Date:
07/10/2014
Subject:
Des Moines Register / DHS / Chapter 22 - public records request
Opinion:
Iowa Public Information Board
The Des Moines Register, Complainant
Against
Case Number: 13FC:0003
Charles M. Palmer, Director, Rich Shults,
MHDS Administrator, Eric Tabor and other Order of Dismissal of Complaint
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
The above captioned Complaint alleging actions and/or inactions in violation of Iowa Code Chapter 22 relating to records requested within the immediately preceding sixty days was filed by The Des Moines Register (Register) on August 19, 2013. It was accepted on August 26, 2013 by the Iowa Public Information Board (IPIB or Board) and referred to the Board’s Executive Director to seek an informal and expeditious resolution and to conduct such further proceedings as necessary pursuant to Iowa Administrative Code Rules 497—2.1 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. Several informal discussions and communications have also occurred in a good faith effort of all concerned to resolve the issues presented.
Statement of Facts
The Register made an open records request to DHS within sixty days of the filing of this complaint seeking records and information concerning events that occurred at the Iowa Juvenile Home/Girls State Training School (Toledo).
The initial response after search and review resulted in the release of 677 emails and the withholding of 189 additional emails on various grounds of privilege.
The basis for denial was attorney/client privilege for 15, confidential personnel records for 83, identification of children receiving DHS services for 90 and confidential site security information for 1.
By the time of the first meeting on September 25, the 189 withheld emails had been reviewed again by the Attorney General’s Office. This second review resulted in the release of 32 additional individual emails, leaving 157 emails in dispute.
Ultimately it was concluded by the parties that agreement over whether the 157 emails in dispute should be released was impossible. It was agreed that the IPIB Executive Director would review those emails for compliance. That review resulted in release of 4 additional emails and a partial (redacted) release of three others. This result was accepted by both parties with one exception.
The dispute was reduced to one remaining record: a letter provided by Jane Hudson to Deputy Attorney General Eric Tabor concerning a specific child at the Iowa Juvenile Home. An extensively redacted copy of this letter was initially provided to the Complainant. It was authored by Jane Hudson in her capacity as Executive Director of Disability Rights Iowa (DRI) and dated December 18, 2012. The letter was never finalized and mailed.
After meetings with the executive director, the Respondents agreed to “un-redacting” some of the previously redacted information. A new copy of the letter with reduced redaction was provided to the Complainant pursuant to an agreement between the Respondents, the Complainant and board staff that this document and additional information disclosed would be kept confidential until it was accepted as final settlement of this Complaint. Complainant has abided by this agreement and kept this copy and the additional information in it confidential.
To this point the focus had been on the material in the body of the letter. The letter indicated copies would be provided to a district court judge, a chief district court judge, an assistant county attorney, the mother of the child, an unnamed attorney for the mother, an assistant attorney general and the superintendent of the Iowa Juvenile Home. The names of all but the last two were redacted.
The Complainant then raised the issue of the redaction of the names of the above referenced judges and deputy county attorney from the “Cc” list on the letter for the first time. These three positions are “judicial officers” in the context of this letter. The names of the people holding those positions constitute information that was available to DRI as a result of DRI having special legal status which includes authorized access to confidential juvenile court records. The addressee and “Cc” listed persons also are authorized to have access to that confidential juvenile court information. All who had access to the letter are legally obligated to keep that information confidential.
There is no dispute over the need to protect the confidentiality of the child. It was stated in the Complaint that “names and personally identifying information about each child could be redacted.” The names sought by the Complainant coupled with the un-redacted information contained in the body of the letter would lead to identification of the child.
While information that would lead to revealing the identity of the child and the confidentiality of treatment information relating to the child are the primary criteria applied to redaction of information in the body of the letter (see Iowa Code sections 22.7(2) and 217.30), an additional criterion must be applied to the issue of the three names sought. That additional criterion is the confidentially afforded juvenile court information under the laws governing juvenile court records provided in Iowa Code section 232.147. As to the narrow issue of whether disclosure of the names of the three judicial officers is barred, section 232.147 governs. Whether identification of the child would result from such a disclosure is not relevant. The information must be kept confidential pursuant to section 232.147 regardless.
We have found no legal theory or authority that would support release of these names in the face of the statutes governing juvenile court records that makes them confidential, regardless of whether the release would reveal the child’s identity.
The release of the three names is the only remaining dispute cognizable under this complaint.
Findings and Conclusions
Upon review of the Report to the Board and consideration of information provided by the parties, the board makes the following findings and conclusions:
1. Complainant has established that the records that are the subject of this Complaint are public records.
2. The disputes generated by the Complainant’s request have been resolved with the exception of one letter, never sent, containing the names of three judicial officers who were to have received copies of the letter. The letter had been redacted relating to other issues. The redaction was reduced subsequently and a copy of this version (hereinafter referred to as “the letter”) was given to Complainant pursuant to an agreement, noted above, honored by Complainant, that it would be kept confidential pending resolution of the dispute over the release of the names of the judicial officers.
3. Respondents have met their burden of establishing that the names of the judicial officers who were to have received the copies of the letter are required to be kept confidential pursuant to Iowa Code section 232.14 as information obtained from a confidential juvenile court record. If the redacted names of judicial officers who were to receive copies of the letter were to be released, additional redaction of information in the body of the letter would be required to protect the identity of the child.
Order
It is therefore ordered that the above captioned matter be and is hereby dismissed as to the Respondents for lack of probable cause to believe an actionable violation of chapter 22 remains to be considered.
It is further ordered that the Complainant is relieved of its obligation under its agreement with the Respondents and board staff to keep confidential the copy of the letter previously provided by Respondents if the Complainant commits to the board’s executive director that it will take no further action to obtain the names of the judges and assistant county attorney who were to receive copies of the letter.
It is further ordered that that the Respondents be denied recovery of any additional costs and expenses from Claimant and that the Complainant’s requests for penalties and damages be denied.
ENTERED THIS TENTH DAY OF JULY, 2014, BY THE IOWA PUBLIC INFORMATION BOARD.
By _________________________________
Robert Andeweg, Chairman
Copies provided by email to:
Complainant
Amalie Nash
Respondents
Eric Tabor, JD and Diane Stahle, JD