Related Topics:

Formal Complaints

Date:
02/27/2014

Subject:
Des Moines Register/Iowa Department of Human Services-Chapter 21-Confidentiality of videotape depicting child in custody of DHS(Matter under judicial Review)

Opinion:

 

Iowa Public Information Board

The Des Moines Register, Complainant

Against

Charles M. Palmer, Director, Rich Shults, MHDS Administrator, Eric Tabor and other persons acting in the capacity of custodian of records of and/or acting on behalf of while serving in an official capacity for the Iowa Department of Human Services, Respondents

 

Case Number: 13FC:0004

 

SUPPLEMENTAL REPORT TO BOARD

 

 

BOARD REQUEST

On December 19, 2013, the board voted to redirect the above matter for further investigation by staff to include:  further review of applicable Code sections; case law and rulemaking interpreting Code Sections 22.7(2) and 217.30; an examination of the Howard (Iowa Supreme Court) opinion; and an investigation of any applicable federal law.

SUMMARY

Upon further investigation as directed above, review of the initial Report to the Board, the briefs and supplemental information provided by Complainant and Respondents, federal laws and regulations, the Howard Supreme Court of Iowa opinion and other information, the Recommendation to the Board continues to be that this Complaint be dismissed.  
 
The information contained on the record being sought, as well as the record itself, is confidential under both state and federal laws.  Therefore, regardless of any public interest in this specific video, it is clear that its release is prohibited, even in a redacted or blurred format.  A decision to release this information would establish a legal precedent requiring release of similarly protected information.  This precedent would apply regardless of the requestor, whether responsible or irresponsible, and regardless of the intended use or motive.  Both the state and federal intent expressed in Iowa Code section 217.30 is to protect the privacy of individuals who are provided services and assistance by the Department of Human Services (DHS).  We deal here with not just a single record, but with a class of records.  All videotapes and records in any format of similar situations would become open.  Such a precedent would also be applicable to analogous situations regarding similarly protected records of any other state agency or political subdivision. 

Redaction has been suggested as a compromise.  But the statute speaks in absolute terms without mention of redaction or partial release.  Federal regulations where redaction is specifically addressed calls for total elimination (removal of all pixels) of the information, not just blurring of facial features.  Experience with use of technology by this Complainant to reverse redaction of written communications produced lends credence to the federal approach.  Technology can be used to reconstruct information thought to have been redacted if it is available to be enhanced or reconstructed.   

Further investigation reinforces our earlier conclusion that the videotape in question is part of a treatment record entitled to protection under Iowa Code section 22.7(2).¬† The child subject of the tape was at the institution for treatment pursuant to court order.¬† Behavior modification is a part of that treatment and the use of seclusion rooms and the monitoring of resident behavior is part of that treatment.¬† A secure environment is critical to successful treatment.¬† The videotaping system is an integral component in the creation of that environment.¬†¬† Residents are in many instances predisposed to self-harm, are in some cases suicide risks, and are in need of protection from other residents.¬† Taping is commonly used in mental health institutions to foster a secure environment.¬† The tapes are also available for review of patient behavior, sometimes with a patient.¬† The fact that the videotapes are not filed in a medical file is not relevant.¬† The Iowa Supreme Court held in Des Moines Independent Com. School Dist. v. Des Moines Register & Tribune Co., 487 N.W.2d 666, 670(Iowa 1992) that: ‚ÄúThe nature of the record is not controlled by its place in a filing system.‚Ä̬† The protection afforded treatment information under section 217.30, while only one aspect of the privacy protection provided by that section, is more broadly worded and addresses ‚Äúmedical or psychiatric data‚ÄĚ (Emphasis added) as opposed to the use of the word ‚Äúrecord‚ÄĚ as in section 22.7(2).¬† It is not significant whether the information is contained on a piece of paper or a videotape from a security camera.¬† The medium is no more significant than its place in a filing system.¬†¬†¬†

We are not aware of any on-point court opinion or rule interpretation in the United States that would provide a legal basis for treatment of this videotape as an open record.  Since section 217.30 is a universal federally required prerequisite to eligibility for federal funding of DHS-type programs, this absence is significant.  Complainant has furnished examples where similar videotapes have been released, but in different situations and settings governed by different statutory provisions.  A detailed discussion of these deficiencies appears in Appendix A. 

Upon further investigation and reconsideration, there is yet another issue for consideration.  Iowa Code section 22.9 states:
         If it is determined that any provision of this chapter would cause the denial of funds, services or essential information from the United States
        government which would otherwise definitely be available to an agency of this state, such provision shall be suspended as to such agency, 
        but only to the extent necessary to prevent denial of such funds, services, or essential information. 

This provision was applied by the Iowa Supreme Court to deny access to records in Press-Citizen Co., Inc. v. University of Iowa, 817 N.W.2d 480 (Iowa 2012).  This opinion and its application to this Complaint are discussed in more detail below.    

The Complaint raises a new issue at page 19 of its brief with its reference to Iowa Code chapter 218 relating to operation of DHS facilities.  The chapter provides for confidentiality of client records.  The records addressed in chapter 218 are more aptly characterized as enrollment records as opposed to service and assistance records addressed in chapter 217.  There is no obvious relevancy of those provisions to this matter.  Section 218.33 is cited.  It provides that testimony of witnesses given in the course of an investigation when transcribed and filed is open for inspection by anyone.  This information does, however, serve to illustrate that when the legislature wants something open in this otherwise confidential area of the law, it plainly says so.   

The Complainant urged reliance on Howard v. Des Moines Register & Tribune Co., 283 N.W.2d 289, 299 (Iowa 1979).  This Iowa Supreme Court opinion addresses a summary judgment for the Register in a suit for invasion of privacy.  It is discussed in more detail below and the court’s full opinion is attached.  The case is actually a tort law case, not an open records case.  The information was found to have already been a matter of public record; therefore the tort of invasion of privacy for disclosure of that information could not be the basis for a recovery.  Most of the eighteen page opinion is devoted to the application of the tort law of invasion of privacy and the issue of whether revealing a patient’s name and medical information was necessary and newsworthy.  The statement quoted by the Register acknowledging the legitimacy of investigative journalism was made in the context of addressing the newsworthiness aspect of the defense of the invasion of privacy lawsuit.  The opinion does not abrogate any statute granting confidentiality to the information that formed the basis of the invasion of privacy action.  The Complaint before this board turns on interpretation of the statutory protections provided in the open records law and a specific DHS statute, not on a common law based tort theory of recovery of damages for injury sustained.

When reviewing a request for release of a record, the custodian (and this Board) must review the request without consideration of the identity of the requestor.  In fact, Iowa law requires anonymous requests to be fulfilled.  A decision whether to release a record contemplates only the nature of the record.  If a record can be released, it can be released to anyone who requests it for whatever use the requestor intends.  It is not appropriate for the custodian to determine that a record can be released conditionally; that is, can be released to only certain requestors or for only certain uses.

Applicable Iowa Statutes

  Iowa Code section 22.7  Confidential records..
  The following public records shall be kept confidential, unless otherwise ordered by a court, by the lawful custodian of the records, or by another 
  person duly authorized to release such information:
                                                                                                                 * * *
  2.  Hospital records, medical records, and professional counselor records of the condition, diagnosis, care, or treatment of a patient or former patient or a counselee or former counselee, including outpatient. However, confidential communications between a crime victim and the victim’s counselor are not subject to disclosure except as provided in section 915.20A. However, the Iowa department of public health shall adopt rules which provide for the sharing of information among agencies and providers concerning the maternal and child health program including but not limited to the statewide child immunization information system, while maintaining an individual’s confidentiality.
                                                                                                                 * * *
Iowa Code Section 22.9.  If it is determined that any provision of this chapter would cause the denial of funds, services or essential information from the United States government which would otherwise definitely be available to an agency of this state, such provision shall be suspended as to such agency, but only to the extent necessary to prevent denial of such funds, services, or essential information.

An agency with the meaning of section 17A.2, subsection 1, shall adopt as a rule, in each situation where this section is believed applicable, its determination identifying those particular provisions of this chapter that must be waived in the circumstances to prevent the denial of federal funds, services, or information.

Iowa Code section 217.30¬† Confidentiality of records ‚ÄĒ report of recipients.
  1.  The following information relative to individuals receiving services or assistance from the department shall be held confidential:
  a.  Names and addresses of individuals receiving services or assistance from the department, and the types of services or amounts of assistance
       provided, except as otherwise provided in subsection 4.
  b.  Information concerning the social or economic conditions or circumstances of particular individuals who are receiving or have received services or
       assistance from the department.
  c.  Agency evaluations of information about a particular individual.
  d.  Medical or psychiatric data, including diagnosis and past history of disease or disability, concerning a particular individual.
  2.  Information described in subsection 1 shall not be disclosed to or used by any person or agency except for purposes of administration of the
¬†¬†¬†¬†¬† ¬†programs of services or assistance, and shall not in any case, except as otherwise provided in subsection 4, paragraph ‚Äúb‚ÄĚ, be disclosed to¬†¬†¬†¬†¬†
       or used by persons or agencies outside the department unless they are subject to standards of confidentiality comparable to those imposed 
       on the department by this section.
  3.  Nothing in this section shall restrict the disclosure or use of information regarding the cost, purpose, number of persons served or assisted by,
       and results of any program administered by the department, and other general and statistical information, so long as the information does not 
       identify particular individuals served or assisted.
  4.  a.  The general assembly finds and determines that the use and disclosure of information as provided in this subsection are for purposes directly
       connected with the administration of the programs of services and assistance referred to in this section and are essential for their proper
       administration.
¬†¬†¬†¬†¬† ¬†b.¬† Confidential information described in subsection 1, paragraphs ‚Äúa‚ÄĚ, ‚Äúb‚ÄĚ, and ‚Äúc‚ÄĚ, shall be disclosed to public officials for use in connection with
       their official duties relating to law enforcement, audits and other purposes directly connected with the administration of such programs, upon written
¬†¬†¬†¬†¬†¬† application to and with approval of the director or the director‚Äôs designee. Confidential information described in subsection 1, paragraphs ‚Äúa‚ÄĚ, ‚Äúb‚ÄĚ,
¬†¬†¬†¬†¬†¬† and ‚Äúc‚ÄĚ,¬†shall also be disclosed to public officials for use in connection with their official duties relating to the support and protection of children and
       families, upon written application to and with the approval of the director or the director’s designee.
       c.  It shall be unlawful for any person to solicit, disclose, receive, use, or to authorize or knowingly permit, participate in, or acquiesce in the use of
       any information obtained from any such report or record for commercial or political purposes.
       d.  If approved by the director of human services or the director’s designee pursuant to a written request, the department shall disclose information
       described in subsection 1 to other state agencies or to any other person who is not subject to the provisions of chapter 17A and is providing
       services to recipients under chapter 239B who are participating in the promoting independence and self-sufficiency through employment job
       opportunities and basic skills program, if necessary for the recipients to receive the services.
¬†¬†¬†¬†¬† ¬†e.¬† Information described in subsection 1, paragraphs ‚Äúa‚ÄĚ, ‚Äúb‚ÄĚ, and ‚Äúc‚ÄĚ, is subject to disclosure in accordance with section 235A.15, subsection 10.
  5.  If it is definitely established that any provision of this section would cause any of the programs of services or assistance referred to in this section to
       be ineligible for federal funds, such provision shall be limited or restricted to the extent which is essential to make such program eligible for federal
       funds. The department shall adopt, pursuant to chapter 17A, any rules necessary to implement this subsection.
  6.  The provisions of this section shall apply to recipients of assistance under chapter 252. The reports required to be prepared by the department
       under this section shall, with respect to such assistance or services, be prepared by the person or officer charged with the oversight of the poor.
  7.  Violation of this section shall constitute a serious misdemeanor.
  8.  The provisions of this section shall take precedence over section 17A.12, subsection 7.
                                                                                                             * * *
Iowa Code Section 217.31 Action for damages.
Any person may institute a civil action for damages under chapter 669 or to restrain the dissemination of confidential records set out in subsection 1, paragraph ‚Äúb‚ÄĚ, ‚Äúc‚ÄĚ, or ‚Äúd‚ÄĚ of section 217.30, in violation of that section, and any person, agency or governmental body proven to have disseminated or to have requested and received confidential records in violation of subsection 1, paragraph ‚Äúb‚ÄĚ, ‚Äúc‚ÄĚ, or ‚Äúd‚ÄĚ of section 217.30, shall be liable for actual damages and exemplary damages for each violation and shall be liable for court costs, expenses, and reasonable attorney fees incurred by the party bringing the action. In no case shall the award for damages be less than one hundred dollars.

Any reasonable grounds that a public employee has violated any provision of section 217.30 shall be grounds for immediate removal from access of any kind to confidential records or suspension from duty without pay.

                                                                                                       General Discussion
The video recording that is the subject of this controversy is a portion of a continuous loop recording made of a resident-client at the Iowa Juvenile Home and State Training School for Girls located in Toledo, Iowa. (Toledo).¬† It depicts alleged inappropriate acts by a treatment provider inside a seclusion room in a residential cottage at Toledo.¬† Those acts resulted in dismissal of four employees of Toledo, one of whom is the defendant in a pending criminal prosecution arising from the conduct depicted on the video.¬† Those acts were taken in an attempt to control a female resident of this facility.¬† Although a child under the law, the resident was nearing adulthood and was fully grown.¬† She was in need of and receiving court ordered services and assistance normally provided by DHS when the video recording was made.¬† Whether that status entitles her to certain statutory protections of her right to confidentiality that precludes release of the video recording is the crux of this matter.¬† The board requested additional information concerning the applicability of two statutes which Respondents urge are independent grounds for finding the video is a record exempt from disclosure.¬† One is the hospital, medical or professional counselor record exemption in Code section 22.7(2).¬† The other is Code section 217.30, specifically applicable to information held by DHS involving a recipient of its services and assistance, which is not dependent upon a finding that medical or professional services were being provided.¬† A finding that the record contains ‚Äúmedical or psychiatric data‚ÄĚ would make Code section 217.30 applicable; however such a finding is not required.¬† There are other grounds in section 217.30 that also apply to reach the same result.

Additional statutory guidance is found in Iowa Code Sections 22.9 and 217.31, as well as in federal laws.  These provisions are discussed below. 

                                                                                                  The Howard case opinion

The Complainant urges your reliance on Howard v. Des Moines Register & Tribune Co., 283 N.W.2d 289, 299 (Iowa 1979).  This Iowa Supreme Court opinion addresses a summary judgment for the Register in a suit for invasion of privacy.  In a 1976 Des Moines Register story it was reported that Robin Howard had been involuntarily sterilized while a resident of the Jasper County Home in 1971.  A suit for invasion of privacy (giving unreasonable publicity to another’s private life) requires establishment that the matter publicized would be highly offensive to a reasonable person and that it is not of legitimate concern to the public.  The Register denied invasion of privacy and asserted affirmative defenses including assertion of constitutional rights; the newsworthiness of the story; that the facts were a matter of public record; and prior waiver of rights grounds.  The case is actually a tort law case, not an open records law case.  The open records statute played a role in the court’s decision, however.  There can be no liability for invasion of privacy if the defendant merely gives further publicity to information that is already a matter of public record.  The court determined that the information was a matter of public record (not, however, pursuant to a public records request) and there was no applicable statutory exemption barring its disclosure.  Most of the opinion is devoted to the application of the tort law of invasion of privacy and the issue of whether revealing the patient’s name was necessary and newsworthy.  The statement quoted by the Register acknowledging investigative journalism on page 302 of the opinion was made in the context of addressing the newsworthiness aspect of a defense to an invasion of privacy tort lawsuit. 

A copy of the Howard opinion is attached.  Note that the opinion does not abrogate any statute granting or purporting to grant confidentiality to the information that formed the basis of the invasion of privacy action.  No such statute was relied upon by the plaintiff.  The case under your consideration turns on interpretation of the statutory protections provided in the open records law and the DHS statute discussed below, not on a common law based tort theory of recovery of damages for injury sustained.

                                                                                             Medical or Counselor Record

In order for the exemption created by Code section 22.7(2) to apply, it must first be determined that the video recording at issue is in fact a part of a medical or counselor record.  DHS has asserted that videotaping is an essential part of the treatment regimen at Toledo.  Seclusion rooms are used when the resident is engaging in behavior that creates a risk of harm to themselves or others.  The seclusion rooms allow staff to closely monitor residents experiencing behavior control issues of a psychological etiology. The tapes are not placed in a resident’s clinical file, but DHS considers them a part of the clinical treatment record.  The system is computer based and the data is recorded on a hard drive.  There is no set retention period and recording occurs only when motion is detected.  When the drive is full, it records over existing files on a first-in, first-out basis.  While there is no set time period, the data is available for retrieval when needed.  A clinical review can occur shortly after an incident, say an incident of self-injury or loss of self-control.  Loss of data due to passage of time has not been an issue.  Residents in seclusion rooms are monitored every 15 minutes and notations of observations are made and filed in the clinical treatment file.  The tapes are available to be used to fill in gaps in observations of the resident’s condition, care and treatment.  The Respondents assert the primary purpose for the taping system is resident observation for safety and protection against resident self-inflicted injury.

Head v. Colloton, 331 N.W.2d 870 (Iowa 1983) discussed application of Code section 22.7(2) to a bone marrow transplant donor registry.¬† A leukemia victim brought an action to compel disclosure of the identity of a potential donor.¬† The court found the donor was entitled to the confidentiality provided by section 22.7(2) even though her only contact with the custodial facility was a past submission to a tissue typing to determine her suitability as a donor to an ill family member.¬† When the bone marrow registry was later established, her name was placed on the registry without her knowledge or consent.¬† The court found that by submitting to tissue typing she became a patient whose confidentiality is protected by section 22.7(2).¬† In the matter before us the resident had much more significant treatment contact with the DHS.¬† The court noted in Colloton: ‚ÄúThe word ‚Äėtreatment‚Äô is broad enough to embrace all steps in applying medical arts to a person.‚ÄĚ 331 N.W.2d at 875.¬† Providing a secure environment is certainly one such step.¬† The primary purpose for the resident‚Äôs presence at Toledo was to receive counseling services covered by section 22.7(2).¬† The treatment record connection in Colloton is much more tenuous than the video recording at issue here.¬†

The video recording is a compilation of data in the course of providing diagnosis, care or treatment of a counselee and thus entitled to treatment as a confidential record under section 22.7(2).

An issue concerning the location of the videotape has been raised.¬† It is not filed in a counselor‚Äôs file or a treatment record.¬† A similar issue was raised by this Complainant in a case involving the personnel records exemption (section 22.7(11)).¬† The Iowa Supreme Court held in Des Moines Independent Com. School Dist. V. Des Moines Register & Tribune Co., 487 N.W.2d 666, 670(Iowa 1992) that:¬† ‚ÄúThese documents fell within the category of personal information in personnel records. It does not detract from this qualification that the documents were deposited in investigation files. The nature of the record is not controlled by its place in a filing system.‚ÄĚ

Also apropos to the claim before us, the Court immediately followed this statement with these two paragraphs worthy of note:

             We are not unsympathetic to the Register's public policy arguments favoring disclosure. The allegations made both by and against Williams led
             to her resignation and her financial settlement with the district. These are matters of public interest.  The Register understandably seeks to
             inform the public about all details surrounding this payment of public funds.

            These arguments should however be addressed to the legislature which created the statutory exemption to disclosure. See
            Iowa R.App.P. 14(f)(13) (legislative intent determined "by what the legislature said, rather than what it should or might have said"). The
            trial court did not err in refusing to order disclosure.  487 N.W.2d at 670, 671.

There are, however, several Iowa cases that treat a patient‚Äôs privacy rights as qualified, not absolute.¬† Chidester v. Needles, 353 N.W.2d 849 (Iowa 1984) provides that the privacy right must be weighed against the public interest in the information.¬† It recognizes that a compelling need for information vital to the administration of the criminal justice system may override the privacy interest.¬† This approach was confirmed in McMaster v. Board of Psychology Examiners, 509 N.W.2d 754 (Iowa 1993).¬† This opinion applies a Chidester balancing test, but concludes the public interest is not so compelling as to allow access to the patient‚Äôs records by the examining board.¬† The court reached this result even while recognizing the examining board would be required to accord them confidential status.¬† The Chidester approach is endorsed in a more recent opinion, State v. Heemstra, 721 N.W.2d 549 (Iowa 2006).¬† The medical records were made available, but on a restricted basis.¬† The public interest counterpoise to protecting patient privacy rights is most often predicated on a finding that the public interest in the information is ‚Äúcompelling‚ÄĚ.¬† In the cited cases in which medical records were released, the release was on a limited basis controlled by the court.¬† They were not made available to the general public.

