Date:
12/17/2015
Subject:
Ryan Foley / Iowa Department of Public Safety - Probable Cause Report and Order
Opinion:
Before the Iowa Public Information Board
|
In re the Matter of: Ryan Foley, complainant And concerning: Iowa Department of Public Safety, Respondent |
Case Number: 15FC:0060 Probable Cause Report |
SUMMARY: Formal complaint filed by Ryan Foley against the Iowa Department of Public Safety alleging a violation of Iowa Code Chapter 22 for failure to release certain reports concerning a review of contracts for the purchase of weapons. Pursuant to Iowa Code section 22.7(4) and 22.7(11), the documents may be withheld from release as confidential records. Recommend a finding of lack of probable cause on that issue. Board needs to determine issue of potential lack of timeliness of DPS’s initial response to the record request.
BACKGROUND
Ryan Foley filed this complaint on July 14, 2015, alleging that the Iowa Department of Public Safety (DPS) unlawfully declined to release a public document on June 17, 2015, and failed to timely respond to his record request. Mr. Foley requested a copy of a summary report that resulted from a review of certain contracts undertaken by two retired DPS employees. Foley asked for the report and a written summary of their findings on May 19, 2015. He received this response from Alex Murphy on June 17, 2015: “As for any findings of the internal investigations, those records are confidential under Iowa Code Sections 22.7(4) and 22.7(11).”
In response to a request for additional information or justification for the denial, Jeff Peterzalek of the Iowa Attorney General’s Office provided a written response by letter dated July 23, 2015. Peterzalek categorized some of the records as meeting the requirements of two separate confidentiality exceptions under 22.7: Iowa Code section 22.7(4) Attorney Work Product and Iowa Code section 22.7(11) Confidential Personnel Materials. Others would be released.
The Iowa Public Information Board (IPIB) accepted the complaint on August 20, 2015, and referred the complaint to IPIB staff for informal resolution. As part of the resolution discussion, the parties met telephonically with the IPIB deputy director on September 16, 2015.
Records were released to the Complainant by DPS on or about September 16, 2015. A total of 79 records were released to the IPIB on October 26, 2015. Due to the size of the files, IPIB staff copied the files onto a flash drive and mailed the records on a CD to the Complainant on October 30, 2015. Other records were released by Department of Administrative Services (DAS).
The Complainant acknowledged receipt of the records on November 4, 2015, stating, “I already have these documents.” He responded that he still did not have a copy of the complete DPS report and the summary of that report. He also stated on November 30, 2015, that he had not received “a detailed explanation on what the subsequent investigation by DPS found that led to the 3 accused officials to be exonerated and returned from leave.”
Counsel for DPS responded that there is no record in existence that is a “detailed explanation of what the investigation found”, and that any internal affairs investigations would be protected from disclosure under Iowa Code section 22.7(11).
Again, counsel noted that the DPS report and summary were being withheld pursuant to Iowa Code section 22.7(4).
At this time, there are no further issues that can be resolved informally.
Iowa Code section 22.7(4)
Iowa Code section 22.7(4) states the following records shall be confidential: “Records which represent and constitute the work product of an attorney, which are related to litigation or claim made by or against a public body.”
As part of the formal investigation, DPS, through counsel, allowed IPIB review of the summary in question. The IPIB is required to maintain the confidentiality of this record pursuant to Iowa Code section 23.6(6). However, it is apparent from review of this document that the Iowa Attorney General’s office, specifically Jeff Peterzalek of that office, requested and directed the review, and that the records in question are attorney work products relating to litigation or claim as required by section 22.7(4).
It is also apparent in reviewing the records that were released and the summary, that the majority of the records (such as DAS contract records and DPS emails) have already been released to the Complainant.
Peterzalek references a June 12, 2015, decision of the Iowa Supreme Court, to support the Attorney Work Product exception. In Iowa Ins. Institute v. Core Group of Iowa Ass’n of Justice, 867 N.W.2d 58, at 70 (Iowa 2015), the Iowa Supreme Court ruled that:
“To constitute work product, something must be (1) a document or tangible thing, (2) prepared in anticipation of litigation, and (3) prepared by or for another party or by or for that party’s representative. See Iowa R. Civ. P. 1.503(3). In 2004, we adopted a new standard for determining whether a document or tangible thing is prepared in anticipation of litigation. See Wells Dairy, 690 N.W.2d at 48. If a document or tangible thing may fairly be said to have been prepared or obtained because litigation is foreseeable or ongoing, it constitutes work product; litigation need not be the primary reason for creating or obtaining the materials. See id.
The underlying issue addressed in the review and in the documents released concerns a purchase of weapons by DPS. If the issue is brought to court pursuant to litigation filed by either party to the contract, then additional documents may be released as evidence. If the parties eventually reach a settlement, then the terms of that would be public record pursuant to Iowa Code section 22.13. There is no probable cause to believe a violation of 22.7(4) occurred.
