source: Caselaw Access Project

author: STREIT, Justice.

license: Public Domain

text:
    Mark GANNON and Arlen Nichols, Appellants, v. BOARD OF REGENTS of the State of Iowa; Gregory S. Nichols, Executive Director, Board of Regents of the State of Iowa; Iowa State University Foundation; Peg Armstrong-Gustafson, Interim President and Chief Executive Officer, Iowa State University Foundation, Appellees.
    No. 03-1658.
    Supreme Court of Iowa.
    Feb. 4, 2005.

      Thomas D. Hanson of Hanson, Bjork & Russell, L.L.P., Des Moines, for appellants.
    Mark McCormick and Christopher M. Miller of Belin Lamson McCormick Zum-bach Flynn, P.C., Des Moines, for appel-lees Iowa State University Foundation and Armstrong-Gustafson.
    George A. Carroll, Assistant Attorney General, for appellees Board of Regents and Nichols.
   STREIT, Justice.

In this appeal, we are asked to decide whether a government body may outsource one of its core functions to a private corporation, making that part of its operation nongovernmental and not subject to public scrutiny. We hold the Iowa State University Foundation, a recipient of such outsourcing, is performing a government function, and therefore its records are subject to disclosure. Because the district court found the Foundation was not performing a government function and in doing so granted the Foundation’s motion for summary judgment, we reverse and remand for a trial on the merits.

I. Facts and Prior Proceedings

The present dispute concerns the access the public has to the records of the Iowa State University Foundation under the Iowa Freedom of Information Act. The petitioners, Mark Gannon and Arlen Nichols, are citizens and taxpayers of Iowa who want to open up the Foundation’s records for the public to see.

A. Events Leading to Lawsuit

In November 2001, the petitioners wrote the Iowa Board of Regents

request[ing] access to all the financial records of the [Foundation] ..., showing all [its] receipts and disbursements ... from 1990 to the present, together with access to correspondence, memo-randa, meeting minutes, directors minutes, reports and the like explanatory of such transactions.

In the event this request was denied, the petitioners asked the Board to tell them the reason for doing so and the Board’s administrative appeal procedure, if any.

The Board of Regents refused the petitioners’ requests. The Board told the petitioners the Foundation was a private corporation it did not create or oversee. Although the petitioners and the Board exchanged further correspondence, the Board refused the bulk of the petitioners’ requests.

In May 2002, the petitioners wrote a letter to the executive director of the ISU Foundation requesting to inspect a substantial amount of the Foundation’s records. The petitioners did not want to see any confidential records. See Iowa Code § 22.7 (2001) (listing various exceptions to general rule of disclosure of public records). The Foundation replied that the petitioners’ requested date for inspection was not acceptable, mailed the petitioners a copy of its tax returns for the previous three fiscal years, and stated it was considering the petitioners’ request and would respond as soon as possible. Although the Foundation provided a limited amount of the requested information in the ensuing weeks, it did not seek an injunction to restrain the petitioners’ examination of the materials it did not provide. See id. § 22.8.

B. The Lawsuit

In August 2002, the petitioners filed a petition for a writ of mandamus in the district court pursuant to the Iowa Freedom of Information Act against the Board of Regents, the Foundation, and two of their executive officers. See id. § 22.5. The petitioners alleged the Foundation possessed “public records” it had refused to disclose. They presented two theories. First, the petitioners claimed the Foundation was a “government body” and its records were public records subject to disclosure. In the alternative, the petitioners argued the Foundation was at the very least a “fiduciary” or “other third party” with records relating to the investment of public funds in its custody. The petitioners asked the court to issue a writ of mandamus directing the respondents to produce the requested records, an injunction to prevent further violations of the Act, statutory damages, and attorney fees. See id. § 22.10 (civil enforcement).

C. Discovery

During discovery, the petitioners learned the following about the Foundation and its predecessors:

1. The Iowa State College Foundation

In 1958, the Iowa Board of Regents granted Iowa State College (now Iowa State University) President James Hilton the authority to establish the “Iowa State College Foundation.” The ISCF was duly incorporated as a private not-for-profit corporation. The ISCF’s articles of incorporation stated its purpose was “to accept, hold, administer, invest and disperse for educational and scientific purposes” funds “to educational and scientific institutions.” Upon dissolution, all corporate assets were to become the property of the State of Iowa on the condition they be held “for the perpetual use of [the College].” The ISCF’s Board of Directors was divided into four classes. The first class consisted of the President of the College and the President of the Board of Regents.

2. The Iowa State University Achievement Foundation

In 1980, an entity then known as the “Iowa State University Foundation” and the Iowa State University Alumni Association incorporated the “Iowa State University Achievement Foundation.” The stated objects and purposes of the ISUAF were to promote the welfare of ISU faculty, students, and alumni and “[t]o accept, hold, administer, invest, and disperse for educational and scientific purposes gifts, grants, bequests, and devises ... exclusively for the benefit. of [ISU] and its students.” Upon dissolution of the ISUAF, its assets were to be transferred to an organization whose objects and purposes were the same as its own or directly to the State of Iowa “for the exclusive use and benefit of [ISU].”

3. The Iowa State University Foundation

(a) Corporate Structure

In 1988, the ISUAF changed its name to the “Iowa State University Foundation,” the same moniker as one of its incorpo-rators. At the time of the filing of this action, the Foundation operated under its “Third Amended and Restated Articles of Incorporation.” As stated in the Articles, the object of the Foundation is to promote the welfare- of ISU faculty, students, and alumni and to identify, cultivate, and solicit donors for the exclusive benefit of ISU. The Foundation will “accept, hold, administer, invest, and disperse for educational and scientific purposes gifts, grants, bequests, and devises ... exclusively for the benefit of [ISU].” Upon dissolution, the Foundation’s assets are to be transferred to an organization whose objects and purposes are the same as its own or directly to the State of Iowa for the exclusive benefit of ISU.

Like the ISCF before it, the Foundation’s Board of Directors is divided into four classes. The first class consists of three members. One member is required to be the President of ISU. In addition to the designated seat of the President, two other members of the Foundation’s Board happen to be affiliated with ISU or the Board of Regents.

The Board of Directors is responsible for deciding whether to accept or reject gifts to the Foundation. The Board of Directors has delegated this responsibility to a Gift Acceptance Committee in accordance with a gift acceptance policy. One member of the Committee is an-ISU faculty representative chosen in consultation with the ISU Faculty Senate. The policy gives guidance to Foundation employees regarding the acceptance of prospective gifts. For example, the Foundation requires gifts of “significant risk” (e.g., gifts of real property) be documented with a “written understanding” between the donor, the Foundation, and ISU before the Foundation will accept them.

(b) The Service Agreement

Historically the Foundation was staffed with ISU employees and located on the ISU campus. In October 2001, however, the Board of Regents Office recommended the Board of Regents approve an agreement between ISU and the Foundation. The' Board Office noted that pursuant to this agreement ISU would “lease” its employees to the Foundation until the Foundation could arrange its own financial compensation package for them.

On August 21, 2002, ISU and the Foundation executed (or renewed) an elaborate “service agreement.” According to the agreement, ISU

desire[d] to engage the expertise of the Foundation to provide advice, coordination, and assistance in the fundraising and development area, and in the operation, accounting and fund investment management thereof, and the Foundation desire[d] to provide such services, not as an employee or agent of the University, but as an independent con7 tractor.

The service agreement does not specify how much ISU must compensate the Foundation for its services. In 2002, ISU agreed to pay the Foundation $750,000 annually.

The Foundation presently employs its own personnel — 85 full-time employees and 150 part-time employees. In 2001, the Foundation also purchased a facility off-campus for its headquarters with ISU Foundation funds. Today the ISU Foundation styles itself not as a part of ISU but rather as a wholly independent and private not-for-profit corporation organized to raise and manage private gift support for the exclusive benefit of ISU. The Foundation conducts a variety of comprehensive fundraising-related services for ISU, including telemarketing, direct mail, coordinated capital campaigns, donor solicitation and identification, investment and securities management, database management, gift receipting, estate planning and structuring, and planned giving consultation regarding the tax implications of wills, trusts, and life insurance.

The Foundation manages two types of funds for ISU. The first category consists of funds donated to ISU that ISU then transfers to the Foundation. The service agreement requires the Foundation, “as [ISU’s] agent,” to separately account for such funds and hold them in accordance with the donor’s intent and at the direction of ISU “with the same care applicable to fiduciaries of charitable trust funds.” The second category consists of funds donated directly to the Foundation “in trust” for the benefit of ISU. The Foundation invests both types of funds in accordance with an investment policy. As of 2002, it appears the Foundation retained $234 million in private endowment funds. In 2001-02, the Foundation provided $38.9 million in “expendable contributions and endowment earnings to [ISU] as specified by donors to support university programs, scholarships, facilities, and projects.”

The agreement contemplates that the parties will coordinate with all “University support organizations” and meet annually to “plan future activities.” The President of the Foundation is required each year to give reports to ISU detailing past and contemplated activities performed on ISU’s behalf. ISU faculty, staff, and administrators develop lists of fundraising and spending projects for the Foundation; after the Foundation responds to ISU “about the fundraising feasibility of the projects, [ISU] adopts the fundraising priorities.” The Foundation is also obligated to provide ISU’s President with an annual independent audit report and a copy of its tax return. ISU also has the right to audit the Foundation once a year for all “accounts and records relating to property donated in the name of the ISU, but held and managed by [the] Foundation.”

