15FC:0078 04/21/2016 Stephen Voyce / Iowa Board of Regents - Amended Probable Cause Report and Order

Date:
04/21/2016

Subject:
Stephen Voyce / Iowa Board of Regents - Amended Probable Cause Report and Order

Opinion:

Before the Iowa Public Information Board

In re the Matter of: Stephen Voyce, complainant And concerning: Iowa Board of Regents

Case Number: 15FC:0078                                    AMENDED                              PROBABLE CAUSE           REPORT

 

RE:  Formal Complaint 15FC:0078, filed by Stephen Voyce against the Iowa Board of Regents and the University of Iowa, alleging a violation of Iowa Code chapter 22, public records. The Iowa Public Information Board (IPIB) accepted the complaint as to the Iowa Board of Regents on November 19, 2015.   Staff attempted to reach an informal resolution pursuant to Iowa Code section 23.9, which was unsuccessful.  Pursuant to Iowa Code section 23.10, an investigation was conducted and a probable cause report prepared.  The IPIB members voted to return the initial report for further investigation on January 21, 2016, which was conducted and is outlined in this report.

Background

On October 4, 2015, Stephen Voyce filed a formal complaint with the Iowa Public Information Board (IPIB).   He alleged that the University of Iowa and the Iowa Board of Regents (Regents) violated Iowa Code chapter 22 by failing to properly respond to his request for certain records.  The Regent requested that the complaint be directed to them, as the Regents consider themselves to be the lawful custodian of the requested records.

Mr. Voyce filed his request for records on September 21, 2015, according to his complaint.  He requested various records compiled by the Parker Executive Search (PES) firm during the search for candidates for the position of University of Iowa President in 2015. As noted by Mr. Voyce, these included:

•           Candidate Application materials
•           Background investigation summaries
•           Official background investigation report
•           Any media articles of potential concern
•           Signed statements received from candidates
•           Signed offer terms
•           Campus feedback
•           Survey data conducted via PES’s web portal

Records had not been released at the time the complaint was filed.  Using the time frames provided by Mr. Voyce, thirteen calendar days or nine business days elapsed between his record request and the filing of the complaint.  This is the time frame that would be used for the purpose of proceeding forward on his claim of unreasonable delay of release or response.

Soon after the filing of the complaint, counsel for the Regents notified IPIB staff that certain records from the request were being reviewed and redacted for release. Those records were released the day after the complaint was accepted, on November 20, 2015.  Counsel for the Regents listed the materials released and the materials that would not be released, with the reasons for determining certain records to be confidential (see Exhibit 1).  The records consisted of 154 pages (9241 KB).

Subsequently, copies of the survey data from PES, including the faculty survey responses requested, were released to Mr. Voyce on December 2, 2015 (113 pages, 6892 KB).

Upon review of the first set of released records (but prior to the release of the survey data), Mr. Voyce renewed his request for specific records he did not receive from his initial request:

• Application Materials, or at least a list of materials solicited from each of the four finalists 
• Signed statements received from each candidate 

Again, counsel for the Regents responded that the records in question were confidential under Iowa Code section 22.7(18).  In addition, counsel noted that a list of materials does not exist, so there is no record responsive to this request.

In February, the assistant attorney general assigned to this request contacted the undersigned and stated copies of the materials related to some of the candidates were available for inspection by IPIB staff at the Office of the Attorney General.  I reviewed two large three-ring binders of materials on February 11, 2016, and tagged materials to be released to Mr. Voyce.  These records were released. 

Upon review of the materials on February 11, 2016, it was apparent that at least one candidate would be considered to be from within the government body community.  Further review by the assistant attorney general identified seven candidates that have been classified as internal candidates.  I reviewed those materials, contained in additional five binders, on March 3, 2016, and tagged materials for release.  Those records (104 pages) were released on March 11, 2016.

A final record release (an additional 104 pages, primarily related to one internal candidate) occurred on March 24, 2016.  In all, 475 pages of documents were released.

Mr. Voyce still requests the complete application materials of the four finalists.  It is the position of the Attorney General’s office that these materials are considered confidential unless a candidate has consented to release.  Each of the four finalists only consented to the release of his curriculum vitae/resume.  These documents were publicly available on the University of Iowa webpage.

Discussion

The Regents agree that the Regents are the lawful custodian of the records at issue, not PES.  There is no violation of Iowa Code section 22.2(2) – “A government body shall not prevent the examination or copying of a public record by contracting with a nongovernmental body to perform any of its duties or functions.”

The initial delay in record release alleged by Mr. Voyce was thirteen calendar/nine business days.  That does not appear to be an unreasonable amount of time, given the volume of materials and the complexity of review.  The delay of the release of the survey data from PES was caused in part by the extra time allowed for the three unsuccessful candidates to seek injunctive relief, if any so desired.  No finalist sought such relief, and the records were released.

The remaining issue concerns the release of materials that may be kept confidential pursuant to Iowa Code section 22.7(18):

18. Communications 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 persons 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 of 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.

