240, 252 (2012).
22

legal question. Id. (quoting Iowa Code § 550.2(4)). The two elements—

subsections (a) and (b) of section 550.2(4)—present questions of fact. Id. 

at 648–49.

“There is virtually no category of information that cannot, as long 

as the information is protected from disclosure to the public, constitute a 

trade secret.” US W. Commc’ns, 498 N.W.2d at 714.

Business information may . . . fall within the definition 

of a trade secret, including such matters as maintenance of 

data on customer lists and needs, source of supplies, 

confidential costs, price data and figures. Trade secrets can 

range from customer information, to financial information, to 

information about manufacturing processes, to the 

composition of products.

Revere Transducers, Inc. v. Deere & Co., 595 N.W.2d 751, 776 (Iowa 

1999) (emphasis added). We agree with the district court that the 

investor and budget information submitted in the Form Z Summaries 

qualifies as “information” under section 550.2(4).

In interpreting their own state freedom of information acts, courts 

in other jurisdictions have declined to accord exempt “trade secret” 

status to cost or salary information unless the UTSA requirements have 

been strictly met. For example, in Medical Mutual Insurance Co. of Maine 

v. Bureau of Insurance, a mutual insurance company was required to 

disclose information regarding salaries of board members and senior 

management to the state superintendent of insurance. 866 A.2d 117, 

119 (Me. 2005). The company provided the information but asked that it 

be kept confidential. Id. When a policyholder sought the salary 

information, however, the Maine Supreme Court ruled that the insurance 

company “failed to demonstrate . . . the salary information had 

independent economic value from not being generally known and failed 

to show that it is in fact subject to secrecy.” Id. at 121; see also Dep’t of 
23

Pub. Utils. v. Freedom of Info. Comm’n, 739 A.2d 328, 331–32 (Conn. App. 

Ct. 1999) (finding a cost allocation study by a public utility did not 

qualify as a trade secret that was exempt from state FOIA disclosure 

because the utility had not made reasonable efforts to limit its 

dissemination); State ex rel. Toledo Blade Co. v. Ohio Bureau of Workers’ 

Comp., 832 N.E.2d 711, 716 (Ohio 2005) (concluding that records 

showing a state-controlled investment entity’s costs of purchasing 

investment coins were not trade secrets exempt from disclosure under 

the state’s public records act); State ex rel. Besser v. Ohio State Univ., 732 

N.E.2d 373, 380 (Ohio 2000) (finding an electronic mail message 

specifying average nursing salary was not a trade secret exempt from 

disclosure); Campbell v. Marion Cnty. Hosp. Dist., 580 S.E.2d 163, 167–

69 (S.C. Ct. App. 2003) (concluding a county hospital’s information 

relating to physicians’ salaries and to purchase price of physician 

practices did not amount to trade secrets for purposes of state freedom of 

information act); Wis. Elec. Power Co. v. Pub. Serv. Comm’n of Wis., 316 

N.W.2d 120, 123–24 (Wis. Ct. App. 1981) (denying a power company’s 

request to bar disclosure of bid specifications submitted to the public 

service commission on the ground that such information constituted 

trade secrets); cf. Verizon N.Y., Inc. v. Bradbury, 837 N.Y.S.2d 291, 294 

(App. Div. 2007) (in a non-UTSA state, finding that draft cable franchise 

agreements submitted to a municipality by Verizon were not trade 

secrets exempt from disclosure under State Freedom of Information Law 

where “Verizon failed to establish the specific harm it would suffer”).

We have interpreted section 22.7(3) in two prior cases. In Brown, a 

citizen taxpayer of Iowa sought access to computer databases and 

software used in decennial legislative redistricting. 490 N.W.2d at 552. 

The databases and software had been provided by an outside vendor, 
24

Election Data Services (EDS), under an agreement with the Iowa 

Legislative Council. Id. The databases and software enabled 

consideration of the effects of moving geographic units into and out of 

hypothetical new districts. Id. at 552–53. EDS had developed the 

databases originally from publicly available data, by using what it 

claimed to be a proprietary process. Id. at 553.