The service agreement requires that ISU’s President remain a voting member of the Foundation’s Board of Directors and a member of its Executive Committee. It also grants the Foundation access to ISU’s “telephone systems, computation systems, printing, stores, ... professional support and services generally available to University departments,” “access to [ISU’s] Human Resources Services and benefit programs,” space for its telemarketing programs, and “other services available to [ISU] units and departments.” Foundation employees are provided identification cards, parking privileges, admission to athletic events, access to the ISU library, and staff recreation and fitness programs on the same terms as ISU employees. The Foundation is also permitted to use the ISU name, logo, and website. In addition, the Foundation has access to private data files on graduates, students, employees, and retirees of the university. For example, the Foundation can know a particular individual’s demographic information and degree, as well as whether he or she received a scholarship.

D. Dismissal in the District Court

Faced with this record, the district court granted the defendants’ motion for summary judgment. First, the court held the Foundation was not a “government body” as contemplated in the Iowa Freedom of Information Act, and therefore its records were not public records. The court concluded the Foundation’s history, purpose, activities, and close ties to ISU did not make it a government body. Second, the court reasoned that funds donated directly to the Foundation in trust for ISU are Foundation funds and thus records relating to these private funds are not a matter of public record until they are dispersed to ISU. Although the court recognized that records relating to funds that ISU deposited with the Foundation as its agent were public funds and hence- a matter of public record, the court declined to issue a writ of mandamus because the petitioners did not ask ISU for the documents. As a corollary matter, the court also ruled it was not a function of ISU to solicit and manage private donations and for this reason concluded ISU “did not abdicate any of its functions to the Foundation in order to ‘prevent the examination of records or copying of a public record’ in violation of Iowa Code [section 22.2(2)].” The petitioners appealed:

II. Scope and Standards of Review

“Customarily our review of an action brought under chapter 22 would be de novo, the nature of the action being that of' mandamus, triable in equity.” KMEG Television, Inc. v. Iowa State Bd. of Regents, 440 N.W.2d 382, 384 (Iowa 1989); see also Iowa Code §§ 22.5, .10, 661.3. Because this matter is before us on an appeal from an entry of summary judgment, however, de novo review is not permitted. See KMEG, 440 N.W.2d at 384.

“[W]e cannot find facts de novo in an appeal from summary judgment. The proper scope of review of a case in equity resulting in summary judgment is for correction of errors of law.”

Coralville Hotel Assocs., L.C. v. City of Coralville, 684 N.W.2d 245, 247 (Iowa 2004) (quoting Koenigs v. Mitchell County Bd. of Supervisors, 659 N.W.2d 589, 592 (Iowa 2003)).

Summary judgment principles are well settled. As we recently stated in Smith v. Shagnasty’s Inc.,

Summary judgment is proper only if the record made shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. We view the record in the light most favorable to the resisting party, affording that party all reasonable inferences that the record will bear. In sum, we indulge in every legitimate inference that the evidence will bear in an effort to ascertain the existence of a fact question. An inference is legitimate if it is rational, reasonable, and otherwise permissible under the governing substantive law. On the other hand, an inference is not legitimate if it is based upon speculation or conjecture.
The burden of showing the nonexistence of a fact question rests with the moving party. If reasonable minds may differ on the resolution of an issue, a genuine issue of material fact exists.

688 N.W.2d 67, 71 (Iowa 2004) (citations and internal quotations omitted).

III. The Merits: The Iowa Freedom of Information Act

A. General Principles

Thomas Jefferson is said to have remarked that an informed citizenry is the bulwark of a democracy. Iowa Code chapter 22, Iowa’s Freedom of Information Act, is designed “to open the doors of government to public scrutiny.” Iowa Civil Rights Comm’n v. City of Des Moines, 313 N.W.2d 491, 495 (Iowa 1981). The Act seeks “to prevent government from secreting its decision-making activities from the public, on whose behalf it is its duty to act.” Id.

Subject to some limitations not relevant here, everyone has the right to examine, copy, and disseminate “public records.” See Iowa Code § 22.2(1). Thus, to determine whether the public has inspection rights under the Iowa Freedom of Information Act, we must begin with the statutory definition of “public records.” See Howard v. Des Moines Register & Tribune Co., 283 N.W.2d 289, 299 (Iowa 1979). The Act defines “public records” as:

all records, documents, tape, or other information, stored or preserved in any medium, of or belonging to this state or any county, city, township, school corporation, political subdivision, nonprofit corporation other than a county or district fair or agricultural society, whose facilities or indebtedness are supported in whole or in part with property tax revenue and which is licensed to conduct pari-mutuel wagering pursuant to chapter 99D, or tax-supported district in this state, or any branch, department, board, bureau, commission, council, or committee of any of the foregoing.
“Public records ” also includes all records relating to the investment of public funds including but not limited to investment policies, instructions, trading orders, or contracts, whether in the custody of the public body responsible for the public funds or a fiduciary or other third party.

Iowa Code § 22.1(3).

“The right of persons to view public records is to be interpreted liberally to provide broad public access to public records.” Rathmann v. Bd. of Dirs. of the Davenport Cmty. Sch. Dist., 580 N.W.2d 773, 777 (Iowa 1998). Exceptions to the general rules of disclosure are to be narrowly construed. Id. In addition, “[a] government body shall not prevent the examination or copying of a public record by contracting with a nongovernment body to perform any of its duties or functions.” Iowa Code § 22.2(2).

B. The Merits

Ours is not the first appellate court presented with the question of whether a nominally private foundation with close ties to a university is subject to a state freedom of information act. See, e.g., Cal. State Univ., Fresno Ass’n, Inc. v. Superior Ct., 90 Cal.App.4th 810, 108 Cal.Rptr.2d 870 (2001); State Bd. of Accounts v. Ind. Univ. Found., 647 N.E.2d 342 (Ind.Ct.App.1995); Frankfort Publ’g Co. v. Ky. State Univ. Found., Inc., 834 S.W.2d 681 (Ky.1992); State ex rel. Guste v. Nicholls Coll. Found., 564 So.2d 682 (La.1990); Jackson v. E. Mich. Univ. Found., 215 Mich.App. 240, 544 N.W.2d 737 (1996); State ex rel. Toledo Blade Co. v. Univ. of Toledo Found., 65 Ohio St.3d 258, 602 N.E.2d 1159 (1992); 4-H Road Comm’n v. W. Va. Univ. Found., 182 W.Va. 434, 388 S.E.2d 308 (1989). Perhaps because of the differing statutory schemes involved and the fact-intensive nature of open-records challenges a consensus has not emerged in these courts on how best to approach such matters. See Salín G. Geevarghese, Looking Behind the Foundation Veil: University Foundations and Open Records Laws, 25 J.L. & Educ. 219, 230 (1996) [hereinafter “Geevarghese”]. The gist of the petitioners’ first claim in this ease is that the ISU Foundation’s function, history, purpose, activities, and close ties to ISU render it a government body, i.e., a branch, department, or other entity of the state, notwithstanding its formal status as a private not-for-profit corporation and recent moves to distance itself from ISU. In the alternative, the petitioners argue the Foundation possesses public records insofar as it retains records relating to the investment of public funds. We do not reach either of these issues. We agree with the petitioners that the Foundation is performing a government function, and therefore, contrary to the district court, we hold the Foundation’s records are subject to public disclosure. The Foundation is plainly performing a government function by virtue of its contract with ISU, and therefore section 22.2(2) of the Iowa Freedom of Information Act mandates disclosure. A government body may not outsource one or more of its functions to a private corporation and thereby secret its doings from the public.

Iowa Code § 22.2(2): Government Bodies, Their Contracts, and Public Disclosure

The petitioners have steadfastly maintained that the solicitation and management of private funds for a public university is a government function. The petitioners have also pointed out that the Iowa Freedom of Information Act expressly provides:

A government body shall not prevent the examination or copying of a public record by contracting with a nongovernment body to perform any of its duties or functions.

Iowa Code § 22.2(2). The district court held Iowa Code section 22.2(2) did not apply to the present dispute, however, because (1) the functions of ISU are well defined by statute and do not include the solicitation or the management of private gifts and (2) ISU “did not abdicate any of its functions to the Foundation in order to ‘prevent the examination or copying of a public record.’ ” Because we find the Foundation is performing a government function pursuant to its contract with ISU, we reverse and hold that the Foundation’s records must be disclosed.

In ruling the Foundation was not performing a government function, the district court relied upon KMEG Television, Inc. v. Iowa State Board of Regents, 440 N.W.2d 382 (Iowa 1989). In KMEG, the University of Iowa sold rights to broadcast Hawkeye athletic events to a communications management firm for a fixed sum. 440 N.W.2d at 383-84. The contract between the university and the firm was openly bid, constituted a public record, and was fully disclosed. Id. at 385.