Beginning at page 5 of the Complainant’s Supplemental Brief the argument is made that because the Governor has closed the Toledo facility and its residents have been moved, the concern about whether fellow residents and staff at Toledo, family, acquaintances and friends of the resident and the resident herself are able to identify the subject of the videotape dissolves.  In the struggle to understand that proposition, which seems logically unsupportable, the temptation is to embrace it and apply it to this entire matter.  (Since the facility has closed, there is no longer any public interest in the contents of the videotape and the Complaint dissolves!)

That leap of logic is then used as to segue to an assertion that Hawk Eye v. Jackson, 521 N.W.2d 750 (Iowa 1994) is analogous to our videotape issue.¬† There is an analogy to be found: one involves the closing of a facility and the other involves the closing of an investigation.¬† That is as close as it gets.¬† As Complainant points out at the top of page 6, the court did find that under what it characterized as the ‚Äúunique facts‚ÄĚ of that case the peace officer‚Äôs investigative privilege failed.¬† One such unique fact was a finding that no one whom the legislature intended to protect would be harmed.¬† There are many other differences between our case and Hawk Eye.¬† Hawk Eye is a peace officer‚Äôs investigative privilege case.¬† That privilege is viewed differently by the court system ‚Äď there is no derived legal standard such as in Chidester requiring a finding of a compelling public interest before setting aside or relaxing application of the privilege.¬† A release of a patient record is typically coupled with imposition of restrictions on the release that bars release to the public.¬† Hawk Eye was a case involving adults.¬† The Hawk Eye opinion was based on a finding that the legislative reasons for creating the privilege no longer applied and there were no individuals who would be harmed by the release.¬† Hawk Eye was indeed a unique case.¬† It centered on an ‚Äúexcessive force‚ÄĚ civil case against a local police officer.¬† The lawsuit triggered an investigative report by the DCI which was requested by the local chief of police.¬† The county attorney, following receipt of the DCI report, declined to prosecute the accused officer.¬† A civil jury subsequently awarded damages against the officer and city.¬† This created a legitimate public concern whether the local officials had performed their duties.¬† Since those officials placed reliance on the DCI report, there was a high public interest in knowing its contents.¬† Under those unique facts the court ordered the report released.¬† In our situation, although the facility may be closed, the potential for harm to the subject of the videotape remains unaffected.¬† In patient privilege cases the Court has recognized the release of patient information is always a cause of harm due to the invasion of a deeply held and legally protected right of personal privacy which should only be set aside in compelling cases of public interest and then under protection against wide circulation.

Is there a compelling public interest in the video recording in dispute here?¬† The Complainant makes the point that the information in the video has already been discussed in a public forum, a state administrative hearing.¬† Obviously the tape has been viewed by government employees in the discharge of their duties.¬† This board has reviewed a redacted version of the tape in the discharge of its duties and at the urging of the Complainant.¬† The fact that employees have been fired for misconduct depicted in the video and that one of them is under criminal charge is public knowledge.¬† There is little, if any, factual information to be gleaned from the video that is not already public knowledge (other than visual clues as to the identity of the victim and the setting).¬† The Claimant expects that the video presentation of that information will be more sensational.¬† The Claimant refers to the videotape as the ‚ÄúToledo Beating Tape.‚Ä̬† The information itself has already been widely and repeatedly publicized.¬† The Register‚Äôs credibility is not at risk as to the matter of the videotape.¬† The Complainant‚Äôs charges have been embraced by the appropriate authorities - criminal charges are pending.¬†¬†¬†

There is one other significant difference between the matter before you and the matter addressed in the Hawk Eye opinion.¬† In the last two lines of its footnotes on page 6 of its Supplemental Brief, the Complainant has provided this quotation from Hawk Eye: ‚ÄúSo long as it is barred from seeing the report, the newspaper is effectively prevented from assessing the reasonableness of the official action.‚Ä̬† In the matter before you, the Complainant has had no such difficulty making that assessment absent the videotape and has publicly reiterated it many times in its discussions of the ‚ÄúToledo Beating Tape.‚Ä̬†¬†¬†¬†
       
The Complainant is sensitive to privacy issues.  It has policies in place that protect the privacy of crime victims in specified circumstances.  In this situation the Complainant has stated its willingness to accept a copy of the video recording that blurs the image of the resident to hide her identity and protect her privacy.  But the statute speaks in absolute terms without mention of redaction or partial release.  Federal regulation in other statutes where redaction is allowed requires total elimination of all pixels, not just blurring.  Technology can be used to reconstruct information thought to have been redacted if it is available to be enhanced or reconstructed.  Indeed, Complainant has used technology to reverse redaction of written communications produced in its Toledo coverage. 

The Respondents’ reply has been that blurring or redacting the image will not protect the resident’s rights under Iowa law.  Her identity will be obvious to persons with knowledge of her circumstances at the time.  Even elimination of her facial and body features will not protect her identity.  The Respondents assert that even the presentation of a blacked-out image would be detrimental to the individual’s present and future wellbeing and recovery.  If no one else is made aware of her personal humiliation, she and her family will be.  Through the Internet, the tape would be available for everyone to see.  As redacted when viewed by the board, identifying features of this child can easily be ascertained.  

The protection afforded under Code sections 22.7(2) is an acknowledgment of the privacy rights of subjects of those records.  This section is Iowa’s articulation of a sacred physician/patient privilege with its foundation in English common law.  It is a privilege accorded the highest deference, along with the pastor/parishioner privilege, by the Iowa Supreme Court.  These privileges were created for the benefit of the citizens they protect, not the government body.    Because the record was created in furtherance of the resident’s treatment, section 22.7(2) applies to make it a confidential record.   

                                                                                                  DHS Confidentiality Mandate

In US West Communications v. Office of Consumer Advocate, 498 N.W.2d 711, 713 (Iowa 1993), the court stated: ‚ÄúThe purpose of chapter 22 is to remedy unnecessary secrecy in conducting the public‚Äôs business.¬† (Citation Omitted.)¬† We have interpreted our public records law to impose a presumption in favor of disclosure and to give a narrow interpretation to statutory exemptions from disclosure.¬† (Citations Omitted.)¬† Disclosure is favored over non-disclosure, and exemptions from disclosure are to be strictly construed and granted sparingly.‚Ä̬† (Citation Omitted.)¬† However, in a subsequent case, the court acknowledged that where there is a specific statute dealing with confidentiality of records, the specific statute controls.¬† Burton v. University of Iowa Hospitals & Clinics, 566 N.W.2d, 189 (Iowa 1997).¬†

At issue in the case before the board is whether Code section 217. 30 (set forth in its entirety above) is applicable and makes the video recording confidential. In determining legislative intent, the language used in the statute, the object sought to be accomplished and the wrong to be remedied must all be considered.  Mortenson v. Heritage Mt. Ins. Co., 590 W.W.2d 35 (Iowa 1999)

Iowa has enacted section 217.30 to satisfy federally mandated program participation confidentiality requirements to receive significant federal funding for DHS programs.¬† The first paragraph of that section makes ‚Äúthe following information relative to individuals receiving services or assistance from the department‚ÄĚ confidential.¬† This statement of general applicability is followed by a listing of four specific categories:
a. Names and addresses of individuals receiving services or assistance from the department, and the types of services or amount of assistance provided;
b. Information concerning the social or economic conditions or circumstances of particular individuals who are receiving or have received services;
c.  Agency evaluations of information about a particular individual; and,
d. Medical or psychiatric data, including diagnosis and past history of disease or disability concerning a particular individual.

The general statement and categories ‚Äúb,‚ÄĚ ‚Äúc,‚ÄĚ and ‚Äúd‚ÄĚ address non-identifying information and speak in terms of ‚Äúa particular individual‚ÄĚ or ‚Äúparticular individuals.‚Ä̬† Only category ‚Äúa‚ÄĚ addresses information which by its very nature always identifies a specific individual. Information concerning a particular individual or particular individuals under categories ‚Äėb,‚ÄĚ ‚Äėc,‚ÄĚ and ‚Äúd‚ÄĚ is made confidential regardless of whether a particular individual would be identified if the information were to be released.¬† The statute does not condition confidentiality on whether release would identify a particular individual.¬†¬† The clear intent of these provisions is to prevent disclosure of any and all information about an individual receiving services or assistance from DHS.¬† Even the social circumstance of being in a seclusion room is made confidential by the statute.¬†

Note that the word ‚Äútreatment‚ÄĚ does not appear in section 217.30 and the protected medical or psychiatric confidentiality provision uses the term ‚Äúdata‚ÄĚ, not ‚Äúrecord‚ÄĚ, ‚ÄĚtreatment record‚ÄĚ, ‚Äúmedical record‚ÄĚ or ‚Äúcounselor record.‚Ä̬† The intent of section 217.30 is to make very sensitive information held by the Department within these categories confidential when it relates to any particular individual, even when its disclosure would not serve to reveal the identity of a particular individual.¬† What is non-identifying information to many could be identifying information to a few.¬† The legislature did not undertake the risk of trying to more finely distinguish the handling of information described in categories ‚Äúb,‚ÄĚ ‚Äúc,‚ÄĚ and ‚Äúd.‚ÄĚ

This statutory scheme is buttressed by the third paragraph of section 217.30 which ensures that the first paragraph (containing categories ‚Äúa‚ÄĚ through ‚Äúd‚ÄĚ) is not interpreted more strictly than intended leading to an unintended denial of information necessary for use in administration of programs by DHS and ‚Äúother general and statistical information, so long as the information does not identify particular individuals served or assisted.‚Ä̬† The third paragraph is included to ensure that the disclosure and use of aggregated information of a general or statistical nature necessary to evaluate program performance is available so long as it does not identify particular persons served or assisted by DHS.
 
By treating these categories of information in this way, the statutory emphasis is placed on protecting client confidentiality to the extent that only general or statistical information is subject to release for the limited purposes specified. 

Clearly the legislative intent is to afford as much privacy as possible to persons served or assisted by DHS.  The only opening in the solid wall of confidentiality is use of general or statistical information as long as its use does not permit or even risk the identification of a particular client.  The federal and state objective is to protect the privacy of DHS clients.   DHS obtains deeply personal information about its clients in the course of providing services and assistance.  Clients need legal protection akin to the doctor/patient privilege in order to benefit from the services and assistance provided by DHS for the same reasons that necessitate that privilege. 

The Toledo resident depicted on the video tape is receiving services and assistance from DHS.¬† Consequently she is entitled to the protections provided by section 217.30. The protection afforded treatment information under section 217.30, while only one aspect of the privacy protection provided by that section, is more broadly worded and addresses ‚Äúmedical or psychiatric data‚ÄĚ as opposed to the use of the word ‚Äúrecord‚ÄĚ in section 22.7(2).¬† (Emphasis added.)¬† Depiction of her social circumstance of seclusion room confinement is also afforded the same protection.¬†¬†¬†

The information contained in the record being sought, as well as the record itself, is confidential under both state and federal laws.  Therefore, regardless of any public interest in this specific video, it is clear that its release is prohibited, even in a redacted, blurred format or blanked-out format.  A decision to release this information would establish a legal precedent requiring release of all similarly protected information.  This precedent would apply regardless of the requestor, whether responsible or irresponsible, and regardless of the intended use or motive.  Both the state and federal intent expressed in Iowa Code section 217.30 is to protect the privacy of individuals who are provided services and assistance by the Department of Human Services (DHS).  We deal here with not just a single record, but with a class of records.  All videotapes of similar situations would become open.  Such a precedent would also be applicable to analogous situations regarding similarly protected records of any other state agency or political subdivision.  Such a precedent would, however, not necessarily be limited to this particular storage medium.  It is the information that is sought, be it written in a medical record or recorded on a videotape.  In this case the debate has tended to be conducted using language directed to a specific kind of storage medium.  It is not the medium that matters, it is the information.  The fact that the information is depicted instead of written is undeniably significant in this case, but the precedent sought to be established will be susceptible to broader application.  
  
Section 217.30(7) provides a criminal penalty for violation of the section.  Section 217.31 creates civil liability for a violation of the confidentiality provisions of section 217.30 and also provides for injunctive relief to restrain dissemination of such information.  It further provides that any public employee who violates any provision may suffer immediate removal from access to covered information or suspension without pay.

We are not aware of any court opinion or rule interpretation in the United States that would require treatment of this videotape as an open record.  The Complainant, in the supplement to its brief, creates the impression that there are several jurisdictions where this information would be and has been released to the public.  This bold assertion is made without citation to any statute similar to section 217.30 or enacted pursuant to the same federal mandate.  Instead it presents examples of releases made in different contexts (e.g. incarceration) and under different statutory authority.  See Appendix A for a list of these disparities.  The language of section 217.30 is a universal federally required prerequisite to eligibility for federal funding of DHS-type programs.  The failure to provide legal support directly addressing the provisions of section 217.30 is very significant. 

                                                                                   Applicability of Iowa Code section 22.9 and Federal Law

Examination of federal requirements gives rise to another issue for consideration.  Iowa Code section 22.9 states:
      “If it is determined that any provision of this chapter would cause the denial of funds, services or essential information from the United States
      government which would otherwise definitely be available to an agency of this state, such provision shall be suspended as to such agency,
¬†¬†¬†¬†¬† but only to the extent necessary to prevent denial of such funds, services, or essential information.‚ÄĚ
 
Several federal laws establish confidentiality mandates which impact the receipt of federal funding if a state does not implement and adhere to statutory privacy protections which are eligibility requirements.  These include:

CAPTA (Child Abuse Prevention and Treatment Act)

42 USC Section 5106a ‚Äď Grants to States for child abuse or neglect prevention and treatment programs:

¬†¬†¬†¬†¬†¬† (b) Eligibility requirements, (1) State plan (A) in general.¬† To be eligible to receive a grant under this section, a State shall submit to the Secretary a State plan that specifies the areas of the child protective services system described in subsection (a) that the State will address with amounts received under the grant‚Ķ‚ĶContents of such plan shall contain a description of the activities‚Ķincluding ‚Äď (viii) methods to preserve the confidentiality of all records in order to protect the rights of the child and of the child‚Äôs parents or guardians, including requirements ensuring that reports and records made and maintained pursuant to the purposes of this subchapter and subchapter III of this chapter shall only be made available to ‚Äď (I) individuals who are the subject of the report; (II) Federal, State or local government entities, or any agent of such entities, as described in clause (ix); (III) child abuse citizen review panels; (IV) child fatality review panels; (V) a grand jury or court, upon a finding that information in the record is necessary for the determination of an issue before the court or grand jury; and (VI) other entities or classes of individuals statutorily authorized by the State to receive such information for a legitimate State purpose; (IX) provisions to require a State to disclose confidential information to any Federal, State, or local government entity, or any agent of such entity, that has a need for such information in order to carry out its responsibilities under law to protect children from abuse and neglect; (X) provisions which allow for public disclosure of the findings or information about the case of child abuse or neglect which has resulted in a child fatality or near fatality;... (Note that section continues to outline other plan requirements not related to confidentiality.)¬† (Emphases added.)

45 CFR 1340.14 ‚Äď Eligibility requirements.¬† In order for a State to qualify for an award under this subpart, the State must meet the requirements of Section 1340.15 and satisfy each of the following requirements: ‚Ķ.(i) The State must provide by statute that all records concerning reports and reports of child abuse and neglect are confidential and that their unauthorized disclosure is a criminal offense.¬† This section also allows a State to authorize by statute the limited release of reports to certain other agencies, courts, treatment providers, victims, perpetrators, researchers, law enforcement, prosecutors, but not to the general public. (Emphasis added.)

45 CFR 1340.20 ‚Äď Confidentiality.¬† All projects and programs supported under the Act must hold all information related to personal facts or circumstances about individuals involved in those projects or programs confidential and shall not disclose any of the information in other than summary, statistical, or other form which does not identify specific individuals, except in accordance with Section 1340.14(i).

Failure to enact and maintain laws concerning confidentiality of services provided by monies received by the state for services such as provided by DHS in facilities funded by the State would result in loss of federal funding under CAPTA.  Disclosure of a video taken of a minor client receiving services would violate confidentiality requirements under CAPTA.  Therefore, Iowa Code Section 22.9 would authorize denying release of any services data, in addition to Iowa Code Sections 217.30.

Funding Laws and Regulations (Public Assistance)

45 CFR 1355.30 refers to 45 CFR Section 205.50 to implement confidentiality protections for applicants and recipients receiving public funding.  Section 205.50 requires States receiving federal funding to enact a plan that imposes legal sanctions for unauthorized release of any information concerning applicants or recipients.  None of the six exclusions from this prohibition authorize service information release to the general public.

45 CFR 205.50 states:
(2) The agency will have clearly defined criteria which govern the types of information that are safeguarded and the conditions under which such information may be released or used.  Under this requirement: (i) Types of information to be safeguarded include but are not limited to: ….(C) Agency evaluation of information about a particular individual; (D) Medical data, including diagnosis and past history of disease or disability, concerning a particular individual.

(See also 45 CFR 1340.14, noted above, concerning interplay of funding rules and requirements for CAPTA funds.)

Title 42:¬† Public Health, Part 431 (State Organization and General Administration), Subpart F ‚Äď Safeguarding Information on Applicants and Beneficiaries provides further guidance and restrictions on release of information gathered through Medicaid funded programming:

Section 431.306.  Release of information.
                                                                                                               * * *
(b) Access to information concerning applicants or beneficiaries must be restricted to persons or agency representatives who are subject to standards of confidentiality that are comparable to those of the agency.  
                                                                                                               * * *
(d) The agency must obtain permission from a family or individual, whenever possible, before responding to a request for information from an outside source, unless the information is to be used to verify income, eligibility and the amount of medical assistance payment under section 1137 of this Act and Sections 435.90 through 435.965 of this chapter.

(e) The agency’s policies must apply to all requests for information from outside sources, including governmental bodies, the courts, or law enforcement officials.

Various federal funding streams utilized by the State of Iowa for child protection services prohibit the release of any information concerning applicants or beneficiaries.  Failure to abide by federal regulations would jeopardize this funding.

Health Insurance Portability and Accountability Act (HIPAA)

HIPAA laws define disclosure at 45 CFR 160.103 as the ‚Äúrelease, transfer, provision of, access to, or divulging in any other manner of information outside the entity holding the information.‚Ä̬† HIPAA covers any entity that meets the definition of ‚Äúhealth care provider‚ÄĚ which is defined to include ‚Äėa provider of services‚Ķ, a provider of medical or health services‚Ķ, and any other person or organization who furnishes, bills or is paid for health care in the normal course of business.‚Ä̬† Health information is defined as any information, oral or recorded in any form or medium, that: (1) is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and (2) relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual.

45 CFR 160.103 further defines an individual to mean the person who is the subject of protected health information and individually identifiable health information to mean information that is a subset of health information, including demographic information collected from an individual, and:  (1) Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payments for the provision of health care to an individual; and (i) That identifies the individual; or (ii) With respect to which there is a reasonable basis to believe the information can be used to identify the individual.  (Emphasis added.)

Requirements relating to the uses and disclosures of protected health information are set forth at 45 CFR 164.514: 

(b) A covered entity may determine that health information is not individually identifiable health information only if:  (1) A person with appropriate knowledge of and experience with generally accepted statistical and scientific principles and methods for rendering information not individually identifiable: (i) Applying such principles and methods, determines that the risk is very small that the information could be used, alone or in combination with other reasonably available information, by an anticipated recipient to identify an individual who is subject of the information; and (ii) Documents the methods and results of the analysis that justify such determination, or

(c) The following identifiers are removed (Note:  removed, not blurred)….(P) Biometric identifiers, including finger and voice prints; (Q) Full face photographic images and any comparable images…. (Emphasis added.)

HIPAA laws clearly prohibit the release of treatment information from the Iowa Juvenile Home.  Although many would disagreed with treatment methods utilized by the Home (the use of isolation and physical restraint), this is considered a treatment modality utilized by residential programs around the country.  The only way a video recording of a child resident could be released would be for the removal of all sound from the video, and the removal of all visual images of the child.  

                                                                                           Iowa Supreme Court Review

Iowa Code section 22.9 was broadly applied by the Iowa Supreme Court to deny access to records in Press-Citizen Co., Inc. v. University of Iowa, 817 N.W.2d 480 (Iowa 2012).

Press-Citizen involves application of the confidentiality provisions in the Federal Education Rights and Privacy Act (FERPA) to section 22.9.  The FERPA provision is less stringent that the DHS federally mandated Iowa Code section 217.30.  It also has a provision allowing for consent to release an otherwise confidential record by the subject’s parents.  Section 217.30 has no such provision.

The lengthy opinion addresses redaction and other issues.  The following quotations from the opinion eliminate citations and page numbers in the interest of readability.  A complete copy is attached for your reference.  
        This case requires us to decide where disclosure ends and where confidentiality begins under the Iowa Open Records Act and the Federal
        Educational Rights and Privacy Act (FERPA). (Citation omitted.)  In October 2007, two University
        of Iowa football players were accused of sexually assaulting another student in a campus dorm room. This incident led to a criminal
        investigation, criminal charges, and the conviction of one player on a charge of assault with intent to inflict serious injury and the other
        on a charge of simple assault. This incident also led to internal actions and responses by the University, external criticism of the 
        University, and a special counsel investigation and report. Finally, this incident led to the present lawsuit.