Under the UTSA as it existed at the time of trial, the Legislative 

Council only had to prove the information either “[d]erives independent 

economic value . . . from not being generally known to, and not being 

readily ascertainable by proper means by a person able to obtain 

economic value from its disclosure or use” or “[i]s the subject of efforts 

that are reasonable under the circumstances to maintain its secrecy.” 

Id. at 554 n.2 (internal quotation marks omitted). We found the second 

alternative had been established. Id. at 554. The databases had been

encrypted. Id. at 553. EDS’s contract with Iowa required confidential 

treatment. Id. at 554. EDS had immediately and consistently asserted 

trade secrecy when the databases and software were requested. Id. 

Also, the “typical” EDS agreement contained a clause under the heading 

“TRADE SECRETS,” which stated:

It is expressly understood by the parties of this 

Agreement that the services and information provided by 

EDS, Inc. under this Agreement are considered a “trade 

secret”, because the services and information are considered 

proprietary and disclosure of such services and information 

may cause competitive harm to EDS, Inc.

Id. at 554 n.1.

In US West Communications, we analyzed the section 22.7(3) trade 

secret exemption for the first time using the current UTSA definition. 

498 N.W.2d at 714. That case arose after a newspaper published a 

number of articles relating to sales/leasebacks of commercial real estate 
25

by US West and its subsidiaries. Id. at 713. According to the articles, 

US West and its subsidiaries were paying inflated lease rates to each 

other that were being passed along to increase ratepayers’ costs. Id.

In a pending rate proceeding, the Office of Consumer Advocate

(OCA) filed data requests to obtain information regarding leases and 

sales of six buildings rented by US West from a subsidiary. Id. US West 

provided the information under a confidentiality agreement, which 

provided that OCA would not release the information until US West had 

an opportunity to litigate whether it met an exception to disclosure. Id. 

US West and its subsidiaries then brought an action to enjoin OCA from 

disclosing the information. Id.

We held that the lease/sale information did not qualify for a trade 

secret exemption under section 22.7(3) because the “independent 

economic value” element had not been met.11 Id. at 714–15 (citing Iowa 

Code § 550.2(4)(a)). Due to its potential applicability here, our reasoning 

in that case warrants quotation at some length:

[US] West contends the data involved has an economic 

value. It urges that if sale and lease data were disclosed, 

competitor lessors would undercut its pricing; their lessees 

would gain an unfair bargaining advantage; and when [US] 

West was a potential lessee, it would be disadvantaged if 

lessors knew what it paid elsewhere.

The record made before the trial court is not as clear 

as these contentions. The information sought involves six 

buildings located in Colorado and Nebraska. The 

intervenor’s affidavit indicates all six buildings have been 

sold in the last two years and leased back by [US] West or its 

affiliates by long-term leases in an effort to protect its 

stockholders at the ratepayers’ expense. While affidavits and 

testimony by [US] West and its subsidiary employees provide 

opinions concerning the deleterious effects disclosure will 

 11We therefore did not need to consider whether reasonable efforts had been 

made to maintain secrecy. See Iowa Code § 550.2(4)(b).
26

have on [US] West or its affiliates, such evidence is selfserving and does not contain hard facts.

[US] West provided no evidence concerning the 

number of tenants in the buildings, the percentage of 

buildings rented to outsiders, the occupancy rates, or [US] 

West’s own needs concerning leasing space. While reference 

is made to competitors, the record is vague concerning the 

extent of the advantage the lease information will provide 

competitors. We are uncertain whether [US] West or its 

subsidiaries are major players in the competitive real-estate 

leasing market or whether most of its leasing is between

affiliates. Furthermore, we question the credibility of the 

expressed concern about competitors and lessees gaining 

this information. If in fact the sales and leases are in-house 

transactions between parent and subsidiary companies 

rather than arms-length transactions, we believe the 

information would be of little use to [US] West’s competitors. 

The burden was on [US] West and its subsidiaries to prove 

that a disclosure of the lease and sales information would 

put [US] West at an economic disadvantage. In our de novo 

review, we conclude [US] West has failed to meet this 

burden. Consequently, [US] West failed to establish its 

entitlement to an exemption pursuant to section 22.7(3).

Id. We now consider the section 550.2(4)(a) and 550.2(4)(b) elements as

applied to this case.

