Date:
03/07/2014
Subject:
Jared Strong / Audubon City Council - Chapter 22 - City Council emails
Opinion:
Jared Strong
508 N. Court St.
Carroll, IA 51401
RE: Formal complaint 14FC:0009 (concerning the Audubon City Council)
Dear Mr. Strong:
On February 28, 2014, you submitted a formal complaint with the Iowa Public Information Board (IPIB). In that complaint, you alleged that the City of Audubon, Iowa, improperly withheld an email sent by a private individual to a city councilperson in November 2013. This specific email was addressed by the city attorney, David Wiederstein, in an email he circulated on February 27, 2014, directing officials in the city government to release their emails to Dawn Rohe, one of the requestors. It appears from the information you provided that this records request was not yours. Your complaint arises from reviewing multiple requests for the council members emails. You requested that the IPIB “compel the city attorney to release the email” and “give better guidance to the council on what emails should be confidential under Iowa Code 22.7(18).”
Iowa Code Section 22.7(18) allows a custodian of public records the ability to keep confidential:
“(C)ommunications not required by law, rule, procedure, or contract that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them to that government body if they were available for general public examination. As used in this subsection, ‘persons outside of government’ does not include person or employees of persons who are communicating with respect to a consulting or contractual relationship with a government body or who are communicating with a government body with whom an arrangement for compensation exists. Notwithstanding this provision:
a. The communication is a public record to the extent that the person outside of government making that communication consents to its treatment
as a public record.
b. Information contained in the communication is a public record to the extent that it can be disclosed without directly or indirectly indicating the
identity of the person outside of government making it or enabling others to ascertain the identity of that person.
c. Information contained in the communication is a public record to the extent that it indicates the date, time, specific location, and immediate facts
and circumstances surrounding the occurrence of a crime or other illegal act, except to the extent that its disclosure would plainly and seriously
jeopardize a continuing investigation or pose a clear and present danger to the safety of any person. In any action challenging the failure of the
lawful custodian to disclose any particular information or the kind enumerated in this paragraph, the burden of proof is on the lawful custodian
to demonstrate that the disclosure of that information would jeopardize such an investigation or would pose such a clear and present danger.”
The Iowa Supreme Court has provided some guidance in determining whether an unsolicited communication to a public official can remain confidential in City of Sioux City v. Greater Sioux City Press Club, 421 N.W.2d 895 (Iowa1988). Basically, three criteria must be met for the communication to remain confidential:
1. The communication is not required by law, rule, procedure or contract.
2. It is from an identified person outside of government.
3. The government body could reasonably believe the communicator would be discouraged from communicating if made public.
Of course, even if within the auspices of 22.7(18), if the sender of the communication consents to its release as a public record, then the record can be released.
You are correct in your statement that the majority of exceptions that fall under 22.7(18) are either ‘whistle-blower’ communications or job applications. ‘Whistle-blower’ is a rather broad term and can encompass a variety of communications to the government body that express concerns emanating from an unsolicited reporter.
Upon further investigation by this office, it appears that the email in question in this matter meets the criteria of all three conditions noted above. The author, who is not a public official or employee, had requested that the communication remain confidential when it was submitted. When interviewed, the author stated the communication would not have been made had the author known it would become a public record.
A copy of this order will be provided to the city attorney. It is important that the city council members responding to the records request for emails use the three-prong test noted above before declining to provide an email. The city attorney is available to assist council members in reviewing questionable emails. The city attorney has also been provided with IPIB sanctioned training materials to assist with any training he would oversee with the City of Audubon.
Iowa Code Section 23.8 provides two options for action by the IPIB upon receipt of a complaint, the second of which states:
“Determine that, on its face, the complaint is outside its jurisdiction, is legally insufficient, is frivolous, is without merit, involves harmless error, or relates to a specific incident that has previously been finally disposed of on its merits by the board or a court. In such a case the board shall decline to accept the complaint. If the board refuses to accept a complaint, the board shall provide the complainant with a written order explaining its reasons for the action.”
For the reasons set forth above, it is therefore ordered that the complaint is dismissed on the grounds that the complaint is legally insufficient.
A copy of this Order is being forwarded to the Iowa Public Information Board for review at its next scheduled meeting on March 20, 2014.
Keith Luchtel
Executive Director
CC: IPIB
Audubon City Council
David L. Wiederstein