¬†¬†¬†¬†¬†¬†¬† The present litigation concerns Open Records Act requests that the Iowa City Press‚ÄďCitizen served on the University after reports of the incident¬†
¬†¬†¬†¬†¬†¬†¬†¬†surfaced. Dissatisfied with the University's initial response to those requests, the Press‚ÄďCitizen¬†filed suit. The lawsuit resulted in more
        documents being produced and others being submitted for in camera review by the district court. The court then ordered additional documents
        produced, in some instances with redactions.

        The University has appealed that order in part. It argues that FERPA prohibits the disclosure of the remaining documents, including even redacted
¬†¬†¬†¬†¬†¬†¬† versions of ‚Äúeducation records‚ÄĚ where the identity of the student is known to the recipient. The¬†Press‚ÄďCitizen counters that FERPA does not
        supersede any obligation to produce records under the Open Records Act, and in any event, the University has misinterpreted FERPA. For the
        reasons discussed herein, we ultimately agree with the University's arguments as to the meaning and force of FERPA, and therefore reverse the
        district court's judgment in part.

        I. Background Facts and Proceedings.
        During the early morning hours of Sunday, October 14, 2007, a female student-athlete was allegedly sexually assaulted at the Hillcrest dormitory
        at the University of Iowa. Two University of Iowa football players who were accused of involvement were suspended and later dismissed from the
        team. * * *

        Numerous University officials were informed of the incident by Monday, October 15, 2007; however, the parents of the student-athlete believed
        their response was inadequate. Among other things, concerns were expressed that the University had shown a lack of understanding for the
        victim, had communicated poorly with her, and had allowed her to be subjected to retaliatory harassment from other students. * * *

        Meanwhile, the incident received considerable publicity in the media. Articles appeared in which both football players were named. Beginning
¬†¬†¬†¬†¬†¬†¬† November 13, 2007, the Iowa City Press‚ÄďCitizen served requests on the University under the Iowa¬†Open Records Act. (Citation omitted.)


        The requests sought, among other things, reports of attempted or actual sexual assaults; correspondence to or from various University officials
        relating to any such incidents; and e-mail, memos, and other records relating to any such incidents from October 1, 2007 to the present.

        The University initially produced only eighteen pages of documents, claiming that any other responsive documents were protected from
¬†¬†¬†¬†¬†¬† disclosure under Iowa Code section 22.7(1).¬† (Citation omitted ‚Äď 22.7(1) confidential student records.)¬†¬†¬†January 4, 2008, the Press‚ÄďCitizen |
       filed a petition in district court seeking judicial enforcement of the Open Records Act. (Citation omitted.)

¬†¬†¬†¬†¬†¬† ¬†* * * The University thereafter released approximately 950 additional pages of documents to the Press‚ÄďCitizen; prepared a Vaughn index
        for over 3000 pages of documents (including both the pages that had been released and over 2000 that were being withheld); and
        submitted those 3000 pages to the district court for in camera review.

        After conducting a painstaking in camera review, the district court entered another order on August 31, 2009. The order divided the
        University's documents into five categories:

        Category 1: documents already released by the University without redaction;

        Category 2: documents already released by the University with redactions;

¬†¬†¬†¬†¬†¬†¬† Category 3: documents ‚Äúnot protected as confidential and ... subject to disclosure ... without redaction‚ÄĚ;

        Category 4: documents “subject to disclosure ... with appropriate redactions made to remove student-identifying information including students'
¬†¬†¬†¬†¬†¬†¬† names, parents' names, addresses including E-mail addresses of students, dormitory and room numbers‚ÄĚ;

        Category 5: “confidential documents not subject to disclosure under FERPA, Section 22.7 [of the Open Records Act], or attorney-client privilege
¬†¬†¬†¬†¬†¬†¬† rules.‚ÄĚ

        The district court's August 31 order directed the University to disclose the Category 3 documents without redaction and the Category 4 documents
        with appropriate redactions within thirty days. * * * The University now argues to us that the district court erred in ordering the production of
        some of the Category 3 and all of the Category 4 documents.

                                                                                                                                                                                      * * *
        The Open Records Act is subject to a number of listed exemptions, both large and small. * * * Nonetheless, the University does not argue that any
        of those designated exceptions applies here. Its sole argument on appeal is that federal law, i.e., FERPA, requires the appealed Category 3 and
        the Category 4 documents to be kept confidential.  Congress enacted the Family Educational Rights and Privacy Act or FERPA in 1974 “under its
        spending power to condition the receipt of federal funds on certain requirements relating to the access and disclosure of student educational
¬†¬†¬†¬†¬†¬†¬† records.‚ÄĚ (Citation¬†omitted.)¬† ‚ÄúThe Act directs the Secretary of Education to withhold federal funds from any public or private ‚Äėeducational
¬†¬†¬†¬†¬†¬† ¬†agency or institution‚Äô that fails¬†to comply with these conditions.‚ÄĚ (Citation omitted.)

        The Act provides in part:

        No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting
        the release of education records (or personally identifiable information contained therein ...) of students without the written consent of their parents
        to any individual, agency, or organization....  (Citation omitted.)  It also provides:

        No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing,
¬†¬†¬†¬†¬†¬†¬† or providing access to, any personally identifiable information in education records ... unless‚ÄĒ

        (A) there is written consent from the student's parents ...

        (Several other exceptions are omitted.)

        In light of these definitions, the University argues that the appealed Category 3 and the Category 4 documents cannot be produced at all. As it
¬†¬†¬†¬†¬†¬†¬† understands the law, ‚Äúeducation records‚ÄĚ with ‚Äúpersonally identifiable information‚ÄĚ cannot be released.¬† Further, even if no student is¬†actually
        identified in the document, either because his or her name and personal identifiers have been redacted or because the original document did 
¬†¬†¬†¬†¬†¬†¬†¬†not have that information, the regulations prohibit disclosure if¬†the recipient would ‚Äúknow[ ] the identity of the student‚ÄĚ‚ÄĒor ‚Äúa reasonable
¬†¬†¬†¬†¬†¬†¬† person‚ÄĚ would be able to ‚Äúidentify the student with reasonable certainty.‚Ä̬† (Citation omitted.) In short, the University contends that if the
¬†¬†¬†¬†¬†¬†¬† Press‚ÄďCitizen or the student¬†community would know the student being discussed in the education record, the record cannot be divulged‚ÄĒeven
¬†¬†¬†¬†¬†¬† ¬†in redacted form‚ÄĒunder FERPA.

¬†¬†¬†¬†¬†¬†¬† * * * The Press‚ÄďCitizen does not dispute that if these documents were produced, even in redacted form, it would be able to determine the students
¬†¬†¬†¬†¬†¬†¬† to whom the documents refer. However, the Press‚ÄďCitizen argues that FERPA is merely a funding¬†statute that does not prohibit the disclosure of
¬†¬†¬†¬†¬†¬†¬† documents whose production is otherwise required by the Iowa Open Records Act. Alternatively, the Press‚ÄďCitizen argues that FERPA does not
        allow the withholding of records, as opposed to their redaction. We now turn to these points of disagreement.

        C. The Interplay Between FERPA and the Open Records Act. The University argues that the relationship between FERPA and the Open
¬†¬†¬†¬†¬†¬†¬† Records Act is a simple matter of federal supremacy.¬†¬†¬†¬† * * * The Press‚ÄďCitizen, on the other hand, maintains¬†that FERPA is not a positive
        law at all, but simply a funding provision, which cannot override the express directives of the Open Records Act.

        This debate has been played out in cases from other jurisdictions.
                                                                                                                  * * *
        We need not step into this controversy here, however, because we believe a provision of the Iowa Open Records Act already gives priority to
        FERPA. Section 22.9 of the Act provides:

        If it is determined that any provision of this chapter would cause the denial of funds, services or essential information from the United States 
        government which would otherwise definitely be available to an agency of this state, such provision shall be suspended as to such agency,
        but only to the extent necessary to prevent denial of such funds, services, or essential information.

        An agency within the meaning of section 17A.2, subsection 1, shall adopt as a rule, in each situation where this section is believed applicable,
        its determination identifying those particular provisions of this chapter that must be waived in the circumstances to prevent the denial of
        federal funds, services, or information.

        Otherwise stated, the first paragraph of section 22.9 suspends the operation of a provision of the Open Records Act if the provision would 
¬†¬†¬†¬†¬†¬†¬†¬†cause the denial of federal funds to a state agency. This paragraph, we believe, answers the Press‚ÄďCitizen's¬†argument that FERPA in and of
        itself is not a positive law. Section 22.9 gives it the effect of a positive law. 
                                                                                                                 * * *
¬†¬†¬†¬†¬†¬†¬† The Press‚ÄďCitizen responds that the University has not shown the disclosure of records would ‚Äúdefinitely‚ÄĚ cause it to lose funds as required by the
¬†¬†¬†¬†¬†¬†¬† first paragraph of section 22. This argument, we believe, misreads the statute. Section 22.9¬†requires that the federal funds be ‚Äúdefinitely available.‚Ä̬†
        That they are. The University enjoys considerable federal support. * * * The statute does not have similar language requiring that the loss be
        definite.

¬†¬†¬†¬†¬†¬†¬† The Press‚ÄďCitizen urges, however, that a one-off production of records in this case would not amount to a ‚Äúpolicy or practice.‚Ä̬† * * * One problem¬†
        with this argument, however, is that the production would not be accidental or inadvertent and would necessarily set some kind of precedent after
¬†¬†¬†¬†¬†¬†¬† having been authorized by the Iowa courts. A ‚Äúpolicy or practice‚ÄĚ to some extent would be established.

¬†¬†¬†¬†¬†¬†¬† The larger problem with the Press‚ÄďCitizen's position is that section 22.9 also operates on an aggregate basis. That section asks us to consider not
¬†¬†¬†¬†¬†¬† ¬†whether a specific production of records in a particular case would result in a loss of funds, but¬†whether a ‚Äúprovision‚ÄĚ‚ÄĒe.g., section 22.2(1), the
¬†¬†¬†¬†¬†¬†¬† overall legal requirement that public records be made available‚ÄĒwould cause such a loss. Hence, we need to focus on the provision itself, not just
        a one-time application of it, and determine whether that provision would lead to a loss of federal funding for the agency. In other words, section
¬†¬†¬†¬†¬†¬†¬† 22.9 requires us to consider whether section 22.2(1), the basic open records ‚Äúprovision,‚ÄĚ applied consistently to education records at the University
¬†¬†¬†¬†¬† ¬†¬†of¬†Iowa, i.e., ‚Äúan agency of this state,‚Ä̬†¬†¬†¬† would ‚Äúcause the denial of funds,‚ÄĚ and if so it ‚Äúsuspend[s]‚ÄĚ that provision.

        Of course, at the end of the day the federal government might not try to defund the University of Iowa regardless of the circumstances. But we do
        not think section 22.9 requires Iowa courts to make predictions about policy decisions made in Washington D.C. That would be unworkable. * * * 
        As we read the first paragraph of section 22.9, it requires us to withhold legal effect from a provision of the Open Records Act, such as section
        22.2(1), if it appears that provision (not just an isolated application of the provision) would result in a loss of federal funding for a state agency.

¬†¬†¬†¬†¬†¬†¬† The Press‚ÄďCitizen also relies on the second paragraph of section 22.9. It urges that the University has failed to adopt a ‚Äúrule‚ÄĚ as required by that¬†
        paragraph and, in the absence of such a rule, the first paragraph has no effect. * * *

        Our difficulty with this argument is that it treats two separate mechanisms as if they were one.
                                                                                                                                                                                          * * *
        * * * After all, the first paragraph was a stand-alone provision with independent force for seventeen years before the second paragraph was
        enacted. In sum, we believe the 1984 amendment simply imposed a new obligation on state agencies, without altering the preexisting law.
        We therefore find that the Open Records Act incorporates confidentiality obligations from FERPA.

        * * *   Assuming FERPA applies, the next issue is whether its obligations can be met by redaction or whether it requires the withholding of entire
¬†¬†¬†¬†¬†¬†¬† records in some instances. The University argues that under the DOE's interpretation of ‚Äúpersonally¬†identifiable information,‚ÄĚ an educational
        record must be withheld if the recipient would know the student to whom the record refers, even with the redaction of personal information, 
        such as the student's name. See34 C.F.R. § 99.3 (defining personally identifiable information to include “[i]nformation requested by a person
¬†¬†¬†¬†¬†¬†¬† who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates‚ÄĚ). Given
        the notoriety of the October 14, 2007 incident, the University contends that no amount of redaction of personal information would prevent the
        newspaper from knowing the identity of various persons referenced in records relating to that incident.

¬†¬†¬†¬†¬†¬†¬† The Press‚ÄďCitizen responds that under the Open Records Act, access is a yes-or-no proposition. It cannot vary based upon the identity of the
        party making the request. See, e.g., Ne. Council on Substance Abuse, Inc. v. Iowa Dep't of Pub. Health, 513 N.W.2d 757, 761 (Iowa 1994)
        (rejecting a party's contention under the Open Records Act “that release of the applications should depend on the status of the party seeking
¬†¬†¬†¬†¬†¬†¬† them‚ÄĚ). The flaw in this argument, however, is that the relevant legal¬†standards in this case actually come from FERPA, incorporated into Iowa¬†
        law through section 22.9.
                                                                                                                                                                                       * * *
        If, because of other records that have been released, or other publicly available information, the redaction of names, identification numbers,
        and dates and times of incidents is not sufficient to prevent the identification of a student involved in a disciplinary proceeding, including
        student victims and student witnesses, then FERPA prohibits an educational agency or institution from having a policy or practice of releasing
        the information. [Staff Note: Iowa Code section 217.30 has no such provision that would permit redacted release under any
        circumstance.]

                                                                                                                                                                                       * * *
¬†¬†¬†¬†¬†¬†¬† The Press‚ÄďCitizen also insists that it is not a legally permissible construction of the term ‚Äúpersonally identifiable information‚ÄĚ for the University
        to withhold entire documents, rather than redact them. We disagree. The statute forbids federal funding of institutions that have a policy or
¬†¬†¬†¬†¬†¬†¬† practice of releasing ‚Äúeducation records (or personally identifiable information contained therein ...)‚ÄĚ without parental permission. (Citation
        omitted.)  [Staff Note: Iowa Code section 217.30 has no such provision for release of information by consent of a parent of subject of a
        record.]


        This either-or language, as we read it, is at least subject to the interpretation that an entire record can be withheld where redaction would not be
        enough to protect the identity of a student. And as long as the underlying statute is ambiguous, we are required to defer to any reasonable and
¬†¬†¬†¬†¬†¬†¬† permissible interpretation made by the agency‚ÄĒhere DOE. (Citations omitted.)¬†
                                                                                                                  * * *
        Thus, consistent with current DOE regulations, we conclude that educational records may be withheld in their entirety where the requester would
        otherwise know the identity of the referenced student or students even with redactions.
                                                                                                                  * * *

                                                                                                             CONCLUSION
The issue before the board is whether to dismiss the complaint, seek further input on the issues or initiate prosecution of the Respondents.  This Supplemental Report and the original Report set forth matters of fact and law.  It is my conclusion based on the statutes discussed and the appellate court opinions interpreting them that there are no factual issues so unique to this Complaint as to overcome application of established law.

The Complainant has not brought to our attention any cognizable legal precedent or theory that can be applied to this Complaint to allow deviation from legislative intent as articulated in Iowa Code sections 22.7(2) and 217.30.¬† The Complaint‚Äôs case is based on an emotional appeal in an attempt to persuade the board to disregard application of the law in favor of responding to an unfortunate set of facts.¬† The Complaint is really an entreaty that the board ‚Äúmake new law‚ÄĚ.¬†¬† There is an old saying in the law: ‚ÄúBad facts make bad law.‚Ä̬† This case is a clear illustration of that concept.¬† If you find that the videotape should be publicly available, every similar record will be publicly available to any requestor to use for any purpose.¬† Such a ruling would have consequences far greater than the immediate issue.

A finding against the Respondents will require preparation of a statement of charges sufficient to sustain a finding that can reasonably be expected to survive a contested case process conducted pursuant to Iowa Code chapter 17A.¬† The contested case process does not lend itself to agency creation of ‚Äúnew law‚ÄĚ.¬† The legal consequences of a ruling against the Respondents would be so significant that the Respondents cannot yield their position until the process has run its full course.¬† That means that the case presented against the Respondents must be of sufficient legal strength to pass scrutiny by an Administrative Law Judge, a District Court Judge and the Supreme Court of Iowa.¬† This is not a case of gravity and merit with legal underpinnings sufficient for this board to risk its credibility in an attempt to ‚Äúmake new law.‚Ä̬† Such an attempt would be your first exposure to the court system and will likely be the only one of record for some time and will create a lasting impression.¬†¬†¬†

The results of further investigation as requested by the board; our detailed analysis of the Complainant’s positions, with their lack of legal support as discussed above and in Appendix A; the practical problems that would be caused by establishment of the precedent the Complainant seeks; and the expectation that a ruling in favor of the Complaint is not sustainable leads me to again recommend that this Complaint be dismissed as legally insufficient.

SUBMITTED TO THE IOWA PUBLIC INFORMATION BOARD THIS FOURTEENTH DAY OF FEBRUARY, 2014 by

_______________________
Keith E. Luchtel, JD
Executive Director

Copies provided by email to:
Complainant
   Rick Green, Randy Brubaker and Michael Giudicessi, JD
Respondents
   Eric Tabor, JD and Diane Stahle, JD

 


                                                                                                            APPENDIX A

Complainant, The Des Moines Register, submitted a Supplemental Brief on January 27, 2014.  Fact-checking of that Brief reveals the following:
    1. Closure of the Iowa Juvenile Home does not impact the primary question of whether DHS records must be released. Acceptance of Complainant’s
        argument that closure of Toledo makes the privacy interest moot would result in dismissal of this matter, not release of records.
    2. The Prison Rape Elimination Act (PREA) of 2003 does not apply to the Iowa Juvenile home, according to the Division of Criminal and Juvenile 
        Justice Planning, Iowa Department of Human Rights.  The Home was not being monitored for compliance, as it did not qualify as a juvenile 
        facility or community confinement facility under PREA standards (see page 3, questions 3 and 4, attached, from the National PREA Resource 
        Center).  Argument 1 can be disregarded.
    3. The video clips presented in Argument 2 are not relevant to the issue presented to the Iowa Public Information Board (IPIB).  None of the
        videos were released by a Department of Human Services (or specific state equivalent); instead, as noted on the videos themselves, the videos    
        were released by a parent (Pennsylvania), a court lawsuit (California), a former state employee (Mississippi), or a state official investigating
        violence in juvenile detention facilities (New York).  None of the videos depicted children in need of assistance or dependent children, the   
        status of the child subject of the Toledo videotape.  The facilities represented by the Complainant’s videos were all facilities for delinquent
        youth; in fact, the California facility shown houses males aged 16 to 25 who are imprisoned as youthful offenders under California criminal 
        laws.
    4. Included in Argument 2 is a three page discussion of a Florida video (pages 9 to 11).  Kimberly Ward, an employee with the Department of
        Juvenile Justice is presented as providing extensive information concerning release of DHS (known in Florida as Florida Department of
       Children and Families) records.   In response to a request from IPIB staff, Ms. Ward replied, by email:  “This is the first I have been told
       about being listed for an Iowa case.  I was called about a video that was released during a criminal prosecution; however, I have no personal  
       knowledge as to how that video became public.  I am also unfamiliar with Iowa law concerning videos in juvenile facilities.  I have referred
       the firm to Attorney Pat Gleason with the Florida Attorney’s General Office.  Ms. Gleason is an authority on Florida’s public records law.  Her
¬†¬†¬†¬†¬†¬† number is 850-245-0179 and her email is pat.gleason@myfloridalegal.com.‚Ä̬† In Florida, the Department of Juvenile Justice is a branch of
       the Bureau of Research and Planning, separate from DHS (known as FDCF).  Requests for FDCF records are referred to the Office of General 
       Counsel for FDCF or to regional offices of General Counsel.  Ms. Ward would not have reviewed any requests for FDCF records.  She does
       not know how the video referred to on page 11 was released.  (It should also be noted that the video in this case, similar to the others, was
       from a juvenile detention facility, not a juvenile treatment facility.)
    5. Pages 16 to 18 of Argument 2 present information concerning a photo essay project in juvenile detention facilities.  Staff at photographer
        Richard Ross’s office stated by telephone that none of the photos were DHS records.  All photos were taken personally by Richard Ross with
        permission of the person photographed or their parent. 
    6. Very little, if any, of the information presented in Argument 2 is relevant to the issue under consideration, the release of DHS records of a
        child in need of assistance and placed in a juvenile treatment facility by court order.
    7. The majority of Argument 3 is a restatement of the initial argument of Complainant.  As noted in the main body of this Report, Iowa Code
        Section 217.30 is applicable, as the video does pertain to services provided (1.a.), social conditions or circumstances (1.b.) and medical or
        psychiatric data (1.d.).  Complainant also refers to Iowa Code Section 218.21 which also imposes confidentiality over records maintained by
        the Iowa Juvenile Home.  It is immaterial that transcribed sworn witness investigatory testimony is a public record when obtained pursuant  
        to an investigation conducted by DHS.  The video at question is not transcribed testimony from a sworn witness. 