1. Independent economic value. The economic value inquiry 

requires us to consider whether the information at issue “protects the 

owner’s competitive edge or advantage.” Id. at 714. “[I]nformation kept 

secret that would be useful to a competitor and require cost, time and 

effort to duplicate is of economic value.” Id. Additionally, the owner 

must demonstrate the information was “unknown to, and not readily 

ascertainable by, a person who would profit from [its] disclosure or use.” 

205 Corp. v. Brandow, 517 N.W.2d 548, 550 (Iowa 1994).

The Producers articulate essentially two theories of independent 

economic value. The first theory, discussed by Konwiser in his testimony 

and Anderson in his affidavit, is that public disclosure of the overall cost 

of a movie would impair the filmmaker’s ability to resell that movie at a 
27

substantial profit. This is a reasonable theoretical argument, but the 

Producers offered nothing in support of it other than theory. As in US 

West Communications, “hard facts” are missing. 498 N.W.2d at 715. 

Although the district court afforded the Producers the opportunity to file 

evidence under seal, the Producers submitted only conclusory 

statements such as the following paragraph from Anderson’s affidavit:

[R]eleasing this summary information would hurt any 

chances of making a profit on the film by letting the buyers 

at the distributing companies know the true and exact cost 

of making the film. This budget information is not ordinarily 

available in the film industry when representing a film for 

sale, and it would be difficult to seek a price of more than 

cost for the project, inhibiting the ability of the film to secure 

a profit.

No examples were given. And several points in the record tend to 

undermine this argument. To begin with, when the district court issued 

its ruling, the information in the Form Z Summaries at issue was already 

months to over a year old. No evidence was offered whether any of these 

summaries involved a film whose owners were actively looking for a 

distributor. Additionally, Konwiser’s testimony painted a picture of a 

highly competitive distribution market where a few movies are successful 

and most find no outlet at all. This would suggest that cost is not the 

driver; rather, if a movie can be predicted to be a success, distributors 

will compete for it and pay much more than cost. If it looks like a boxoffice loser, no one will offer to pay even cost. Moreover, Konwiser 

testified and the record reflected that tax credits are rampant in the 

industry, so the stated cost of a film (if publicly available) would not 

reflect true cost. Distributors presumably are aware of these tax credits. 

Additionally, a number of other producers told IDED they had no 

objection to the release of their Form Z Summaries. Finally, and perhaps 

most importantly, there is no dispute that the overall tax credit awarded 
28

by IDED to a specific film is known to the public, and Konwiser testified 

that based on the Producers’ understanding of a fifty percent credit one 

could double that figure to arrive at the overall production cost.12

The second theory, advanced by both affiants and by Konwiser, 

was that release of the summaries could potentially allow the public to 

reach a conclusion about the compensation paid to individual actors and 

directors who had agreed to work only on the condition that their 

compensation would remain confidential. Anderson claimed he had 

“verbal agreements” regarding confidentiality; Ben-Hamou filed three 

written agreements under seal that contained confidentiality provisions. 

The Form Z Summaries do not disclose individual compensation, only 

categories such as “DIRECTOR & STAFF” and “TALENT & STAFF.” 

Konwiser, however, testified that there is typically only one director, so “it 

is easy for someone to assume that all those costs would be attributed to 

one person.”

But again, the Producers’ evidence of independent economic value 

was more theoretical than real. Konwiser was not involved with any of 

the projects that had submitted a Form Z Summary. Anderson and BenHamou were, but neither of them made any attempt to show how one 

could derive any actual person’s compensation from the Form Z 

Summaries their companies had submitted. In fact, the record with 

respect to Ben-Hamou’s company, Underground Films, suggests 

otherwise.13 On our independent review of the documentary evidence 

 12As noted, the State disputes that the tax credit legally should have totaled fifty 

percent, but the record indicates the Producers and, at least for a time, the Iowa Film 

Office operated on that basis.

