Office of Citizens' Aide/Ombudsman v. Edwards

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Justia Opinion Summary

Appellant, an ALJ within the Iowa Department of Corrections (IDOC), presided over the hearing of an inmate charged with assaulting a corrections officer. Appellant found the inmate guilty of assault. The Office of Citizens' Aide/Ombudsman (Ombudsman) subsequently launched an investigation into Appellant's ruling and subpoenaed her for deposition testimony. Appellant argued that she could assert the mental-process privilege in refusing to answer questions about her decision. The Ombudsman filed an action to enforce the subpoena. The district court ruled the mental-process privilege would not apply to limit deposition testimony in the Ombudsman's investigation, as opposed to a judicial proceeding, and entered an order compelling Appellant's deposition. Appellant and IDOC appealed. The Supreme Court affirmed but on different grounds, holding (1) the mental-process privilege is available to IDOC ALJs in an Ombudsman investigation; but (2) the Ombudsman made a sufficient showing to overcome the privilege.

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IN THE SUPREME COURT OF IOWA No. 11 1452 Filed December 14, 2012 OFFICE OF CITIZENS AIDE/OMBUDSMAN, Appellee, vs. DEB EDWARDS and IOWA DEPARTMENT OF CORRECTIONS, Appellants. Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge. An administrative law judge and the department of corrections appeal the district court s order overruling her mental-process privilege and compelling her deposition in the Ombudsman s investigation of her decision in a prison disciplinary matter. AFFIRMED. Thomas J. Miller, Attorney General, and William A. Hill, Assistant Attorney General, for appellants. Charles Andrew Teas, Des Moines, for appellee. 2 WATERMAN, Justice. The fighting issue in this appeal is whether an administrative law judge (ALJ) may assert the mental-process privilege to limit her deposition testimony in an investigation by the Office of Citizens Aide/Ombudsman (Ombudsman) into her ruling on a prison disciplinary matter. Deb Edwards, an independent ALJ within the Iowa Department of Corrections (IDOC), presided over the hearing of an inmate charged with assaulting a corrections officer. Edwards found the inmate guilty of assault, class B, and imposed a 180-day, loss-ofearned-time penalty that doubled the maximum ninety-day penalty prescribed under corrections policy but matched the 180-day penalty requested in a prehearing, ex parte email to her from the warden. The Ombudsman, pursuant to its agency watchdog role under Iowa Code chapter 2C (2009), launched an investigation. Edwards later amended her decision to escalate her classification of this assault from B to A, without identifying any aggravating factors, as required under corrections policy. The Ombudsman subpoenaed Edwards for deposition testimony after receiving inconsistent explanations from her and the warden during informal interviews and after discovering the warden s prehearing e-mail. The parties disagreed over whether Edwards could validly assert the mental-process privilege to refuse to answer questions about her decision. See § 2C.21 (persons required to provide information to the Ombudsman shall be accorded the same privileges and immunities as are extended to witnesses in [Iowa] courts ); State ex rel. Miller v. DeCoster, 608 N.W.2d 785, 790 (Iowa 2000) (recognizing mental-process privilege). The parties also disagreed whether the privilege was overcome by a showing of improper external pressure on Edwards based on the warden s email purportedly dictating the penalty the independent ALJ was to impose. See Martin Marietta Materials, Inc. v. Dallas County, 675 N.W.2d 544, 554 55 (Iowa 2004) (allowing mental-process privilege to be 3 overcome upon a strong showing of bad faith or improper behavior). The Ombudsman filed an action in district court to enforce the subpoena, and the parties filed cross-motions for summary judgment on the applicability of the mental-process privilege and the showing required to defeat it. The district court ruled the mental-process privilege would not apply to limit deposition testimony in the Ombudsman s investigation, as opposed to a judicial proceeding. Accordingly, the district court did not reach the question whether the Ombudsman had made a sufficient showing of bad faith or impropriety to overcome the privilege. Edwards and IDOC appealed, and we retained the appeal to decide questions of first impression on the applicability of the mental-process privilege under these circumstances. On our review, we hold the mental-process privilege is available to IDOC ALJs in an Ombudsman investigation, but conclude, based on this record, the Ombudsman has made a sufficient showing to overcome the privilege. For the reasons explained below, we affirm the order overruling Edwards s mentalprocess privilege in this case and compelling her deposition. I. Background Facts and Proceedings. On April 2, 2008, Randy Linderman, an inmate at the Fort Dodge Correctional Facility (FDCF), was involved in an altercation with a corrections officer in a common area within view of other inmates. Linderman was verbally disruptive and physically inappropriate with [the corrections officer] to the point that the offender assaulted the officer with his body several times. Specifically, Linderman chest bumped the corrections officer two or three times and disobeyed commands until other guards arrived to take control. The altercation was recorded by a surveillance camera. Linderman was charged with violating prison rules prohibiting assaults, threats, and verbal abuse. An evidentiary hearing was completed on April 24. Edwards, an ALJ for the IDOC with twelve years experience in that capacity, 4 presided over the hearing. She watched the video of the incident, reviewed witness statements, and reviewed a written submission by Linderman. In her hearing decision dated April 24, Edwards noted Linderman pled guilty . . . admitting that he was angry at the time of the violation. Edwards found that: The offender s behavior placed a staff member[ s] safety at risk, disrupted the normal operation of Boone and failed to follow any directives given him by that staff member until other staff arrived on the scene and moved him to A building. Edwards found Linderman guilty of class B assault and entered a sanction of 180 days of disciplinary detention and 180 days loss of earned time. Her decision concluded: This sanction reflects the severity of the offense and is appropriate to the nature of the offense. . . . This ALJ is also recommending that the classification committee review the offender for a possible transfer to a more secure environment. Linderman appealed the decision to Cornell Smith, warden at FDCF, who affirmed the decision on April 28. Linderman did not seek postconviction judicial review, but complained to the Ombudsman. The Ombudsman launched an investigation into whether the IDOC and Edwards followed Iowa law and corrections policy in this matter. The investigation initially focused on whether the loss-of-earned-time sanction Linderman received was excessive. Under then-existing policy, a class B assault could result in loss of earned time of up to ninety days. IDOC Policy IO-RD-01(IV)(P)(2)(a)(2)(a) (Jan. 2007); see also Iowa Code § 903A.4 (authorizing the IDOC to develop disciplinary policies and rules for prisons including the amount of earned time which may be lost as a result of each disciplinary offense ). Thus, it appeared that the sanction of 180 days of loss of earned time for Linderman s class B assault was facially excessive. The ALJ is permitted under IDOC policy to aggravate an offense to the next level, but is to specify in writing the aggravating circumstances warranting a change in sanction. IDOC Policy IO-RD-01(III)(B). 5 A nonexclusive list of six aggravating factors is included in the policy: (1) history of violence, (2) use of weapon, (3) severity of injury, (4) significant impact to institutional operations, (5) repeat infractions, and (6) premeditation. Id. None of these factors is expressly identified in Edwards s April 24 decision. An assistant Ombudsman, Bert Dalmer, conducted unsworn, unrecorded interviews of Edwards by phone on May 12 and June 3. Dalmer, relying on his contemporaneous notes, stated, Deb very distinctly told me twice in my first contact with her on this case that she believed she could have aggravated this case but decided not to. Dalmer then spoke with Warden Smith, who told Dalmer that the ALJ told [Smith] she intended to aggravate. On June 12, Dalmer contacted Michael Savala, general counsel for the IDOC and supervisor for IDOC ALJs. The same day, Edwards spoke with Savala and modified her ruling to change the classification of Linderman s assault offense from class B to class A, again without specifically identifying any of the aggravating circumstances enumerated under prison policy and without using any variation of the term aggravated. Edwards merely added the following to the disposition section: The ALJ is modifying an error that occurred when submitting this report hearing, the class offense of the assault is an (A) violation and is being modified to reflect the seriousness of the violation at this time. A copy is being forwarded to the offender at ASP and to the Warden here at FDCF. The offender s behavior was consistent with the DOC policy IO RD-01 (II)(a)(P)(b). Savala told Dalmer he was unable to find the policy provision Edwards cited in her June 12 decision. Dalmer noted his office had examined other disciplinary sanctions and found assaults [they] would deem to be more serious involving feces, urine, spit, punches that led to the same sentence or lesser sentences than this particular case. He also noted four other decisions, including one by 6 Edwards, which used a form of the word aggravated when imposing more severe sanctions. As the investigation continued, the Ombudsman learned Warden Smith had sent Edwards an email after Linderman s altercation with the corrections officer, but before the disciplinary hearing, stating, Please exercise sanctions to fit situation (180 to 365). 