The firm later solicited proposals from television stations to determine which local broadcasters would have the right to televise Hawkeye football and basketball games in individual markets. Id. at 384. KMEG, a television station, lost out on one of these bidding competitions. Id. Disappointed, KMEG requested the university and the firm disclose all documents relating to this secondary bid, i.e., the firm’s resale of a portion of the Hawkeye broadcasting rights it owned. Id. When the university and the firm refused, KMEG brought suit under chapter 22. Id.

In KMEG, we first considered whether the firm’s records regarding the secondary bidding process belonged to the university. We held they did not. Id. at 385. We noted that “[sjimply because a government agency contracts with a private corporation, the affairs of the corporation do not become the affairs of the government.” Id. We pointed out the records sought were never in the possession of, or shared with, the university. Id. Nor had the university indicated any interest in having the records or reviewing them. Id. Indeed, all revenues from the bidding process benefited the firm, not the university; as we expressly noted in KMEG, the university’s interests dissipated once the firm paid for the broadcasting rights, which it then in turn resold. See id.

We then examined the import of Iowa Code section 22.2(2). Id. We wrote:

Closely linked with KMEG’s ... argument is its contention that Iowa Code section 22.2(2) precludes the sort of record concealment complained of here.... When read in harmony with preceding subsection 22.2(1) (authorizing the right of “[ejvery person ... to examine and copy public records”), we think the statute conveys an obvious legislative intent to prevent government agencies from accomplishing indirectly what they are prevented from doing directly. In other words, a government body may not delegate or “contract away” its duties or functions in order to avoid disclosure of what would otherwise be a public record.

Id. (emphasis added). We concluded, however, that the firm’s “marketing and production of intercollegiate sports television broadcasts” was not a duty or function of government. Id. at 386. We held this activity simply was “not one reasonably embraced by the statutory duty of the University.” Id.; see also Iowa Code § 263.1 (the statutory “object” of the University of Iowa is “to provide the best and most efficient means of imparting to men and women ... a liberal education and thorough knowledge of the different branches of literature and the arts and sciences, with their varied applications”). Nor was it “a function capable of performance by the school.” Id. In KMEG, a private firm simply sold what it. had bought from a government body, and the government body retained no control or interest in the subject matter of the resale.

From our discussion in KMEG, the district court here ruled the solicitation and management of private donations was not a duty or function of ISU. The district court cited a federal statute that indicates the “leading object” of ISU, as a federal land-grant institution, is “to teach such branches of learning as are related to agriculture and the mechanic arts.” 7 U.S.C. § 304 (2000). It also referenced a state statute that requires ISU to adopt and teach

practical courses of study, embracing in their leading branches such as relate to agricultural and mechanical arts, mines and mining, and ceramics, and such other branches as are best calculated to educate thoroughly the agricultural and industrial classes in the several pursuits and professions of life, including military tactics.

Iowa Code § 266.2. Finding these statutes defined ISU’s duties and functions and did not include the solicitation and management of private donations, the court held Iowa Code section 22.2(2) did not mandate disclosure of the Foundation’s records.

We reject such a narrow and archaic interpretation of the function of a university. It is based on an overly restrictive reading of our KMEG decision. This court did not state in KMEG that a university’s functions are limited to those set out in statutory grants of authority. To the contrary the operation of an intercollegiate athletic program was a “governmental power,” not because the university had specific statutory authorization for such an activity, but because athletics “advance[d] its statutory objects.” KMEG, 440 N.W.2d at 386 (emphasis added). An activity need not be listed in the statute books to be a function of a university. To qualify, the activity at issue need only advance the statutory objects of the institution. We think the activities of the Foundation unmistakably advance the institutional goals of ISU.

Successful fundraising and management is a very important, if not vital, function of the modern university and an integral part of its continuing viability. The Foundation’s activities support a myriad of university programs, scholarships, facilities, and projects. “The receipt and solicitation of gifts ... is an indispensable function of any institution of higher learning.” Toledo, 602 N.E.2d at 1162. “[T]he solicitation and receipt of donations for the university, and keeping records of that activity, are government functions.” Id. at 1163; accord Boston v. Tanner, 29 F.Supp.2d 743, 747 (W.D.La.1998) (approving view that the power to “seek and accept donations ... relate[s] strictly to [a] university’s academic function”). The legislature recognized this fact (and to some extent made fundraising a duty of the Board of Regents) when it required the Board of Regents to “[ajccept and administer trusts” and permitted it to “authorize nonprofit foundations acting solely for the support of institutions governed by the [Bjoard to accept and administer trusts deemed by the [Bjoard to be beneficial.” Iowa Code § 262.8. Although the record does not tell us the precise share of support for university programs, scholarships, facilities, and other necessary university expenses paid by the Foundation, if ISU stopped its fundraising efforts or quit participating in the Foundation’s efforts, ISU students and the legislature would certainly be surprised to learn that such activity was not a government function. The uncontroverted evidence shows that today’s Foundation continues the essential purpose of its predecessor foundations and by virtue of this fact enjoys the continued support of ISU. ISU now permits — if not actively directs' — money that would naturally flow to the government to migrate to the Foundation. Before the Foundation existed, people wanting to donate to ISU presumably did so directly; now they must choose between ISU and the Foundation, with ISU at the very least allowing that such interests be directed to the Foundation. In executing the service agreement, ISU, a government body, with the express approval of another government body, the Board of Regents, has “contracted away” one-of its functions — the ability to raise money and manage its finances — to what we assume in this case is a nongovernment body. In so doing, the Board and ISU have “accomplish[ed] indirectly what they are prevented from doing directly,” i.e., they have “avoid[ed] disclosure of what would otherwise be a public record.” KMEG, 440 N.W.2d at 385. The Iowa Freedom of Information Act expressly prevents this result, and therefore the Foundation’s records remain subject to disclosure even if it is no longer a government body. Iowa Code § 22.2(2).

We note that in interpreting section 22.2(2), the subjective intent of the government body outsourcing its duties or functions is not relevant to our analysis. We disavow any language in KMEG to the contrary. It is true KMEG opines that after one seeking disclosure establishes the delegation of a function or a duty, the burden should then shift to the government body to show “the delegation ... was not for the purpose of preventing the examination or copying of a public record.” 440 N.W.2d at 385-86 (emphasis added). This part of our decision, in which we crafted a “two-step process” for “[establishing a violation of section 22.2(2)” was strictly obiter dicta, however; our holding in that case was expressly limited to a finding that no function was in fact delegated. Id. at 385; see id. at 386 (stating that “we need not consider the second prong of the test to be applied under section 22.2(2)”); see also Boyles v. Cora, 232 Iowa 822, 847, 6 N.W.2d 401, 413 (Iowa 1942) (defining obiter dicta as “passing expressions of the court,- wholly unnecessary to the decision of the matters before the court”). On closer inspection of the statute' in this case — a case where a ruling on the issue matters — we find section 22.2(2) contains no such requirement. Cf. State ex rel. Miller v. Hydro Mag, Ltd., 436 N.W.2d 617, 621 (Iowa 1989) (“That language was not ... necessary to the holding and we will not use that language to determine the necessary elements in this case.”). Unlike other statutes, Iowa Code section 22.2(2) does not contain language indicating a showing of intent to prevent disclosure on the part of the actor, in this case the government body, is required. Cf. Iowa Code §§ 703.3 (“with the intent to prevent”), 718.4 (“willfully prevents or attempts to prevent”), 719.3 (“with intent to prevent”). When intent to prevent disclosure of a public record is shown, the Code provides other remedies in addition to public scrutiny. See, e.g., id. § 22.6 (“Any person knowingly violating or attempting to violate any provision of this chapter where no other penalty is provided shall be guilty of a simple misdemeanor.”).

Our dicta in KMEG also conflicts with the liberal reading we are supposed to give the Iowa Freedom of Information Act. See Rathmann, 580 N.W.2d at 777 (“The right of persons to view public records is to be interpreted liberally to provide broad public access to public records.”). As written, Iowa Code section 22.2(2) plainly extends the Act’s reach to records held by private entities that perform government duties or functions. See Little v. Va. Retirement Sys., 28 Va. Cir. 411, 426 n. 5 (Cir.Ct.1992) (recognizing Iowa Code section 22.2(2) addresses concerns of delegation of government authority “perhaps more directly” than the Virginia Freedom of Information Act), ajfd in part and rev’d in part sub nom. RF & P Corp. v. Little, 247 Va. 309, 440 S.E.2d 908 (1994); accord Alasdair Roberts, Structural Pluralism and the Right to Information, 51 U. Tor. L.J. 243, 244, 249-51, 251 n. 40 (2001) (noting governmental restructuring has undermined the effectiveness of many state freedom-of-information laws because “[a]s authority has shifted to quasi-governmental or private organizations, the ambit of the law has shrunk”; the author discusses Iowa’s statute among those jurisdictions that may take a more expansive view of contractor obligations). This is not to say the Iowa Freedom of Information Act mandates disclosure whenever a private organization happens to perform a duty or function of a government body. Not every private entity performing an activity that may be characterized as a government function in theory must open its doors to public scrutiny. Cases must also be viewed in their factual context. Here there is an elaborate contractual arrangement between the government body and a private organization, through which the private organization and the government .enjoy a highly interwoven and symbiotic relationship. The Foundation is performing a government function in both a theoretical and a factual sense.