13Anderson did not submit any actual copies of agreements on behalf of his 

company, Mississippi Films.
29

that was filed under seal, we do not see a discernible way to trace the 

(partly deferred) compensation that Underground Films agreed to pay the 

three individuals whose contracts were provided simply by reviewing the 

company’s Form Z Summary. See US W. Commc’ns, 498 N.W.2d at 715 

(denying relief under section 22.7(3) where “the record is vague

concerning the extent of the advantage . . . lease information will provide 

competitors”); see also Sun Media Sys., Inc. v. KDSM, LLC, 564 

F. Supp. 2d 946, 965 (S.D. Iowa 2008) (a party seeking to satisfy the 

burden of proving a trade secret “cannot rely on generic categories or 

assertions, but rather must assert specific allegations that it possessed 

information that meets the definition of trade secret”). A confidentiality 

commitment is not enough to establish independent economic value. 

See Med. Mut. Ins. Co. of Me., 866 A.2d at 121–22 (holding that medical 

mutual company failed to demonstrate salary information had 

independent economic value where the only information provided in 

support of this claim “was a corporate policy that prohibits the 

corporation from disclosing compensation information”). For the 

foregoing reasons, we conclude the Producers failed to carry their burden 

of showing that the information in the Form Z Summaries “[d]erives 

independent economic value . . . from not being generally known to, and 

not being readily ascertainable by proper means by a person able to 

obtain economic value from its disclosure or use.” See Iowa Code

§ 550.2(4)(a).

2. Reasonable efforts to maintain secrecy. Furthermore, the 

Producers have not shown that the information was the subject of 

reasonable efforts “under the circumstances to maintain its secrecy.” 

See id. § 550.2(4)(b); see also Revere Transducers, 595 N.W.2d at 776. 
30

The key to this test here is found in the statutory phrase “reasonable 

under the circumstances.” 205 Corp., 517 N.W.2d at 551.

With regard to the specific Form Z Summaries at issue, the record 

shows only two possible steps were taken to guard confidentiality. First, 

all of the Producers requested confidential treatment of the budget, 

expenditure, and investor portions of their original tax credit applications 

to IDED. None, however, requested such treatment on the basis that 

this information was a trade secret protected by section 22.7(3). Cf. 

Lockheed Martin IMS Corp. v. State Dep’t of Family Assistance, 681 

N.Y.S.2d 656, 658 (App. Div. 1998) (holding that Lockheed Martin waived 

the right to claim an exemption under state freedom of information law 

for a contract to develop and operate a centralized system for the 

collection and disbursement of child support payments where it failed to 

request and explain the basis for the exemption at the time of 

submission). Additionally, as we discussed above, Underground Films 

and Mississippi Films put in evidence that they had written and oral 

confidentiality agreements respectively with certain individuals 

associated with their films. This evidence is of limited value because, as 

we have already noted, it has not been shown disclosure of the Form Z 

Summaries would result in breach of those agreements.

The record does not show that the Producers made reasonable 

efforts to preserve confidentiality of their financial data as against the 

outside world in general. There is no evidence that security measures 

were taken. The Producers failed to show, for instance, that individuals 

who worked for them and came into contact with this information were 

required not to disclose it. And the Producers never asserted trade secret 

status for anything they had submitted to IDED until the present dispute 

arose. See Brown, 490 N.W.2d at 553–54 (finding this element satisfied 
31

where trade secret status was immediately and consistently claimed, all 

contracts required confidential treatment, and the source codes at issue 

were encrypted).

For the foregoing reasons, we find, on this record, the Producers 

have failed to establish that their Form Z Summaries are “[t]rade secrets 

which are recognized and protected as such by law.” Iowa Code 

§ 22.7(3). Our holding is fact specific. We do not foreclose the possibility 

that on a different record, budget summaries for projects awarded tax 

credits by the State of Iowa might be considered trade secrets.

D. Applying Section 22.7(6) to This Case. The Producers also 

rely on section 22.7(6), the disclosure exemption for “[r]eports to 

governmental agencies which, if released, would give advantage to 

competitors and serve no public purpose.”

As we have already explained above, the Producers have failed to 

come forth with the type of specific, individualized evidence that would 

allow us to conclude release of the Form Z Summaries would give an 

advantage to their competitors. Moreover, we agree with the State that 

release of the Form Z Summaries would serve a legitimate public 

purpose. “[T]he legislature has drawn th[is] exception to confidentiality 

narrowly by requiring a showing that no public purpose is served by 

public disclosure.” Ne. Council on Substance Abuse, Inc. v. Iowa Dep’t of 

Pub. Health, 513 N.W.2d 757, 761 (Iowa 1994).