1 The Ombudsman viewed the warden s email as improper external pressure on the ALJ whose independence is required by law. The Ombudsman argues the warden effectively dictated the penalty Edwards was to impose before she commenced the hearing. The Ombudsman deposed Warden Smith and Savala. The Ombudsman invited Edwards to voluntarily provide her sworn testimony, but she declined. Accordingly, the Ombudsman subpoenaed Edwards for deposition. IDOC counsel responded by letter, asserting that the Ombudsman could not question Edwards about her motive, influences and decision making process in a specific disciplinary case. The parties postponed the deposition while they negotiated the scope of the testimony. Ultimately, they were unable to agree, and the Ombudsman issued a second subpoena for Edwards s sworn testimony on May 17, 2010. The parties stipulated the Ombudsman could question Edwards regarding the background and some of the procedural issues pertaining to the Linderman disciplinary proceeding, but acknowledged IDOC counsel would object and instruct Edwards not to answer questions regarding her decision-making process. 1Although the email does not appear in the record, the relevant quote was included in the Ombudsman s Statement of Undisputed Material Facts in Support of [Its] Motion for Summary Judgment. The quotation from the email was admitted in the response filed by IDOC and Edwards. No party contends anything else in that email is relevant to the issues on appeal. The video of the incident referenced in Edwards s hearing decision is not in the court record; however, neither party claims that review of the video would help determine whether a showing has been made to overcome the mental-process privilege. 7 The Ombudsman filed a petition in the District Court for Polk County seeking judicial enforcement of the subpoena issued to Edwards pursuant to Iowa Code section 2C.9(5). Both parties moved for summary judgment on the applicability of the mental-process privilege. The Ombudsman argued that the privilege was only available in judicial proceedings, not in an investigatory deposition of an IDOC ALJ under chapter 2C. Alternatively, the Ombudsman argued it had made a sufficient showing to defeat the privilege. Edwards and IDOC argued the mental-process privilege applied and no showing had been made to defeat it. They also contended Linderman s failure to exhaust his remedies by seeking postconviction relief precluded further investigation by the Ombudsman. The district court granted the Ombudsman s motion for summary judgment. The court did not decide whether the Ombudsman had made a showing sufficient to defeat the mental-process privilege if it applied. Instead, the court noted the Ombudsman makes a compelling argument that the mental process rule applies only to judicial proceedings, and not investigations. The court ruled that ALJ Deborah Edwards s testimony is not privileged and the [Ombudsman] may take her sworn testimony. The court itself acknowledged concern over the precedent set by requiring an ALJ to submit to a deposition explaining her thought processes behind an adjudicatory ruling: The court is not unmindful of the consequences of precedent that could be set. Nevertheless, the negative ramifications of this precedent may be mitigated by the narrow facts of this case, and that the [Ombudsman] would not likely subpoena ALJs as frequently as the Department of Corrections predicts. The court ordered Edwards and IDOC to comply with the deposition subpoena, with no limitations on her testimony. This appeal followed. 8 II. Standard of Review. We review rulings on summary judgment for corrections of errors of law. Emp rs Mut. Cas. Co. v. Van Haaften, 815 N.W.2d 17, 22 (Iowa 2012). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. This court reviews questions of statutory interpretation for corrections of errors at law. State v. Overbay, 810 N.W.2d 871, 875 (Iowa 2012). We review district court orders regarding the discovery process, including those enforcing an ombudsman subpoena, for abuse of discretion. Citizens Aide/Ombudsman v. Grossheim, 498 N.W.2d 405, 407 (Iowa 1993). Abuse of discretion may be shown where there is no record to support the court s factual conclusions, or where the decision is grounded on reasons that are clearly untenable or unreasonable. Id. A ground or reason is untenable . . . when it is based on an erroneous application of the law. In re Gianforte, 773 N.W.2d 540, 544 (Iowa 2009) (quoting Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000)). III. The Statutory Framework. We have not previously addressed the applicability of the mental-process privilege in an investigation by the Ombudsman into the decision of an IDOC ALJ. To put the issue in proper context, we will first review the role and powers of the Ombudsman and then explore the duties of the independent ALJs in the IDOC. The question of whether Edwards may assert the privilege against the Ombudsman must be answered against this backdrop. We begin our analysis by reiterating that courts are obliged to grant prison officials a wide berth in the execution of policies and practices needed to maintain prison discipline and security. Grossheim, 498 N.W.2d at 407. We also reiterate that inmates are constitutionally entitled by due process to an impartial ALJ in prison disciplinary proceedings. Thompson v. State, 533 N.W.2d 215, 216 17 9 (Iowa 1995). See generally Botsko v. Davenport Civil Rights Comm n, 774 N.W.2d 841, 848 52 (Iowa 2009) (reviewing due process required in administrative proceedings). A. The Ombudsman s Role as Watchdog. 1. Purpose of the Ombudsman s office. In 1972, the general assembly established the Ombudsman s office, which serves as a watch dog for state administrative agencies. 899, 902 03 (Iowa 1996). Citizens Aide/Ombudsman v. Miller, 543 N.W.2d The Ombudsman s purpose is to investigate complaints received from any source concerning an administrative action of a state agency. Id. at 902 (quoting Iowa Code § 2C.12). States created these offices to safeguard the rights of individuals subject to administrative decision making, at a time when administrative agencies were gaining an increasing presence, power, and discretion in state government. Bernard Frank, State Ombudsman Legislation in the United States, 29 U. Miami L. Rev. 397, 397 99 (1975) [hereinafter Frank]; see also Thomas A. Mayes, Protecting the Administrative Judiciary from External Pressures: A Call for Vigilance, 60 Drake L. Rev. 827, 828 (2012) [hereinafter Mayes] ( [T]he administrative law judiciary is so integral to the function of the modern state that it is commonly, if not accurately, referred to as a fourth branch of government. ). Frank noted in particular that [t]he traditional concern for the guaranty of the rights of the individual has become even greater in modern society. The activities of public administration have become so comprehensive and the power of the bureaucracy so great that the status of the individual needs additional protection. Frank, 29 U. Miami L. Rev. at 398. Iowa was one of the first states to enact legislation creating the office of the ombudsman. Id. at 397. A major issue with the preombudsman administrative system was that, even if an agency had a channel for complaint, that channel may lack 10 independence and impartiality. Id. at 398. In addition to safeguarding the rights of individuals, the Ombudsman also alleviates some of the burdens placed on courts, especially in the context of the administrative actions involving prisoners. Shabazz v. Scurr, 662 F. Supp. 90, 92 (S.D. Iowa 1987) ( Courts have a special interest in protecting the [Ombudsman s] problemsolving function. This Court spends far too many hours in litigation between prisoners and state officials attempting to remedy problems which could have been prevented or reconciled informally. ). In its role as a watchdog, the Iowa Ombudsman has the responsibility to investigate complaints from any persons regarding administrative actions of Iowa state or local government agencies and to render objective opinions or recommendations on the complaints, in the interests of resolving complaints and improving administrative processes and procedures. Iowa Admin. Code r. 141 1.1 (2008). substantiated, If at the conclusion of its investigation the complaint is the Ombudsman may make recommendations to the administrative agency and, if its recommendation involves changing the governing statutory law, to the general assembly. See Shabazz, 662 F. Supp. at 91 (citing Iowa Code §§ 601G.9, .16, now codified as §§ 2C.9, .16); see also Iowa Admin. Code r. 141 2.11(3), (5). 2. The Ombudsman s subpoena power. The Ombudsman has statutory authority to investigate agency action, with certain exceptions. Iowa Code § 2C.9(1). This includes the power to [i]ssue a subpoena to compel any person to appear, give sworn testimony, or produce documentary or other evidence relevant to a matter under inquiry. Id. § 2C.9(5). The judicial branch is beyond the reach of the Ombudsman s investigatory power. See id. § 2C.1(2)(a) (excluding from the definition of agency [a]ny court or judge or appurtenant judicial staff ). Edwards, however, is employed by IDOC, a state agency, not the judicial branch. As an agency employee, she falls outside the exclusion for 11 judges in section 2C.1(2)(a). 