Some of these issues and other issues raised by Complainant are addressed in the body of the Supplemental Report.

Taken from the FAQ on the National PREA Resource Center website

What are the PREA standards and when are they effective?

The Prison Rape Elimination Act (PREA) was passed in 2003. The law created the National Prison Rape Elimination Commission (NPREC) and charged it with developing standards for the elimination of sexual abuse in confinement. The law required the Department of Justice (DOJ) to review the NPREC standards, make revisions as necessary, and pass the final standards into law.

The final rule was published in the federal register on June 20, 2012, and became effective on August 20, 2012. Certain standards do not go into effect until a later date. The standard that governs external audits provides that the first audit cycle begins on August 20, 2013, and, to be in compliance, that jurisdictions must have at least one third of their facilities audited within the subsequent 12-month period ending August 20, 2014. The restrictions on cross-gender pat-down searches of female inmates in prisons, jails, and community confinement facilities (115.15(b) and 115.215(b)) do not go into effect until August 20, 2015, for facilities whose rated capacity is 50 or more inmates, and August 21, 2017, for facilities whose rated capacity does not exceed 50. The standard on minimum staffing ratios in secure juvenile facilities (115.313(c)) does not go into effect until October 1, 2017, unless the facility is already obligated by law, regulation, or judicial consent decree to maintain the minimum staffing ratios set forth in that standard.
Last updated July 9, 2013.

In determining whether to certify that my State is in "full compliance" with the National PREA Standards, how do I determine which facilities are "under the operational control of the State's executive branch"?

The National PREA Standards state that ‚ÄúThe Governor‚Äôs certification [of full compliance with the PREA standards] shall apply to all facilities in the State under the operational control of the State‚Äôs executive branch, including facilities operated by private entities on behalf of the State‚Äôs executive branch.‚ÄĚ 28 C.F.R. ¬ß 115.501(b). A ‚Äúfacility‚ÄĚ is defined as ‚Äúa place, institution, building (or part thereof), set of buildings, structure, or an area (whether or not enclosing a building or set of buildings) that is used by an agency for the confinement of individuals.‚ÄĚ Id. at ¬ß 115.5. Some standards apply specifically at the facility level, while others apply at the agency level.
The definition of facility includes local detention and correctional facilities as well as State correctional facilities; however, not all facilities within a State are subject to the Governor’s certification. The Governor’s certification does not encompass those facilities outside the operational control of the governor; namely, those facilities that are under the operational control of counties, cities, or other municipalities, or privately-operated facilities not operated on behalf of the State’s executive branch.
The term ‚Äúoperational control‚ÄĚ is not defined in the National PREA Standards. The determination of whether a facility is under the operational control of the executive branch is left to a governor‚Äôs discretion, subject to the following guidance.

Generally, there are several factors that may be taken into consideration in determining whether a facility is under the ‚Äúoperational control‚ÄĚ of the executive branch:
‚ÄĘ Does the executive branch have the ability to mandate PREA compliance without judicial intervention?
‚ÄĘ Is the State a unified correctional system?
‚ÄĘ Does the State agency contract with a facility to confine inmates/residents on behalf of the State agency, other than inmates being temporarily held for transfer to, or release from, a State facility?

The above list is not exhaustive but it covers the majority of the situations that Governors may face in determining whether a facility or contractual arrangement is subject to the Governor’s certification.
Please note that the standards require that any public agency that contracts for the confinement of its inmates with private agencies or other entities, including other government agencies, (1) include in any new contract or contract renewal the entity’s obligation to adopt and comply with the PREA standards, and (2) provide for agency contract monitoring to ensure that the contractor is complying with the PREA standards. 28 C.F.R. §§ 115.12, 115.112, 115.212, 115.312. A State confinement agency that fails to comply with these requirements is, by the terms of the standards, not PREA compliant.
Last updated November 27, 2013.

What are the financial consequences to a state if it is not in compliance with the standards?

The PREA statute provides that a state whose governor does not certify full compliance with the standards is subject to the loss of five percent of any DOJ grant funds that it would otherwise receive for prison purposes, unless the governor submits an assurance that such five percent will be used only for the purpose of enabling the state to achieve and certify full compliance with the standards in future years. 42 U.S.C. 15607(c).
Last updated February 7, 2013.

Does PREA require the governor to submit a certification of compliance, and if so, when is the first certification of compliance due to the Department of Justice?

Pursuant to the PREA statute, the governor has three options: 1) submit a certification that the state is in full compliance; 2) submit an assurance that not less than five percent of its DOJ funding for prison purposes shall be used only for the purpose of enabling the state to adopt and achieve full compliance with the PREA standards; or 3) accept a five percent reduction in such grants. The specified date for the submission of either a certification or assurance by the Governor has not yet been determined.
Last updated February 7, 2013.

In which fiscal year will the five percent penalty for non-compliance begin?

Federal fiscal years begin on October 1. The first year of the non-compliance penalty period is fiscal year 2014, which will commence on October 1, 2013, and end on September 30, 2014.
Last updated February 7, 2013.

Which federal grant programs will the five percent penalty for non-compliance affect?

It is important to note that if a governor submits an assurance to DOJ that not less than five percent of the state’s DOJ funding for prison purposes will be used to support implementation of the PREA standards, then no penalty will be imposed, although the state may need to reallocate some of its DOJ funding such that five percent of the total is being used to support implementation of the standards.
Under PREA, the attorney general is required to publish a list each fiscal year of those grant programs that may be at risk for failure to comply with the standards. See 42 U.S.C. § 15607(c)(1)(B). That list has not yet been finalized because the penalties will not take effect until fiscal year 2014, and it is not yet known which current grant programs will continue to be funded, and which new grant programs may be created, by that year. That said, as an example, if the list were created using the fiscal year 2012 appropriations, the list would likely include, most notably, the Edward Byrne Memorial Justice grant program, the Juvenile Justice and Delinquency Prevention Act formula grant program, and the Juvenile Accountability Block Grant program.
Last updated February 7, 2013.

Would a five percent reduction in federal grant funds be applied to all funds within the designated grant program or only those budgeted ‚Äúfor prison purposes‚ÄĚ?

The reduction of federal funds would apply to all DOJ funding that the state could use for prison purposes. This includes dollars that could be used for prison purposes but that the state intended to use for other purposes. See 42 U.S.C. ¬ß 15607. In any event, it is important to note that ‚Äúprison‚ÄĚ is defined broadly by the statute to cover ‚Äúany confinement facility‚ÄĚ and includes the four covered facility types included in the standards. See 42 U.S.C. ¬ß 15609(7).
Last updated February 7, 2013.

Please provide recommendations for identifying an auditor while maintaining appropriate independence from the state criminal justice department. What role, if any, should the state criminal justice department play in identifying the auditor? Will the DOJ publish a list of certified PREA auditors?

Prospective auditors will apply to be PREA-certified auditors. Only DOJ can certify auditors. In order to be certified, auditors must 1) meet a number of qualifications; 2) submit to a criminal records background check; and 3) pass DOJ-developed auditor training. DOJ plans to hold auditor training in spring 2013 in advance of the first audit cycle, which begins August 20, 2013. A complete list of PREA-certified auditors will be maintained publicly on the DOJ and PRC websites.
DOJ has not placed restrictions on how agencies choose auditors. Each agency should develop its own process, consistent with PREA Standard 115.402, which provides that 1) the auditor cannot be part of, or under the authority of, the agency (but may be part of, or authorized by, the relevant state or local government); 2) an auditor cannot be a person who has received financial compensation from the agency being audited (except for compensation received for conducting prior PREA audits) within three years prior to the agency’s retention of the auditor; and 3) the agency cannot employ, contract with, or otherwise financially compensate the auditor for three years subsequent to the agency’s retention of the auditor, with the exception of contracting for subsequent PREA audits.
Last updated February 7, 2013.

Are foster homes that contract with juvenile justice agencies (as opposed to institutional residential placements) covered by the PREA standards?

Foster homes are not covered by the standards.
Last updated July 9, 2013.

What determines whether a facility is ‚Äúprimarily used for‚ÄĚ a particular purpose under the PREA standards?

The simplest way to make this determination is to determine whether, over a period of one year, the facility holds more people for that purpose than for any other purpose.
Last updated July 9, 2013.

If a facility for youth is not primarily used for youth in the juvenile justice system but, rather, social services youth, may the facility be considered either a ‚Äújuvenile facility‚ÄĚ or ‚Äúcommunity confinement facility‚ÄĚ under the standards?

No. A facility for juveniles that is not primarily used for the confinement of youth in the juvenile justice system is not covered by the PREA standards.
Last updated July 9, 2013.

Do the standards apply to locally operated facilities?

Yes. PREA standards apply equally to locally operated facilities, such as lockups, jails, juvenile detention centers, and locally operated residential community confinement facilities. The statute imposes certain financial consequences on states that do not comply with the standards. However, for local facilities or facilities not operated by the state, PREA provides no direct federal financial penalty for not complying.

If a local facility has a contract to hold state or federal inmates, however, it may lose that contract if it does not comply with PREA standards. If a governor should certify compliance, he/she must certify that all facilities under the state’s authority, including all local facilities the state contracts with to hold inmates, are in compliance. Furthermore, states that operate unified systems must demonstrate that all state-operated facilities, including jails, comply with the PREA standards.

Finally, all agencies, state or local, have obligations under federal and state constitutions to provide safety for individuals in their custody. While PREA does not create any new cause of action, private civil litigants might assert noncompliance with PREA standards as evidence that facilities are not meeting constitutional obligations.
Last updated February 7, 2013.

Do the standards apply to facilities that hold youth in the custody of a juvenile justice agency if those youth are not the totality of the population held in that particular facility? For example, are contracted secure juvenile facilities; contracted halfway houses, group homes, and community correctional facilities; and state department of social services secure facilities that provide services to juveniles who are under juvenile court jurisdiction through a contract with the state juvenile justice agency all covered? If so, to what extent?

The PREA standards make clear that a juvenile facility is one that is primarily used for the confinement of juveniles. If a majority of a facility‚Äôs residents are under the age of 18 (unless under adult court supervision and confined or detained in a prison or jail), it will fall within the scope of the juvenile facility standards, even if non-delinquent youth are part of the facility‚Äôs population. One example is a facility that houses 10 youth and only two of those youth are under the jurisdiction of juvenile justice agencies. According to the standard, because less than a majority of the youth in that facility are in the custody of the juvenile justice department, the facility does not need to comply with PREA juvenile facility standards. For example, if the facility is used to house individuals ‚Äúas part of a term of imprisonment or as a condition of pre-trial release or post-release supervision‚Ķ‚ÄĚ then the community confinement standards would apply. See 28 C.F.R. ¬ß 115.5 (definition of community confinement facility).
In addition, as in all custodial settings, agencies have state and federal legal obligations to protect those in custody, irrespective of obligations under PREA.
Finally, PREA Standard 115.312 provides that ‚Äúa public agency that contracts for the confinement of its residents with private agencies or other entities, including other government agencies, shall include in any new contract or contract renewal the entity‚Äôs obligation to adopt and comply with the PREA standards and any new contract or contract renewal shall provide for agency contract monitoring to ensure that the contractor is complying with the PREA standards.‚ÄĚ
Last updated February 7, 2013.

Who counts as ‚Äúsecurity staff‚ÄĚ for purposes of the minimum staffing ratio Standard for secure juvenile facilities?

The Standards provide, inter alia, that [e]ach secure juvenile facility shall maintain staff ratios of a minimum of 1:8 during resident waking hours and 1:16 during resident sleeping hours, except during limited and discreet exigent circumstances‚Ķ‚ÄĚ 28 C.F.R. ¬ß 115.313(c). Only security staff shall be included in these ratios. Id.
The Standards define ‚Äúsecurity staff‚ÄĚ as employees primarily responsible for the supervision and control of‚Ķ residents in housing units, recreational areas, dining areas, and other program areas of the facility. 28 C.F.R. ¬ß 115.5. This definition is intended to approximate the manner in which the term ‚Äúdirect-care staff‚ÄĚ is typically used by many juvenile facilities.
Typically, only direct-care staff will count in the minimum mandatory ratios. Direct-care staff supervisors may generally be counted within the minimum ratios to the extent they are presently assigned to primarily or exclusively supervise residents.
Other persons whose duties involve supervision and control of residents for a portion of the day may count towards these ratios while they are actively supervising and controlling residents, assuming that they have received appropriate training. Appropriate training generally includes training on the supervision and control of delinquent youth including, among other things, verbal de-escalation techniques, age-appropriate defensive tactics, and crisis intervention.
For example, a teacher who has received appropriate training may be included in the ratio during the time in which he or she is leading a class, as opposed to preparing a lesson plan. Similarly, a warden or other facility management official will count toward the ratio during the periods of the day when he or she is supervising residents rather than engaging in administrative activities.
Social workers, case managers, clinical staff, and administrative support staff will generally not count toward the minimum staffing ratios, except in circumstances in which they are supervising or controlling a group of residents, and only then if they have received appropriate training.
Contractors and volunteers (who have received a criminal records background check) may count to the extent that their responsibilities and training otherwise qualify.
Last updated July 9, 2013.


                                                                                                                                                                                 APPENDIX B

                                                                                                                                COMPLETE COPIES OF THE HOWARD  AND PRESS-CITIZEN DECISIONS

283 N.W.2d 289
5 Media L. Rep. 1667
Robbin HOWARD, Appellant,
v.
DES MOINES REGISTER AND TRIBUNE COMPANY, Dr. Roy C. Sloan and Margaret Engel, Appellees.
62059.
Supreme Court of Iowa.
Sept. 19, 1979.

Page 291

Oscar E. Jones, Des Moines, for appellant.
Paul E. Kritzer and Glenn L. Smith, Des Moines, for appellees Des Moines Register and Tribune Co. and Margaret Engel.

Considered en banc.

McCORMICK, Justice.

The trial court entered summary judgment for defendant Des Moines Register and Tribune Company and its reporter Margaret Engel in this action for invasion of privacy. The action was brought by plaintiff Robbin Howard in an effort to obtain redress from these defendants and defendant Dr. Roy C. Sloan for a disclosure in a 1976 newspaper story that she had been involuntarily sterilized while a resident of the Jasper County Home in 1971. This appeal does not involve the claim against Dr. Sloan. The controlling questions are whether recovery from the newspaper and its reporter is precluded either because the information was already public or because the trier of fact would be unable to find it was not newsworthy. We affirm the trial court.

In Bremmer v. Journal-Tribune Publishing Co., 247 Iowa 817, 76 N.W.2d 762 (1956), this court held that a common-law action for invasion of privacy may be maintained in Iowa. We have adopted the principles of the tort delineated in Restatement (Second) of Torts § 652 (1977). See Winegard v. Larsen, 260 N.W.2d 816, 822 (Iowa 1977).

Plaintiff based this action on the theory that defendants invaded her privacy by giving unreasonable publicity to her private life. This theory of invasion of privacy is defined in Restatement section 652D:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.

In moving for summary judgment, defendants relied on several grounds. The trial court rejected public record and waiver of privacy grounds but sustained the motion on the newsworthiness ground. As they are entitled to do, defendants seek affirmance

Page 292

on grounds rejected by the trial court as well as on the ground which was accepted. See State ex rel. Miller v. National Farmers Organization, 287 N.W.2d 905, 906 (Iowa 1979); In re Estate of Poulos, 229 N.W.2d 721, 724-25 (Iowa 1975). In deciding the appeal, we find it necessary to consider only the public record and newsworthiness grounds.

We first summarize the summary judgment record, which includes pleadings, depositions and affidavits.

In her petition, plaintiff alleged she was formerly known as Robin Woody; in 1970, while a minor, she was confined in the Jasper County Home; she was at that time sterilized against her wishes; after her release from the home she led a quiet and respectable life and made friends and acquaintances who were not aware of her surgery; defendant Roy C. Sloan told defendant Margaret Engel about the 1970 sterilization in late 1975 or early 1976; on February 15, 1976, defendant Des Moines Register and Tribune Company published an article in the Des Moines Sunday Register written by Engel which revealed the 1970 sterilization; and this article subjected her to public contempt, ridicule and "inquisitive notice," humiliated her and caused her mental pain and anguish. In separate divisions she asked actual damages of $500,000 and punitive damages of $500,000 from each defendant.

A copy of the newspaper article accompanied the petition. Under a headline which read "Scalding deaths at Jasper Home revealed," and over Margaret Engel's byline, the article was as follows:
NEWTON, IA. The Jasper County Home, under fire from the state Health Department for poor care and lax administration, has a history marred by deaths from scalding baths, sterilizations of women who are not mentally disabled, and shipments of prescription drugs that apparently were illegal.

The administrator of the home for 22 years, Riva Ripper, quit in the wake of a Jan. 30 notice from the Health Department that the home's custodial and nursing licenses will be revoked. The revocation notices accused the home of a long list of health, safety and management violations.

The home's nursing director, Ruth Broderson, also resigned. Ripper's husband, Clarence, who ran the adjoining county farm, died of a heart attack Feb. 1.

Health officials say the home has had continual problems over the years. In checking county records, The Register has learned that two of the home's residents died as a result of scalding baths.

A grand jury investigation was held in 1969 in the death of Sheryl Anthony, 18, who died that May of thermal burns. No indictments were returned and the grand jury's minutes remain secret.

On Sept. 9, 1974, there was a second death from burns at the home.

Richard Shivers, 63, died 13 days after suffering from second and third-degree burns on his back. His aunt, Kathryn Gustafson of Newton, says Shivers told her before he died that he was bathing himself and mistakenly turned on the wrong faucet.

Shivers, who was classed as a chronic schizophrenic, probably got "over nervous and slipped in the tub and could not get out," she said, adding she does not believe anyone was negligent.

Dr. John Ferguson, who visits weekly at the home, said Shivers was able to bathe himself and that he was "momentarily left" by an aide when the accident occurred.

The state Health Department did not know of the deaths until recently, despite a rule requiring nursing homes to submit reports on such accidents. Jonn Wild, director of the department's licensing section, said few reports ever have been filed by the Jasper home.

The Register also learned that an 18-year-old woman sterilized in 1970 was not retarded or mentally disabled, but an "impulsive, hair-triggered young girl," in

Page 293

the words of Dr. Roy C. Sloan, the home's psychiatrist.

He said the decision to sterilize the resident, Robin Woody, was made by her parents and himself. He does not recall whether Woody agreed to the operation, but a woman who was a nurse at the home at the time said "she didn't want it at all."

Forced Sterilization

"For two to three weeks when I came to work she was crying," said Collene Blakely of Newton. "She was told the only way she could be dismissed from the home is if she would agree to be sterilized."

Dr. Sloan denied that, saying, "We don't think in terms of punishment. That child she was a young girl was a very explosive, impulsive young girl largely without controls over her aggressive and, at times, irrational behavior."

He said she was sterilized because "she would be a very questionable risk as far as having and rearing a baby. The people who hold on that way are those who move on to child abuse."

Robin's mother, Mrs. Gladys Woody of Newton, said she agreed with the decision then and now. She would not discuss the matter further.

Woody was discharged from the home Dec. 29, 1971, and Mrs. Woody does not know where she is living.

6 Sterilizations

The State Board of Eugenics reports six sterilizations all of women were approved from the Jasper home in the last five years.

Officers of the board, who are trying to get it abolished by the Legislature, say they do not enforce a 1936 state law allowing sterilizations for persons believed likely to bear a child having "an inherited tendency to mental retardedness, syphilis (sic), mental illness, epilepsy, criminality, or degeneracy or who would probably become a social menace or ward of the state."

"We never approved a sterilization for anybody who was unruly or a discipline problem," said Theresa Weiser, executive secretary of the board. "They had to be severely mentally retarded."

The board approved 176 sterilizations in the last five years; 39 were denied.

Although it is not required that sterilization cases go before the board, Dr. Sloan said the home began sending its requests there in 1972.

"There was a great deal of concern and local criticism emanating from certain people that perhaps there might not have been a need for sterilizations, that there were some shenanigans going on," he said.