In Northeast Council, a small nonprofit substance abuse treatment 

facility (NECSA) received almost three-quarters of its funding from state 

program grants. Id. at 758. NECSA had been the recipient of a 

department of public health grant for the past twenty years and the only 

applicant for that grant for the past ten years. Id.
32

Covenant, a private medical center providing similar substance 

abuse treatment services, planned to apply for the grant funds and asked 

DPH for NECSA’s past grant applications. Id. at 759.

The prior grant applications include[d], among other 

things, (1) descriptions of the number of people served, (2) 

the areas served, (3) an analysis of the need for the services 

in the area to be served, (4) NECSA’s philosophy or vision for 

meeting this need, (5) the allocation of staff hours to various 

programs and services, (6) staff salaries, (7) the amounts and 

specific sources of revenue NECSA has received, (8) detailed 

information about the design and implementation of the 

various programs and services it offers, (9) a special design 

of NECSA’s functions and how its budgetary lines tie to 

those functions, and (10) information relating to services and

programs addressed in NECSA’s current application.

Id. NECSA argued that the past grant applications were confidential 

under section 22.7(6). Id. at 760. The district court rejected this 

argument. Id.

On appeal we affirmed. Id. at 760–62. In assessing NECSA’s claim 

that the release of the grant applications would “serve no public purpose” 

within the meaning of section 22.7(6), we noted that $600,000 in public 

funds were involved. Id. at 760. We stated, “Because public funds are 

involved here, the public has a right to know how those funds have been 

spent—what services were provided for these funds and how efficiently 

the funds were spent.” Id. at 761. We also acknowledged that 

“[k]nowing what types of salaries are being paid would certainly allow the 

public to judge for itself whether the salaries are exorbitant.” Id. Thus,

even though Covenant would obtain an economic advantage from release 

of NECSA’s previous grant applications, we read the statute as giving 

priority to the public purpose served by disclosure. Id. at 760–61.

Similar considerations are present here. According to the record, 

IDED awarded approximately $24 million in tax credits to moviemakers 
33

in fiscal year 2009, a year in which our state government suffered a 

shortfall in revenues and endured layoffs and furloughs. The public 

would appear to have an interest in knowing how this money was used. 

As in the Northeast Council case, the requested records would provide 

more information, albeit in summary form, regarding how public money 

was spent. Id.; see also Craigmont Care Ctr. v. Dep’t of Soc. Servs., 325 

N.W.2d 918, 920–21 (Iowa Ct. App. 1982) (rejecting a claimed exemption 

under this section for cost reports filed by various health care facilities 

after finding that the taxpaying public’s strong interest in knowing the 

cost of care for Medicaid recipients outweighed the potential advantage 

competitors could gain from access to these reports).

The Producers argue that Northeast Council is distinguishable 

because they are not “spending government grant funds for a 

government service, but rather are private business entities, producing 

films and receiving tax credits upon completion as an inducement to 

engage in their production activities in Iowa.” Yet this seems to us a 

distinction without a difference. Either way, a private entity is receiving 

taxpayer money in furtherance of a public purpose. In Northeast Council, 

that was the critical consideration. 513 N.W.2d at 761.14

The Producers further argue that there is a public “interest in the 

State honoring its commitments to members of the public.” We have 

previously observed that most courts consider a “pledge of confidentiality 

[to be a] factor in the balancing process.” City of Dubuque v. Tel. Herald, 

Inc., 297 N.W.2d 523, 528 (Iowa 1980) (finding no pledge of 

 14Although nominally the Film Program involves tax credits, in this case the tax 

credits were transferable, and as a routine matter they were sold to third parties. Thus, 

they went beyond a reduction or elimination of the Producers’ potential tax liability and 

amounted to State subsidization of filmmaking costs.
34

confidentiality), superseded by statute on other grounds, Iowa Code 

§ 22.7(18) (1985), as recognized in Greater Sioux City Press Club, 421 

N.W.2d at 897. The State counters that public officials have no right to 

modify the terms of the Open Records Act by making side agreements.