2 But, the question remains whether, as an IDOC ALJ, Edwards may assert a common law mental-process privilege or immunity against compelled testimony. See § 2C.21 (allowing persons required to provide information to the Ombudsman to assert the same privileges and immunities as are extended to witnesses in . . . [Iowa] courts ). 2Under a plain language reading of section 2C.l(2)(a), the term judge next to court refers to judges in the judicial branch, not ALJs operating in state agencies. This interpretation is supported by the drafter s comments to model ombudsman acts with the same language excluding courts and judges from the ombudsman s purview. In the absence of instructive Iowa legislative history, we also look to the comments and statements of purpose contained in Uniform Acts to guide our interpretation of a comparable provision in an Iowa Act. Alcor Life Extension Found. v. Richardson, 785 N.W.2d 717, 722 (Iowa Ct. App. 2010); see also Mulhern v. Catholic Health Initiatives, 799 N.W.2d 104, 115 (Iowa 2011) ( Our court has relied on the drafter s comments to the Uniform [Comparative Fault] Act in construing the Iowa act. ). At the time the general assembly passed the Iowa Citizens Aide legislation, there were two predominate model ombudsman acts. See Frank, 29 U. Miami L. Rev. at 399. Iowa s act, when passed, contained language similar to that found in Professor Walter Gellhorn s Annotated Model Ombudsman Statute. See id. at 399 n.6; see also Walter Gellhorn, Appendix: Annotated Model Ombudsman Statute, in Ombudsmen for American Government?, 159 71 (American Assembly, ed. 1968) [hereinafter Gellhorn,] (reproducing Professor Gellhorn s Annotated Model Ombudsman Statute). Gellhorn s model act later served as the basis for the American Bar Association s Model Ombudsman Statute for State Governments, which was published in 1974, two years after the enactment of Iowa Code chapter 2C. Frank, 29 U. Miami L. Rev. at 401. The ABA s model act and comments reflect a contemporaneous understanding that the exclusion for courts and judges is limited to the judicial branch. The 1974 version of the ABA s model ombudsman statute contains an identical exclusion to Iowa s for any court, or judge and appurtenant judicial staff. Compare id. at 404, with Iowa Code § 2C.1(2)(a). The comment accompanying the ABA exclusion states: An exclusion of the judicial branch rests on its traditional independence and immunity from investigation; its internal review mechanisms (e.g., judicial conference); its continuous review by the profession (viz., Bar); and, in some states, its review by judicial commissions. Frank, 29 U. Miami L. Rev. at 405 (emphasis added). This comment is consistent with a similar discussion found in the comments to Professor Gellhorn s model statute. See Gellhorn, at 160 ( Traditional immunization of courts against extra-judicial scrutiny argues against permitting an American ombudsman to inquire into a judge s behavior. ). The Iowa Judicial Branch consists of the supreme court, the court of appeals, the district court, the clerks of all of the courts of this state, juvenile court officers, court reporters, and all other court employees. See Iowa Code § 602.1102. The Iowa Judicial Branch does not include ALJs employed by the IDOC. 12 Generally, a court is to enforce an Ombudsman subpoena, so long as the four-factor test we adopted in Roadway is met. Grossheim, 498 N.W.2d at 407. The four-factor test requires that the subpoena be (1) within the statutory authority of the agency, (2) reasonably specific, (3) not unduly burdensome, and (4) reasonably relevant to the matters under investigation. Id. at 406 (quoting Iowa City Human Rights Comm n v. Roadway Express, Inc., 397 N.W.2d 508, 510 (Iowa 1986)). The first prong is at issue here. Specifically, we must decide whether the Ombudsman has the authority to depose an IDOC ALJ regarding her decision adjudicating an inmate s violation of prison rules and imposing penalties. This requires an analysis of the role of IDOC ALJs in prison disciplinary proceedings. B. The Role of IDOC ALJs in Prisoner Disciplinary Proceedings. Our review of the governing statutes confirms IDOC ALJs are to be independent and impartial adjudicators performing a quasi-judicial role in prison disciplinary cases. 1. IDOC ALJs are to be impartial, independent adjudicators. 3 [A]n impartial tribunal is a fundamental right imposed by due process in [prison] disciplinary proceedings. Thompson, 533 N.W.2d at 216. The director of the IDOC is statutorily required to appoint independent ALJs to preside over prisoner disciplinary hearings. Iowa Code § 903A.1 ( The director of the Iowa 3Although impartiality and independence are sometimes used interchangeably, they are distinct concepts. See Mayes, 60 Drake L. Rev. at 827 n.1. [I]mpartiality . . . refers to fairminded, neutral decisionmaking, whereas, independence, a subset of impartiality, is autonomy and insusceptibility to external guidance, influence, or control. Id. (quoting James E. Moliterno, The Administrative Judiciary s Independence Myth, 41 Wake Forest L. Rev. 1191, 1200, 1202 03 (2006)). Mayes goes on later to discuss the interconnected relationship between independence and impartiality, calling independence a means of protecting impartiality. Id. at 835, 836 ( If independence is a protector of impartiality and some degree of impartiality is a required attribute of the administrative judiciary, I suggest that some amount of lawmaking independence and autonomy, albeit to a lesser degree, is necessary for the administrative judiciary. (Footnotes omitted.)). 13 department of corrections shall appoint independent administrative law judges whose duties shall include but are not limited to review, as provided in section 903A.3, of the conduct of inmates in institutions under the department. (Emphasis added.)); id. § 903A.3(1) ( [T]he independent administrative law judge may order forfeiture of any or all earned time . . . . (Emphasis added)). IDOC s administrative regulations require ALJs to be impartial and to make their decisions solely on information obtained in the hearing process. Iowa Admin. Code r. 201 50.21(4)(b)(13) (emphasis added); id. r. 201 50.21(4)(b)(10); 4 IDOC Policy IO-RD-01(IV)(D)(11); see also Thompson, 533 N.W.2d at 216 18 (discussing impartiality required of IDOC ALJs). Significantly, to preserve their independence, IDOC ALJs report to and are supervised by the general counsel for the IDOC rather than the warden. See Iowa Admin. Code r. 201 1.8(6)(e). Savala testified as follows: [T]he Iowa Code requires that we have independent administrative law judges at the facilities and they report to me in Des Moines as general counsel to maintain that independence. That s why I m their supervisor. So they are not aligned with anybody at the facility whether that s -- they re not aligned with security, they re not reporting to the warden or anyone else. They report to me to maintain that judicial independence. Thus, IDOC s general counsel, not the warden, hires and fires the ALJs, approves their vacation and sick leave, and conducts evaluations of their performance. 4We note that ALJs employed by the IDOC are not subject to certain laws governing ALJs in other state agencies deciding contested cases under Iowa Code chapter 17A. See Iowa Code § 903A.1 ( Sections 10A.801 and 17A.11 do not apply to administrative law judges appointed pursuant to this section. ). In particular, the Code of Administrative Judicial Conduct, which by its express language applies to presiding officers in contested cases under section 17A.11, does not govern the conduct of ALJs for the IDOC. See Iowa Admin. Code r. 481 10.29. 14 2. IDOC ALJs act as quasi-judicial officers in prison disciplinary proceedings. The quasi-judicial role played by IDOC ALJs is confirmed by a review of the prison disciplinary process. The prison disciplinary process begins upon discovery of an inmate rule violation. Prison staff members are required to prepare a disciplinary report with the following information: 1. Specific rule(s) violated; 2. A statement of the charge; 3. Any unusual prisoner behavior; 4. Any staff witnesses; 5. An explanation of the event that includes who was involved, what transpired, and the time and location of the occurrence; 6. Any physical evidence and its disposition; [and] 7. Any immediate action taken, including the use of force. See id. r. 201 50.21(4)(b)(3). An impartial investigation of the violation must begin within twenty-four hours of when the violation was first reported. See id. r. 201 50.21(4)(b)(4). The disciplinary hearing must be conducted no later than seven days, excluding weekends and holidays, following the report of the alleged rule violation. Id. r. 201 50.21(4)(b)(8). The prisoner must receive a written statement of the charge(s), including a description of the incident and the specific rule(s) violated . . . at least 24 hours prior to the disciplinary hearing. Id. r. 201 50.21(4)(b)(6). The prisoner is entitled to be present at the hearing, unless the prisoner waives that right in writing or is a threat to the security and safety of the facility. Id. r. 201 50.21(4)(b)(7). The prisoner is also entitled to make a statement and present documentary evidence at the hearing and to call witnesses on their behalf unless calling witnesses creates a threat to security or safety of the facility. Id. r. 201 50.21(4)(b)(11). 