IN THE COURT OF APPEALS OF IOWA

No. 2-090 / 01-0295 Filed May 15, 2002

STATE OF IOWA, Plaintiff-Appellant, vs. JAMES HENDERSON, a/k/a JAMES ALI HENDERSON-EL, Defendant-Appellee.

Appeal from the Iowa District Court for Black Hawk County, Stephen C.

Clarke, Judge.

The State appeals a district court decision giving an inmate access to the police investigative files from his criminal conviction. AFFIRMED.

Thomas Ferguson, County Attorney, and D. Raymond Walton, Assistant

County Attorney, Waterloo, for appellant.

James Henderson-El, pro se, Fort Madison, for appellee.

Considered by Huitink, P.J., and Vogel and Eisenhauer, JJ. 2

HUITINK, P.J.

The State appeals a district court decision giving James Henderson-El, also known as James Henderson, access to the police investigative files from his criminal conviction. The State claims the files should remain confidential under

Iowa Code sections 22.7 and 622.11 (1999). Henderson-El contends the State's appeal is untimely.

In 1977 Henderson-El was convicted of murder in the first degree. See

State v. Henderson, 268 N.W.2d 173 (Iowa 1978), aff'd on reh'g, State v.

Henderson, 272 N.W.2d 492 (Iowa 1978).

On October 17, 2000, the district court entered an ex parte order allowing

Henderson-El's representative, Anita Speller, access to the reports of the

Waterloo Police Department and the Black Hawk County Sheriff's Department relating to his criminal case. The State filed a motion to reconsider on

November 7, 2000, claiming the records should be confidential under sections

22.7 and 622.11. After a hearing, the district court entered an order on

January 26, 2001, denying the motion to reconsider, finding "the State is unable to identify any particular public interest that would suffer by disclosure of the information." The State filed a notice of appeal on February 23, 2001.

I. Timeliness of Appeal

Henderson-El filed a motion to dismiss the appeal as untimely. He contends the motion to reconsider was untimely and therefore did not extend the time to file an appeal. He points out that the notice of appeal was filed more than thirty days after the district court's original ruling on October 17, 2000. 3

We have no jurisdiction to consider an appeal filed more than thirty days after a court's final judgment. Iowa R. App. P. 6.5(1); Robco Transp., Inc. v.

Ritter, 356 N.W.2d 497, 499 (Iowa 1984). An untimely motion under Iowa Rule of

Civil Procedure 1.904(2), formerly rule 179(b), will not toll the running of the thirty-day period within which an appeal must be taken. Hays v. Hays, 612

N.W.2d 817, 819 (Iowa Ct. App. 2000). If a rule 1.904(2) motion is untimely, the time for appeal is computed from the date of the order that was the subject of the posttrial motion. Id.

The State responds that the motion to reconsider was not filed under rule

1.904(2), which should be filed within ten days of the court's ruling sought to be reviewed. See Iowa R. Civ. P. 1.1007. The State asserts the motion to reconsider was actually a motion to vacate under rule 1.1012, formerly rule 252.

A petition to vacate must be filed within one year of the judgment or order involved. Iowa R. Civ. P. 1.1013.

The motion to reconsider does not provide that it was brought pursuant to any specific rule of civil procedure. We look to the substance of a motion, and not its name. In re B.G.C., 496 N.W.2d 239, 242 (Iowa 1992); In re Estate of

Dull, 303 N.W.2d 402, 404 (Iowa 1981). Here, the State did not seek to enlarge or amend the district court's ruling, but sought to "rescind" the previous order and obtain a hearing on the merits. We determine the State's motion should be considered a timely motion to vacate under rule 1.1012. The State's notice of appeal, filed within thirty days of the ruling on the motion to vacate, was timely. 4

II. Confidentiality of Records

Under Iowa's Open Records Law, "Every person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or information contained in a public record." Iowa Code § 22.2(1).

There is a liberal policy of access under chapter 22, and departures are to be made only under discrete circumstances. City of Dubuque v. Telegraph Herald,

Inc., 297 N.W.2d 523, 526 (Iowa 1980). There is a presumption of openness and disclosure under chapter 22. Gabrilson v. Flynn, 554 N.W.2d 267, 271 (Iowa

1996).

Exceptions to the liberal policy of access are found in section 22.7. Id.

The relevant portion of 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, except where disclosure is authorized elsewhere in this Code.

In addition, section 622.11 provides:

A public officer cannot be examined as to communications made to the public officer in official confidence, when the public interests would suffer by the disclosure.

These two statutory provisions express essentially the same legislative purpose, assurance to all persons upon whom law enforcement officials rely for information that "official confidentiality attends their conversations and may protect from public access the officers' reports of what they have said." State ex rel. Shanahan v. Iowa Dist. Court, 356 N.W.2d 523, 528 (Iowa 1984). These provisions create a qualified, not absolute, privilege. Hawk Eye v. Jackson, 521 5

N.W.2d 750, 753 (Iowa 1994). In order to establish the privilege, the State must show: (1) a public officer is being examined; (2) the communications made to the officer were in official confidence; and (3) the public interests would suffer by disclosure. Shannon by Shannon v. Hansen, 469 N.W.2d 412, 414 (Iowa 1991).

In the present case, the parties are not contesting that the first two elements were satisfied. The question before the district court, and before us, is whether the State adequately showed "public interests would suffer by disclosure" of the investigative files from Henderson-El's criminal case. In order to make this determination, the court must weigh the relative interests at stake.

Hawk Eye, 521 N.W.2d at 753. In Hawk Eye, the court considered whether:

(1) confidential informants were used in the investigation; (2) there was an on- going investigation that might be hindered by disclosure; and (3) the report contained "hearsay, rumor, or libelous comment." Id.

Here, the State did not present evidence confidential informants had been used in the investigation. The case certainly was not ongoing; Henderson-El was convicted in 1977. Also, there were no allegations the investigative files contained "hearsay, rumor, or libelous comment." Instead, the State expressed concerns that witnesses identified in the files would be contacted and harassed.

The State pointed out there was a public interest in finality of judgments.

We note there is a presumption of openness and disclosure under Iowa's

Open Records Law. Gabrilson, 554 N.W.2d at 271. The public has an interest in the review of government affairs. Hawk Eye, 521 N.W.2d at 754. The State highlighted concerns about things that might happen, but presented no evidence of a particular public interest that would suffer by disclosure of the information. 6

We determine the district court did not err in concluding the State failed to show public interests would suffer by disclosure of Henderson-El's investigative files.

We affirm the decision of the district court.

AFFIRMED.