We need not resolve the debate because the record in this case 

falls short of a promise of confidentiality. Anderson, the president of 

Mississippi Films, did not claim in his affidavit he had ever been 

promised his budget figures would be kept confidential. Nor did BenHamou. Konwiser did volunteer in his live testimony that he had “the 

absolute assurance from the IDED office . . . that this information would 

remain confidential.” Yet Konwiser provided no specifics, such as 

person, time, place, or manner, and in any event he was not tied to the 

Form Z Summaries that were the subject of this litigation.

More to the point, the application made clear that IDED would 

review the request for confidential treatment and “provide written 

confirmation to you of its approval or denial.” The application also 

stated, “INFORMATION SUBMITTED WITH THIS APPLICATION MAY BE 

TREATED AS CONFIDENTIAL IF . . . THE DEPARTMENT ISSUES 

WRITTEN CONFIRMATION THAT THE INFORMATION . . . WILL BE 

TREATED AS CONFIDENTIAL.” And it stated, “[I]nformation submitted 

as part of this application information will be available for public 

inspection, unless a request for confidentiality has been submitted by the 

applicant in the required form and approved in writing by IDED.” None 

of the Producers claim they received a written confirmation of 

confidentiality. See Iowa Movers & Warehousemen’s Ass’n v. Briggs, 237 

N.W.2d 759, 766–67 (Iowa 1976) (indicating that reliance on unofficial 

statements of an agency by substantial businesspersons could not be 

considered reasonable).
35

Also, as the State notes, the request for confidential treatment by 

its terms covered only the application. It did not cover information that 

might have to be provided later if the application were approved. Once 

their applications were granted, each Producer signed a contract with 

IDED that contained the following integration clause:

This Contract contains the entire understanding between the 

Recipient and IDED relating to the Registered Project and 

any representations that may have been made before or after 

the signing of this Contract, which are not contained herein, 

are nonbinding, void and of no effect.

IDED’s position that any confidentiality shield would not extend to 

postapplication submissions is plausible. One could reasonably 

conclude that a high degree of confidentiality protection would be 

warranted during the application stage, but a lesser degree would be 

appropriate once the application has been granted and the filmmaker is 

receiving taxpayer monies.15

At the same time, we agree with the State that there is a legitimate 

public interest in disclosure. The district court found otherwise:

Although the film program has been a source of 

controversy, including allegations of fraud and abuse, those 

matters are not before the Court. This case does not involve 

issues of whether the program was a good idea in the first 

place, or whether the program was improperly administered, 

or whether film producers were misleading or untruthful in 

their dealings with the IDED. The program was approved by 

 15As we have noted, the transferable tax credit involved in this case is the 

practical equivalent of a government subsidy.

The Producers rely on IDED’s admission in its November 20, 2009 letters that it 

“agreed to maintain the information as confidential as you [i.e., the Producers] 

requested.” The short answer to this argument is that IDED may have thought as of 

November 20 that it made such a commitment, but the record shows it did not. In any 

event, as we have already discussed, the commitment would not have extended to final 

budget information submitted after the applications had been approved, the films had 

been completed, and the tax credit certificates were being requested.
36

the legislature and administered by the executive branch of 

government.

. . . .

Release of the Form Z Summaries would serve no 

public purpose. The public has access to allegations made 

involving mismanagement, information on how the 

legislature and IDED set up the program, and information on 

how much public funding has gone into the program. Fraud 

or other criminal allegations may lead to other types of 

disclosures.

We respectfully believe this view of the matter is too narrow. One role of 

the Open Records Act is to help voters decide whether government 

programs, even when “approved by the legislature and administered by 

the executive branch of government,” are “a good idea.” While the public 

already has access to information on the total tax credits awarded for 

particular projects, the Form Z Summaries allow the public to see the 

expenditures, and thus calculate the public funds being used, for such 

categories as “DIRECTOR & STAFF,” “TALENT & STAFF,” “TRAVEL & 

LIVING,” “WARDROBE,” AND “MAKEUP & HAIRDRESSING.” The public 

can then assess the appropriateness of these uses of taxpayer funds.