Dr. Sloan said he decides whether to recommend the surgery on the basis of "whether that person is capable of being able to become a parent and be responsible for a child."

Chronically Ill

"One of the very sound reasons (for surgery) is for a chronically and severely ill person whose behavior is such that it impairs their judgment so that sex and pregnancy would be considered a desirable thing to accomplish," he said.

He said he cannot recall how many residents were sterilized in his eight years at the home, but that all were women and "a number" weren't retarded. He noted that "probably three or four of the individuals did sign a statement" consenting to the operation. The women's guardians always approved the surgery, he said.

Apparent irregularities involving drugs brought the facility to the attention of another state agency. The home, and the drug firms supplying it, apparently were in violation of policies of the Iowa Board of Pharmacy Examiners for years before the home was granted its first pharmacy license in February, 1973.

Before that time, the late George Weirick, Sr., a pharmacist registered at his Colfax drugstore, would travel to the

Page 294

home one afternoon a week, working with the drugs that had been delivered there. Board rules say prescription drugs cannot be sent to an address other than the one at which a pharmacist is licensed.

The only exception is if a doctor registers with the state to be responsible to receive and lock up any drugs. No doctor was so registered at the Jasper home.

Paul Crews, executive secretary of the pharmacy board, said when a complaint about this situation was filed in 1972, the board insisted a license be obtained.

"We could have filed a criminal charge, but they were purchasing it (prescription drugs) out of ignorance," he says. "You do have to be reasonable in these matters."

Weirick's son, George, who is the home's current pharmacist, said this rule was never explained by the examiners and drugs usually were delivered to the nurse in charge, who would lock them up.

Crews said although the home can be excused, the companies shipping the drugs should have known it was illegal. Action was not taken against the firms, Crews said, because they were from outside Iowa and the board has no power over them.

When informed one of the home's major suppliers was the J. W. Edgerly Co. of Ottumwa, Crews said, "Following our established procedures, I know they were admonished."

Knew Nothing

Jay Anderson, president since 1974 of the Ottumwa firm, knew nothing about any admonition or where the drugs were sent. He said no invoices listing addresses were kept, but said it was thought a pharmacist was at the home when the drugs were received.

Drugs also were dispensed haphazardly, a former pharmacist at the home charges. Martin Ogden, 41, said he was asked by the younger Weirick, his former drugstore partner, to work at the home in May, 1973.

Ogden said keys to the nurse's medication room often were left in the open. He said he first became alarmed when he saw an employe who was a former patient attempting to prepare medicine trays while "in a state of intoxication either by alcohol or drugs."

"There was a very definite oversupply of medication and I was frightened for my license when I saw the very slipshod drug procedures there," Ogden said. "A patient, an obviously insane man, reached into his pockets and pulled out two fistfuls of drugs on another occasion."

Charges of overmedication were echoed by former nurse Blakely and activities director Vivian DeGreef, 50. Registered nurse Colleen Haft, who has worked at the home for 14 years, said most of the residents get medicine two or three times daily.

Defends Practices

Dr. Sloan defended the home's drug use. "My judgment has to prevail and I would question what people say who probably don't have a qualified opinion," he said.

Ogden said his problems at the home contributed to the end of his partnership. Ogden's work at the home was terminated by former county supervisor Carroll Eichner after he set a coat-hanger booby trap to discover if anyone entered the pharmacy in his absence.

Ogden asked for a pharmacy examiner's audit when he left Dec. 7, 1973. In the report given to the Board of Supervisors, the pharmacy examiner said no significant quantity of drugs was unaccounted for. The report did insist the pharmacist hold the only key to the drug room, one of
Ogden's complaints. Dr. Ferguson said Ripper and the Board of Supervisors then gave up their keys.

A rapid staff turnover adds to the home's problems, said DeGreef, who left her job as activities director Jan. 5. She estimated 30 to 35 employes have left the home in the last six months. Supervisor Wayne Taylor has said an employee was

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fired recently for being drunk and another for charging personal items to the county.

Other complaints were aired at a public meeting that filled the county courtroom Feb. 7. Although Taylor said he and supervisor Francis Van Zante called the meeting with the intention of immediately closing it to interview an applicant for administrator, public pressure reopened the meeting after 70 minutes.

Several citizens chastised the two men for ignoring the third supervisor, Jeanne Bridenstine. Van Zante admitted he and Taylor had met three times at the home without Bridenstine.

Other complaints raised during the meeting include:

A charge by Charles Gifford of Newton, a former county Democratic chairman, that 39 absentee ballots were filled out in the 1964 election for residents of the home who were incapable of voting, including his brother, Dale. The ballots were thrown away when contested, Gifford said.

A November, 1973, accident in which two residents of the home burned to death when a truck rammed into the home's station wagon as it was traveling slowly on the interstate.

Police said Clarence Ripper had taken three residents and an employe to round up cattle owned by Jack Wormley, a former state senator, that had strayed onto Interstate 80.

The home's car was struck from rear, exploding its gas tank. The third resident was burned severely, had fingers amputated and spent seven months in University Hospitals at Iowa City recovering.

Taylor defends the home as one of the best in Iowa and credits it with serving people other homes reject. In recent months the facility has temporarily housed 2-, 3- and 5-year-olds waiting for transfer to foster homes, a 42-year-old woman serving a jail sentence there and many teen-aged runaways.

Some 76 of the home's 144 residents are mental patients. Wild, of the health department, said these residents should be moved to the Mount Pleasant mental institution, where they could be better served.

A hearing on whether to revoke the home's state custodial and nursing home licenses will be held before Mar. 27. The Jasper County attorney has appealed the state department's action and is awaiting specific charges behind the list of violations alleged in the Jan. 30 revocation notice.

In their answer, the newspaper and Engel admitted publication of the article but denied the material invasion of privacy allegations. They also asserted affirmative defenses on constitutional, newsworthiness, public record and waiver grounds
.
They repeated these allegations in moving for summary judgment. Affidavits and depositions of several persons were offered in support of the motion.

In resisting the motion, plaintiff denied the relevancy and sufficiency of the proof in support of the motion and offered her affidavit in which she denied the basis of defendants' waiver defense. She also alleged she lived in Des Moines at the time of defendants' investigation, at an address known by her parents, but was not contacted prior to publication of the article.

Defendants' depositions and affidavits showed that plaintiff was actually sterilized in 1971 rather than 1970 as reported in the article. She was then an eighteen-year-old resident in the Jasper County Home. The incident was not a matter of public knowledge at the time it occurred.

The summary judgment record showed other relevant circumstances.

Myrle J. Corso was employed as a nurse's aide at the Jasper County Home from September 1, 1971, to November 1, 1971, when she voluntarily left her employment. She complained about conditions in the home to Opal M. Snyder of Newton, who wrote a column for a local daily newspaper and published a bimonthly newsletter. At Snyder's request, Corso prepared a written

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statement detailing ten specific situations which she had observed. They included several incidents of patient abuse and neglect and of mishandling of drugs. They also included instances of involuntary sterilization. Two women other than plaintiff were identified as having been sterilized against their will.

Upon Snyder's recommendation, Corso mailed copies of her statement to Governor Robert D. Ray, the State Department of Health, defendant newspaper, and several other persons and groups.

Subsequently, Snyder searched the county warrant register and claim record in the county auditor's office and found that the county had paid for surgery for the two women named by Corso. She also found that the county had paid for surgery for plaintiff, surgery which she suspected was also a sterilization. She confirmed this through a telephone call to the hospital bookkeeper. Snyder protested the sterilizations through a series of letters and telephone calls to the hospital, various doctors and the State Board of Eugenics. The hospital notified Snyder it would not perform additional sterilizations of residents in the home without approval of the eugenics board.

The State Department of Health investigated the home on the basis of the Corso statement. Defendant newspaper published an account of that investigation in January 1972 but did not mention the allegations about sterilizations. The state's investigative report was not made public. In June 1975 the health department issued a report listing numerous deficiencies in the operation of the home.

Snyder had remained concerned about the conditions in the home and was particularly disturbed that the home administrator had dismissed a pharmacist who was attempting to implement proper procedures for handling drugs. She was convinced that despite state action taken pursuant to the Corso complaint no improvement in the operation of the home had occurred since 1972.

She decided to express these concerns to Governor Ray personally and in writing. In July 1975 she wrote a letter to the Governor with which she enclosed a statement by Collene Blakely, a former nurse's aide at the home. The Blakely statement was as follows:

I worked at the Jasper County Home from January to August, 1971. One of the many problems I witnessed during that time concerned an 18 or 19 year old patient, Robin Woody.

One day, when I came to work I found Robin on her bed, crying. When I inquired as to the problem she told me that she had been called to Riva Ripper's office and was told by Mrs. Ripper that she, Robin, would be released if she agreed to be sterilized. Mrs. Ripper is the stewardess at the County Home. If she didn't agree she would have to remain at the Jasper County Home indefinitely.

When I left employment at the County Home, Robin Woody was preparing to enter the hospital the next week. I do not remember the reason that was given by Mrs. Ripper, but Robin told me it was really for the sterilization.

About a year later I saw her at a park in Newton. She told me at that time that she had been released because she "gave up her rights to be a person".

Snyder met with Governor Ray and his press secretary, Richard Gilbert. She discussed the situation and left data with them, including the Corso statement. In a follow-up letter to the Governor, she included a lengthy written statement reciting the history of the problems in the home and her concerns about them. Her statement included a detailed discussion of the sterilizations and referred to the "Woody girl" as one of the victims. No request for confidentiality was made.

The Governor's office started a file in which copies of the documents furnished by Snyder were placed. The originals were subsequently returned to Snyder. Copies were sent by the Governor to the Commissioner of Health with a request for investigation of the allegations.

In January 1976 the state health department revoked the nursing and custodial licenses of the home because of its alleged

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failure to correct the deficiencies listed in its report of June 1, 1975. The original list of sixty-seven alleged violations had grown to one hundred twenty. The violations included a charge of physical, mental, and verbal abuse of patients. County supervisors, legislators, physicians, the county attorney, and other persons discussed the charges with the administrator and staff members of the home in a meeting held on January 30, 1976. Engel attended this meeting. The home administrator denied the charges, and a member of the county board of supervisors attributed the allegations to disgruntled former employees. The controversy was reported by the media, including defendant newspaper.

Various other news reports followed, including the story which is involved in this case. On February 3 a story appeared in which a threat against one of the county supervisors was reported. On February 4 a story written by defendant Engel reported a delay in a hearing scheduled by the board of supervisors to discuss revocation of the licenses. A supervisor was quoted as describing the former employees who complained about the home as "rabble-rousers that caused the problem."

The board of supervisors held several emergency meetings to respond to problems at the home. These meetings received extensive media coverage. Community feelings were aroused; rumors and accusations abounded. Considerable controversy existed about the merits of the department of health action.

On February 8 defendant newspaper carried a story written by Engel reporting the resignations of the administrator and head nurse of the home. Then on February 15 the story which is the subject of the present lawsuit appeared. The story commenced on page 1, but most of it, including the portion in which plaintiff's sterilization was discussed, was continued to page 8A.

Prior to writing the February 15 article, Engel spent two weeks investigating the problems at the home. During the course of her investigation she interviewed Opal Snyder, who showed Engel the documents she had given to the Governor, including her statement and that of Collene Blakely, both of which identified plaintiff as a sterilization victim. She also interviewed Blakely, Dr. Sloan, and the administrator of the home, all of whom confirmed the sterilization. She verified the term of plaintiff's residency and date of surgery through the county auditor's records. She discussed this and other matters with thirty-eight persons who had knowledge of relevant events. Although she attempted to locate plaintiff, she could not find her through records or other means. She was unable to document the sterilizations of the other women as completely as she could plaintiff's.

After the motion for summary judgment was submitted on this record, the trial court sustained the motion on the ground it could not be found that the disclosure of plaintiff's sterilization was not newsworthy. Plaintiff appealed.

Before considering the public record and newsworthiness grounds of defendants' motion, we address defendants' contention that first amendment considerations create a presumption in favor of summary judgment in cases of this kind. Among other authorities, they cite our decision in McCarney v. Des Moines Register and Tribune Co., 239 N.W.2d 152 (Iowa 1976).

Neither McCarney nor other cited cases support this contention. McCarney involved application of the actual malice standard of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). We there quoted with approval a principle from Cerrito v. Time, Inc., 302 F.Supp. 1071, 1075-76 (N.D.Cal.1969), Aff'd, 449 F.2d 306 (9th Cir. 1971), enunciating the duty of courts in such cases to enforce the constitutional New York Times standard by granting summary judgment when the record establishes the plaintiff cannot meet his burden under it. 239 N.W.2d at 157.

This principle is intended to emphasize a duty of close scrutiny of summary judgment motions in cases which may have a chilling effect on first amendment rights. However, it does not change the rules governing summary judgment:

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The Standard against which the evidence must be examined is that of New York Times and its progeny. But the Manner in which the evidence is to be examined in the light of that standard is the same as in all other cases in which it is claimed that a case should not go to the jury. If the evidence, so considered, measures up to the New York Times standard, the case is one for the jury . . . .

Guam Federation of Teachers, Local 1581 v. Ysrael, 492 F.2d 438, 441 (9th Cir.), Cert. denied, 419 U.S. 872, 95 S.Ct. 132, 42 L.Ed.2d 111 (1974) (emphasis in original). This principle has been applied to an action like the present one for invasion of privacy based on giving publicity to private facts. See Virgil v. Time, Inc., 527 F.2d 1122, 1130-31 (9th Cir. 1975), Cert. denied, 425 U.S. 998, 96 S.Ct. 2215, 48 L.Ed.2d 823 (1976). We hold it is applicable here. However, we do not say a presumption exists in favor of summary judgment in cases like this. Instead we do no more than recognize that the first amendment requires special care to assure that the summary judgment rules are enforced when invoked in cases of this kind.

This brings us to the determination of whether the trial court erred in sustaining the motion for summary judgment in this case.

I. The public record ground. The public record defense arises from two limitations upon a cause of action for invasion of privacy under Restatement of Torts (Second) § 652D.

One is that the publicity must concern the private, as distinguished from the public, life of the individual. As noted in Comment b to Restatement section 652D, "There is no liability when the defendant merely gives further publicity to information about the plaintiff that is already public." See Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193, 214 (1890). We recognized and applied this limitation in Winegard v. Larsen, 260 N.W.2d 816, 823 (Iowa 1977).

The other limitation is that the individual must prove the matter publicized is of a kind that "is not of legitimate concern to the public." Liability for disclosing public information is foreclosed on this basis because matters of public record are, as a matter of law, of legitimate concern to the public. See Restatement § 652D, Comment d (1977); See also Winegard, 260 N.W.2d at 823 ("Under this rule defendants could not be held liable for publicizing matters contained in Judge Hendrickson's ruling.").

In commenting on the Restatement principles in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494-95, 95 S.Ct. 1029, 1046, 43 L.Ed.2d 328, 349 (1975), the United States Supreme Court said:

Thus even the prevailing law of invasion of privacy generally recognizes that the interests in privacy fade when the information involved already appears on the public record. The conclusion is compelling when viewed in terms of the First and Fourteenth Amendments and in light of the public interest in a vigorous press.

The Restatement authors assert that the Cox holding precludes an action for invasion of privacy when the subject matter of the publicity is information which is available from public records. See Restatement § 652D, Special Note on Relation of § 652D to the First Amendment to the Constitution ("The case of Cox Broadcasting Co. v. Cohn (1975) 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 holds that under the First Amendment there can be no recovery for disclosure of and publicity to facts that are a matter of public record."). In Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 840, 98 S.Ct. 1535, 1542, 56 L.Ed.2d 1, 11 (1978), the Supreme Court confirmed the accuracy of the Restatement view when it characterized the Cox case by saying, "Our holding there was that a civil action against a television station for breach of privacy could not be maintained consistently with the First Amendment when the station had broadcast only information which was already in the public domain."

Therefore, under Cox, the Restatement principles which preclude an invasion of privacy action for accurate disclosure of information contained in public records are mandated by the first amendment to the Federal Constitution.

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The issue here is whether the fact of plaintiff's 1971 sterilization was a matter of public record at the time of the newspaper disclosure.

An affidavit of Richard Gilbert states that the documents furnished to Governor Ray by Opal Snyder in July 1975 were placed in the working files of the Governor's office. After being copied, the originals were returned to Mrs. Snyder. In November 1976, after he had left the Governor's employ and had entered employment with the defendant newspaper, Gilbert asked the Governor's administrative assistant for the file on the Jasper County Home and it was willingly produced for his examination. It contained copies of the documents furnished by Snyder which identified plaintiff as a 1971 sterilization victim.

The Jasper county auditor's records showed a claim and warrant for plaintiff's surgery, although they did not reveal its nature.

Whether these records were public depends upon application of the provisions of Code chapter 68A, Iowa's Freedom of Information Act. The history of this legislation is discussed in Note, Iowa's Freedom of Information Act: Everything You've Always Wanted to Know About Public Records But Were Afraid to Ask, 57 Iowa L.Rev. 1163 (1972). As originally proposed, the Act purported to designate all documents in the legal possession of a public official as public records. Specific exemptions contained in section 68A.7 were added by floor amendment. Id. at 1177-78.

Section 68A.1 defines "public records" as "all records and documents of or belonging to this state or any county . . ., or any branch, department, board, bureau, commission, council, or committee of any of the foregoing." The statute provides a broader definition of public records than existed at common law. Compare Des Moines Register and Tribune Co. v. Osmundson, 248 N.W.2d 493, 501 (Iowa 1976), With Linder v. Eckard, 261 Iowa 216, 220, 152 N.W.2d 833, 836 (1967). Moreover, section 68A.2 gives citizens the right to copy and the media the right to publish these public records unless a statutory exemption or provision, such as section 68A.7, specifies otherwise or unless an injunction against disclosure is entered pursuant to section 68A.8. Osmundson, 248 N.W.2d at 502; See Bonfield, The Iowa Administrative Procedure Act: Background, Construction, Applicability, Public Access to Agency Law, the Rulemaking Process, 60 Iowa L.Rev. 731, 778 (1975) (suggesting Act should be construed broadly).

To facilitate public scrutiny of the conduct of public officers, the statute generally permits public access to writings held by them in their official capacities, regardless of origin. See MacEwan v. Holm, 226 Or. 27, 359 P.2d 413 (1961); 66 Am.Jur.2d Records and Recording Laws § 19, at 354 (1973).

We believe the Act is accurately characterized in Note, Iowa's Freedom of Information Act, supra at 1166, as follows:

The intent of chapter 68A, and thus the manner of its construction, are manifest in organizational concepts underlying the statutory format. The first of the chapter's four identifiable thrusts establishes the statutory definition of "public records," and is meant to be the Sine qua non of the process of decision leading to access to public records. Following this definition of public records, the statute delineates a broad grant of inspection rights applicable to all public documents, subject only to express limitations found elsewhere in the Code. The third step in the statutory scheme establishes a list of express and specific limitations on the right of access. The final organizational construct permits concealment of public records under circumstances where public access would cause substantial and irreparable harm to any individual and no public interest would be served. By this format, the statute would appear to establish a liberal policy of access from which departures are to be made only under discrete circumstances.

We limit our application of the statute in this case to the documents involved here. We have no occasion to determine whether the reach of the statute may be affected by

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constitutional provisions in other situations. Cf. Sadler v. Oregon State Bar, 275 Or. 279, 550 P.2d 1218 (1976) (holding statute which allowed public inspection of bar association records of complaints about attorney conduct did not substantially impair the inherent power of the judicial branch to regulate the bar).

The auditor's records were required to be kept by statute, See § 230.26, The Code 1966, and would have been deemed public records even before chapter 68A was enacted. Linder v. Eckard, 261 Iowa at 220, 152 N.W.2d at 836. They are well within the definition of public records in chapter 68A. See Osmundson, 248 N.W.2d at 501.

The Snyder and Blakely documents which were filed in the Governor's office also clearly come within the definition of public records in section 68A.1. Upon his acceptance of custody, the documents were in the lawful possession of his office and hence became documents "of or belonging to" the state. Furthermore, the documents are not exempted from disclosure by a specific statutory provision as section 68A.2 requires. No injunction was secured under section 68A.8, and no exemption under a section outside chapter 68A appears available. Section 68A.7(2), which exempts "hospital records" and "medical records" of a "patient or former patient, including outpatient," does not apply because the documents here were neither compiled for diagnostic or treatment purposes by hospital or medical personnel nor maintained as records of a hospital or physician. They are not hospital or medical records within the meaning of the statute. See Attorney General's Opinion 75-7-2, Reprinted in (1975-76) Iowa Att'y Gen. Biennial Rep. 160-62 (holding that auditor's records relating to alcoholic treatment are not within the exemption).

We think this case comes within the limitations on the tort imposed in Restatement § 652D and applied in Winegard. Because the documents were public, the information which they contained was in the public domain. Osmundson, 248 N.W.2d at 503.

