Open Meetings, Open Records Handbook

QUESTIONS ABOUT CHAPTER 22

QUESTION: Does a request for a record have to be in writing?

REPLY: No. The spoken request is sufficient, so long as you reasonably identify the record sought. The Iowa Attorney General's Office encourages government officials to respond to written and oral requests. A written request might be helpful in a complex matter or one involving litigation. (See Sample FOI Request Letter.)

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

REPLY: (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.

QUESTION: Must local or county agencies adopt the Fair Information Practices Act (FIPA) called for in Chapter 22.11?

REPLY: No. That part of the law focuses on state agencies. But the FIPA policies provide some helpful guidelines for all governmental agencies — as well as those in the private and not-for-profit sectors — in dealing with information that identifies an individual. For example, a school board might want to be sure what the district's policies are in terms of staff access to records in a student's folder, what records should be in such a folder, how long such records are kept, etc.

QUESTION: 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?

REPLY: 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 KMEG Television, Inc. v. Board of Regents, 440 N.W.2d 382 (Iowa 1989), the Iowa Supreme Court invoked a two-part test to interpret 22.2(2). First, the requesting party must prove the agency has delegated a duty to the private firm. Second, to avoid penalty, the governmental body must prove that such delegation was NOT for the purpose of preventing access to the record.

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

REPLY: Typically, Iowa agencies provide access to records as soon as they can, and most record requests are routine. If there is a question as to whether the information requested is confidential, Chapter 22.8(4) provides for "good faith, reasonable delay by a lawful custodian" in permitting examination of the record. In most cases, such delay should not exceed 10 business days, according to the Code.

QUESTION: How soon does a public agency have to provide access to its minutes?

REPLY: The minutes should be available for public inspection as soon as they are prepared. An agency cannot delay access, pending formal approval or distribution to members.

QUESTION: What police and sheriff's records are open to the public and press?

REPLY: 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. . . ."

QUESTION: Must a request to see a public record be made in person?

REPLY: Chapter 22 does not specify that a record custodian must respond to a telephone request for a record or to a request for a fax transmission. But, plainly, such information may be provided that way for the sake of convenience or to accommodate persons with physical disabilities. Judgment and common sense provide more flexibility here than the letter of the law might, and many government agencies honor requests made by mail or phone. More to the point, considerable progress is being made in providing electronic access to public records — the goal is that many records and government services may be available online, 24 hours a day, seven days a week. The primary route of online access for state records will likely be through www.iowa.gov. Many local government agencies also are online, of course, offering ease of access to their minutes, budgets, etc.

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

REPLY: 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 computer time.

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. But that may change over the next several years as public agencies, the news media, private businesses and individual citizens address the reports and studies now under way.

QUESTION: Are job applications public records?

REPLY: 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. While subsection 18 may have been intended to protect "whistle-blowers," 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.

QUESTION: 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?

REPLY: While Iowa statutes permit many juvenile court records and proceedings to remain 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 10 years of age and who is taken into custody for a delinquent act which would be a public offense” is a public record and shall not be confidential under section 232.147.

Section 232.147 is the general confidentiality provision of the juvenile justice statute. Under that provision, official juvenile records such as docket entries, pleadings, motions, transcripts of proceedings, judgments, decrees and orders are public records, but access to such records is limited, typically, to court officials, parties in the juvenile case and their attorneys, and agency officials.

Public and news media access to the juvenile court records is limited to circumstances where the court orders release of the information for inspection by a person who has a “direct interest in the proceedings or in the work of the court” or a person “conducting bona fide research for research purposes” under conditions the court deems “proper.”

Additionally, 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 œ 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 suit, for example, since a juvenile is not of legal age to give consent.)

The Code of Iowa establishes that three types of court proceedings generally are confidential: child in need of assistance proceedings, proceedings to terminate parent-child relationships, and family in need of assistance proceedings.

Perhaps the best rules of thumb to consider when determining the open nature of juvenile records are these:

1. Records generally are open and accessible if, once in court, they do not involve domestic or delinquency proceedings, the hearing was open, and the court has not sealed those records.

2. Records generally are confidential if they involve domestic proceedings, among them proceedings to terminate child-parent relations, and child and family in need of assistance proceedings.

3. Recognize that not all law-enforcement records on juvenile delinquency will eventually become public records in open court. Many issues involving juvenile delinquency may be resolved informally or dealt with after arrest, but before court proceedings are begun, so juvenile identities in those cases often remain confidential. Also, an attorney may request a court to seal a client's record, but such a request can be successfully challenged.

4. As is the case with other public records, access is determined in part by a person's willingness to pursue an issue and seek compliance with the law.

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

REPLY: Exemption 22.7(11) by its terms shields only "personal information in confidential personnel records" from disclosure. In the case 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 longstanding 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.

QUESTION: Are e-mail messages public records? If the majority of the members of a board are communicating online at the same time, would that constitute a public meeting?

REPLY: Both chapters 21 and 22 accommodate e-mail. For one thing, the definition of public records under 22.1(3) encompasses e-mail messages. For another, the provisions for electronic messages under 21.8 applies equally well to telephone and e-mail conferences. Iowa law generally does not specify how long public records must be kept, especially records of local public bodies, so deleting a typical e-mail message would pose no legal problems. However, if the message remains retrievable or recoverable (such as from a hard drive) then the government body would have the obligation to provide it upon request. Print-outs of e-mail messages typically should be stored as other correspondence is.

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