In applying section 22.7(6) “it is not our responsibility to balance 

competing policy interests. This balancing is a legislative function and 

our role is simply to determine the legislature’s intent about those policy 

issues.” Ne. Council, 513 N.W.2d at 761. Under section 22.7(6) the 

Producers had the burden of demonstrating that no public purpose 

would be served by the release of the Form Z Summaries. We adhere to 

our precedent stating that where “public funds are involved . . . the 

public has a right to know how those funds have been spent . . . and how 

efficiently the funds were spent.” Id. Thus, we find the Producers have 

not carried their burden to establish a section 22.7(6) exemption.
37

E. Applying Section 22.8 to This Case. We now turn to whether 

the Producers should have been granted relief under section 22.8. As 

noted above, Iowa Code section 22.8 authorizes a district court to bar 

disclosure of public records when examination is clearly not in the public 

interest and “would substantially and irreparably injure any person or 

persons.” Iowa Code § 22.8(1)(a)–(b). The party opposing disclosure 

carries the burden of establishing both elements by clear and convincing 

evidence. Id. § 22.8(3); see also Hall, 811 N.W.2d at 487. Also, we are 

required to take into account the policy that “free and open examination 

of public records is generally in the public interest even though such 

examination may cause inconvenience or embarrassment to public 

officials or others.” Iowa Code § 22.8(3).

In the past, we have accepted arguments that the public interest 

under section 22.8 generally encompasses the public’s right to know how 

public money is being spent. For example, in Northeast Council, we 

found the same public interests that overcame a claim of exemption 

under section 22.7(6) also supported denial of an injunction under 

section 22.8. 513 N.W.2d at 761; see also Craigmont Care Ctr., 325 

N.W.2d at 921 (“We believe that the considerations of public interest 

discussed in division I are sufficiently strong to render the granting of an 

injunction under Iowa Code § 68A.8 [now section 22.8] inappropriate.”).

More recently, in Hall, we reversed a district court’s grant of an 

injunction under section 22.8. 811 N.W.2d at 487–88. In that case,

Broadlawns, a publicly funded hospital in Des Moines, came under 

investigation for alleged deficiencies in its handling of controlled 

substances. Id. During the course of its investigation the board 

contacted Hall, the licensed pharmacist in charge of the pharmacy at 

Broadlawns, in order to obtain records from the Broadlawns pharmacy. 
38

Id. Hall cooperated with the board’s requests and independently decided 

to conduct an internal audit of Broadlawns, which he also provided to 

the board. Id. About a year later, the board filed charges against Hall 

and Broadlawns alleging lack of competency and inadequate controls. 

Id. Upon reviewing the statement of charges, which referenced the 

internal audit conducted by Hall, the Des Moines Register sought to 

obtain Hall’s audit under the Open Records Act. Id. Broadlawns refused 

to release the audit claiming it was confidential, and in order to prevent 

disclosure, Hall filed an action against Broadlawns seeking declaratory 

and injunctive relief precluding release of the internal audit. Id. The 

Register intervened. Id. The district court granted an injunction against 

disclosure, and the Register appealed. Id.

On appeal, Hall and Broadlawns argued that under section 22.8, 

release of the audit would clearly not be in the public interest because it 

would have a “chilling effect” on candid communications within the 

pharmacy and with the board. Id. at 488. Hall further argued that if the 

audit was released to a news publisher, the board would be improperly 

swayed in disciplinary proceedings against him. Id. 

Regarding section 22.8, we concluded Hall had failed to 

demonstrate release of the audit would clearly not be in the public 

interest. Id. at 487–88. In reaching this conclusion, we observed that 

“[t]he public interest in information related to the theft of drugs from a 

pharmacy at a hospital funded by taxpayers is compelling.” Id. at 487. 

We also noted that the information sought “merely present[ed] factual 

information in a table format related to drug inventories” and did “not 

contain communications reflecting deliberative processes, [did] not make 

policy recommendations of any kind, and [did] not implicate privacy 

interests of third parties.” Id. at 488. As to Hall’s argument that release 
39

of the documents to the media would result in the board being 

improperly swayed in the disciplinary proceeding, we decided that this 

claim was “too speculative and too insubstantial.” Id.