15 When presiding over a prison disciplinary hearing, the ALJ considers the evidence presented and writes a report with her decision and the supporting See id. r. 201 50.21(4)(b)(14). reasons. Linderman was charged with assault. Under IDOC policies, an offender commits assault when the offender intentionally causes or threatens to cause injury to another person or applies any physical force or offensive substance (i.e. feces, urine, saliva, mucous) or any other item against any person regardless of whether injury occurs. IDOC Policy IO-RD-01(IV)(P)(4)(2). The policy differentiates between two classes of assaults. An assault is class A if [a] weapon or potentially infectious bodily fluids, secretions, tissue, or excrement [has] been used. Id. All other assaults are class B. Id. However, under IDOC policies, [i]f the Administrative Law Judge determines that the factors or circumstances of an offense are more serious than the charged offense, the sanction may be upgraded to the next class. Id. IO-RD-01(III)(B). If the ALJ makes such a determination, then she must specify in writing the aggravating circumstances warranting a change in sanction. Id. IDOC policy states that [a]ggravating factors may include, but are not limited to, history of violence, use of weapon, severity of injury, significant impact to institutional operations, repeat infractions, and premeditation. Id. A copy of the report prepared by the ALJ must then be given to the prisoner. See Iowa Admin. Code r. 201 50.21(4)(b)(14). The prisoner has twenty-four hours to appeal the decision to the jail administrator or designee. Id. r. 201 50.21(4)(c); see also Iowa Code § 903A.3(2). However, even if the prisoner does not appeal the decision, IDOC regulations provide for automatic appeal, whereby the jail administrator or designee [is required] to review all disciplinary hearings and dispositions to ensure conformity with the jail policy and procedures. Iowa Admin. Code r. 201 50.21(4)(b)(15). The jail 16 administrator at FDCF is the warden. On appeal, the warden may either affirm, modify, remand for corrections of procedural errors, or reverse an order. Iowa Code § 903A.3(2). However, the warden may not increase sanctions issued by the ALJ. Id. After exhausting the administrative remedies provided in Iowa Code section 903A.3, a prisoner who claims that the reduction of sentence pursuant to sections 903A.1 through 903A.7 has been unlawfully forfeited may seek postconviction review under chapter 822. Id. § 822.2(1)(f). 5 With this statutory backdrop in mind, we now turn to analyze whether an IDOC ALJ such as Edwards can assert the mental-process privilege during an Ombudsman s investigation. IV. The Mental-Process Privilege. We begin with an overview of the mental-process privilege. It has long been recognized that attempts to probe the thought and decision making 5Edwards and IDOC argued allowing the Ombudsman s investigation to go forward would undermine the principles of the exhaustion doctrine, which requires a party challenging an administrative action to exhaust all of its administrative remedies before pursuing review of that action in court. See Aschan v. State, 446 N.W.2d 791, 792 94 (Iowa 1989) (holding that prisoners must exhaust all administrative remedies before seeking postconviction review). Whether Linderman exhausted all administrative and judicial remedies is irrelevant to determining whether the Ombudsman has authority to investigate the administrative action. As IDOC and Edwards acknowledge, the Iowa Code permits the Ombudsman to undertake such investigations without regard to the finality of the administrative action. Iowa Code § 2C.9(1). This authorizes the Ombudsman to pursue an investigation separate and independent from any administrative or judicial remedy available to the complainant, consistent with the Ombudsman s role: The Ombudsman provides the citizen with an expert and impartial agent who acts informally, without time delay, without cost to the complainant, and without the requirement of counsel or an adversary proceeding, to determine whether the complainant has been wronged by government, and, if so, to recommend corrective action. He supplements and does not replace existing institutions. Frank, 29 U. Miami L. Rev. at 399 (emphasis added). Thus, under this provision, the Ombudsman s power to commence an investigation of agency action is not dependent upon whether the complainant seeks administrative and judicial review of the agency action. 17 processes of judges and administrators are generally improper. Grant v. Shalala, 989 F.2d 1332, 1344 (3d Cir. 1993) (citing United States v. Morgan, 313 U.S. 409, 422, 61 S. Ct. 999, 1004 05, 85 L. Ed. 1429, 1435 36 (1941)). The Grant court observed the process of agency adjudication is currently structured so as to assure that the [ALJ] exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency . . . [in a role] functionally comparable to that of a judge. Id. (citations omitted) (quoting Butz v. Economou, 438 U.S. 478, 513, 98 S. Ct. 2894, 2914, 57 L. Ed. 2d 895, 920 (1978)). We note the same is true of the role of IDOC ALJs in prison disciplinary cases. In Grant, Judge Alito cautioned that allowing discovery into the ALJ s thought processes would have a deleterious effect on the independence of ALJs. Id. We share these concerns here. The mental process privilege is a corollary to the deliberative process privilege that protects uncommunicated motivations for a policy or decision. Thomas v. Cate, 715 F. Supp. 2d 1012, 1024 (E.D. Cal. 2010) (internal quotation marks omitted). Both are qualified privileges that may be overcome by a litigant. Id. at 1025; Martin Marietta, 675 N.W.2d at 554 55 (recognizing mental-process privilege may be overcome by strong showing of bad faith or misconduct). By contrast, the judicial deliberative privilege is absolute. In re Enforcement of a Subpoena, 972 N.E.2d 1022, 1033 (Mass. 2012) ( This absolute privilege covers a judge s mental impressions and thought processes in reaching a judicial decision, whether harbored internally or memorialized in other nonpublic materials. ). The leading case for the mental-process privilege is Morgan. In that case, the Secretary of Agriculture entered an order following a quasi-judicial proceeding to set maximum rates charged by market agencies at the Kansas City stockyards. Morgan, 313 U.S. at 413, 61 S. Ct. at 1000, 85 L. Ed. at 18 1430 31. In an action challenging the order in federal court, the Secretary, over the government s objection, was called as a witness. Id. at 421 22, 61 S. Ct. at 1004, 85 L. Ed. at 1435. He was questioned at length regarding the process by which he reached the conclusions of his order, including the manner and extent of his study of the record . . . . Id. at 422, 61 S. Ct. at 1004, 85 L. Ed. at 1435. The U.S. Supreme Court held the Secretary should never have been subjected to this examination and admonished that it was not the function of the court to probe the mental processes of the Secretary. Id. (quoting Morgan v. United States, 304 U.S. 1, 18, 58 S. Ct. 773, 776, 82 L. Ed. 1129, 1132 (1938)). The Morgan Court stated, Just as a judge cannot be subjected to such a scrutiny, so the integrity of the administrative process must be equally respected. Id. at 422, 61 S. Ct. at 1004 05, 85 L. Ed. at 1435 (citation omitted). We applied the mental-process privilege in DeCoster. DeCoster, a largescale hog producer responsible for manure spills, challenged the Environmental Protection Commission s (EPC) decision to refer violations of the state pollution laws to the attorney general for prosecution. DeCoster, 608 N.W.2d 787. DeCoster sought to call six of the nine EPC commissioners as witnesses. Id. at 790. The district court allowed limited examination of the EPC chair regarding the referral criteria, but prohibited counsel from inquiring into the reasoning behind the commission s vote, and also prevented DeCoster from calling the other commissioners as witnesses. Id. We concluded the district court plainly acted within its broad discretion to limit the examination of the commissioners concerning their mental processes in reaching their referral decisions. Id. We noted that type of examination . . . was rejected over half a century ago by the United States Supreme Court in [Morgan]. Id. Thus, persons acting in a quasi-judicial capacity generally are immune from compulsory discovery into the mental processes behind their decision 19 making. See id.; In re Gianforte, 773 N.W.2d at 549 (holding school board members who terminated teacher could not be compelled to answer interrogatories); Martin Marietta, 675 N.W.2d at 553 54 (members of board of adjustment generally cannot be deposed as to the mental processes of . . . how they reached their decision without a strong showing of bad faith or misconduct sufficient to defeat the privilege). Accordingly, we look to whether Edwards functioned in a quasi-judicial capacity in Linderman s case to determine whether she may assert the mental-process privilege. One test articulated by our court to determine whether a tribunal [or individual] is exercising a quasi-judicial function is whether the questioned act involves a proceeding in which notice and opportunity to be heard are required; or whether a determination of rights of parties is made which requires the exercise of discretion in finding facts and applying the law thereto. Waddell v. Brooke, 684 N.W.2d 185, 191 (Iowa 2004) (quoting Buechele v. Ray, 219 N.W.2d 679, 681 (Iowa 1974)) (describing a test used in determining whether writ of certiorari should be granted). We are convinced that Edwards indeed served in a quasi-judicial role in Linderman s disciplinary hearing. As described above, she presided over his hearing, made findings as to his