The fact of plaintiff's sterilization was thus a public as opposed to a private fact and a matter of legitimate public concern. Therefore the disclosure is not actionable. See Winegard, 260 N.W.2d at 823; Metter v. Los Angeles Examiner, 35 Cal.App.2d 304, 95 P.2d 491 (1939); Meetze v. Associated Press, 230 S.C. 330, 95 S.E.2d 606 (1956).

This ground is sufficient to support the summary judgment.

II. The newsworthiness ground. The second ground which we consider is defendants' contention that the trier of fact would be precluded from finding that the disclosure was not of legitimate concern to the public because not newsworthy. Under the elements of the tort defined in Restatement section 652D, it is necessary for the plaintiff to prove the lack of newsworthiness of the disclosure as well as its invasiveness. Newsworthiness is thus not an issue of privilege which must be urged defensively but an element which must be negated by the plaintiff in meeting her burden of proof.

We recognized in Bremmer v. Journal-Tribune Publishing Co., 247 Iowa 817, 76 N.W.2d 762 (1956), that the dissemination of news does not constitute an actionable invasion of privacy.

The right of the press to publish news is assured by the first amendment guarantees of free speech and free press. The constitutionality of an invasion of privacy action predicated on the publication of truthful information has not yet been determined by the United States Supreme Court. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328, 347 (1975). However, the Court has noted that, "(b)ecause the gravamen of the claimed injury is the publication of information, whether true or not, the dissemination of which is embarrassing or otherwise painful to an individual, it is here that claims of privacy most directly confront the constitutional freedoms of speech and press." Id. at 489, 95 S.Ct. at 1043, 43 L.Ed.2d at 346. Even though the Supreme Court has not decided the related question whether the first and fourteenth amendments require truth to be recognized as a defense in defamation actions brought by a person who is not a public officer or public figure, the seriousness of the issue is emphasized by the Court's holding that liability cannot be

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imposed in such actions without proof of fault. See Gertz v. Welch, 418 U.S. 323, 347, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789, 809 (1974).

The right of privacy is a fundamental social value which is also constitutionally protected. Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147, 176 (1973) ("the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution"). We recognize a public interest in preventing wrongful intrusions into privacy. See Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597, 609 (1966) (Stewart, J., concurring) ("The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being a concept at the root of any decent system of ordered liberty.")

The common-law tort based upon giving publicity to the private life of another balances these constitutional interests. Redress is permitted for such publicity when the matter publicized is of a kind that "would be highly offensive to a reasonable person," but only when it also "is not of legitimate concern to the public." Restatement § 652D. Under this theory, invasion of privacy for a truthful disclosure is actionable only if the publicity is not newsworthy.

Publicity need not be informative, entertaining, timely or important to be entitled to first amendment protection. Time Inc. v. Hill, 385 U.S. 374, 388, 87 S.Ct. 534, 542, 17 L.Ed.2d 456, 467 (1967). At the very least news includes discussion of "all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." Thornhill v. Alabama, 210 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093, 1102 (1940).

Because we have adopted the Restatement definition of the invasion of privacy tort, it is reasonable to refer to the Restatement explanation of its elements. "News" is discussed in Comment g to section 652D as follows:

Included within the scope of legitimate public concern are matters of the kind customarily regarded as "news." To a considerable extent, in accordance with the mores of the community, the publishers and broadcasters have themselves defined the term, as a glance at any morning paper will confirm. Authorized publicity includes publications concerning homicide and other crimes, arrests, police raids, suicides, marriages and divorces, accidents, fires, catastrophes of nature, a death from the use of narcotics, a rare disease, the birth of a child to a twelve-year-old girl, the reappearance of one supposed to have been murdered years ago, a report to the police concerning the escape of a wild animal and many other similar matters of genuine, even if more or less deplorable, popular appeal.

Insofar as relevant, "private facts" are explained in Comment h as follows:

Permissible publicity to information concerning either voluntary or involuntary public figures is not limited to the particular events that arouse the interest of the public. That interest, once aroused by the event, may legitimately extend, to some reasonable degree, to further information concerning the individual and to facts about him, which are not public and which, in the case of one who had not become a public figure, would be regarded as an invasion of his purely private life. Thus the life history of one accused of murder, together with such heretofore private facts as may throw some light upon what kind of person he is, his possible guilt or innocence, or his reasons for committing the crime, are a matter of legitimate public interest. . . . On the same basis the home life and daily habits of a motion picture actress may be of legitimate and reasonable interest to the public that sees her on the screen.

The extent of the authority to make public private facts is not, however, unlimited. There may be some intimate details of her life, such as sexual relations, which even the actress is entitled to keep to herself. In determining what is a matter of legitimate public interest,

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account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of the community mores. The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern. The limitations, in other words, are those of common decency, having due regard to the freedom of the press and its reasonable leeway to choose what it will tell the public, but also due regard to the feelings of the individual and the harm that will be done to him by the exposure. Some reasonable proportion is also to be maintained between the event or activity that makes the individual a public figure and the private facts to which publicity is given. Revelations that may properly be made concerning a murderer or the President of the United States would not be privileged if they were to be made concerning one who is merely injured in an automobile accident.

Passage of time is a relevant factor, with other facts, in determining whether the publicity involves a matter of legitimate public concern. Restatement § 652D, Comment k.

The Restatement comments reveal an analogy between the standard applicable on the issue of newsworthiness and the standard used in obscenity cases. Each standard is carefully circumscribed by constitutional restrictions, each is accompanied by examples, and each contemplates a decision based upon community mores. "The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the community, with decent standards, would say he had no concern." Restatement § 652D, Comment h; See Virgil v. Time, Inc., 527 F.2d at 1129. See also Woito and McNulty, The Privacy Disclosure Tort and the First Amendment: Should the Community Decide Newsworthiness?, 64 Iowa L.Rev. 185 (1979).

We must decide under the present record whether a reasonable person applying the community standard could find the disclosure of which plaintiff complains was a morbid and sensational prying into her life for its own sake.

The article is an example of investigative journalism. Its obvious purpose was to bring the problems of the Jasper County Home to public attention. In chronicling alleged abused in the home, defendants portrayed a pattern of incidents which cumulatively established more reason for public concern about management of the home than would any one incident viewed in isolation. This journalistic technique is basic and legitimate.

Cases holding disclosure of past events to be actionable are distinguishable. In Briscoe v. Reader's Digest Ass'n, 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34 (1971), the rehabilitated plaintiff's eleven-year-old conviction of truck highjacking had no discernible relationship to an exposee of current highjacking. Similarly, the disclosure in Melvin v. Reid, 112 Cal.App. 285, 297 P. 91 (1931), of the rehabilitated plaintiff's identity as a prostitute who had been tried for murder eight years before was unrelated to any current public issue. Furthermore, the subsequent Cox Broadcasting Corp. holding would affect Briscoe and Melvin if they were decided today because each involved past matters of public record.
In determining whether an item is newsworthy, courts cannot impose their own views about what should interest the community. Courts do not have license to sit as censors. As stated by the court in Sidis v. F-R Publishing Corp.,113 F.2d 806, 809 (2d Cir.) Cert. denied, 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462 (1940):

Regrettably or not, the misfortunes and frailties of neighbors and "public figures" are subjects of considerable interest and discussion to the rest of the population. And when such are the mores of the community, it would be unwise for a court to bar their expression in the newspapers, books, and magazines of the day.

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In addition to being unwise, it would infringe the first amendment for courts to allow recovery to persons offended by publication of matters of legitimate public concern. See Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978).

Plaintiff concedes the article in this case was newsworthy, but she asserts the disclosure of her identity was not. We do not believe the disclosure of her identity can be taken out of context.

In determining whether the disclosure had news value, it is helpful to consider

the relationship between the invasive disclosure and the newsworthy subject(s) of the article; the contribution of the disclosed facts to the subject matter of the article whether it adds credibility, contributes further information not otherwise communicable, contributes to reader perception and understanding, or augments readership by drawing attention to the story; and the constitutional value of the contribution of the disclosure, including its necessity in achieving its purposes.

Bezanson, Public Disclosures as News: Injunctive Relief and Newsworthiness in Privacy Actions Involving the Press, 64 Iowa L.Rev. 1061, 1098 (1979). This analysis requires an inquiry into the relevance, impact and value of the disclosure. Id. at 1099.

Here the disclosure of plaintiff's involuntary sterilization was closely related to the subject matter of the news story. It documented the article's theme of maladministration and patient abuses at the Jasper County Home. The home had been under the same administration for twenty-two years. Public controversy concerning alleged deficiencies in administration had existed for seven years. The incidents of involuntary sterilization were central to this ongoing dispute. Plaintiff's experience in 1971 was plainly relevant with other past events in evaluating the home's administration.

In the sense of serving an appropriate news function, the disclosure contributed constructively to the impact of the article. It offered a personalized frame of reference to which the reader could relate, fostering perception and understanding. Moreover, it lent specificity and credibility to the report.

In this way the disclosure served as an effective means of accomplishing the intended news function. It had positive communicative value in attracting the reader's attention to the article's subject matter and in supporting expression of the underlying theme.

Examined in the light of the first amendment, we do not believe the disclosure could reasonably be held to be devoid of news value. See Bezanson, Supra at 1099-104.

Assuming, as plaintiff agrees, the newspaper had a right to print an article which documented extrastatutory involuntary sterilizations at the Jasper County Home, the editors also had a right to buttress the force of their evidence by naming names. We do not say it was necessary for them to do so, but we are certain they had a right to treat the identity of victims of involuntary sterilizations as matters of legitimate public concern. The subject is one of grave public interest. See, e. g., Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Moreover, at a time when it was important to separate fact from rumor, the specificity of the report would strengthen the accuracy of the public perception of the merits of the controversy.

This is a far cry from embarrassing people by exposing their medical conditions or treatment when identity can add nothing to the probity of the account. Cf. Banks v. King Features Syndicate, Inc., 30 F.Supp. 352 (S.D.N.Y.1930) (newspaper publication of X ray of identified plaintiff's pelvis showing a hemostat left in her abdomen by a surgeon several years earlier); Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291 (1942) (periodical publication of story and photograph identifying plaintiff who lost weight despite constant eating); Feeney v. Young, 191 App.Div. 501, 191 N.Y.S. 481 (1920) (film of identified plaintiff undergoing Caesarean section).

Page 304

The disclosure of plaintiff's identity in this case could not reasonably be viewed as the spreading of gossip solely for its own sake. See Johnson v. Evening Star Newspaper Co., 120 U.S.App.D.C. 122, 344 F.2d 507, 508 (D.C. Cir. 1965) ("The identifying details were incidental to the story and were not an enlargement which carried the publication beyond legitimate bounds."); Virgil v. Sports Illustrated, 424 F.Supp. 1286, 1288 (S.D.Cal.1976) (decision after remand; test is whether revealing identity goes beyond the giving of information and becomes a morbid and sensational prying into private lives for its own sake.)

In Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), the Supreme Court held the Georgia courts erred in submitting the issue of the obscenity of the movie "Carnal Knowledge" to a jury, even though the subject of the movie was sex and it included nudity and scenes purporting to portray sex acts. The Court reasoned:

Appellant's showing of the film "Carnal Knowledge" is simply not the "public portrayal of hard core sexual conduct for its own sake, and for the ensuing commercial gain" which we said was punishable in Miller. . . . We hold that the film could not, as a matter of constitutional law, be found to depict sexual conduct in a patently offensive way, and that it is therefore not outside the protection of the First and Fourteenth Amendments because it is obscene.

418 U.S. at 161, 94 S.Ct. at 2755, 41 L.Ed.2d at 650-51. We believe similar reasoning requires a like result in the present case. A reasonable person could not find the disclosure in this case was not of legitimate public concern under the Restatement standard applied in the light of the first and fourteenth amendments. Plaintiff therefore cannot prove an essential element of her cause of action.

We hold that the trial court was right in sustaining defendants' motion for summary judgment on this ground.

AFFIRMED.

REYNOLDSON, C. J., and ALLBEE, J., concur in division II and the result.

UHLENHOPP, J., concurs specially in division II and the result.

McGIVERIN, J., joined by REES, J., concurs in division I and the result and dissents from division II.

HARRIS, J., concurs in the result in division I and joins McGIVERIN, J.'s dissent to division II.

LARSON, J., joined by LeGRAND, J., dissents.

UHLENHOPP, Justice (concurring specially).

I concur in division II of the majority opinion and in the result. I am influenced by a desire not to chill First Amendment rights by a restricted application of newsworthiness.

On the other hand, I would not reach the subject of division I. That division involves the issue of what constitutes a public record For purposes of the tort of violating a person's privacy. I would await an appeal which actually necessitates a decision on that subject. Involved Inter alia is the question whether unsolicited letters written to public officials automatically become public records for purposes of the tort although the letters deal with private affairs which would otherwise be protected by tort law. The privacy of members of the public may hang upon a very slender thread, depending upon our conclusion on this subject.

McGIVERIN, Justice (concurring in part and dissenting in part).

I concur in the result and the opinion except as to Division II from which I respectfully dissent.

As to Division II, I agree with the statement of the majority that "(i)n determining whether an item is newsworthy, courts cannot impose their own views about what should interest the community," but from that premise draw a different conclusion.

Page 305

I believe a genuine issue of fact existed as to whether publication by defendants newspaper and Engel in 1976 of plaintiff's 1970 or 1971 sterilization was then newsworthy. See Iowa R.Civ.P. 237.

I believe there are factors in this case which could lead reasonable persons to differ within the bounds of the first and fourteenth amendments in evaluation of legitimate public concern. Passage of time has been recognized as a significant factor in evaluating newsworthiness. See Briscoe v. Reader's Digest Association, 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34 (1971); Melvin v. Reid, 112 Cal.App. 285, 297 P. 91 (1931). Courts, too, have acknowledged that disclosure of identity can be a separate issue in an otherwise newsworthy story. Briscoe, 4 Cal.3d at 537, 93 Cal.Rptr. at 871-72, 483 P.2d at 39-40 ("We have no doubt that reports of the facts of past crimes are newsworthy. . . . However, identification of the Actor in reports of long past crimes usually serves little independent public purpose.") (original emphasis).

Accordingly, a jury or trier of fact should be allowed at trial to apply the community standard articulated in the majority opinion and determine whether disclosure of plaintiff's identity was morbid and sensational prying into her life for its own sake. A jury should decide this issue and not a court on summary judgment.

The court should have overruled the motion for summary judgment as to the newsworthiness ground. Therefore, I dissent from Division II.

REES, J., joins in this special concurrence and dissent.

HARRIS, J., joins as to the dissent to division II.

LARSON, Justice (dissenting).

I join the dissent of Justice McGiverin as to Division II of the plurality opinion. I dissent separately as to Division I.

Under the reasoning of Division I, the information found in the offices of the governor and the Jasper County auditor are "public records" under our freedom of information act and therefore proper subjects of publication. I believe that even if section 68A.2, The Code, would otherwise be available to permit publication of these items of "public" information, they are medical records within the exception to the disclosure act. It is probably true that they are not "medical records" in the traditional sense; and it may be conceded as the plurality contends that they were "neither compiled by a hospital or medical personnel nor maintained as records of a hospital or physician." However, the statute does not impose any such restrictions, and I believe it would be inconsistent with the spirit and context of the act for us to impose them. If the items of information here are "records" under the act as contended by the plurality, it is only necessary to determine whether they are Medical records for purposes of the exception. They are "medical" records if they pertain to "condition, diagnosis, care or treatment." § 68A.7(2), The Code. These records here did pertain to medical treatment of the plaintiff. She was sterilized by surgical procedure.

The underpinning of this statutory exception is, I believe, a recognition of the deeply personal and sensitive nature of medical information. This exception should be interpreted to effect this strong policy consideration. Dean Wigmore, while criticizing the analogous doctor-patient privilege, recognized some justification for the privilege in sex-related medical evidence. 8 J. Wigmore, Evidence in Trials at Common Law § 2380(a), at 830 (McNaughton rev. ed. 1961). Justice Blackmun, in advocating a broad scope of the medical file exception to the federal disclosure act, also recognized the strong policy considerations attending dissemination of medical information, saying:

It is almost inconceivable to me that the Court is willing today to attach the qualification phrase to medical files and thereby open to the public what has been recognized as almost the essence of ultimate privacy. The law's long established physician-patient privilege establishes this. Anyone who has had even minimal

Page 306

contact with the practice of medicine surely cannot agree with this extension by judicial construction . . . .

Department of the Air Force v. Rose, 425 U.S. 352, 387-88, 96 S.Ct. 1592, 1611, 48 L.Ed.2d 11, 36 (1976) (dissenting opinion).

I believe the publication here could reasonably have been found by a factfinder to improperly invade plaintiff's privacy, and that chapter 68A does not place the underlying information into the public domain so as to emasculate the right to pursue that claim without a trial. I would reverse and remand for trial on the merits.

LeGRAND, J., joins in this dissent.

817 N.W.2d 480
282 Ed. Law Rep. 640
40 Media L. Rep. 2057
PRESS‚ÄďCITIZEN COMPANY, INC., Appellee,
v.
UNIVERSITY OF IOWA, Appellant.
No. 09‚Äď1612.
Supreme Court of Iowa.
July 13, 2012.
Summaries:
Source: Justia


In 2007, two University of Iowa football players were accused of sexually assaulting another student in a campus dorm room. The incident led to criminal charges, internal actions by the University, an external criticism of the University. The incident also led to the present lawsuit, which concerned Open Records Act requests that the Iowa City Press-Citizen served on the University. Dissatisfied with the University's initial response to those requests, the Press-Citizen filed suit. The lawsuit resulted in more documents being produced and others being submitted for in camera review by the district court. The court then ordered additional documents produced, in some instances with redactions. The University appealed that order in part. The Supreme Court reversed the district court's judgment in part, holding that the Federal Educational Rights and Privacy Act prohibited the disclosure of the remaining documents, including even redacted versions of "education records" where the identity of the student was known to the recipient.


[817 N.W.2d 481]

Thomas J. Miller, Attorney General, and Diane M. Stahle and George A. Carroll, Assistant Attorneys General, for appellant.
Paul D. Burns and Joseph W. Younker of Bradley and Riley, PC, Iowa City, for appellee.

Michael A. Giudicessi of Faegre Baker Daniels LLP, Des Moines, and Mary Andreleita Walker of Faegre Baker Daniels LLP, Minneapolis, Minnesota, for amicus curiae The Freedom of Information Council, Des Moines Register & Tribune Company, Iowa Newspaper Association, The Reporters Committee for Freedom of the Press, Gazette Communications, Inc., and The Associated Press.
[817 N.W.2d 482]


MANSFIELD, Justice.

This case requires us to decide where disclosure ends and where confidentiality begins under the Iowa Open Records Act and the Federal Educational Rights and Privacy Act (FERPA). See20 U.S.C. § 1232g (2006 and Supp.2010); Iowa Code §§ 22.2, .7, .9 (2007). In October 2007, two University of Iowa football players were accused of sexually assaulting another student in a campus dorm room. This incident led to a criminal investigation, criminal charges, and the conviction of one player on a charge of assault with intent to inflict serious injury and the other on a charge of simple assault. This incident also led to internal actions and responses by the University, external criticism of the University, and a special counsel investigation and report. Finally, this incident led to the present lawsuit.

The present litigation concerns Open Records Act requests that the Iowa City Press‚ÄďCitizen served on the University after reports of the incident surfaced. Dissatisfied with the University's initial response to those requests, the Press‚ÄďCitizen filed suit. The lawsuit resulted in more documents being produced and others being submitted for in camera review by the district court. The court then ordered additional documents produced, in some instances with redactions.

The University has appealed that order in part. It argues that FERPA prohibits the disclosure of the remaining documents, including even redacted versions of ‚Äúeducation records‚ÄĚ where the identity of the student is known to the recipient. The Press‚ÄďCitizen counters that FERPA does not supersede any obligation to produce records under the Open Records Act, and in any event, the University has misinterpreted FERPA. For the reasons discussed herein, we ultimately agree with the University's arguments as to the meaning and force of FERPA, and therefore reverse the district court's judgment in part.

I. Background Facts and Proceedings.

During the early morning hours of Sunday, October 14, 2007, a female student-athlete was allegedly sexually assaulted at the Hillcrest dormitory at the University of Iowa. Two University of Iowa football players who were accused of involvement were suspended and later dismissed from the team. A criminal investigation resulted in both men being charged. One ultimately pled guilty to assault with intent to inflict serious injury, and the other was convicted of simple misdemeanor assault following a jury trial. SeeIowa Code §§ 708.1, 708.2(1), 708.2(6).