This case involves some of the same elements as Hall. Like the 

Broadlawns pharmacy, the Iowa Film Program has become the subject of 

public controversy and accusations of criminal conduct. Millions of 

dollars are involved. Because release of the Form Z Summaries would 

serve a legitimate public purpose, we conclude the Producers were not

entitled to an injunction under section 22.8.16

We also believe the Producers failed to demonstrate substantial 

and irreparable injury to a person or persons. See Iowa Code 

§ 22.8(1)(b). The Producers asserted three types of harm. First, they 

alleged a Producer’s ability to market a film at a profit could be affected if 

an outsider knew the Producer’s overall costs. Second, they expressed 

concern that directors, actors, and others would have less ability to 

negotiate higher compensation in the future if third parties could 

determine how much they had worked for by drawing inferences from a 

Form Z Summary. Third, they alleged disclosure of the summaries 

would result in a breach of trust and that trust, once lost, would not be 

recovered.

We have already discussed the first two alleged harms in regard to 

section 22.7(3). Regarding the first type of harm, a critical link is 

 16The Producers argue that Iowa Code section 15.118, a confidentiality law that 

specifically governs IDED, “demonstrates the public commitment to providing a 

mechanism for maintaining the confidentiality of business information in the 

administration of tax credits in order to encourage businesses to come to the State of 

Iowa and increase Iowa’s economic development.” However, the Producers do not argue 

that section 15.118 literally applies to the Form Z Summaries. We do not believe the 

mere existence of a confidentiality law governing other materials is sufficient to alter the 

conclusion we have reached regarding the public interest in this case. Cf. Burton, 566 

N.W.2d at 189 (holding that “chapter 22 does not trump or supersede specific statutes 

. . . on confidentiality of records”).
40

missing from the Producers’ chain of reasoning. As we have noted, since 

the total tax credits awarded for any given film project are disclosed 

publicly, and the Producers claimed they were entitled to fifty percent 

credits, an interested person already can ascertain approximately what 

the film cost. This record falls well short of establishing that a Producer 

would be irreparably harmed if a two-page summary of its expenditures 

on a film were disclosed. To the extent the Producers are concerned 

about the disclosure of cost data benefiting a competitor, these are the 

same concerns that did not carry the day in Northeast Council and 

Craigmont Care Center. See Ne. Council, 513 N.W.2d at 760–62; 

Craigmont Care Ctr., 325 N.W.2d at 920–21.

As to the second alleged harm, the Producers have raised a 

hypothetical concern that from a category like “Director and Staff,” it 

might be possible for an outside party to figure out how much the 

director was actually paid on a film. The argument continues that this 

would make it harder for that person to seek higher compensation on a 

different project. As we have already discussed, this argument was 

presented entirely at an abstract level. No example was given of how the 

calculation could actually be made using one of the Form Z Summaries 

at issue, even though the district court permitted confidential 

submissions. Nor did any director, actor, or other individual whose 

compensation would allegedly be subject to disclosure actually file an 

affidavit expressing this concern. A number of filmmakers expressed 

willingness to have their Form Z Summaries released.

The final alleged injury cited by the Producers really involves 

alleged harm to the State. As the district court put it, “How can the State 

of Iowa expect to attract new businesses if the businesses cannot rely on 

the State’s word to keep confidential information which, if released, could 
41

harm the businesses?” We respectfully disagree with the district court. 

To begin with, its conclusion is based on factual premises we do not 

share. As discussed above, IDED did not promise to keep the Form Z 

Summaries confidential, and the Producers have not shown release of 

those summaries would hurt them financially. Furthermore, we do not 

see section 22.8 as a device for protecting the government from itself. 

The irreparable harm must be to some person or entity other than the 

defendant that is resisting the injunction. See Iowa Code § 22.8(1)(b).

IV. Disposition.

Because of our disposition of this appeal, we need not reach the 

State’s arguments concerning the award of attorneys’ fees to the 

Producers. For the reasons set forth above, we reverse the district 

court’s judgment in favor of the Producers and remand this case for 

further proceedings consistent herewith.

DISTRICT COURT JUDGMENT REVERSED AND CASE 

REMANDED.

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