A standard that focuses upon the intent of the government body in preventing disclosure of a public record is also unworkable and would result in unreasonable or absurd consequences. See State v. Conner, 292 N.W.2d 682, 686 (Iowa 1980). Such a standard is unworkable because it would require an inquiry into the murky world of the subjective intent of a government institution. It is unreasonable or absurd because it would mean the same record may or may not be subject to disclosure depending on the state of mind of the government body at the time of outsourcing, notwithstanding that the interest in disclosure is the same in both instances. Cf. Kiesau v. Bantz, 686 N.W.2d 164, 173 (Iowa 2004). Examination of each category of records facilitates scrutiny of the conduct of public officials and institutions. As the Toledo court recognized, “[tjhere is ... [a] significant public interest in knowing from whom donations come and how that relates to where the university, as a public institution, chooses to spend its money.” 602 N.E.2d at 1163. To rule otherwise would “obscure the sometimes significant link between a gift and its eventual use.” Id.; see also Geevarghese at 234 (listing potential abuses that may result). We must simply interpret the statute as written. The plain and unambiguous language of the statute states that a government body shall not prevent examination or copying of a public record by contracting with a nongovernment body; nefarious intent on the part of the government body need not be shown. We disavow our dicta in KMEG to the contrary.

In sum, we conclude a.government body, ISU, with the approval of another government body, the Board of Regents, has contracted with what we assume in this appeal is a nongovernment body, the Foundation, to perform a government function for and on behalf of ISU. Iowa Code section 22.2(2) therefore mandates disclosure, without regard to the government body’s intent in so contracting.

IV. Conclusion

Summary judgment was not proper. The Foundation performs a government function by virtue of its contract with ISU. Therefore, its records are “public records” subject to examination. We reverse and remand for further proceedings.

REVERSED AND REMANDED.

      . The petitioners also asked the Board of Regents to provide the same information with respect to the Iowa State University Agricultural Foundation and the University of Iowa Foundation. Because these other foundations are not parties to this appeal, we omit all further reference to them.

      . The alleged public records spanned from 1995 to 2002 and included: (1) the Foundation's tax returns; (2) its audited financial statements; (3) reports of activities the Foundation submitted to the Board; (4) its chart of accounts; (5) unaudited trial balances; (6) a "register containing the abstract of investments of endowment and non-endowment funds committed to the Foundation’s custody by the Board of Regents or its delegees”; (7) "documentation relating to the acceptance and administration of trusts submitted to the Foundation by the Board”; (8) "documents showing distributions of funds to [ISU] or its affiliates, including ... documents showing the source of the funds and the restrictions on their use and disposition”; (9) "[a] listing of all contributions to the ... Foundation in excess of $25,000 from corporations, [individuals, or the estates of individuals] ..., together with documentation of any restrictions on the contributions or considerations provided to the contributor”; (10) a list of all perquisites provided to ISU employees paid for with Foundation funds; (11) minutes of all meetings of the Foundation's Board of Directors and Board of Governors, "including reports ... containing budgets, identification of uses of funds derived from Foundation funds for [ISU] projects and activities and investment results”; and (12) "[a]ll correspondence ... relating to the use of funds controlled by the ISU Foundation.”

      . The district court did not decide whether any of the Foundation's records were confidential. Nothing in this opinion should be construed as a ruling on this issue.

      . This conclusion was not merely hortatory language on the part of the Ohio Supreme Court; it was, given the language of the Ohio Freedom of Information Act, central to that court's holding that the records of the University of Toledo Foundation were subject to public disclosure. See Ohio Rev. Code Ann. § 149.011(A) (2003) (defining a "public office” as "any state agency, public institution, political subdivision, or other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government”). Applying the Ohio law to facts nearly identical to those presented here, the Ohio Supreme Court concluded the University of Toledo Foundation was a “public office” and its records subject to disclosure. After concluding the University of Toledo Foundation’s predecessor foundations plainly "operated essentially as gift-receiving and soliciting arms of the university, despite their status as private, nonprofit corporations,” the court remarked that
      [gjiven the relatively recent merger of the [predecessor entities] to create the present entity, the continuation of the essential mission of the predecessors, and the continued support of the university, the foundation cannot be viewed in legal isolation from those entities from which it came.

        Toledo, 602 N.E.2d at 1162. Critically, the Ohio court pointed out the University of Toledo Foundation was — as its statute required-performing a government function, insofar as it received and solicited gifts on the university’s behalf. Id. For these reasons, the court concluded the Toledo Foundation was a public office because it was "not a mere supplementary benefactor of the university” but rather “a major gift-receiving and soliciting entity of the university.” Id.

      . The Foundation vigorously denies any connection to the Iowa State College Foundation, an entity created with the blessing of the state. The record, on the other hand, contains an internal Board of Regents memorandum that indicates the Foundation was created in 1958, the year the ISCF was incorporated, not 1980. One of the Foundation's incorporators was also named the "Iowa State University Foundation.” Given the well known fact that ISU was known as Iowa State College in 1958, see State v. Proulx, 252 N.W.2d 426, 431 (Iowa 1977) (court may take judicial notice of "facts capable of accurate and ready determination by resort to sources of indisputable accuracy”) (citing Charles T. McCormick, Handbook of the Law of Evidence § 328 (2d ed.1972)), it would not be unreasonable to conclude that this incorporating foundation and the ISCF were one and. the same entity. Notwithstanding the parties’ efforts to persuade us one way or the other, however, resolving this factual dispute over the Foundation's DNA is not relevant to our disposition of the case.

      . KMEG appeared to hold that in order for an activity to be a function of government, there must be some showing that government is capable of performing that activity. We do not find this fact determinative. In any event, while there is some testimony in the summary judgment record that ISU engaged the Foundation for its expertise in the competitive world of fundraising, it is not disputed that historically Foundation employees were ISU employees and ISU managed and raised its own funds.


author: SACKETT, C.J.

text:
    Ramona CRAWLEY, Plaintiff-Appellant, v. Patrick PRICE and Cory Tomlyanovich, Defendants-Appellees.
    No. 03-2098.
    Court of Appeals of Iowa.
    Oct. 14, 2004.

      Cynthia Rybolt, Waterloo, for appellant.
    D. Raymond Walton of Beecher,- Field, Walker, Morris, Hoffman & Johnson, P.C., Waterloo, for appellee.
    Considered by SACKETT, C.Ji, and VOGEL and ZIMMER, JJ.
   SACKETT, C.J.

Plaintiff-appellant Ramona Crawley appeals from the district court’s dismissal of her petition, in which she claimed unlawful ouster and abuse of access under Iowa Code chapter 562A (1999) and made tort claims of trespass and conversion against the defendants. Crawley claims she was a tenant at will, under Iowa Code section 562.4, in a house owned in succession by the defendants, which entitled her to the protections of Iowa Code chapters 562 and 562A. She claims the defendants violated the statutory protections. Even if Craw-ley was not a tenant at will, she claims violation of her rights under Iowa Code chapter 648, regarding forcible entry and detention of real property. She further seeks statutory damages under Iowa Code chapter 562A for the defendants’ alleged wrongful access to the property and also claims these alleged entries by defendants were trespass. Finally, Crawley claims her property was illegally converted when it was removed from the house by one of the defendants. She seeks actual and punitive damages for the conversion.

We affirm.

I. BACKGROUND FACTS AND PROCEEDINGS.

This case involves the purported rental of a house and an alleged wrongful ouster. Ramona Crawley filed a petition claiming she was illegally evicted. Specifically she claimed (1) unlawful ouster, (2) abuse of access, (3) trespass, and (4) conversion by the defendants. The district court found for the defendants on all claims and dismissed Crawley’s petition. The district court held that Crawley had no cause of action against the defendants, the actual titleholders of the property, because she had no rental relationship with them.

The house in question came to be owned by Cory Tomlyanovich, the co-defendant-appellee, after she inherited it in 1995 from her mother. The property had apparently been used as a rental property for a period prior to Tomlyanovich’s ownership. Not long after she inherited the house, Tomlyanovich sold it on contract to Len Sbiral. Sbiral defaulted on the contract, the contract was forfeited in late 1999 or early 2000, and Tomlyanovich regained, the .title. Prior to the forfeiture Sbiral talked to Tomlyanovich about the possibility of giving another party, Cory Bradley (a male), an interest in the property. There is no evidence showing Cory Bradley ever obtained any interest in the property.

Subsequent to the forfeiture, Tomlyano-vich, apparently along with her friend Patrick Price — the other co-defendant-appel-lee, made an inspection of the property and found that Luvinia Stokes was renting it. Tomlyanovich continued to rent to Stokes for a period and then allowed Stokes to live there rent-free for approximately nine months. It is not clear when Stokes moved out of the house, but Craw-ley moved in right after Stokes. Crawley presented some documentation that she was living in the house in December 2000 and testified that she lived in the house as early as Thanksgiving 2000.

