Questions about Chapter 22

(1) Does a request for a record have to be in person? (2) Must it be made in writing?

(1) The custodian cannot require the physical presence of the person requesting the public record. (2) In addition, a change in Chapter 22.3 in 2006 requires record custodians to respond to requests made in writing, by telephone or by electronic means. The spoken request is sufficient, so long as you reasonably identify the record sought. A written request might be helpful in a complex matter or one involving litigation. (See Sample FOI Request Letter.)

(1) Can I see letters written by a public official? (2) What if the letters contain confidential information?

(1) Yes, so long as the letter deals with the discharge of public duties. For example, correspondence from a school superintendent to school board members about items on next week’s agenda should be open to public inspection. (2) If such correspondence contains information that is confidential by law, the remaining portion of the correspondence should be provided. That rule applies to other public records, too. Mere inclusion of some information that is confidential by law does not make an entire record confidential.

Suppose the record requested is not in the office of the governmental agency, but in the hands of a private company. Can I still get the record?

Yes. Under Chapter 22.2(2), “A governmental body shall not prevent the examination or copying of a public record by contracting with a nongovernmental body to perform any of its duties or functions.” In Gannon v. Board of Regents, 692 N.W.2d 31 (Iowa 2005), the Iowa Supreme Court said that a private foundation that solicited and managed donations for Iowa State University performed a government function and its records were “public records.” However, the Court said that not every private entity that performs a duty that could be considered a “government function” is subject to Chapter 22 and that arrangements must be viewed on a case-by-case basis.

I want the record right now. How much time does the public agency have to produce a requested record?

Typically, Iowa agencies provide access to records as soon as they can, and most record requests are routine. Chapter 22.8(4) provides for a “good-faith, reasonable delay by a lawful custodian” in permitting examination of a record in some circumstances, including to determine whether the record is confidential. A custodian is allowed up to 20 calendar days to determine whether a confidential record should be released, but such delays should not ordinarily exceed 10 business days, according to the Code. An advisory opinion by the Iowa Public Information Board on Aug. 13, 2014 (citing a 2013 Iowa Supreme Court public records case, Horsfield Materials Inc. v. City of Dyersville (834 N.W.2d 444 (Iowa 2013)), said, “Access to an open record shall be provided promptly upon request unless the size or nature of the request makes prompt access infeasible. If the size or nature of the request for access to an open record requires time for compliance, the custodian shall comply with the request as soon as feasible.”

What police and sheriff’s records are open to the public and press?

The question is a crucial one, vital to the nature of a free society, because access to law enforcement records is one of the rights that set a democracy apart from the totalitarian state. There must be no secret arrests in our society, no unaccountable actions by those exercising police powers.

Access to law enforcement records is spelled out in detail in an Attorney General’s opinion, Weeg to Holt, 82-10-3. That opinion interprets Chapter 22.7(5), which provides public access to “the date, time, specific location, and immediate facts and circumstances surrounding a crime or incident.”

The opinion notes that a news reporter or citizen does not have to know about a crime or incident to obtain information about it. The request could be a general one, to review the public record of police activities during the past 24 hours: “A citizen may request [Chapter 22.7(5)] information for a particular day or time, or for any number of days or times. The request is not required to specify the particular criminal incident for which the information is requested.”

Generally, the opinion calls for routine access to all “date, time, specific location and immediate facts and circumstances” information, and the record custodian carries “the burden of establishing facts necessary to withhold public records. . . .”

Are computerized records treated the same as public records on paper?

Yes, Iowa defines public records (22.1) to include “all records, documents, tape, or other information, stored or preserved in any medium . . .,” a definition that plainly includes electronic data. Further, Section 22.3A addresses several issues regarding access to data processing software and public records.

A wide range of studies are under way by governmental and private groups across the nation to address some of the difficult and subtle questions raised by having more records on computers. So far, court decisions and common sense suggest the following:

1. A government agency cannot force a requester to take or pay for a computerized record in a prohibitive or expensive format.

2. Simply because information could be available via a government computer does not make the information a public record. Government agencies do not have to create data through cross tabulations or selective analysis of data. They could do so if the requester is willing to pay for the staff time. An advisory opinion by the Iowa Public Information Board (Dec. 18, 2014) said that there is no obligation for a government body to provide information in a form other than that which exists at the time of the request. However, the board urged “a cooperative approach as a best practice” that fulfills the legislative objective of access to public information.

3. The record custodian should be the agency that generated the record in the first place and not the computer processor or administrative unit that oversees computer services for a public agency.

4. In Iowa, the law provides no distinction between a citizen’s right to access information stored on paper or stored electronically.

5. With a few exceptions, Iowa law treats all records requests the same. That is, it doesn’t make any difference who the requester is or whether he or she intends to use the record for personal or commercial use.

Are job applications public records?

The Iowa Supreme Court ruled in April 1988 that under a 1984 amendment to Chapter 22 public agencies can make job applications confidential.

In City of Sioux City v. Greater Sioux City Press Club, 421 N.W.2d 895 (Iowa 1988), a five-member panel of the Iowa Supreme Court ruled that such confidentiality is provided for in subsection 18 of 22.7.

The Court ruled that job applications might be made confidential if the person so requests or if the public agency “could reasonably believe that those persons would be discouraged” from applying if applications were available for public inspection.

While subsection 18 does not provide confidentiality for communications required by law, rule or procedure, the Court stated that job applications were not required as part of the hiring process since the job applicant is applying voluntarily.