Iowa Code section 22.7(11)
Iowa Code section 22.7(11) states certain personnel records shall be kept confidential, with some exceptions:
11. a. Personal information in confidential personnel records of government bodies relating to identified or identifiable individuals who are officials, officers, or employees of the government bodies. However, the following information relating to such individuals contained in personnel records shall be public records:
(1) The name and compensation of the individual including any written agreement establishing compensation or any other terms of employment excluding any information otherwise excludable from public information pursuant to this section or any other applicable provision of law. For purposes of this paragraph, “compensation” means payment of, or agreement to pay, any money, thing of value, or financial benefit conferred in return for labor or services rendered by an official, officer, or employee plus the value of benefits conferred including but not limited to casualty, disability, life, or health insurance, other health or wellness benefits, vacation, holiday, and sick leave, severance payments, retirement benefits, and deferred compensation.
(2) The dates the individual was employed by the government body.
(3) The positions the individual holds or has held with the government body.
(4) The educational institutions attended by the individual, including any diplomas and degrees earned, and the names of the individual’s previous employers, positions previously held, and dates of previous employment.
(5) The fact that the individual was discharged as the result of a final disciplinary action upon the exhaustion of all applicable contractual, legal, and statutory remedies.
b. Personal information in confidential personnel records of government bodies relating to student employees shall only be released pursuant to 20 U.S.C. § 1232g.
Some of the information requested, in particular the investigation of one or more DPS employees, are personnel records and subject to the protections of Iowa Code section 22.7(11). The Iowa Supreme Court explained this confidentiality exception in Des Moines Independent Community School District Public Records v. Des Moines Register & Tribune Co., 487 N.W.2d 666 (Iowa 1992), and in Clymer v. City of Cedar Rapids, 601 N.W.2d 42 (Iowa 1999).
The first cited case extended the exception beyond documents just found within the personnel file to include the results of an in-house investigation contained in job performance documents. In Clymer, the Court included certain financial information to be information subject to release, such as wages, benefits, and such. The Iowa Legislature amended the section to its current language in 2011.
There is no probable cause to believe that a violation of Iowa Code section 22.7(11) occurred.
Timeliness of DPS response
In his complaint to the IPIB, Mr. Foley notes that DPS “failed to respond to a request in a timely fashion.” His record request was made on May 19, 2015. The initial response was sent on June 17, 2015. Records were released after the complaint was filed on July 14, 2015.
DPS noted that two of the employees involved with the record release were unavailable for about two weeks between May 19th and June 17th. However, DPS should have a procedure in place to cover those responsibilities during absences. It should not require 29 calendar days (20 business days) for an initial response. Granted, in this particular situation, the number of records, the various locations of the records, and the review required before release, might excuse some of the delay.
Chapter 22 does not set a specific timeline for release of records. Chapter 22.8(4) permits a “good-faith, reasonable delay” without any further definition. An IPIB Advisory Opinion, 14FO:0004, issued on October 16, 2014, includes extensive language from the Iowa Supreme Court decision Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444 (Iowa 2013), including the following on pages 3 – 4:
According to a longstanding administrative interpretation of chapter 22:
Access to an open record shall be provided promptly upon request unless the size or nature of the request makes prompt access infeasible. If the size or nature of the request for access to an open record requires time for compliance, the custodian shall comply with the request as soon as feasible.
See Iowa Uniform Rules on Agency Procedure, Fair Information Practices, (Reference Omitted) [hereinafter Fair Information Practices] (Citation Omitted); see also Griffin Pipe Prods. Co. v. Bd. of Review, 789 N.W.2d 769, 775 (Iowa 2010) (“Longstanding administrative interpretations are entitled to some weight in statutory construction.”). The State's Uniform Rules on Agency Procedure, from which the above quotation is taken, were drafted by a nine-member task force chaired by University of Iowa Law School Professor Arthur Bonfield; they were adopted in 1985. Fair Information Practices at 1. Under this interpretation, practical considerations can enter into the time required for responding to an open records request, including “the size or nature of the request.” But the records must be provided promptly, unless the size or nature of the request makes that infeasible.
Whether there is probable cause to proceed further on this issue is uncertain. While there might not be a provable violation of Chapter 22, there is definitely an appearance of avoidance of Iowa’s public records law and transparency rules and policy.
RECOMMENDATION
The IPIB has several options upon receipt of a probable cause report. According to Iowa Administrative Rule 497 - 2.2(4):
“Board action. Upon receipt and review of the staff investigative report and any recommendations, the board may:
a. Redirect the matter for further investigation;
b. Dismiss the matter for lack of probable cause to believe a violation has occurred;
c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the
matter; or
d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a
statement of charges to initiate a contested case proceeding”.
Probable cause is not specifically defined in Chapters 21, 22 and 23. A different section of the Iowa Code defines probable cause as “reasonable suspicion”; it is defined in legal dictionaries as the “apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution, or that a cause of action has accrued, justifying a civil lawsuit.”
There is insufficient evidence to establish probable cause for a violation of Iowa Code sections 22.7(4) and 22.7(11). While there may possibly be probable cause to proceed further concerning the delay in the record release, it may be sufficient to dismiss that issue with a warning that DPS should strive to respond to record releases in a more prudent and timely manner in the future.
Respectfully submitted this 9th day of December, 2015.
Margaret E. Johnson, JD
Deputy Director
Cc: IPIB
Ryan Foley
Jeff Peterzalek, counsel for DPS