Some time in January of 2001 Tomlya-novich and Price began discussing Price buying the house. Tomlyanovich informed Price that she thought someone was living in the house, so Price made an inspection and found Ramona Crawley, her children, and a roommate living in the house. At that time Crawley told Price she was renting the house from Cory Bradley (a female). Price notified her that Cory Bradley did not own the house and that Tomlyanovich was the actual owner of the house. Crawley asserted that after Price’s visit she began to pay weekly rent to Price. Price testified he never collected rent from Crawley. The district court found no rent was paid to Price. However, the district court did find that Crawley and her roommate paid substantial rent to someone claiming to be Cory Bradley (a female who appears to fit the description of the wife of the male Cory Bradley), but that the person claiming to be Bradley was not the true owner and was not operating as an agent of Tomlyanovich or Price.

Crawley was apparently allowed to continue to reside in the home without disturbance after Price’s January visit. Then in mid-February Crawley lodged a complaint with the fire marshal. The fire marshal made an inspection on February 16, 2001 and found sanitary, electrical, fire warning, and structural violations of the housing code. The fire marshal sent a letter, dated February 23, to Tomlyanovich requiring that a smoke detector be installed within forty-eight hours of the notice and that the other items be corrected within twenty days of the notice. The fire marshal also referred the property to the city’s chief electrical inspector, who inspected the house and then sent a certified letter to Tomlyanovich, dated February 20, stating that the condition of the house constituted a fire hazard and electrical shock hazard. The inspector ordered correction by February 23, or electrical power would be turned off at the house. Notice was also posted at the house.

Price admitted that he visited and entered the house a couple of times after discovering Crawley was living in the house, and he had seen the issues that were of concern to the fire marshal and electrical inspector. However, Price stated he never received notice from the city about the conditions. The notices were mailed to Tomlyanovich. Correction was not made and the electrical power was turned off on February 23. Crawley, her children, and roommate were forced to vacate the premises but testified that they did not have the ability to move their possessions out of the house at the time. About this time, Crawley was picked up on an outstanding warrant and went to jail for several weeks. After getting out of jail, Crawley returned to the house to find the locks changed and all the possessions she left in the house were gone.

Price finalized the purchase of the house from Tomlyanovich on March 1, 2001. Price admits he entered the house after that time, found no one was living in the house, and found the utilities had been turned off. He spoke to the utility companies and learned that they would not turn the utilities back on because the notices issued by the city had not been corrected. Price admitted that in March or April he loaded all of the items left in the house into a track and took them to the dump. Price also admitted he knew Crawley was in jail at the time, having read it in the newspaper. He stated he felt he had no reason to contact Crawley before removing the items because he owned the property and Crawley did not rent the property from him.

On September 16, 2002 Crawley filed a petition with the district court, claiming unlawful ouster in violation of Iowa Code section 562A.26, abuse of access in violation of section 562A.19, trespass, and conversion. A trial to the court was held and the district court found Crawley rented the house from Cory Bradley, who had no actual connection to the property and that neither Tomlyanovich nor Price collected any rent from Crawley. The district court held that, because Crawley rented the house from a non-owner with no connection to the actual owners, Crawley had no cause of action against the defendants, and thus dismissed the petition. On December 17, 2003 Crawley filed a notice of appeal from each and every adverse ruling of the district court.

II. SCOPE OF REVIEW.

Our scope of review is determined by the nature of the trial proceedings. Meyers v. Delaney, 529 N.W.2d 288, 289 (Iowa 1995). This case was tried to the district court as a law action. Therefore, our review is limited to correction of legal error. Iowa R.App. P. 6.4. The trial court’s findings of fact carry the force of a special verdict and are binding on us if supported by substantial evidence. Meyers, 529 N.W.2d at 289-90. Evidence viewed for its substantiality is to be viewed in the light most favorable to the judgment. Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 230 (Iowa 1995). We are not bound, however, by the trial court’s application of legal principles or its conclusions of law. Id. “When the trial court has applied erroneous rules of law which materially affected its decision, we will reverse.” Id.

III. ANALYSIS.

A. Preservation of Error.

The issues to be reviewed “must ordinarily be both raised and decided by the district court before we will decide them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). Error was preserved in the present case as to all issues presented on appeal. Crawley raised issues of unlawful ouster, abuse of access, trespass, and conversion in her petition to the district court. The district court found Crawley had no cause of action and dismissed the entirety of her petition.

B. Unlawful Ouster.

Crawley first argues that a tenancy at will was created because the defendants allowed her to remain in the house after discovering her presence. Iowa Code section 562.4 provides that a tenancy at will is presumed where a person is in possession of real estate with the assent of the owner. Thus, the two necessary elements for a tenancy at will are (1) possession by the supposed tenant; and (2) assent by the actual owner. We do not reach the issue of possession because we find that the assent between the owner and the supposed tenant, required by section 562.4, did not exist between Crawley and either Tomlyanovich or Price. “Simply put, ‘a tenancy at will cannot be created without the assent, express or implied, of both parties.’ ” Bernet v. Rogers, 519 N.W.2d 808, 810 (Iowa 1994) (citing Martin v. Knapp, 57 Iowa 336, 343, 10 N.W. 721, 724 (1881)). Assent is not defined by statute, but the dictionary definition provides that assent is “[ajgreement, approval, or permission; esp., verbal or nonverbal conduct reasonably interpreted as willingness.” Black’s Law Dictionary 124 (8th ed. 2004). In the present case it was not legal error for the trial court to decide that Crawley did not have a tenancy at will in the property due to lack of mutual assent between Crawley and either of the defendants. There is substantial evidence in the record to support the trial court finding that there was no assent, and thus no landlord-tenant relationship between the parties. Since Crawley was not a tenant, she has no right to the notice protections of chapters 562 and 562A. On this issue, we affirm.

Further, since Crawley was not a tenant we find no merit in the claim that Crawley is entitled to statutory damages, as provided by chapter 562A. We also find no merit in the claims that it was abuse of access and trespass for Price to enter the property, as Crawley had no tenancy in the property.

Crawley next argues that, even if there was no tenancy, a cause of action against the defendants exists through the forcible entry and detainer statute, Iowa Code chapter 648. The intent of the forcible entry and detainer statute is to prevent people from resorting to self-help and violence and, instead, provide legal process for regaining possession of real property. Capital Fund 85 Ltd. P’ship v. Priority Sys., LLC., 670 N.W.2d 154, 159 (2003) (citing Lindsey v. Normet, 405 U.S. 56, 71, 92 S.Ct. 862, 873, 31 L.Ed.2d 36, 49 (1972)). “Statutes providing a cause of action for forcible entry and detainer are enacted to enable parties to obtain speedy determination of the right to the possession of property without having to resort to violence, to preserve the peace, and require the use of judicial process to gain possession.” Id. (quoting 35A Am. Jur. 2d Forcible Entry and Detainer § 7, at 1041 (2001)).

Nevertheless, the forcible entry and detainer law, unlike landlord-tenant law, does not provide a cause of action to a party who claims to have been wrongfully ousted in contravention of the statutory procedures. However, the Restatement (Second) of Torts addresses the issue, providing that using force for the purpose of gaining entry upon land is not privileged unless certain conditions are met. Restatement (Second) of Torts §§ 88-94, at 160-69 (1965). Furthermore, the Restatement explicitly addresses the use of force after regaining possession peaceably. Id. § 97, at 171. The provision states: “An actor who ivithout tor-tious conduct has regained possession of land of which he was dispossessed by another is privileged to use reasonable force to exclude or expel the other as if there had been no dispossession.” Id. (emphasis added). Price did regain possession of the property without resort to tortious conduct. The district court found, and it is supported by substantial evidence, that all occupants were absent from the property by order of the city at the time Price regained possession. Furthermore, we agree with the district court that Crawley had no tenancy, so it was not a tortious trespass for Price to enter and retake possession. Thus, Price’s changing the house locks was the privileged use of reasonable force to exclude or expel. We affirm the district court’s holding that Crawley had no cause of action for unlawful ouster.

C. Removal of Crawley’s Personal Property.

Next, we must determine whether the district court erred in dismissing Crawley’s cause of action for conversion. The district court did err in its assertion that Crawley could not maintain a cause of action for conversion because she had no rental relationship with appel-lees. Such a relationship is not a prerequisite to conversion. Conversion is simply “the wrongful control or dominion over another’s property contrary to that person’s possessory right to the property. The wrongful control must amount to a serious interference with the other person’s right to control the property.” Condon Auto Sales & Service, Inc. v. Crick, 604 N.W.2d 587, 594 (Iowa 2000). Crawley made out a prima facie case for conversion. It is uncontroverted that Price removed Crawley’s property from the house and permanently disposed of it.

However, our inquiry does not end there. The Restatement (Second) offers:

[0]ne is privileged to commit an act which would otherwise be a trespass to chattel or a conversion if the act is, or is reasonably believed to be, necessary to protect the actor’s land ... or his possession of [land], and the harm inflicted [to the chattel] is not unreasonable as compared with the harm threatened [to the actor].

Restatement (Second) of Torts § 260, at 490 (1965). Thus, it may have been appropriate for Price to remove Crawley’s personal property, but the removal must have been reasonable, based on the harm inflicted to Crawley’s personal property weighed against the harm threatened to Price by the presence of Crawley’s personal property on his premises. The Restatement points out that there may be instances where it is appropriate for an actor to intermeddle with another’s personal property, but it may be unreasonable for the actor to completely dispossess another of property because that is a much more serious invasion. Id. cmt. c, at 491. That determination must be made based on the totality of circumstances. Id.