In an August 1992 decision, Des Moines Register and Tribune Company v. State Board of Regents and Douglas Cramer, Polk County Judge Arthur Gamble ruled that a private firm that had conducted a presidential search for Iowa State University was wrong in keeping secret the names of candidates who had no objections to disclosure.

To summarize, a communication to a government body can be kept confidential under 22.7(18) only if all of the following exist:

(1) The communication is not required by law, rule, procedure, or contract.

(2) It is from identified persons outside of government.

(3) The government body could reasonably believe those persons would be discouraged from communicating with government if the information was made public.

Nevertheless, the information can still be released if the person communicating with government consents to its release or if it can be released without identifying the person.

In addition, a communication regarding an illegal act can be kept confidential if disclosing it would jeopardize a continuing investigation or pose a clear and present danger to the safety of an individual.

There is little or no direct reference in Chapter 22 regarding information about juveniles. What guidelines are available for accessing information about juveniles involved with law enforcement agencies?

While Iowa statutes permit many juvenile court records and proceedings to be kept secret, the Iowa General Assembly in 1995 and 1997 passed legislation making it clear that complaints against juvenile offenders must be made public, as must the identity of the youthful offender. These legislative changes carve out complaints in juvenile court from the general secrecy provisions of the juvenile justice statute and grant both court and law enforcement officials authority to release the complaint and identity information.

Specifically, Iowa Code section 232.19(4) states, “Information pertaining to a child who is at least ten years of age and who is taken into custody for a delinquent act which would be a public offense is a public record and is not confidential under section 232.147.”

Section 232.147 is the general confidentiality provision of the juvenile justice statute. Under that provision, official juvenile records are public records, but access to such records can be limited, typically, to court officials, parties in the juvenile case and their attorneys, and agency officials.

Information that is confidential includes child in need of assistance and termination of parental rights cases, and juvenile delinquency cases sealed by the court.

Under the First Amendment, a news reporter (or any citizen, for that matter) could not be prohibited from or punished for publishing or sharing information about a juvenile, including identification, that was obtained legally – for example, by talking with family or friends of that person or by observing the incident firsthand.

(A word of caution here: The fact that a juvenile willingly provides personal information and consents to its publication may not provide legal protection for an invasion of privacy lawsuit, for example, since a juvenile is not of legal age to give consent.)

Court hearings and trials are open to the public unless required closed by law or court order. Juvenile court proceedings are open unless the court determines that the danger of harm to the child outweighs the public benefit of open proceedings.

Proceedings that can be closed include child in need of assistance and termination of parental rights hearings; juvenile delinquency hearings, and hearings on child custody and adoption.

To what extent are records relating to public employees available for public inspection?

Exemption 22.7(11) by its terms shields only “personal information in confidential personnel records” from disclosure. In Des Moines Independent Community School District Public Records v. Des Moines Register & Tribune Co., 487 N.W.2d 666 (Iowa 1992), this exemption was analyzed by the Court with mixed results.

The Court first stated that a settlement agreement under which public funds were paid to a former school principal must be disclosed even though the agreement related to a personnel matter and its express terms called for confidentiality. However, the Court gave wide latitude to the trial court’s interpretation of exemption 22.7(11). The Supreme Court affirmed the lower court determination that information gathered by an in-house investigative committee in connection with complaints of racism and sexism was contained in “job-performance” documents that the Legislature intended to remain secret.

The Supreme Court thereby, in this case, upheld the trial court’s interpretation that “personal information in confidential records” was not limited to “personal” data and could be extended to records not contained in a personnel file. This approval of the apparent extension of 22.7(11) to “job performance” information may be used by government agencies to keep many aspects of job performance and evaluation information secret unless the General Assembly takes action to narrow this interpretation of the exemption. The case, however, does nothing to affect long-standing standards of public access to salary information, and other records not directly related to job evaluation.

In Clymer v. City of Cedar Rapids, 601 N.W.2d 42 (Iowa 1999), the Supreme Court further addressed what personal information about a public employee is a matter of public record. The Court ruled that the public should have access to information concerning a public employee’s sick leave benefits — including pay, dates taken and hours accrued. (It is likely, however, that additional information about an employee’s medical condition, including the reason for using sick leave, remains “personal information.”) Other payroll information that a governmental body may release includes the employee’s full name, department, job title, hire date, bargaining unit, and complete and detailed information about monetary compensation. However, the employee’s gender, home address and birth date are personal and may be kept confidential.

In 2011, the Legislature amended Chapter 22.7(11) to require government agencies to release details of employees’ compensation and terms of employment; the dates of employment and positions held, and resume-type information. Government bodies must also release the fact that an individual was discharged as the result of a disciplinary action, once all remedies are exhausted.

(1) Are email messages and other electronic communications public records? (2) If so, how long must they be kept?

(1) The definition of public records under 22.1(3) is broad enough to encompass email messages and other electronic correspondence.

(2) State Records Commission policies govern the maintenance and retention of state agency records. In addition, various sections of the Iowa Code address other public records. For example, Chapter 372.13(5) contains requirements for retention of some city records, such as council minutes, ordinances and resolutions. Local government bodies are encouraged to adopt their own records retention policies and to follow them consistently. Deleting a typical email message under such a policy should pose no legal problems. However, if the message remains retrievable or recoverable then the government body would be obliged to provide it upon request, though the requester can be charged a reasonable fee for retrieval.

If a government employee or official uses a personal electronic device to conduct government business, are the emails, text messages and other electronic documents stored on that device public records?

Yes. According to advice from the Iowa Public Information Board, the content of the document and not its location determines whether it is a public record. “If it concerns public business relating to public duties of an official or employee, then it is a public record,” no matter where it is stored, according to the board website.

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