violation of prison rules, and imposed penalties. Additionally, Linderman was required to be given notice and an opportunity to be heard. We next decide whether Edwards may invoke the mental-process privilege to limit questioning by the Ombudsman in an investigatory deposition. A. Does the Mental-Process Privilege Apply in the Ombudsman s Investigation? The district court ruled Edwards could not invoke the mentalprocess privilege because, as the Ombudsman contended, that privilege is only available in judicial proceedings. We disagree. Section 2C.21 is dispositive. That section provides: A person required by the citizens aide to provide information shall be paid the same fees and travel allowances as are extended to witnesses whose attendance has been required in the district 20 courts of this state. Officers and employees of an agency shall not be entitled to such fees and allowances. A person who, with or without service of compulsory process, provides oral or documentary information requested by the citizens aide shall be accorded the same privileges and immunities as are extended to witnesses in the courts of this state, and shall also be entitled to be accompanied and advised by counsel while being questioned. Iowa Code § 2C.21 (emphasis added). We enforce the plain language of the statute and conclude the district court erred in ruling the mental-process privilege is categorically unavailable during deposition testimony in an Ombudsman s investigation. We hold IDOC ALJs are entitled to assert the mental-process privilege in an Ombudsman s investigatory deposition absent a strong showing of bad faith or improper behavior sufficient to overcome the privilege. We next address whether a sufficient showing was made to overcome Edwards s assertion of the privilege in this case. B. Did the Ombudsman Make a Strong Showing of Bad Faith or Improper Behavior? There is a presumption of regularity that attaches to the decisions of administrative agencies that protects them against inquiry into how they reach their decisions based upon mere suspicion. Martin Marietta, 675 N.W.2d at 554 (quoting Wright v. Indus. Comm n, 103 N.W.2d 531, 535 (Wis. 1960)). However, that presumption may be overcome by a strong showing of bad faith or improper behavior . . . . Id. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S. Ct. 814, 825, 28 L. Ed. 2d 136, 155 56 (1971)). Our focus in this case is on improper behavior by the warden and Edwards. definitions for improper : [i]ncorrect; [f]raudulent or otherwise wrongful. Black s Law Dictionary lists two unsuitable or irregular and Black s Law Dictionary 826 (9th ed. 2009). Improper behavior appears in the definition of misconduct, which is defined as [a] dereliction of duty; unlawful or improper behavior. Id. at 1089. 21 A party seeking to make a strong showing of improper behavior to justify disregarding the mental-process privilege must make more than bare allegations and conclusory statements. Kholeif v. Bd. of Med. Exam rs, 497 N.W.2d 804, 806 (Iowa 1993). The litigant must point to objective facts sufficient to convince a reasonable fact finder that bias exists. Id. at 807 (enforcing statutory requirement of affidavit supporting bias claim to obtain closed-session deliberations of board of medical examiners in licenserevocation proceeding). Notably, this does not require the party to conclusively prove there was improper behavior. In Martin Marietta, we noted a preliminary showing of improper behavior would be sufficient to allow inquiry into the mental processes of board members. 675 N.W.2d at 555; see also McGoldrick v. Koch, 110 F.R.D. 153, 155 (S.D.N.Y. 1986) ( [W]here a party has made a prima facie showing that the decision by an agency or a judicial officer is tainted by impropriety, the decision-making process may be an appropriate subject of inquiry. ). In the absence of such a showing, the mental-process privilege limits the questions counsel may ask the party asserting the privilege. Generally, the questioning is limited to information concerning the procedural steps that may be required by law and does not extend to inquiries into the mental processes of an administrator which, as being part of the judgmental process, are not discoverable. DeCoster, 608 N.W.2d at 790 (quoting People for Envtl. Enlightenment & Responsibility (PEER), Inc. v. Minn. Envtl. Quality Council, 266 N.W.2d 858, 873 (Minn. 1978)). In DeCoster, we upheld the mental-process privilege because the record in that case was devoid of any proof or even a hint of political influence affecting the deliberations at issue. Id. By contrast, in this case, the Ombudsman contends undisputed facts in the record establish a showing sufficient to overcome the privilege. Edwards and IDOC contend otherwise. The district court did not decide whether the 22 requisite showing was made because it erroneously concluded the privilege is unavailable during an Ombudsman s investigation. Ordinarily, we do not decide issues not reached by the district court, but we may affirm an order on alternative grounds supported by the record and urged below. See Venard v. Winter, 524 N.W.2d 163, 165 (Iowa 1994) ( [A] successful party need not crossappeal to preserve error on a ground urged but ignored or rejected by the district court. ). Here, we are well positioned to do so because the parties already briefed this issue before the district court and on appeal, no party has requested the opportunity to offer additional evidence, and undisputed facts in the record are determinative. In that respect, this appeal differs from Martin Marietta, a case we remanded with directions to allow limited depositions of quasi-judicial decision makers before the district court reevaluated whether a sufficient showing had been made. In that case, Martin Marietta applied for a conditional use permit to the county board of adjustment, which was denied, even though it had approved a similar application for a neighboring property. Martin Marietta, 675 N.W.2d at 547 49. Martin Marietta argued that a key witness, the county director of planning and development, Murray McConnell, who had previously voiced his support for Martin Marietta s application, did an about face because he had allegedly been threatened with the loss of his job. Id. at 552. Martin Marietta s attorney filed an affidavit attesting that was what McConnell told him; McConnell filed his own affidavit denying the conversation took place. Id. Martin Marietta sought depositions of McConnell and members of the board of adjustment and board of supervisors to determine whether undue influence had been exercised. Id. The district court granted the county s motion for protective order to prohibit the depositions of the board members. Id. at 553. We reversed, concluding that, although Martin Marietta had failed to make a sufficient 23 showing of bad faith or impropriety to defeat the mental-process privilege at that stage, it was entitled to depose the board members regarding their communications. Id. at 554. In that way, Martin Marietta would at least have the opportunity to establish preliminarily that Board of Adjustment members were indeed subject to improper influence that might have led to its decision. Id. ( Unless such discovery is allowed, how else could Martin Marietta make such a preliminary showing? ). We noted that a preliminary showing of improper influence would be more than a mere suspicion and would in our judgment overcome the presumption of regularity. Id.; see also In re Enforcement of a Subpoena, 972 N.E.2d at 1033 (clarifying that the judicial deliberative privilege does not preclude inquiry into whether a judge was subjected to improper extraneous influences or ex parte communications during the deliberative process [because,] [b]y definition, such ... communications lie outside the protected sphere of the judge s internal deliberations ). Thus, in Martin Marietta, we remanded the case to allow depositions of the quasi-judicial decision makers to proceed in stages: On remand the district court shall allow discovery depositions . . . limited to whether there was communication with the Board of Adjustment members and what that communication was. If the district court determines that Martin Marietta has made a showing that such communications were improper or made in bad faith, it may allow Martin Marietta to inquire into the mental processes of the Board of Adjustment members in reaching their decision. Martin Marietta, 675 N.W.2d at 557. This two-step approach was appropriate in that case because whether improper ex parte communications had occurred was sharply disputed in the record on appeal, thus leading us to conclude that Martin Marietta had not yet made a sufficiently strong showing. Id. at 554. Allowing limited depositions on remand provided Martin Marietta the opportunity to make a record while 24 protecting the privilege unless and until the district court determined an adequate showing had been made to overcome it. Id. By contrast, in this case, undisputed facts in the existing record establish the requisite showing to overcome Edwards s assertion of the privilege. Significantly, it is undisputed the warden sent a prehearing email to Edwards stating, Please exercise sanctions to fit situation (180 to 365). We cannot condone such ex parte communications from a warden to the IDOC ALJ, whose independence is statutorily mandated, particularly when the warden himself is to hear the inmate s appeal. See Botsko, 774 N.W.2d at 853 ( The combination of advocacy and adjudicative functions has the appearance of fundamental unfairness in the administrative process. ); see also Iowa Admin. Code r. 201 50.21(4)(b)(13) (requiring ALJs