The district court gave consideration to conflicting testimony regarding the value of the property left in the house. The district court concluded that Price would not have thrown away anything of value. We find substantial evidence in the record to support this finding. We conclude it was reasonable for Price to dispose of valueless property found in the house. Thus, Price’s conduct was privileged and did not constitute conversion.

Crawley also argues that punitive damages should be assessed against Price. To award punitive damages the evidence, must be clear, convincing, and satisfactory. See Iowa Code § 668A.l(l)(a).

There must also be evidence of willful or wanton disregard for the rights of another.
Punitive damages are justified when the acts of the defendant are malicious. The malice may be actual (expressed) ... or it may be legal (implied), as where the defendant acts illegally or improperly with reckless disregard for another’s rights.

Condon Auto Sales & Service, 604 N.W.2d at 594 (internal quotation marks and citations omitted). We determine Price did not act with the requisite malice for punitive damages to be awarded. Crawley did not provide clear, convincing, and satisfactory evidence to demonstrate the presence of malice. The trial court found that Price’s intent was to remove valueless property found in the house he had just purchased, a house where there was no known rental agreement. These findings are supported by substantial evidence and show that Price did not act in reckless disregard for Crawley’s rights. Thus, he did not act with malice, making this case inappropriate for punitive damages.

Finally, Crawley argues that Price’s taking possession of her property created a constructive bailment, and that, rather than fulfilling his responsibilities under the bailment, Price wrongfully converted Crawley’s personal property. We do not find that such a bailment was created. We find that because Price regained possession peaceably, he was privileged to use force, in this case to change the locks to exclude or expel others. Then after regaining possession, Price was also privileged to use reasonable force in removing Crawley’s personal property from the house. We find no merit in Crawley’s claim that a bailment was created.

AFFIRMED.


author: VOGEL, P.J.

text:
    In the Interest of N.N., A.N., M.N., D.N., A.N., and A.N., Minor Children, T.N., Mother, Appellant, R.N., Father, Appellant.
    No. 04-1601.
    Court of Appeals of Iowa.
    Dec. 22, 2004.

      Lori Ubbinga, Sioux City, for appellant-mother.
    Jane White of Parrish, Kruidenier, Moss, Dunn, Boles, Gribble & Cook, Des Moines, for appellant-father.
    Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Dewey Sloan, Assistant County Attorney, for appellee-State.
    Michelle Dreibelbis of the Juvenile Law Center, Sioux City, for children.
    Considered by YOGEL, P.J., and MILLER and EISENHAUER, JJ.
   VOGEL, P.J.

Richard and Tasjima separately appeal the juvenile court’s September 24, 2004 order terminating their parental rights to their six children, Noreann, born in May of 2003, Ashley, born in August of 2001, Matthew, born in October of 1999, David, born in September of 1997, Adam born in May of 1996, and Anastacia, born in December of 1992. We affirm.

I. Background Facts and Proceedings

Prior to the instant case, Richard, Tasji-ma and their children had been living a nomadic lifestyle and had been involved for some time with protective services in Minnesota and North Dakota where the family was offered numerous services in an effort to improve their situation. On July 7, 2003, the children were adjudicated “Deprived Children" in North Dakota. Ultimately, North Dakota felt the children needed to be removed from the care of their mother and father and set a hearing on the matter for December 10, 2003.

On November 27, Richard and Tasjima absconded with their children to Iowa to avoid this hearing. On December 8, Child Protective Services in Iowa received allegations that Richard, Tasjima and their six children were living in a recreational vehicle on a Sioux City, Iowa, truck stop parking lot. On December 9, the Juvenile Court for Woodbury County, Iowa issued a temporary removal order and the children were removed from the custody of Richard and Tasjima on December 17, 2003. The children have remained in out-of-home placements since their removal.

On May 11, 2004 following a contested combined “removal/adjudicatory/disposi-tional/visitation hearing” the court filed an order adjudicating each of the six children as a child in need of assistance (CINA) pursuant to Iowa Code section 232.2(6)(b) (2003) (parent has physically abused or neglected child) and (c) (child is likely to suffer harm due to parent’s failure to exercise care in supervising child). This order continued custody of the children with the Iowa Department of Human Services (DHS) for placement in family foster care and left parental visitation in the discretion of the DHS. The order also directed that Richard and Tasjima be provided a variety of services.

On May 17, supervised visitation was suspended due to concerns over the way Richard and Tasjima conducted themselves during visitation. The decision to suspend visitation was approved by the juvenile court following a June 24 visitation hearing. Thus, Richard and Tasjima have had no contact with the children since May 17, 2004. The only service that the parents participated in prior to the termination of their parental rights other than supervised visitation and psycho-social evaluations was Richard’s limited involvement in an anger management course.

On September 24, 2004, the juvenile court filed an order terminating Richard and Tasjima’s parental rights pursuant to Iowa Code section 232.116(l)(d) (child CINA for physical or sexual abuse, circumstances continue despite receipt of services), (e) (child CINA, child removed for six months, parent has not maintained significant and meaningful contact with the child), and “as it pertains to Ashley and Noreann only” (h) (child is 3 or younger, child CINA, removed from home for 6 of last 12 months, and child cannot be returned home).

As an initial procedural matter, we note that Richard and the State agree that Iowa Code section 232.116(l)(h) does not apply to Ashley as she was older than three years of age at the time of the termination hearing. While we agree that Ashley was beyond her third birthday at the time of the hearing, we also note that Ashley was less than four years of age. The Iowa Code does not expressly state whether section 232.116(l)(h) applies to children who are past their third birthday but who have not yet reached age four. However, by looking to another subsection of Section 232.116(1) we can easily determine that it does. Section 232.116(l)(f) relates to a child “four years of age or older.” If section 232.116(l)(h) did not apply to children between the ages of three and four, the statutory grounds for termination of parental rights under sections 232.116(l)(f) and (h) would apply to all identified children except those between ages three and four. We will not attribute such an illogical intent to the legislature. See Iowa Code § 4.4(3) (presuming that in enacting a statute a just and reasonable result is intended); Baldwin v. City of Waterloo, 372. N.W.2d 486, 493 (Iowa 1985) (declining to interpret a statute in a manner that “would make no sense”). therefore reject the notion that this code section does not apply to Ashley.

II. Standard of Review

Termination orders are reviewed de novo. See In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993). We give weight to the juvenile court’s findings of fact, but are not bound by its determinations. In re R.K.B., 572 N.W.2d 600, 601 .(Iowa 1998). The State must prove the grounds for termination by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 831 (Iowa Ct.App.1997). The primary interest in termination proceedings is the best interest of the children. Id.

III. Issues

A. Hearsay

Richard raises five contentions for our review on appeal: ■ Among these five issues is Richard’s contention that the trial court admitted exhibits that were “irrelevant and based on hearsay.” Because this contention affects the integrity of the termination proceedings and thus all other issues presented, we, as a preliminary matter, address it. In doing so, we review evidentiary rulings for an abuse of discretion. In re E.H., 578 N.W.2d 243, 245-46 (Iowa 1998).

Iowá Code section 232.96(6) allows the admission of a report, study, record, or other writing made by the DHS, a juvenile court officer, or a peace officer, notwithstanding any objection to hearsay statements contained within, if it is relevant and not unduly prejudicial. See Iowa Code § 232.96(6).; In re A.J., 553 N.W.2d 909, 916 (Iowa Ct.App.1996) (determining the district court did not err in admitting reports compiled by a social worker, in testifying at a termination hearing, as “such reports have previously been held to be admissible over hearsay objections.”). This hearsay exception applies to termination of parental rights proceedings under Iowa Code chapter 232. In re E.J.R., 400 N.W.2d 531, 532-33 (Iowa 1987) (holding that “evidence admissible in chapter 600A terminations by virtue of section 232.96(6) shall likewise be admissible in terminations brought in accordance with chapter 232.... ”).

Our review reveals that the exhibits in question, consisting primarily of police reports, pertain to the living conditions of the family, domestic abuse occurring within the family, and the efforts made to remove the children pursuant to the December 9, 2003 removal order. Thus, as they relate to the safety and welfare of the children they are relevant to the termination proceedings. Moreover the threat of prejudice they pose to Richard is low as they are cumulative of other evidence in the record. See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998) (noting that even if hearsay was inadmissible, no prejudice will be found if evidence was merely cumulative). Accordingly, we find no abuse of discretion in their admission.

B. Reasonable Efforts and Services Offered

The first argument made by Richard implicating one of the statutory grounds for termination is that the juvenile court erred in terminating his parental rights under Iowa Code section 232.116(l)(d) because, subsequent to the CINA adjudication, the State did not offer him services to correct the circumstances that led to his children being adjudicated CINA. Tasjima raises only one issue on appeal, which relates to Richard’s contention, as Tasjima avers that the State “did not provide reasonable efforts to reunify [her] with her children.” See In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (noting that a parent who only challenges on appeal the “reasonableness of the efforts of the DHS to achieve reunification of parent and child” and not the basis for removal has “clearly implicated those elements of the grounds for termination dealing with the evidence to show the child cannot be returned home because the parent has not improved enough to justify reunification.”). A juvenile court’s order terminating parental rights will be upheld if only one ground for termination is established by clear and convincing evidence. See In Interest of Voeltz, 271 N.W.2d 719, 723 (Iowa 1978) (noting that “[i]f one of these grounds is established by clear and convincing evidence the termination will be upheld.”); In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct.App.1995). Because we find the issue of whether the DHS made reasonable efforts to offer services subsequent to the CINA adjudication, to correct the circumstances which originally led to the adjudication dispositive as to both parents, we will not address Richard’s other arguments under Iowa Code section 232.116(1).

