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. A written request might be helpful in a complex
matter or one involving litigation.
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 Acts 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 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.
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. However,
in KMEG the Court denied access in its interpretation of which records were
part of a contract.
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 an important one because access to law-enforcement
records is one of the rights that set a democracy apart from the totalitarian
state. There are no secret arrests, 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 in order to obtain information on 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: Can I get access to a public record by telephone or fax?
REPLY: Only if the record custodian is willing. There is no requirement
by law to provide information over the phone, although for the sake of convenience
such information may be provided that way. Also, information may be similarly
provided to persons with physical disabilities. Judgment and common sense
provide more flexibility here than the letter of the law.
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, Iowa v. Greater Sioux City Press Club and Iowa Freedom
of Information Council, #87-133, April 13, 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: 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. The
preseumption is for openness with regard to public records in Iowa regardless
of the manner of storage or means of access.
The 1996 Legislature took a significant additional step in ensuring electronic-records
access by passing a new section to Chapter 22, Section 22.3A.
Subsection 22.3A(2) states in part that "A public record shall not
be withheld from the public because it is combined with data processing
software. A government body shall not acquire any electronic data processing
system... that would impair... examination of a public record and the copying
of a public record in either written or electronic form."
Further restrictions are set on costs to be charged consistent with court
decisions around the nation that say the costs and format cannot be used
as ways to restrict access to public records. However, government agencies
do not have to create data through cross tabulations or selective analysis
of data. Of course they mady do so if the requester is willing to pay the
costs involved. The new section to Chapter 22 includes at least two other
significant provisions that relate to proprietary software used to manage
public information (but not the information itself):
(1) Subsection 22.3A(3) grants governmental bodies the right to copyright
data processing software they develop (but that copyright cannot be used
to deny acccess to the records themselves). (2) Subsection 22.3A(2a) specifies
"If access to the data processing software is provided to a person
solely for the purpose of accessing a public record, the amount (charged)
shall be not more than that required to recover direct publication costs..."
Subsection 22.3A(2b) allows a government body to charge fees "based
upon competitive market situations" if access to the copyrighted software
is provided to a person for a purpose other than provided in paragraph "a"
...
Higher charges may be assessed for access to the proprietary software for
purely commercial purposes.
QUESTION: There is little or no direct reference in Chapter 22 regarding
information about juveniles. Yet, information about juveniles routinely
is kept confidential. What guidelines are available for publishing or releasing
information about juveniles?
REPLY: By Iowa law, a juvenile is a person under 18 years of age.
Despite general impressions (and frequent practices) to the contrary a good
deal of public-record information about juveniles must be disclosed.
Examples of such information would include court proceedings involving juvenile
delinquency, which Iowa Code section 232.2 (12) defines as the "violation
of any state law or local ordinance which would constitute a public offense
if committed by an adult ..." Therefore, if a court has not sealed
delinquency information, all material involving OWI arrests, drivers' licenses,
violations of municipal ordinances, vandalism, etc. is not confidential,
even though an offender may be a juvenile.
Access to a wide variety of information about juveniles is supported by
opinions issued by the Iowa Attorney General in 1980 (1980 Op. Attorney
Gen. 413,414) and 1992 (1992 Op. Attorney Gen. 92, #92-3-2(L). Further an
Iowa Supreme Court Supervisory Order dated September 9, 1980, also noted
that a number of juvenile violations involving simple misdemeanors fish
and game violations, motor vehicle and snowmobile violations, etc. are public
records.
Based upon 1995 legislation, juvenile records in the hands of law enforcement
involving children are now presumed open and access to names can be provided
once a formal complaint is filed.
The records may be sealed later upon application to the court by the juvenile
or by the court's own motion if (1) at least two years have passed since
discharge of the individual and (2) the individual has not been found guilty
of a subsequent offense more serious than a simple misdemeanor and there
is no such proceeding pending. Three juvenile court proceedings that generally
are confidential are child in need of assistance proceedings, proceedings
to terminate parent-child relationships, and family in need of assistance
proceedings.
Under the First Amendment, a person cannot be prohibited from 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 an incident first hand. However, the fact that a
juvenile willingly provides intimate information and consents to its publication
may not provide legal protection for an invasion of privacy suit since a
juvenile is not of legal age to give consent.
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 In re Des Moines Independent School District, (Iowa Supreme Court,
filed June 25, 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 thereby, in this case, upheld the trial court's interpetation
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 aspect of job performance 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.
QUESTION: Are e-mail messages public records?
REPLY: The definition of public records under 22.1 (3) encompasses
e-mail messages.
Iowa law generally does not specify how long public records must be kept,
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.
Printouts of e-mail messages typically should be stored or filed as other
correspondence is.
Table of Contents
Rules of Thumb: Chapter
21
Introduction
Sustaining/First Amendment Members
Iowa Code: Chapter 21
Questions About Chapter 21
Iowa Code: Chapter 22
Notes and Additions
Rules of Thumb: Chapter 22