to make their decisions solely on information obtained in the hearing process ); Mayes, 60 Drake L. Rev. at 829 ( In the context of the administrative judiciary, the Supreme Court has stated that administrative hearing officers are to be free from pressures by the parties or other officials within the agency. (quoting Butz, 438 U.S. at 513, 98 S. Ct. at 2914, 57 L. Ed. 2d at 920)). The facial impropriety of the warden s email to Edwards is all the more troubling because he is statutorily prohibited from increasing sanctions on appeal. See Iowa Code § 903A.3(2). We conclude this email, in combination with other evidence, shows improper conduct sufficient to overcome Edwards s mental-process privilege. The other undisputed facts include: (1) Edwards s initial sanction doubled the allowable sanction for loss of earned time for a class B assault and matched the warden s suggested penalty; (2) the assault did not involve a weapon or bodily fluids to justify the penalty imposed; (3) no other aggravating factors were listed; and (4) Edwards changed the assault to class A after the Ombudsman s investigation commenced, without listing any enumerated factors or using the term aggravated as seen in other decisions. The 25 Ombudsman also argues Edwards told the assistant Ombudsman twice in informal, unsworn interviews that she chose not to aggravate her initial decision, while the warden stated she intended to aggravate the assault to a class A all along. We give no weight to these statements, however, because Edwards did not stipulate or otherwise admit to making those statements, and the assistant Ombudsman submitted no affidavit attesting that such statements were made by Edwards. We instead rely on the undisputed evidence in the record. Edwards alone can explain whether the warden s prehearing email or later communications influenced her decisions as to Linderman s discipline; however, she cannot do so without revealing her mental processes. Edwards and IDOC have declined to waive the mental-process privilege voluntarily. 6 As the court observed in North Pacifica, LLC v. City of Pacifica, perhaps the most important factor in determining whether the deliberative process privilege should be overcome [is] the availability or unavailability of comparable evidence from other sources. 274 F. Supp. 2d 1118, 1124 (N.D. Cal. 2003). This factor further supports overcoming Edwards s mental-process privilege. Compulsory testimony from an ALJ as to why she made a particular decision should be a last resort. Here, the Ombudsman has no other means to ascertain whether her independence was compromised by improper influence. We conclude the Ombudsman has made a sufficient showing to overcome Edwards s mental-process privilege. Accordingly, the district court did not abuse its discretion by overruling Edwards s mental-process privilege and ordering her to submit to the Ombudsman s deposition. Ombudsman is entitled to depose Edwards not only We hold the regarding her mental-process privilege can be waived by its holder. In re Enforcement of a Subpoena, 972 N.E.2d at 1034 n.7 (noting judge may waive judicial deliberative privilege to defend allegations of partiality). 6The 26 communications with the warden and others, but also regarding her thought processes to explain her decisions in Linderman s disciplinary proceedings. V. Conclusion. We hold administrative law judges in the department of corrections are entitled to assert the mental-process privilege in an Ombudsman investigation, but that privilege may be overcome upon a strong showing of bad faith or misconduct. For the reasons explained above, the Ombudsman has made the requisite showing to overcome Edwards s assertion of the privilege as to her decision in Linderman s disciplinary proceeding. We therefore affirm the district court s order overruling her mental-process privilege and compelling her to submit to the Ombudsman s deposition. AFFIRMED. All justices concur except Zager, J., who dissents. 27 #11 1452, Ombudsman v. Edwards ZAGER, Justice (dissenting). I concur in the well-reasoned majority opinion where it recognizes that the administrative law judges (ALJs) in the Iowa Department of Corrections (IDOC) are entitled to assert the mental-process privilege in response to the Ombudsman s request for an investigatory deposition. I also agree that this privilege is not absolute and may be overcome by a strong showing of bad faith or improper behavior. But I respectfully dissent from the majority s opinion when it decides, on this record, that the Ombudsman has made a strong showing of bad faith or other improper behavior on the part of Edwards sufficient to overcome the mental-process privilege. As the majority accurately states, Edwards is entitled to the presumption of regularity that attaches to the decisions of administrative agencies that protects them against inquiry into how they reach their decisions based on mere suspicion. See Martin Marietta Materials, Inc. v. Dallas County, 675 N.W.2d 544, 554 (Iowa 2004) (citation and internal quotations omitted). However, while the majority has concluded that undisputed facts in the record establish a strong showing of bad faith or improper behavior sufficient to overcome the mental-process privilege, I disagree. district court did not reach this issue. Most significantly, the It made no findings of fact or conclusions of law on this issue, which is not surprising considering the parties did not develop the record on this issue, concentrating instead on whether the privilege applied to ALJs or not. Generally, [w]e do not review issues that have not been raised or decided by the district court. State v. Dewitt, 811 N.W.2d 460, 467 (Iowa 2012). Whether the privilege applied was decided by the district court, although incorrectly. Without an adequate record and a decision by the district court, we should decline to reach the issue of whether the Ombudsman has 28 demonstrated sufficient objective facts to convince a reasonable fact finder that Edwards acted in bad faith or otherwise acted improperly. Clearly the Ombudsman has not exhausted its investigative opportunities. It is a fundamental doctrine of appellate review that issues 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). [I]t is not a sensible exercise of appellate review to analyze facts of an issue without the benefit of a full record or lower court determination[]. Id. (quoting Yee v. City of Escondido, 503 U.S. 519, 538, 112 S. Ct. 1522, 1534, 118 L. Ed. 2d 153, 172 (1992)). As such, it is impossible to conclude from this record that Edwards acted improperly or in bad faith. See Martin Marietta, 675 N.W.2d at 557 (remanding to allow expanded discovery, rather than simply allowing the mental-process privilege to be voided, as the plaintiff had not made a sufficient showing of bad faith or improper behavior). I would decline to decide this issue on the existing record. I. Standard to Overcome Mental-Process Privilege. Preliminarily, I think it is important to define the standard the Ombudsman must meet in order to determine whether the Ombudsman has met that standard. A. Defining Bad Faith or Improper Behavior. The majority accurately defines improper behavior, and I concur with that definition. In order to demonstrate bad faith or improper behavior sufficient to overcome the mentalprocess privilege, the Ombudsman must demonstrate that Edwards s actions consisted of behavior that was [i]ncorrect[,] unsuitable or irregular or [f]raudulent or otherwise wrongful. See Black s Law Dictionary 826 (9th ed. 2009) (defining improper ). Further, the Ombudsman must point to objective facts sufficient to convince a reasonable fact finder that bias exists. Kholeif v. Bd. of Med. Exam rs, 497 N.W.2d 804, 807 (Iowa 1993). See 29 B. Bad Faith or Improper Behavior by the Decision Maker. The majority focuses its analysis on improper behavior by the warden and [administrative law judge] Edwards. I believe this focus is not only too broad, but also improperly expands the analysis of bad faith or improper behavior to the actions of third parties contrary to existing federal precedents and our own precedents. The standard articulated in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971), the leading United States Supreme Court case, adopted by this court in Martin Marietta and Kholeif, focuses on whether the decision maker acted improperly. Citizens to Preserve Overton Park analyzed the decision of the Secretary of Transportation and dealt with issues specific to a situation in which the Secretary made no formal factual findings. 401 U.S. at 408, 91 S. Ct. at 819, 28 L. Ed. 2d at 149. The Supreme Court remanded the case to the district court to review the entire administrative record. Id. at 420, 91 S. Ct. at 825, 28 L. Ed. 2d at 155. Only if a full review failed to yield satisfactory answers did the Court say that the district court should proceed to an analysis of whether there was a strong showing of bad faith or improper behavior sufficient to pierce the mentalprocess privilege. Id. No other individual or entity was alleged to have acted improperly. Id. Martin Marietta is specific as to the fact that it is the decision maker who must show bad faith in order for the mental-process privilege to be defeated. 675 N.W.2d at 554 ( The problem here was that Martin Marietta did not make a proper showing of bad faith or improper behavior on the part of Board of Adjustment members 7 to overcome the presumption of regularity. (Emphasis added.)). In citing the strong showing of bad faith or improper behavior standard, Martin Marietta relied on a group of federal cases in addition to Iowa 7The Board of Adjustment members were the decision makers in Martin Marietta. 