The concept of reasonable efforts is an outcropping of policies and laws governing the welfare of children which have generally been developed at the federal level. C.B., 611 N.W.2d at 493. Congress conceived reasonable efforts “in part to ensure that prior to the expenditure of federal funds on foster care, reasonable efforts would be made to prevent out-of-home placement, and reasonable efforts would be made for unification following out-of-home placement.” Id. (citation omitted). Iowa’s scheme of reasonable efforts, unless waived , covers both the efforts to prevent the need for removal and the services necessary to implement reunification efforts. Id.; see also, Iowa Code § 232.102(10).

As stated by our state supreme court,

The reasonable efforts requirement is not viewed as a strict substantive requirement of termination. Instead, the scope of the efforts by the DHS to reunify parent and child after removal impacts the burden of proving those elements of termination which require unification efforts. The State must show reasonable efforts as a part of its ultimate proof the child cannot be safely returned to the care of a parent.

C.B., 611 N.W.2d at 493 (emphasis added) (citations omitted).

Iowa Code section 232.102(10) defines reasonable efforts as,

the efforts made to preserve and unify a family prior to the out-of-home placement of a child in foster care or to eliminate the need for removal of the child or make it possible for the child to safely return to the family’s home.

Iowa Code section 232.116(l)(d)(2) provides that in order to terminate parental rights a juvenile court must find that

Subsequent to the child in need of assistance adjudication, the parents were offered or received services to correct the circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services.

With regard to the efforts made to preserve the family and to provide services to remedy the circumstances leading to the adjudication, the juvenile court found that

Richard and Tasjima have been offered/provided a myriad of services in three different States to stabilize their chaotic/nomadic lifestyle, to address their mental health issues, to address the ongoing domestic violence, and to improve their parenting skills. Since the intervention of this court and the Department of Human Services in December 2003, Richard and Tasjima have remained resistive toward services to the point of not even advising the Department of Human Services where they are living, they remain argumentative, they remain noncompliant, and they remain unable to identify the apparent family needs and deficits in their parenting abilities.

The juvenile court then concluded that the evidence clearly and convincingly supported termination of Richard’s and Tasji-ma’s parental rights under Iowa Code section 232.116(l)(d). In so doing the juvenile court found:

Subsequent to this adjudication, Tasjima and Richard were offered or received services to correct the circumstances which led to the adjudication and these circumstances continue to exist despite the offer or receipt of services. While the parents argue that they were only provided with reunification services for the five months between the removal of the children and filing of the Petition for Termination of Parental Rights, the record reflects that these parents have received services in two other States over a number of years and that the children would continue to be put into harms way if returned to their parents....

Upon our de novo review, we agree with the juvenile court’s findings as they were supported by clear and convincing evidence in the record.

For instance, our review of the record reveals that an April 3, 2003 and a November 17, 2003 letter from Dunn County Social Services to the Dunn County States Attorney, as well as a December 8, 2003, letter from Dunn County Social Services to the Iowa DHS detail an extensive list of services provided to Richard in Tasjima by the State of North Dakota. These letters further indicate that North Dakota offered these services to “prevent or eliminate the need to remove the children from their home.” Furthermore, the DHS Iowa Case Permanency Plans for Richard’s and Tasji-ma’s family indicate that services were provided in Minnesota and North Dakota from 1996-2003.

Additionally, the record supports a finding that Iowa offered and provided services intended to further the initial permanency goal of the DHS contained in the DHS case permanency plans, which was to return the children to their home. These services included parenting skill development, supervised visitation, psychosocial evaluations, sexual assault and domestic violence counseling for Tasjima, anger management counseling for Richard, and marriage counseling for both parents. We therefore conclude that the scope of the DHS’s efforts clearly and convincingly demonstrates that it offered services to correct the circumstance which led to the CINA adjudication. See In re A.Y.H., 508 N.W.2d 92, 95 (determining that clear and convincing evidence supported a finding that the DHS made reasonable efforts to reunify a family where the DHS had established a case plan for mother and her family, identified problems within family unit, provided services to mother, and conducted supervised visits between father and child). Consequently, as neither parent argues that the circumstances leading to termination no longer exist, and as none of the other requirements of Iowa Code section 232.116(l)(d) are in controversy, we conclude the district court correctly terminated both Richard’s and Tasjima’s parental rights under Iowa Code section 232.116(l)(d).

AFFIRMED.

      . A deprived child is statutorily defined as a child who
      [i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian.
      N.D. Cent.Code § 27-20-02(8)(a) (2003); see also, In re T.F., 681 N.W.2d 786, 790 (N.D.2004).

      . On December 10, a hearing was convened in North Dakota Juvenile Court whereby custody of the six children was awarded to the Dunn County Social Services Department in the State of North Dakota. However, the North Dakota Juvenile Court dismissed the proceedings involving Richard, Tasjima, and the children upon receiving information from Iowa that the children had been taken into protective custody in this state.

      . Notwithstanding efforts by service providers to redirect the parents' behavior, Tasjima would blame Anastacia for having visitations split up while Richard would call the provider "f* *kin stupid” in front of the children and would advise the children to call their attorney about all the ‘‘lies” in the providers’ reports. These chaotic visits caused the children to revert to uncontrolled behaviors such as spitting, kicking, hitting, throwing things, and climbing on cabinets.

      . Iowa Code section 232.102(12) provides for waiver of reasonable efforts upon written findings of fact indicating the existence of aggravated circumstances.


author: /s/Helen M. Meyer Associate Justice

text:
    Bryan HODGSON, deceased, by Lynn Hodgson, Respondent, v. AL’S TREE SERVICE, Uninsured, and Special Compensation Fund, Relator (A04-1829), and Linda Hanenburg, on behalf of Leah Hanenburg, Relators (A04-1865).
    Nos. A04-1829, A04-1865.
    Supreme Court of Minnesota.
    Feb. 15, 2005.
    Mike Hatch, Attorney General, Rory H. Foley, Asst. Attorney General, St. Paul, MN, for Relator.
    Frank J. Rajkowski, St. Cloud, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed September 8, 2004, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


author: MEYER, Justice.

text:
    STATE of Minnesota, Respondent, v. Daniel Greg INMAN, Appellant.
    No. A03-80.
    Supreme Court of Minnesota.
    Feb. 17, 2005.

      Jodie L. Carlson, Asst. State Public Defender, Minneapolis, MN, for Appellant.
    Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Special Asst. Scott County Attorney, Shakopee, MN, Mike Hatch, Attorney General, St. Paul, MN, for Respondent.
   OPINION

MEYER, Justice.

Daniel Inman seeks review of an unpublished court of appeals decision affirming his convictions of first-degree manufacture and fifth-degree possession of methamphetamine. Inman argues that the interrogating officer’s failure to record his custodial interrogation constituted a substantial violation of Scales such that the statement should have been suppressed. We affirm the court of appeals.

In the late afternoon of April 19, 2001, police officers entered the home of Paul and Kelly Becksted and executed a search warrant. The warrant was based on information received from a confidential informant that for some months methamphetamine had been sold from the Becksted residence. The officers found Paul Becksted and Inman in a downstairs bedroom, standing near a collection of tubing and containers that appeared to be a homemade methamphetamine laboratory. Based on this information and an incriminating statement made by Paul Becksted after his arrest, Inman was charged with one count of first-degree manufacture of a controlled substance, one count of fourth-degree aiding and abetting sale of a controlled substance, and one count of fifth-degree possession of a controlled substance.

At a contested omnibus hearing, Inman moved to suppress a statement he had made in an interview with the police after he was arrested and transported to the Scott County law enforcement center. In-man asserted that the statement was inadmissible because it was unrecorded, and the failure to record substantially violated our recording requirement in Scales.

The interview was conducted in the Scott County jail interview room by Deputy Doug Schmidtke of the Carver County Sheriffs Office. At the omnibus hearing, Schmidtke testified that he had a tape recorder with him in the interview room but did not turn it on during the interview. Schmidtke testified that after he read the Miranda warning to Inman, Inman told him that he did not wish to have his statement recorded, but that he would give Schmidtke some information. According to Schmidtke, Inman admitted the following:

[Becksted and Inman] had only cooked [methamphetamine] a few times a couple of weeks ago prior to this date, and then they were cooking for the second time when we raided the house. Talked about finding the recipe at Mystic Lake on a card or something, that they found it on a card in the parking lot or something like that. And they bought some ingredients, him and Paul Becksted, not knowing if they really had the right stuff, and they were experimenting.