Numerous University officials were informed of the incident by Monday, October 15, 2007; however, the parents of the student-athlete believed their response was inadequate. Among other things, concerns were expressed that the University had shown a lack of understanding for the victim, had communicated poorly with her, and had allowed her to be subjected to retaliatory harassment from other students. In 2008, the University's Board of Regents engaged an outside law firm (the Stolar Partnership) to conduct a detailed investigation. Their report (the Stolar Report) criticized some aspects of the University's policies and performance.

Meanwhile, the incident received considerable publicity in the media. Articles appeared in which both football players were named. Beginning November 13, 2007, the Iowa City Press‚ÄďCitizen served requests on the University under the Iowa Open Records Act. SeeIowa Code ¬ß 22.2(1) (2011) ( ‚ÄúEvery person shall have the right to examine and copy a public

[817 N.W.2d 483]

record ...‚ÄĚ).1 The requests sought, among other things, reports of attempted or actual sexual assaults; correspondence to or from various University officials relating to any such incidents; and e-mail, memos, and other records relating to any such incidents from October 1, 2007 to the present.

The University initially produced only eighteen pages of documents, claiming that any other responsive documents were protected from disclosure under Iowa Code section 22.7(1). See id. ¬ß 22.7(1) (protecting from disclosure ‚Äú[p]ersonal information in records regarding a student ... maintained, created, collected or assembled by or for a school corporation or educational institution maintaining such records‚ÄĚ). On January 4, 2008, the Press‚ÄďCitizen filed a petition in district court seeking judicial enforcement of the Open Records Act. See id. ¬ß 22.10 (providing for civil enforcement of the Act).

Shortly after bringing suit, the Press‚ÄďCitizen filed a motion to compel. The motion asked the district court to order the University to produce a Vaughn index of the documents it was withholding.2 It also urged that documents be produced in redacted form where necessary, without identifying individual students. The University resisted the motion to compel based on, among other things, FERPA. On August 7, 2008, the district court granted the Press‚ÄďCitizen's motion to compel. The University thereafter released approximately 950 additional pages of documents to the Press‚ÄďCitizen; prepared a Vaughn index for over 3000 pages of documents (including both the pages that had been released and over 2000 that were being withheld); and submitted those 3000 pages to the district court for in camera review.

After conducting a painstaking in camera review, the district court entered another order on August 31, 2009. The order divided the University's documents into five categories:

Category 1: documents already released by the University without redaction;

Category 2: documents already released by the University with redactions;

Category 3: documents ‚Äúnot protected as confidential and ... subject to disclosure ... without redaction‚ÄĚ;

Category 4: documents ‚Äúsubject to disclosure ... with appropriate redactions made to remove student-identifying information including students' names, parents' names, addresses including E-mail addresses of students, dormitory and room numbers‚ÄĚ;

Category 5: ‚Äúconfidential documents not subject to disclosure under FERPA, Section 22.7 [of the Open Records Act], or attorney-client privilege rules.‚ÄĚ

The district court's August 31 order directed the University to disclose the Category 3 documents without redaction and the Category 4 documents with appropriate redactions within thirty days. On October 5, 2009, the district court entered a

[817 N.W.2d 484]

final judgment incorporating the provisions of its August 31 order, again directing the disclosure of the documents, and also awarding the Press‚ÄďCitizen $30,500 in attorneys' fees pursuant to Iowa Code section 22.10(3)( c). The University sought and obtained a stay of the district court's order pending appeal. The University now argues to us that the district court erred in ordering the production of some of the Category 3 and all of the Category 4 documents.3

II. Standard of Review.

We review the district court's interpretations of chapter 22 and FERPA for errors at law. Rathmann v. Bd. of Dirs. of Davenport Cmty. Sch. Dist., 580 N.W.2d 773, 776 (Iowa 1998). We review the court's application of those statutes de novo. Id.

III. Analysis.

A. The Iowa Open Records Act. Generally speaking, the Iowa Open Records Act (also known as the Examination of Public Records Act or the Iowa Freedom of Information Act) requires state and local entities to make their records available to the public. Iowa Code ¬ß¬ß 22.1(3), .2(1); see also City of Riverdale v. Diercks, 806 N.W.2d 643, 652 (Iowa 2011) (characterizing chapter 22 as ‚Äúour state's freedom of information statute‚ÄĚ). The Act seeks ‚Äúto prevent government from secreting its decision-making activities from the public, on whose behalf it is its duty to act.‚ÄĚ Iowa Civil Rights Comm'n v. City of Des Moines, 313 N.W.2d 491, 495 (Iowa 1981). We have said the Act establishes ‚Äúa presumption of openness and disclosure.‚ÄĚ Gabrilson v. Flynn, 554 N.W.2d 267, 271 (Iowa 1996). The University of Iowa, a state institution, is clearly covered by the Open Records Act; indeed, we have previously held that a private corporation commissioned by a state university to engage in fundraising for the university is covered by the Act. Gannon v. Bd. of Regents, 692 N.W.2d 31, 42‚Äď44 (Iowa 2005) (holding that the Iowa State University and its private foundation were subject to the Open Records Act).

The Open Records Act is subject to a number of listed exemptions, both large and small. See Iowa Code ¬ß 22.7 (stating that ‚Äú[t]he following public records shall be kept confidential, unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information‚ÄĚ and listing sixty-four separate exceptions). Nonetheless, the University does not argue that any of those designated exceptions applies here. Its sole argument on appeal is that federal law, i.e., FERPA, requires the appealed Category 3 and the Category 4 documents to be kept confidential.

B. FERPA. Congress enacted the Family Educational Rights and Privacy Act or FERPA in 1974 ‚Äúunder its spending power to condition the receipt of federal funds on certain requirements relating to the access and disclosure of student educational records.‚ÄĚ Gonzaga Univ. v. Doe, 536 U.S. 273, 278, 122 S.Ct. 2268, 2272‚Äď73, 153 L.Ed.2d 309, 318 (2002). ‚ÄúThe Act directs the Secretary of Education to withhold federal funds from any public or private ‚Äėeducational agency or institution‚Äô that fails to comply with these conditions.‚ÄĚ

[817 N.W.2d 485]

Id. at 278, 122 S.Ct. at 2273, 153 L.Ed.2d at 318. The Act provides in part:

No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein ...) of students without the written consent of their parents to any individual, agency, or organization....

20 U.S.C. § 1232g(b)(1). It also provides:

No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records ... unless‚ÄĒ

(A) there is written consent from the student's parents ...

Id. § 1232g(b)(2).

The Department of Education (DOE) has adopted regulations to implement FERPA. See34 C.F.R. ¬ß 99.3 (2009). In relevant part, they define ‚Äúeducation records‚ÄĚ as follows:

(a) The term means those records that are:

(1) Directly related to a student; and

(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

(b) The term does not include:

(1) Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.

(2) Records of the law enforcement unit of an educational agency or institution....

(3) (i) Records relating to an individual who is employed by an educational agency or institution, that:

(A) Are made and maintained in the normal course of business;

(B) Relate exclusively to the individual in that individual's capacity as an employee; and

(C) Are not available for use for any other purpose.

Id.

The same regulations define ‚Äúpersonally identifiable information‚ÄĚ as follows:

The term includes, but is not limited to‚ÄĒ

(a) The student's name;

(b) The name of the student's parent or other family members;

(c) The address of the student or student's family;

(d) A personal identifier, such as the student's social security number, student number, or biometric record;

(e) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name;

(f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or

(g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.

Id.

In light of these definitions, the University argues that the appealed Category 3 and the Category 4 documents cannot be produced at all. As it understands the law, ‚Äúeducation records‚ÄĚ with ‚Äúpersonally identifiable information‚ÄĚ cannot be released. Further, even if no student is

[817 N.W.2d 486]

actually identified in the document, either because his or her name and personal identifiers have been redacted or because the original document did not have that information, the regulations prohibit disclosure if the recipient would ‚Äúknow[ ] the identity of the student‚ÄĚ‚ÄĒor ‚Äúa reasonable person‚ÄĚ would be able to ‚Äúidentify the student with reasonable certainty.‚ÄĚ See id. In short, the University contends that if the Press‚ÄďCitizen or the student community would know the student being discussed in the education record, the record cannot be divulged‚ÄĒeven in redacted form‚ÄĒunder FERPA.

For purposes of this appeal, we assume that the appealed Category 3 and Category 4 documents are in fact ‚Äúeducation records‚ÄĚ under FERPA.4 The Press‚ÄďCitizen does not dispute that if these documents were produced, even in redacted form, it would be able to determine the students to whom the documents refer.5 However, the Press‚ÄďCitizen argues that FERPA is merely a funding statute that does not prohibit the disclosure of documents whose production is otherwise required by the Iowa Open Records Act. Alternatively, the Press‚ÄďCitizen argues that FERPA does not allow the withholding of records, as opposed to their redaction. We now turn to these points of disagreement.

C. The Interplay Between FERPA and the Open Records Act. The University argues that the relationship between FERPA and the Open Records Act is a simple matter of federal supremacy. See U.S. Const. art. VI (providing that the laws of the United States ‚Äúshall be the supreme Law of the Land‚ÄĚ). Iowa law, according to the University, cannot authorize disclosure where federal law requires confidentiality. The Press‚ÄďCitizen, on the other hand, maintains that FERPA is not a positive law at all, but simply a funding provision, which cannot override the express directives of the Open Records Act.

This debate has been played out in cases from other jurisdictions. Some courts have concluded that FERPA does not prohibit the disclosure of educational records. See Bauer v. Kincaid, 759 F.Supp. 575, 589 (W.D.Mo.1991) (‚ÄúFERPA is not a law which prohibits disclosure of educational records. It is a provision which imposes a penalty for the disclosure of educational records.‚ÄĚ); WFTV, Inc. v. Sch. Bd. of Seminole, 874 So.2d 48, 57 (Fla.Dist.Ct.App.2004)(‚ÄúFERPA does not prohibit the disclosure of any educational records. FERPA only operates to deprive an educational agency or institution of its eligibility for applicable federal funding based on their policies and practices regarding public access to educational records if they have any policies or practices that run afoul of the rights of access and disclosural privacy protected by FERPA.‚ÄĚ); see also Kirwan v. The Diamondback, 352 Md. 74, 721 A.2d 196, 206 (1998) (‚ÄúAnother alternative argument made by The Diamondback is that

[817 N.W.2d 487]

the federal Family Educational Rights and Privacy Act does not directly prohibit the disclosure of protected education records, that the only enforcement mechanism under the Act is the withholding of funds from institutions having ‚Äėa policy or practice of permitting the release of education records' ... [I]n light of our holding that the records are not education records within the meaning of the federal statute, we need not and do not reach this issue.‚ÄĚ (citation omitted)).
FERPA regulations allow for the possibility that an educational institution ‚Äúcannot comply with the Act or this part due to a conflict with State or local law.‚ÄĚ See34 C.F.R. ¬ß 99.61. One could argue that the mere recognition of this possibility in the regulations indicates that FERPA does not supersede state law.6

On the other hand, other courts have given direct effect to FERPA's provisions, treating them as positive law with binding force on state authorities. See Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 525 (Pa.Cmwth.Ct.2011) (finding that the release of the requested reports ‚Äúwas precluded by FERPA‚ÄĚ). In United States v. Miami University, 294 F.3d 797, 803 (6th Cir.2002), a federal court of appeals affirmed an injunction against the release of student disciplinary records covered by FERPA. The court reasoned that the remedies for FERPA violations were not limited to a cutoff of federal funding. Miami Univ., 294 F.3d at 809‚Äď10. Rather, once funds are accepted, ‚Äúthe school is indeed prohibited from systematically releasing education records without consent.‚ÄĚ Id. at 809;see also Rim of the World Unified Sch. Dist. v. Super. Ct., 104 Cal.App.4th 1393, 129 Cal.Rptr.2d 11, 15 (2002) (finding that FERPA preempts California law requiring the disclosure of student expulsion records); Unincorporated Operating Div. of Ind. Newspapers, Inc. v. Trs. of Ind. Univ., 787 N.E.2d 893, 904 (Ind.Ct.App.2003) (stating that ‚ÄúFERPA is a federal law which requires education records to be kept confidential‚ÄĚ).

In short, as one court has observed, ‚Äústate and federal courts are sharply divided on this issue.‚ÄĚ Caledonian‚ÄďRecord Publ'g Co. v. Vt. State Colls., 175 Vt. 438, 833 A.2d 1273, 1274‚Äď76 (2003) (citing cases).

We need not step into this controversy here, however, because we believe a provision of the Iowa Open Records Act already gives priority to FERPA. Section 22.9 of the Act provides:

If it is determined that any provision of this chapter would cause the denial of funds, services or essential information

[817 N.W.2d 488]

from the United States government which would otherwise definitely be available to an agency of this state, such provision shall be suspended as to such agency, but only to the extent necessary to prevent denial of such funds, services, or essential information.
An agency within the meaning of section 17A.2, subsection 1, shall adopt as a rule, in each situation where this section is believed applicable, its determination identifying those particular provisions of this chapter that must be waived in the circumstances to prevent the denial of federal funds, services, or information.

Otherwise stated, the first paragraph of section 22.9 suspends the operation of a provision of the Open Records Act if the provision would cause the denial of federal funds to a state agency. This paragraph, we believe, answers the Press‚ÄďCitizen's argument that FERPA in and of itself is not a positive law. Section 22.9 gives it the effect of a positive law. If the University regularly released educational records pursuant to section 22.2(1) of the Open Records Act, it would be engaging in a ‚Äúpractice‚ÄĚ of permitting the release of confidential education records, assuming the records contained ‚Äúpersonally identifiable information.‚ÄĚ See20 U.S.C. ¬ß 1232g(b)(1). The sanction for this would be a loss of federal funding. See20 U.S.C. ¬ß¬ß 1232c, 1234c (authorizing the withholding of funds when a recipient ‚Äúis failing to comply substantially with any requirement of law applicable to such funds‚ÄĚ); see also id.¬ß 1232g(f) (providing that ‚Äú[t]he Secretary shall take appropriate actions to enforce this section and to deal with violations of this section, in accordance with this chapter, except that action to terminate assistance may be taken only if the Secretary finds there has been a failure to comply with this section, and he has determined that compliance cannot be secured by voluntary means‚ÄĚ).

The Press‚ÄďCitizen responds that the University has not shown the disclosure of records would ‚Äúdefinitely‚ÄĚ cause it to lose funds as required by the first paragraph of section 22. This argument, we believe, misreads the statute. Section 22.9 requires that the federal funds be ‚Äúdefinitely available.‚ÄĚ That they are. The University enjoys considerable federal support. See University of Iowa, General Education Fund, FY 2011‚ÄďUse of New Revenues and Reallocations (2011), available at www. uiowa. edu/% 25fusbudg/ 2011_ final_ budget_ spread. pdf (disclosing total federal support of $258,999,082 for the University in fiscal year 2009). The statute does not have similar language requiring that the loss be definite.

The Press‚ÄďCitizen urges, however, that a one-off production of records in this case would not amount to a ‚Äúpolicy or practice.‚ÄĚ See Gonzaga Univ., 536 U.S. at 288, 122 S.Ct. at 2278, 153 L.Ed.2d at 324 (noting that FERPA's nondisclosure provisions ‚Äúspeak only in terms of institutional policy and practice, not individual instances of disclosure‚ÄĚ and ‚Äúhave an aggregate focus‚ÄĚ (citation)); see also Achman v. Chisago Lakes Indep. Sch. Dist. No. 2144, 45 F.Supp.2d 664, 674 (D.Minn.1999) (finding that ‚Äúa solitary violation is insufficient to support a finding that the District has violated FERPA as a matter of policy or practice‚ÄĚ). One problem with this argument, however, is that the production would not be accidental or inadvertent and would necessarily set some kind of precedent after having been authorized by the Iowa courts. A ‚Äúpolicy or practice‚ÄĚ to some extent would be established.7

[817 N.W.2d 489]

The larger problem with the Press‚ÄďCitizen's position is that section 22.9 also operates on an aggregate basis. That section asks us to consider not whether a specific production of records in a particular case would result in a loss of funds, but whether a ‚Äúprovision‚ÄĚ‚ÄĒe.g., section 22.2(1), the overall legal requirement that public records be made available‚ÄĒwould cause such a loss. Hence, we need to focus on the provision itself, not just a one-time application of it, and determine whether that provision would lead to a loss of federal funding for the agency. In other words, section 22.9 requires us to consider whether section 22.2(1), the basic open records ‚Äúprovision,‚ÄĚ applied consistently to education records at the University of Iowa, i.e., ‚Äúan agency of this state,‚ÄĚ would ‚Äúcause the denial of funds,‚ÄĚ and if so it ‚Äúsuspend[s]‚ÄĚ that provision.8

Of course, at the end of the day the federal government might not try to defund the University of Iowa regardless of the circumstances. But we do not think section 22.9 requires Iowa courts to make predictions about policy decisions made in Washington D.C. That would be unworkable. SeeIowa Code ¬ß 4.4(3) (setting forth a presumption that ‚Äú[a] just and reasonable result is intended‚ÄĚ). As we read the first paragraph of section 22.9, it requires us to withhold legal effect from a provision of the Open Records Act, such as section 22.2(1), if it appears that provision (not just an isolated application of the provision) would result in a loss of federal funding for a state agency.

The Press‚ÄďCitizen also relies on the second paragraph of section 22.9. It urges that the University has failed to adopt a ‚Äúrule‚ÄĚ as required by that paragraph and, in the absence of such a rule, the first paragraph has no effect.9 When the Open Records Act was originally enacted in 1967, only the first paragraph of section 22.9 was included. See 1967 Iowa Acts ch. 106, ¬ß 11 (codified at Iowa ¬ß 68A.9 (1971), now Iowa Code ¬ß 22.9). The second paragraph was not added until 1984. See 1984 Iowa Acts ch. 1185, ¬ß 8 (codified at Iowa Code ¬ß 22.9 (1985)).
Our difficulty with this argument is that it treats two separate mechanisms as if they were one. The first paragraph of section 22.9 is written in the passive voice (‚Äúshall be suspended‚ÄĚ) and is directed at everyone. Thus, the first paragraph comes into effect whenever ‚Äúit is determined,‚ÄĚ without confining itself to determinations by an agency. By contrast, the

[817 N.W.2d 490]

second paragraph is directed to agencies of this state, telling each of them to adopt by rule ‚Äúin each situation where [section 22.9] is believed applicable, its determination identifying those particular provisions of this chapter that must be waived in the circumstances to prevent the denial of federal funds, services, or information.‚ÄĚ See also S.F. 2294 Explanation, 70th G.A., Reg. Sess. (Iowa 1984) (‚ÄúSection 8 requires state agencies to adopt certain rules regarding conditions of federal funds.‚ÄĚ). There is no indication in any part of section 22.9 that if an agency should fail to discharge its duty under the second paragraph, or should discharge it incorrectly, the legislature intended the first paragraph to have no effect. After all, the first paragraph was a stand-alone provision with independent force for seventeen years before the second paragraph was enacted. In sum, we believe the 1984 amendment simply imposed a new obligation on state agencies, without altering the preexisting law. We therefore find that the Open Records Act incorporates confidentiality obligations from FERPA.

D. FERPA and ‚ÄúPersonally Identifiable Information.‚ÄĚ Assuming FERPA applies, the next issue is whether its obligations can be met by redaction or whether it requires the withholding of entire records in some instances. The University argues that under the DOE's interpretation of ‚Äúpersonally identifiable information,‚ÄĚ an educational record must be withheld if the recipient would know the student to whom the record refers, even with the redaction of personal information, such as the student's name. See34 C.F.R. ¬ß 99.3 (defining personally identifiable information to include ‚Äú[i]nformation requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates‚ÄĚ). Given the notoriety of the October 14, 2007 incident, the University contends that no amount of redaction of personal information would prevent the newspaper from knowing the identity of various persons referenced in records relating to that incident.

The Press‚ÄďCitizen responds that under the Open Records Act, access is a yes-or-no proposition. It cannot vary based upon the identity of the party making the request. See, e.g., Ne. Council on Substance Abuse, Inc. v. Iowa Dep't of Pub. Health, 513 N.W.2d 757, 761 (Iowa 1994) (rejecting a party's contention under the Open Records Act ‚Äúthat release of the applications should depend on the status of the party seeking them‚ÄĚ). The flaw in this argument, however, is that the relevant legal standards in this case actually come from FERPA, incorporated into Iowa law through section 22.9.

The Press‚ÄďCitizen also maintains that the DOE regulation should not be followed, either because the relevant part of it did not become effective until this lawsuit was already pending or because it is contrary to prior caselaw. As noted by the Press‚ÄďCitizen, current subparts (f) and (g) of the definition of ‚Äúpersonally identifiable information‚ÄĚ were only approved as a final rule by the DOE on December 9, 2008, and became effective January 9, 2009. SeeFamily Educational Rights and Privacy, 73 Fed.Reg. 74,806, 74,806 (December 9, 2008) (codified at 34 C.F.R. pt. 99). This action was filed January 4, 2008. The district court rendered its decision on the Category 3 and Category 4 documents on August 31, 2009.