30 cases. Id. One of these cases was equally specific that it is the decision maker that must show bad faith in order for the mental-process privilege to be pierced. See Nat l Audubon Soc y v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997) ( [A]n extra-record investigation by the reviewing court may be appropriate when there has been a strong showing in support of a claim of bad faith or improper behavior on the part of agency decision makers or where the absence of formal administrative findings makes such investigation necessary in order to determine the reasons for the agency s choice. (emphasis added) (citing Citizens to Preserve Overton Park, 401 U.S. at 420, 91 S. Ct. at 825, 28 L. Ed. 2d at 155). Here, we do not have a full record on which to rely. However, the Ombudsman does have plenary powers of investigation, including the power to [i]ssue a subpoena to compel any person to appear, give sworn testimony, or produce documentary or other evidence relevant to a matter under inquiry. Iowa Code § 2C.9(5) (2009). This fact makes it distinct from Citizens to Preserve Overton Park and Martin Marietta, as the plaintiffs in those cases had limited ability to gain information regarding the decisions being questioned. See Citizens to Preserve Overton Park, 401 U.S. at 420, 91 S. Ct 814, 28 L. Ed. at 155; Martin Marietta, 675 N.W.2d at 554. Even in these cases, the courts required further discovery by the party attempting to pierce the mental-process privilege before appropriate. Id. considering whether piercing the privilege would be Just as significantly, the Ombudsman cannot rely on a showing that the warden acted improperly to pierce the mental-process privilege. Only the actions of Edwards are at issue here. The majority appears to expand on our prior analysis of these cases, and overrule our precedents in the process, in reaching its conclusion. 31 II. Prison Disciplinary System. It must be noted that the prison disciplinary system is not identical to the criminal justice system. We have previously quoted the United States Supreme Court in acknowledging that prisoners have only limited due process rights. Bruns v. State, 503 N.W.2d 607, 611 (Iowa 1993) The reason for this limited due process right is that [p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. In sum, there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application. Id. (quoting Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935, 951 (1974) (citation omitted)). However, this is not to imply that the prison disciplinary system should be less than fair and impartial, or that it should not be subject to appropriate scrutiny. Ex parte communication with a decision maker in the criminal justice system is strictly controlled. In contrast, Michael Savala, the department of corrections in-house counsel who oversees the ALJs, testified he strongly encourages ALJs to interact with prison staff regarding their decisions, noting this communication makes it possible for ALJs to do their jobs better. While he stated he would not encourage communication before the ALJ conducts a hearing, he clarified, [I]f that communication were to occur, . . . I just tell the ALJs to . . . [not] shut down any comments you may get. Rather, according to Savala, it becomes the ALJ s responsibility to maintain independence regardless of ex parte communications. Nothing in the record indicates that Edwards was asked why she did not recuse herself. This type of procedural question would assist a district court in determining whether she exhibited bad faith or improper behavior and would follow our precedent of requiring a plaintiff to explore other avenues for obtaining information before conducting a 32 fishing expedition[] into the mental processes of decision makers. See Kholeif, 497 N.W.2d at 807. III. Importance of Mental-Processes Privilege. Many other avenues of exploration to establish bad faith or improper behavior exist including deposing witnesses and communications between Edwards and other entities. subpoenaing all [I]nquiry into the mental processes of administrative decisionmakers is usually to be avoided. Kholeif, 497 N.W.2d at 806 (quoting Citizens to Preserve Overton Park, 401 U.S. at 420, 91 S. Ct. at 825, 28 L. Ed. 2d at 155) In Citizens of Overton Park, the U.S. Supreme Court held that because there was an absence of formal findings . . . it may be that the only way there can be effective judicial review is by examining the decisionmakers themselves. 401 U.S. at 420, 91 S. Ct. at 825 26, 28 L. Ed. 2d at 156 (1971). Even though his actions are central to these events and are being closely scrutinized, the record is devoid of any statements or testimony from the warden, though argument from the Ombudsman does indicate he was interviewed. Requiring the Ombudsman to supplement the record allows us to protect the mental-process privilege unless and until a strong showing of bad faith or improper behavior is made. Until the Ombudsman has exhausted its investigative opportunities, I am unwilling to invade the sacrosanct mental processes of the decision maker. See Kholeif, 497 N.W.2d at 807 ( Because the agency had not formally received or considered evidence of bias, nor resolved the issue as part of the contested case record, the district court was without authority to expand the record to include the deliberations or permit the board to depose commission members on their views. ) The U.S. Supreme Court has held that it is not the function of the court to probe the mental processes of the [administrative decision maker]. United 33 States v. Morgan, 313 U.S. 409, 422, 61 S. Ct. 999, 1004, 85 L. Ed. 1429, 1435 (1941) (emphasis added) (citation and internal quotation marks omitted). Just as judges cannot be subjected to such a scrutiny, so the integrity of the administrative process must be equally respected. Id. (citation omitted). IV. Finding Bad Faith or Improper Behavior on This Record. It is important to recognize just how minimal the record is in this case. The majority bases its decision on four facts, one of which is irrelevant, two of which are at least partially disputed, and one of which requires more context in order to be probative. These four facts are: (1) Edwards s initial sanction doubled the allowable sanction for loss of earned time for a class B assault and matched the warden s suggested penalty; (2) the assault did not involve a weapon or bodily fluids to justify the penalty imposed; (3) no other aggravating factors were listed; and (4) Edwards changed the assault to a class A after the Ombudsman s investigation commenced, without listing any enumerated factors or using the term aggravated as seen in other decisions. The first fact, Edwards s initial sanction doubled the allowable sanction for loss of earned time for a class B assault and matched the warden s suggested penalty is certainly the most facially damning, but lacks context. The email in which the warden purportedly makes this suggestion does not appear in the record, nor is there evidence regarding the full text or context of the email. Rather, only a part of the email is included in the Ombudsman s statement of undisputed facts, which was subsequently admitted by IDOC and Edwards. The admitted portion is the single sentence, Please exercise sanctions to fit situation (180 to 365). This fact does not necessarily indicate bad faith or improper behavior on the part of Edwards without any information regarding typical practices and procedures, particularly in light of the unique parameters of the prison disciplinary system. Savala, in fact, testified that the penalty structure on a class B violation was not symmetrical with the penalty structure on class A 34 and class C violations. If the penalty for a class B violation had been symmetrical with the penalties for the class A and class C violations, the penalty Edwards imposed would have fit within those parameters, making it more likely that this was an error and not bad faith or improper behavior. We also face the difficulty of attempting to discern whether Edwards violated policy without having the benefit of knowing the specific practices at the prison related to the disciplinary policies. Savala indicated that IDOC s generalized policies are sent to the different prisons, then developed into specific local procedure, so we do not know if the policies were massaged to fit local conditions. In fact, Savala specifically stated numerous times that he was unfamiliar with standard operating procedure at the Fort Dodge Correctional Facility. Based on this record, we do not know if it is routine or problematic for an ALJ to assign a discipline outside of the policy. happened in this one situation. We only know that it While Iowa Code section 903A.4 does not facially allow deviation from policy and procedural rules established by the director of the IDOC, neither does it specifically prohibit institution-specific deviations. 8 We also know that when Savala was asked if the policies were mandatory, he replied, [T]hat gets into kind of a gray area . . . . [E]ach institution will develop a more specific local procedure. Certainly, ex parte communication from an appellate tribunal is suggestive of improper influence in the criminal justice context. However, the only evidence in the record that indicates what the general practices ALJs follow is the testimony of Savala, who testified he encourages communication The director of the Iowa department of corrections shall develop policy and procedural rules to implement sections 903A.1 through 903A.3. The rules may specify disciplinary offenses which may result in the loss of earned time, and the amount of earned time which may be lost as a result of each disciplinary offense. 