Schmidtke initially testified that he did not take notes during the interview but later testified that he had taken notes but destroyed them after typing up his post-interview report. No transcription or other documentation of the interview exists aside from Schmidtke’s typewritten report. Inman did not testify at the omnibus hearing. Based upon the evidence presented at the hearing, the omnibus court found that Inman’s statement was “knowing, voluntary, and given with full knowledge of his constitutional rights.” The court then refused to suppress the statement, concluding that the “lack of recording does not rise to the level of a substantial violation where the defendant requested that he not be recorded.”

Schmidtke’s trial testimony was essentially the same as it was at the omnibus hearing; he gave Inman the Miranda warning, Inman agreed to talk if he was not recorded, and Inman then confessed to “cooking meth” with Becksted. After the state rested its case, Inman testified. He agreed that Schmidtke gave him a Miranda warning. He also agreed that he did not want to be recorded. However, he denied that he gave any further information and otherwise disputed the substance of Schmidtke’s testimony:

[Inman]: I told him I didn’t — I don’t want to be recorded. * * * I said, all I care about is my girlfriend’s baby, would be my son, my baby. My daughter was pregnant at the same time. That’s all I care about, my children and my grand-baby.
* * * *
[Counsel] Q: Did you say anything more to the officer after that?
[Inman] A: That I had nothing more to say.

The jury found Inman guilty of the charges of manufacture and possession of methamphetamine.

The court of appeals affirmed the convictions, rejecting Inman’s claim that the omnibus court erred by not suppressing his custodial statement. State v. Inman, No. A03-80, 2004 WL 235458 at *3 (Minn.App. Feb. 4, 2004). The court of appeals first concluded that Schmidtke had not willfully violated the Scales recording requirement because the statement was unrecorded at Inman’s request. The court next determined that the officer’s failure to record did not substantially violate Scales because there was no evidence that the violation was part of a pattern of Scales violations within the drug task force. Inman, 2004 WL 235458 at *2. The court of appeals held that because Schmidtke’s failure to record was not willful, the district court was justified in admitting Inman’s statement at trial. Id.

Whether an officer’s failure to record a custodial interrogation is a substantial violation of the Scales recording requirement is a legal question, subject to de novo review. State v. Critt, 554 N.W.2d 93, 95 (Minn.App.), rev. denied (Minn. Nov. 20, 1996). Findings of historical fact by the omnibus and district courts, however, are subject to a clearly erroneous standard of review. State v. Thaggard, 527 N.W.2d 804, 807 (Minn.1995).

We first mandated the electronic recording of custodial interrogations in State v. Scales, 518 N.W.2d 587 (Minn.1994). Previous to our decision in Scales, we had observed that recording all custodial conversations between the police and a suspect would have the effect of avoiding factual disputes about the denial of a defendant’s constitutional rights. Id. at 591 (citing State v. Robinson, 427 N.W.2d 217, 224 n. 5 (Minn.1988)). In addition, we had previously urged law enforcement professionals to “use those technological means at their disposal to fully preserve those conversations and events preceding the actual interrogation.” Scales, 518 N.W.2d at 591 (citing State v. Pilcher, 472 N.W.2d 327, 333 (Minn.1991)). In order to enforce our previous advisories, we exercised our supervisory power in Scales and held that “all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.” Scales, 518 N.W.2d at 592; see also Thaggard, 527 N.W.2d at 808 (noting that when Scales applies, the interrogating officer would be “legally obliged to tape record not just the so-called ‘formal statement’ by the defendant but the entire custodial interrogation, including the giving of the Miranda warning, the obtaining of a waiver, and that part of the interrogation that [the officer] euphemistically referred to as the ‘pre-interview.’ ”). The penalty for a substantial violation of the recording requirement would be suppression at trial of any statements made by the suspect during the unrecorded interrogation. Scales, 518 N.W.2d at 592.

In the present case, the state argues that Scales is inapplicable because at the omnibus hearing Inman did not dispute the validity of the Miranda warning or his subsequent statement. This argument conflates the issues of applicability and substantiality. The first step is to determine whether Scales applies to the facts before us. If it does, we must then determine whether the Scales violation is substantial.

The Scales requirement mandates that all custodial interviews at a place of detention be recorded. Scales, 518 N.W.2d at 592. If such an interview is not recorded, by definition it violates the Scales requirement. In the case before us, Schmidtke failed to record Inman’s custodial interview that occurred at a place of detention. This violated the Scales requirement, and thus Scales is applicable.

Once we determine that Scales applies, we next decide whether the violation of the Scales requirement is substantial. Scales, 518 N.W.2d at 592-93. Among the factors in determining the sub-stantiality of a Scales violation is whether the violation is prejudicial to the accused. Id. at 592 n. 5; Model Code of Pre-Arraignment Procedure (MCPAP) § 150.3(2)(a) (1975). A violation can be considered prejudicial to the accused if the accused alleges, contrary to the prosecution’s assertions, that no Miranda warning was given or that he did not waive his Miranda rights. See State v. Williams, 535 N.W.2d 277, 289 (Minn.1995) (stating that “the rationale underlying the recording requirement is to avoid factual disputes underlying an accused’s claims that the police violated his constitutional rights”). If it is undisputed that the Miranda warning was administered, or that the accused waived his or her right to remain silent, the lack of a recording creates no prejudice to the accused. See id.

Inman moved to suppress his custodial statement because it violated the recording requirement of Scales, but he failed to establish at the omnibus hearing that the violation was substantial. In other words, Inman failed to create a factual dispute that would support a judicial determination of a substantial violation of the Scales recording requirement. Had he claimed at the omnibus hearing that a Miranda warning was not given or that he had not waived his Miranda rights, the dispute created by his allegations would have gone directly to the stated purpose of the Scales requirement, and the lack of a recording would have been prejudicial to his case. However, on the record before it, the omnibus court found no evidentiary dispute. The Scales violation in this case does not raise any factual dispute about the existence and validity of a Miranda waiver and was not asserted at the omnibus hearing to be prejudicial to Inman. Therefore, it is not substantial. It was not error for the omnibus court to refuse to suppress Inman’s unrecorded statement where he failed to establish at the omnibus hearing a substantial violation of the Scales recording requirement.

Inman argues that he did raise a factual dispute about whether he waived his Miranda rights because at trial' he testified and denied that he gave a statement. The statement itself was entered into evidence during the state’s case-in-chief and the claimed factual dispute was not created until after the state had rested and Inman had exercised his right to testify. We believe the relevant time to create a factual dispute is at the omnibus hearing where the Scales issue was raised and decided. Inman waived his right to claim a substantial violation of the Scales recording requirement by not creating a factual dispute at the omnibus hearing.

While the omnibus court could not find a substantial violation based on the record before it, its conclusion that “the lack of recording does not rise to the level of a substantial violation where the defendant requested that he not be recorded” is overly broad. But for Inman’s failure to raise a factual dispute at the time of the omnibus hearing, this court could well have found that a substantial violation of the Scales requirement had occurred. If a suspect has a right to request an “off the air” interview, our Scales decision would still require a recording of the Miranda warning, the suspect’s request to have the tape recorder turned off, and an indication that the suspect understood that what he said could still be used against him.

Affirmed.

ANDERSON, G. BARRY, J., took no part in the consideration or decision of this case.

      . The court of appeals followed previous court of appeals precedent, which held that failure to record in response to a defendant's request, when supplemented by evidence that the officer would have recorded absent the defendant's request, is not a willful violation of Scales. Inman, No. A03-80, 2004 WL 235458 at *2 (citing State v. Chang, No. C6-00-1416, 2001 WL 536975 at *2 (Minn.App. May 22, 2001)).

      . The Model Code of Pre-Arraignment Procedure (MCPAP) provides that "[a] violation shall be deemed willful regardless of the good faith of the individual officer if it appears to be part of the practice of the law enforcement agency * * MCPAP § 150.3(2)(a) (1975).

      . We determined that the substantiality of violations would be determined on a case-by-case basis, following the approach recommended by the drafters of the MCPAP. Scales, 518 N.W.2d at 592. Thus, the trial court was to consider all relevant circumstances bearing on substantiality, including but not limited to those set forth in sections 150.3(2) and (3) of the MCPAP. These circumstances include the extent to which the violation was willful, the extent to which the exclusion will tend to' prevent future violations, the extent to which the violation is likely to have influenced the defendant's decision to make the statement, and the extent to which the violation prejudiced the defendant’s ability to support his motion to suppress or to defend himself at trial. Scales, 518 N.W.2d at 592; MCPAP § 150.3.

      . This initial step does not run counter to this court's statement that Scales does not apply where there is no factual dispute “underlying an accused’s claims that the police violated his constitutional rights.” State v. Williams, 535 N.W.2d 277, 289 (Minn.1995). In Williams we held Scales inapplicable because the interrogation in question took place before Scales went into effect. Id. In addition, opinions subsequent to Williams have clarified Scales’ underlying rationale, which is to prevent factual disputes about the existence and content of Miranda warnings and any-ensuing waiver of rights. See, e.g., State v. Miller, 573 N.W.2d 661, 674 (Minn.1998).

      . This determination is consistent with the Supreme Court of Alaska's decision in Stephan v. State, 711 P.2d 1156, 1165 (Alaska 1985), which held that "a defendant's unrecorded statement may be admitted if no testimony is presented that the statement is inaccurate or was obtained improperly * *