Yet under federal law, there exists a ‚Äúprinciple that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.‚ÄĚ

[817 N.W.2d 491]

Bradley v. Sch. Bd. of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006 2016, 40 L.Ed.2d 476, 488 (1974). True, there is also the ‚Äúprinciple that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place.‚ÄĚ Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855, 110 S.Ct. 1570 1586, 108 L.Ed.2d 842, 865 (1990) (Scalia, J., concurring). Thus, the United States Supreme Court has asked whether applying the change in law to a pending case ‚Äúwould impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.‚ÄĚ Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483 1505, 128 L.Ed.2d 229, 262 (1994); see also Fernandez‚ÄďVargas v. Gonzales, 548 U.S. 30, 37, 126 S.Ct. 2422, 2427‚Äď28, 165 L.Ed.2d 323, 334 (2006).

We think the modified definition of ‚Äúpersonally identifiable information‚ÄĚ easily passes the federal test for retroactivity. The relevant ‚Äúconduct‚ÄĚ here is the University's decision to withhold the appealed Category 3 and the Category 4 documents. That conduct continued after the lawsuit was filed. It was still ongoing even when the regulation was modified. There was no reliance such that there would be prejudice if we followed the new regulation.

Also, the previous definition of ‚Äúpersonally identifiable information‚ÄĚ was not all that different. It prohibited the disclosure of any ‚Äúinformation that would make the students' identities easily traceable.‚ÄĚ 34 C.F.R. ¬ß 99.3(f) (2008). The DOE substituted the new language because the old language

lacked specificity and clarity. We were also concerned that the ‚Äúeasily traceable‚ÄĚ standard suggested that a fairly low standard applied in protecting education records, i.e., that information was considered personally identifiable only if it was easy to identify the student.

73 Fed.Reg. 74,806, 74,831 (December 9, 2008).

But the DOE had issued guidance under the earlier language that educational records could not be released if the recipient could determine the student to whom reference was being made:

If, because of other records that have been released, or other publicly available information, the redaction of names, identification numbers, and dates and times of incidents is not sufficient to prevent the identification of a student involved in a disciplinary proceeding, including student victims and student witnesses, then FERPA prohibits an educational agency or institution from having a policy or practice of releasing the information.

See Letter to School District re: Disclosure of Education Records to Texas Office of Attorney General (April 6, 2006), available at www2.ed.gov /policy/ gen/ guid/ fpco/ ferpa/ library/ tx 040606. html. As DOE explained in its notice of proposed rulemaking for the amendment, ‚ÄúThe proposed regulations are needed to establish this guidance in a definitive and legally binding interpretation....‚ÄĚ Family Educational Rights and Privacy, 73 Fed.Reg. 15,574, 15,583 (March 24, 2008). Hence, the intent of the January 2009 amendment was to clarify the law, not change it.

The Press‚ÄďCitizen also insists that it is not a legally permissible construction of the term ‚Äúpersonally identifiable information‚ÄĚ for the University to withhold entire documents, rather than redact them. We disagree. The statute forbids federal funding of institutions that have a policy or practice of releasing ‚Äúeducation records (or personally identifiable information contained therein ...)‚ÄĚ without parental permission. See20 U.S.C. ¬ß 1232g(b)(1).

[817 N.W.2d 492]

This either-or language, as we read it, is at least subject to the interpretation that an entire record can be withheld where redaction would not be enough to protect the identity of a student. And as long as the underlying statute is ambiguous, we are required to defer to any reasonable and permissible interpretation made by the agency‚ÄĒhere DOE. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842‚Äď43, 104 S.Ct. 2778, 2781‚Äď82, 81 L.Ed.2d 694, 702‚Äď03 (1984); Miami Univ., 294 F.3d at 814.

The Press‚ÄďCitizen cites to a case where the Montana Supreme Court ordered release of student disciplinary records with the names redacted, even though the two students involved were known to the requesting newspaper. Bd. of Trs., Cut Bank Pub. Schs. v. Cut Bank Pioneer Press, 337 Mont. 229, 160 P.3d 482, 487 (2007). But that case was decided before the 2009 amendment to the FERPA regulations. In any event, the school district never made the specific argument, as far as we can tell, that FERPA prohibits release of an entire record where redaction would not be enough to avoid identification of the students involved. The Press‚ÄďCitizen also cites to a passing observation of the Wisconsin Supreme Court that ‚Äúonce personally identifiable information is deleted, by definition, a record is no longer an education record since it is no longer directly related to a student.‚ÄĚ Osborn v. Bd. of Regents of Univ. of Wis. Sys., 254 Wis.2d 266, 647 N.W.2d 158, 168 n. 11 (2002). That comment also was made before the 2009 amendment to the regulations, and that case likewise did not address the particular issue that is now before us.

Thus, consistent with current DOE regulations, we conclude that educational records may be withheld in their entirety where the requester would otherwise know the identity of the referenced student or students even with redactions.

The Press‚ÄďCitizen criticizes this position as a matter of policy. In its view: ‚ÄúThe University's position boils down to a peculiar argument that FERPA applies on a sliding scale, saving its most vigorous application to records concerning crimes and alleged crimes that are the most notorious.‚ÄĚ This feature of FERPA, however, derives from earlier determinations by Congress and the DOE that preservation of student confidentiality should be an overarching goal of the statute. It is not our role to reexamine those decisions.

E. Additional Issues. The Press‚ÄďCitizen points out that FERPA has an exception when education records are ‚Äúfurnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the students are notified of all such orders or subpoenas in advance of the compliance therewith by the educational institution.‚ÄĚ See20 U.S.C. ¬ß 1232g(b)(2)(B); see also34 C.F.R. 99.31(a)(9)(i) (2009) (indicating that an education record may be disclosed ‚Äúto comply with a judicial order or lawfully issued subpoena‚ÄĚ). This exception has been applied in prior cases. See, e.g., Ragusa v. Malverne Union Free Sch. Dist., 549 F.Supp.2d 288, 293‚Äď94 (E.D.N.Y.2008) (ordering the production of relevant education records in a discrimination case); Catrone v. Miles, 215 Ariz. 446, 160 P.3d 1204, 1210‚Äď12 (Ariz.Ct.App.2007) (holding that education records could be ordered to be produced in a medical malpractice case and noting ‚Äúthe protections afforded to educational records by statute do not prohibit, but rather permit, disclosure pursuant to court order‚ÄĚ); Gaumond v. Trinity Repertory Co., 909 A.2d 512, 518 (R.I.2006) (holding that FERPA does not bar the production of relevant education records pursuant to court order in a personal injury

[817 N.W.2d 493]

case). But in those instances, the records were relevant to litigation that did not involve the records themselves. See Gaumond, 909 A.2d at 518 (distinguishing prior cases where public disclosure was sought by newspapers and was not granted). It would make no sense to interpret the ‚Äújudicial order‚ÄĚ exception as authorizing disclosure whenever a party chose to bring a separate court action seeking access to education records. This would lead to a highly incongruous situation where FERPA would only have effect until the party requesting records chose to go to court, at which point FERPA would cease to have any effect at all.10

The Press‚ÄďCitizen also argues that the University has been inconsistent in its position. As the Press‚ÄďCitizen points out, University officials, including the president, the athletic director, and the football coach have commented publicly on aspects of the University's response to the alleged sexual assault. In addition, the seventy-two-page Stolar Report that was commissioned by the Board of Regents contains a detailed narrative and critique of the University's response to the incident, replete with references to ‚ÄúFootball Player # 1,‚ÄĚ ‚ÄúFootball Player # 2,‚ÄĚ and ‚Äúthe Student‚ÄďAthlete.‚ÄĚ

We are not persuaded that the University has been altogether consistent. At the same time, commentators have criticized FERPA for permitting institutions to behave inconsistently‚ÄĒrevealing student information when it puts the university in a good light and withholding it when it does not. See Matthew R. Salzwedel & Jon Ericson, Cleaning Up Buckley: How the Family Educational Rights and Privacy Act Shields Academic Corruption in College Athletics, 2003 Wis. L.Rev. 1053, 1105‚Äď06 (2003) (commenting that universities ‚Äúprovide disclosure that is selective in application‚ÄĚ). Regardless, the Press‚ÄďCitizen does not attach any particular legal significance to the University's alleged inconsistency. It provides no legal authority in this section of its brief and, at oral argument, specifically disclaimed any waiver argument. Cf. City of Riverdale, 806 N.W.2d at 657 (finding a municipality had waived the exemption in section 22.7(50) of the Open Records Act). For these reasons, the Press‚ÄďCitizen's inconsistency argument does not alter our conclusions as to what FERPA requires in this case.

The amici curiae urge that it would violate federal and state constitutional provisions if access to public documents could depend upon the knowledge or identity of the requester. Although this argument is developed at some length in the brief of the amici, it was not raised below or by the Press‚ÄďCitizen. We therefore decline to reach it. See Mueller v. St. Ansgar State Bank, 465 N.W.2d 659, 660 (Iowa 1991) (noting that ‚Äú[u]nder Iowa law, the only issues reviewable are those presented by the parties‚ÄĚ); see also

[817 N.W.2d 494]

Rants v. Vilsack, 684 N.W.2d 193, 198‚Äď99 (Iowa 2004) (declining to reach an argument raised by amici curiae that was not presented to the district court).

IV. Conclusion.

We reverse the judgment of the district court to the extent it orders the production of the appealed Category 3 documents and the Category 4 documents. The University has not challenged any other aspects of the district court's judgment, including its award of attorneys' fees to the Press‚ÄďCitizen. Therefore, we affirm the remainder of the judgment.11 We remand for further proceedings in accordance with this opinion.

DISTRICT COURT JUDGMENT REVERSED IN PART AND REMANDED.

All justices concur except Appel, Wiggins, and Hecht, JJ., who dissent.

APPEL, Justice (dissenting).

I respectfully dissent.

The Federal Educational Rights and Privacy Act (FERPA) states that federal funds shall not be available ‚Äúto any educational agency or institution which has a policy or practice‚ÄĚ of releasing personally identifiable information without the written consent of parents. 20 U.S.C. ¬ß 1232g(b)(1) (2006). In my view, compliance with a judicial order pursuant to a generally applicable state public records statute does not amount to a policy or practice of any educational agency or institution. See generally Maynard v. Greater Hoyt Sch. Dist. No. 61-4, 876 F.Supp. 1104, 1108 (D.S.D.1995). The majority opinion repeatedly cites ‚Äúpolicy or practice,‚ÄĚ while omitting the statutory requirement that the ‚Äúpolicy or practice‚ÄĚ must be one of the ‚Äúeducational agency or institution.‚ÄĚ In effect, the majority opinion amends the statute to strike the words ‚Äúagency or institution.‚ÄĚ

In light of this explicit wording of FERPA and the Iowa Open Records Act, I would not rewrite either statute. While federal law plainly is supreme, I find no conflict between FERPA and the Iowa Public Records Act. As a result, I would require disclosure of the public records in this case.

WIGGINS and HECHT, JJ., join this dissent.

--------
Notes:

1. For the sake of convenience, we will refer hereafter to the 2011 Code version of chapter 22. During the pendency of this case, there have been no changes to that chapter that are material to our decision.

2. In Vaughn v. Rosen, which arose under the Federal Freedom of Information Act, the D.C. Circuit ordered the government to produce a descriptive index of the documents it was withholding based on a claim they were exempt from production under the Act. 484 F.2d 820, 826‚Äď28 (D.C.Cir.1973). As the Press‚ÄďCitizen pointed out, a similar index was prepared by the school district in Des Moines Independent Community School District Public Records v. Des Moines Register & Tribune, Co., 487 N.W.2d 666, 668 (Iowa 1992). That case arose under Iowa's Open Records Act.

3. The University appeals the district court's order to the extent it requires it to produce the following Category 3 documents: 133, 140‚Äď43, 202‚Äď03, 756‚Äď60, 835, 1009, 1230, 1479, 1488‚Äď89, 1814, 1869‚Äď70, 1878, 1878‚Äď88, 1973, 1988‚Äď89, 1993‚Äď95, 2031, 2043‚Äď44, 2055, 2062, 2063, 2217, 2234, 2251‚Äď56. We shall refer to them hereafter as the ‚Äúappealed Category 3 documents.‚ÄĚ

4. The Press‚ÄďCitizen (in a footnote) and the amici curiae (at more length) argue that some of the records may be ‚Äúlaw enforcement‚ÄĚ records rather than education records. See20 U.S.C. ¬ß 1232g(a)(4)(B) (stating that ‚Äú[t]he term ‚Äėeducation records' does not include ... (ii) records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement‚ÄĚ). This contention, however, was not raised below. Therefore, we may not consider it as part of the present appeal. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (declining to consider a ground for upholding the district court's ruling that was not presented below). In any event, we lack a sufficient record to do so.

5. No one questions the thoroughness of the district court's in camera review and categorization of documents. The issues involved in the present appeal are simply legal ones.

6. In one case where a school district disclosed publicly what it was paying for a student's out-of-state special education services, arguing that South Dakota law required release of this information, the DOE advised the district that FERPA ‚Äúdoes not act to preempt conflicting State laws.‚ÄĚ Letter from LeRoy S. Rooker, 20 IDELR 105, 106 (May 14, 1993). It also stated, however, that disclosure without consent ‚Äúwill violate FERPA and jeopardize [the district's] continued receipt of Federal education funds.‚ÄĚ In subsequent litigation over the same incident, a federal district court granted summary judgment to the school district, reasoning, ‚ÄúThe school board cannot be liable for complying with a state law which was not clearly preempted by federal law.‚ÄĚ Maynard v. Greater Hoyt Sch. Dist. No. 61‚Äď4, 876 F.Supp. 1104, 1108 (D.S.D.1995). However, DOE's position in the Maynard matter must be considered together with its later position in United States v. Miami University, 294 F.3d 797 (6th Cir.2002) (discussed below). In Miami University, DOE took the position, successfully, that FERPA barred the release of education records whose disclosure would otherwise have been required by Ohio law. Miami Univ., 294 F.3d at 811. Thus, from the Miami University case, one could infer that 34 C.F.R. ¬ß 99.61 simply serves as an enforcement mechanism.

7. While the ‚Äúpolicy or practice‚ÄĚ must be of the ‚Äúeducational agency or institution,‚ÄĚ see20 U.S.C. ¬ß 1232g(b), nothing in FERPA requires that it be a voluntary practice of the university, as opposed to one compelled by state law.

8. Again, Iowa Code section 22.9 does not ask whether a specific disclosure would result in loss of funding, but whether a provision of the Open Records Act as applied to a state agency would result in loss of funding.
Neither party disputes that the University of Iowa is an agency within the meaning of Iowa Code sections 22.9 and 17A.2. See, e.g., Papadakis v. Iowa State Univ. of Sci. & Tech., 574 N.W.2d 258, 260‚Äď61 (Iowa 1997) (finding that a university's termination of a faculty member's salary and benefits constituted ‚Äúagency action‚ÄĚ within the meaning of section 17A.2(2)).

9. The University argues that Iowa Administrative Code rule 681‚ÄĒ17.13(2)( d) is such a rule. It provides:
The following records shall be kept confidential. Records are listed by category, according to the legal basis for withholding them from public inspection.

....
d. Student records (Family Educational Rights and Privacy Act of 1974, as amended, 20 U.S.C. 1232g and Iowa Code section 22.7)

In light of our determination that adoption of a rule under the second paragraph of section 22.9 is not a prerequisite to the enforcement of the first paragraph of that section, we need not reach this argument.

10. Courts have rejected that viewpoint. See Ragusa, 549 F.Supp.2d at 292 (stating that the judicial order exception to FERPA does not end the inquiry and observing that ‚Äú ‚Äėbefore approval is given, the party seeking disclosure is required to demonstrate a genuine need for the information that outweighs the privacy interests of the students' ‚ÄĚ (quoting Rios v. Read, 73 F.R.D. 589, 599 (E.D.N.Y.1977))); see also Zaal v. State, 326 Md. 54, 602 A.2d 1247, 1256 (1992) (commenting ‚Äú[t]hat the statute exempts a local school system or educational institution which discloses ‚Äėpersonally identifiable information‚Äô in compliance with a judicial order from sanctions does not mean that a student's privacy or confidentiality interest in his or her education records is automatically overridden whenever a court order to review them is sought‚ÄĚ). In short, the ‚Äújudicial order‚ÄĚ exception informs an educational institution when it may release educational records; it does not inform a court when it may enter an order.

11. The Press‚ÄďCitizen contends in its brief that the University has failed to produce even the Category 3 records that are not the subject of this appeal. Their production should occur, if it has not already taken place.

 

                                                      Iowa Public Information Board

The Des Moines Register, Complainant

Against

Charles M. Palmer, Director, Rich Shults, MHDS Administrator, Eric Tabor and other persons acting in the capacity of custodian of records of and/or acting on behalf of while serving in an official capacity for the Iowa Department of Human Services, Respondents

 

Case Number: 13FC:0004

 

Order of Dismissal of Complaint

 

 


The above captioned Complaint was filed by The Des Moines Register (Register) on August 19, 2013 and was accepted on August 26, 2013 by the Iowa Public Information Board (IPIB or Board) and referred to the Board‚Äôs Executive Director to seek an informal and expeditious resolution and to conduct such further proceedings as necessary pursuant to Iowa Administrative Code Rules 497‚ÄĒ2.1 and 2.2.¬†¬†
 
An initial meeting of the parties was held at the IPIB office on September 25, 2013.  A second meeting was held at the IPIB office on October 9, 2013.  Informal discussions have also occurred in a good faith effort of all concerned to resolve the issues presented.  Other than consensus that Respondent Eric Tabor has no role in this matter beyond that of legal advisor, there has been no agreement reached regarding the substance of the complaint made by the Register: that a video recording in the custody of the Respondent Iowa Department of Human Services (DHS) is a public record subject to inspection and copying with alteration to facial features deemed necessary to protect the identity of a subject or subjects of the recording.

The term Respondent as used hereinafter shall not be construed to include Eric Tabor and shall be construed to include DHS Director Charles M. Palmer, DHS MHDS Administrator Rich Shults and other persons acting in the capacity of custodian of records of and/or acting on behalf of while serving in an official capacity for the DHS.

                                                                                                      Statement of Facts

The Register made an open records request to DHS within sixty days of the filing of this complaint seeking a copy of a video recording depicting an incident that occurred at the Iowa Juvenile Home/Girls State Training School (Toledo) where treatment of a resident in a seclusion room resulted in the firing of employees of DHS.  The Respondents acknowledge possession of the requested record, but have denied access to it based on several grounds.  

                                                                                                  Findings and Conclusions

Upon receipt and review of the initial Report to the Board, the briefs and supplemental information provided by Complainant and Respondents; state and federal statues, rules and regulations; case law; and oral presentations, the board makes the following findings and conclusions:

        1.  Complainant has established that the record (videotape) that is the subject of this Complaint is a public record.

        2.  Respondent Eric Tabor has no role in this matter beyond that of legal advisor and no basis for complaint exists with respect to him.

        3.  Respondents have met their burden in establishing that the videotape is a confidential record based on the following grounds:

             a. The videotape is a professional counselor record entitled to confidentiality pursuant to Iowa Code section 22.7(2).  The videotape depicts
                 a child ordered by a court to a DHS institution for treatment.

             b. The videotape is entitled to confidentiality afforded by Iowa Code section 22.9.  Release of the videotape and the precedent would have
                 the potential to cause the denial of funds, services or essential information from the United States Government which would otherwise
                 definitely be available to the DHS.

             c. The videotape is entitled to confidentiality pursuant to Iowa Code section 217.30(1), subparagraphs b and d which prohibit dissemination
                 of information relative to individuals receiving services or assistance from the department.  The videotape contains information concerning
                 the social circumstances of a particular individual who is receiving services or assistance from the DHS as well as psychiatric data
                 concerning a particular individual.


                                                                                                                      Order

        It is therefore ordered that the above captioned matter be and is hereby dismissed as to the Respondent Eric Tabor on the grounds that no supporting facts or law were proffered in support of a violation of Chapter 22 with the result that there is no probable cause to believe a   
violation of Chapter 22 occurred.

        It is therefore further ordered that the above captioned matter be and is hereby dismissed as to the remaining Respondents for lack of probable cause to believe a violation of chapter 22 has occurred.

        ENTERED THIS TWENTY-SEVENTH DAY OF FEBRUARY, 2014, BY THE IOWA PUBLIC INFORMATION BOARD.

 

                                                                                                                                                                                            By _________________________________
                                                                                                                                                                                            Bill Monroe, Chairman

Copies provided by email to:
Complainant
   Rick Green, Randy Brubaker and Michael Giudicessi, JD
Respondents
   Eric Tabor, JD and Diane Stahle, JD