8 Iowa Code § 903A.4 (2009) 35 between the prison staff and ALJs, even if it occurs prior to the hearing. As a result, it is premature to conclude impropriety in this context. It is also possible that it is the warden s actions that are deserving of criticism and that Edwards acted entirely appropriately. 9 In fact, the majority seems to conclude that the warden did act inappropriately. It is within the power of the Ombudsman to subpoena and question the warden on these communications. Similarly, it is within the power of the Ombudsman to question Edwards about this and other communications without invading her mental-process privilege. In fact, both IDOC and Edwards stipulated that she would answer questions with regard to the background and some of the procedural issues regarding the discipline. One of the functions of the Ombudsman is to oversee this agency. It would appear to be a reasonable part of that job to expand its search beyond this one disciplinary action to determine if serious systemic problems exist at the Fort Dodge Correctional Facility and make recommendations based on a better understanding of the entire process. See Citzens Aide/Ombudsman v. Miller, 543 N.W.2d 899, 902 (Iowa 1996) (noting that the purpose of the Ombudsman is to investigate complaints received from any source concerning an administrative action of a state agency (quoting Iowa Code § 2C.12)). On this record, it is impossible to determine whether serious systemic problems existed, and if they did, further determine the genesis of those problems. Making a predetermination on an incomplete record that Edwards acted in bad faith or improperly would not aid the Ombudsman in fulfilling its statutorily-prescribed duties. 9I acknowledge we would not be punishing Edwards if we were to find she acted improperly or in bad faith, but it is not Edwards s interests that are at stake here. I am interested in preserving proper procedure for overcoming the mental-process privilege. In order to follow this proper procedure, we are required to make an objective determination of Edwards s intentions to find that she acted in bad faith. 36 The second fact on which the majority relies is not probative. The majority correctly notes that the assault did not involve a weapon or bodily fluids to justify the penalty imposed. This fact relates to the definition of a class A assault, for which the penalty would be within that prescribed by IDOC policy. 01(IV)(P)(2)(a)(1). See IDOC Policy IO-RD-01(IV)(P)(4)(2)(e); id. IO-RD- However, neither the Ombudsman nor IDOC and Edwards argue that this assault should have been facially classified as a class A assault. Rather, the question is whether the sanction in this case could be upgraded to the next class of offense based upon aggravating circumstances. Under department of corrections policy, [i]f the Administrative Law Judge determines that the factors or circumstances of an offense are more serious than the charged offense, the sanction may be upgraded to the next class. Id. IO-RD-01(III)(B). Clearly, Edwards had the authority to do this. As such, the fact that this offense is not a class A offense, on its face, is irrelevant to a determination as to whether Edwards acted improperly or in bad faith. The third fact on which the majority relies is not supported by the record. [N]o other aggravating factors were listed. This fact is sharply disputed. IDOC policy provides: The Administrative Law Judge shall specify in writing the aggravating circumstances warranting a change in sanction. Aggravating factors may include, but are not limited to: history of violence, use of weapon, severity of injury, significant impact to institutional operations, repeat infractions, and premeditation. Id. IO-RD-01(III)(B). Based on Edwards s report and the evidence in the record, including a videotape of the incident, Savala concluded that Edwards did make a finding of aggravating circumstances, and further, that such a finding was warranted. Specifically, he noted that Linderman assaulted the officer multiple times, which qualifies as a repeat infraction, an aggravating factor. Additionally, he 37 went into some detail as to how this assaultive conduct would cause significant impact to institutional operations, another aggravating factor. Savala also noted that the policy did not require Edwards to use the term aggravating, just that she note the inmate s actions. Edwards s April 24 decision expressly found Linderman s behavior in a common area placed a staff member s safety at risk and disrupted prison operations. This language indicates that his conduct caused significant impact to institutional operations. She noted his disobedience continued until other staff arrived, and Edwards recommended Linderman be evaluated for transfer to a more secure environment, a recommendation which is suggestive of his threat to institutional operations. Her initial report concluded the sanction reflects the severity of the offense and is appropriate to the nature of the offense. Her June 12 statement added, [T]he class offense . . . is being modified to reflect the seriousness of the violation at this time. The fourth fact on which the majority relies is partially disputed and not sufficiently probative. [Edwards] changed the assault to class A after the Ombudsman s investigation commenced, without listing any enumerated factors or using the term aggravated as seen in other decisions. As noted earlier in my discussion, whether Edwards listed enumerated factors is a sharply disputed fact. The fact that she changed her report after the Ombudsman s investigation began is not necessarily indicative of bad faith or improper behavior. It is equally likely that she simply corrected a mistake that had been brought to her attention. The other decisions language refers to four sample cases where the terms aggravated or aggravation were used. Without context, this is not instructive in our analysis. The Ombudsman presented too little information for us to determine how common the use of these terms are in disciplinary decisions. Critical questions are unanswered, such as: How many disciplinary 38 cases are decided each year? Do all or most of the ALJs specifically use the term aggravated or aggravation ? Is it proper or customary to use words like seriousness as a basis for enhancing a violation? Do the authors of the sample reports use a derivative of the term aggravated consistently? The majority presents no statutory authority nor IDOC policy to indicate use of the term is required and no evidence to suggest it is even customary. Thus, the Ombudsman asks us to make a decision based on the bare facts that an email was sent from the warden to Edwards and that she gave a penalty appropriate for a class A violation without explicitly stating she was aggravating the violation from a class B to a class A. I am not disputing that such activity looks suspicious. However, I am not prepared to conclude, as a matter of law, that this evidence, without more, constitutes a strong showing of bad faith or inappropriate behavior on the part of Edwards, particularly in the context of a prison disciplinary case. The majority seems equally reluctant to come to this conclusion, as it relies on its opinion that the warden demonstrated bad faith, an opinion that, based on our prior jurisprudence, is irrelevant to our analysis. When we remanded to the district court in Martin Marietta, we specifically acknowledged that discovery into the communications made between various entities and the decision makers would help a fact finder determine if bad faith existed. Martin Marietta, 675 N.W.2d at 557. I conclude the same thing here. I acknowledge it is possible that the only way there can be effective judicial review is by examining the decisionmakers themselves. See Citizens to Preserve Overton Park, Inc., 401 U.S. at 420, 91 S. Ct. at 815 26, 51 L. Ed. 2d at 156. But until the Ombudsman has exhausted its other avenues for investigation, piercing the privilege is not yet appropriate. What is appropriate is to allow the Ombudsman to depose Edwards on issues not relating to her 39 mental process, which could include other communications, including with Savala, the day she upgraded her sanction from a class B violation to class A violation. The video of the incident, missing from the appellate record, may also assist the district court in evaluating the severity of the incident. Even information about the quantity of hearings Edwards conducted and the corresponding number of reports she generated would help determine if it was likely she had made a clerical error in not upgrading the offense to a class A rather than a class B, or whether she acted improperly or in bad faith. On remand, the district court, guided by a more complete record, will be better positioned to decide whether a sufficient showing has been made to overcome the mental-process privilege. V. Conclusion. I would reverse the district court ruling compelling an unlimited deposition of Edwards. On remand, the deposition of Edwards should proceed with the Ombudsman allowed to inquire into various communications with relevant involved parties, and an exploration of the general procedures involved in handling prison discipline. However, Edwards would be entitled to invoke the mental-process privilege to decline to answer questions regarding her internal thought processes unless and until the district court, after reviewing the complete record before it, concludes the mental-process privilege has been defeated by evidence demonstrating a strong showing of bad faith or improper behavior on her part.