Two decisions control our analysis of whether the application materials are confidential under Iowa Code section 22.7(18). First, City of Sioux City v. Greater Sioux City Press Club, 421 N.W.2d 895 (Iowa 1988), a 1988 Iowa Supreme Court decision, determined employment applications fall within the public records exception found in Iowa Code section 22.7(18). In that case, the Sioux City Journal requested access to applications for the position of city manager for the city of Sioux City. The court determined the legislative intent of Iowa Code subsection 22.7(18) was to “keep confidential a broad category of useful incoming communications which might not be forthcoming if subject to public disclosure.” (at 898)   The court then determined job applications fit squarely within this subsection and affirmed the district court’s declaratory judgement allowing the city to keep the applications confidential.

A 1992 Polk County District Court decision also guides our analysis of this issue. In Des Moines Register and Tribune Company v. State Board of Regents and Douglas Creamer, the Des Moines Register requested records from the Regents concerning the search for an Iowa State University President. Similar to this case, the Regents used an outside executive search firm. The court found the application records to be confidential under Section 22.7(18), as long as the statutory requirements in Section 22.7(18) are fulfilled and the candidate did not consent to public disclosure concerning their candidacy.

Iowa Code subsection 22.7(18) requires the following findings to establish a confidential communication:

   (1)  The communication is not “required by law, rule, procedure, or contract.”
   (2)  The communication is from “identified persons outside of government.”
   (3)  The government body could “reasonably believe that those persons would be discouraged from making them to that government body if they
          were available for general public examination.”

For the first prong, Sioux City ruled and Des Moines Register confirmed that because applicants are not required to apply for a specific position, the applications are not “required by law”. Fulfilling the second prong, both Sioux City and Des Moines Register agreed that the applicants submitting communications in many cases were “persons outside of government”.  The third prong required the government body to believe the communication must be kept confidential in order to encourage that communication. Des Moines Register ruled the Regents could reasonably believe applicants would be discouraged from applying to a university presidency if their candidacy was public information. To support this proposition, the court considered the Regent’s Procedural Guide section 4.04, “[t]he process shall provide for confidentiality of the candidates to the fullest extent possible under The Code.” In this case, the Regent’s Procedural Guide in effect at the time of the search committee stipulated that the search process required “[c]onfidentiality of the candidates to the fullest extent possible pursuant to law.”  The current Regents could also reasonably believe candidates would be discouraged by a search process that was open to the public.

Prior to and during this search, the Regents adopted or provided various forms and documents that provide for confidentiality of application materials, copies of which are attached:

   1.  The Presidential Search Committee passed a resolution stating they believe applicants will be discouraged from applying if the search process is 
        not confidential and providing for confidentiality of applicants until the selection of finalists for on-campus interviews. (Exhibit 2)
   2.  Regents Policy Manual chapter 4.04(A)(1) provides for ‘[c]onfidentiality of the candidates to the fullest extent possible pursuant to law.” (Exhibit 3)
   3.  The Candidate Background Report cover letter from Laurie C. Wilder, President of Parker Executive Search, dated August 31, 2015, states:“The
        information contained in this report is strictly confidential.” (Exhibit 4)
   4.  An email from Mitchel Bonds at PES and addressed to all search committee members, dated July 24, 2015, states:“Confidentiality is critical.We
        have assured candidates that their materials are confidential at this stage in the search process.” (Exhibit 5)

Even when application materials meet the requirements of 22.7(18), three exceptions may apply: (a) consent of the communicating party, (b) information which may be disclosed without identifying its source, and (c) information surrounding the occurrence of a crime.

In order to determine if an exception applied, the IPIB deputy director reviewed all the materials retained by the assistant attorney general assigned as counsel in this matter.  This information consisted of seven large-ring binders with hundreds of pages of materials. 

Volume 1 consisted of documents divided alphabetically within six tabs.  The first five tabs included the reports from four non-finalist and the four finalist candidates.  The information included criminal and traffic offense histories, social security number searches, credit reports and education verification.  This private information can only be gathered if a candidate specifically allows for such release.

The sixth tab in Volume 1 contains copies of media reports and published articles found by conducting a search of internet sources by ‘googling’ the names or finalist and non-finalist candidates.  While the finalist candidate reports and articles can be found by anyone using the finalist names, these documents can be released by the Regents if so requested upon payment for the copies.

Volume 2 consists of four tabs, with one tab containing no materials.  The background report “Final Combined” materials have not been released, as those materials were gathered with the release that promised confidentiality.  The third tab contains non-finalist salary documentation.  The fourth tab contains application materials from almost 50 individuals, many of whom requested confidentiality by heading or by “Confidential” stamps.  Some of these documents are not from a potential candidate, but from other individuals who ‘nominated’ a potential candidate.  It is likely that these individuals were not even aware of being considered as a candidate.

The remaining five volumes contained materials for all candidates proposed and all candidates who actually applied.  Materials were filed alphabetically be candidates’ last names.  At least one candidate submitted over 100 pages of materials, primarily copies of papers published by the candidate.

It appears upon review of the documents that were not released that none of the exceptions noted above apply.  None of the applicants consented to the release of their applications. The Regents would likely not be able to release candidate application materials without indirectly indicating the identity of the person or enabling others to ascertain the identity of that person. The small number of eligible candidates nationally and the public nature of the position suggest the public would be able to identify the candidates even if personal information was to be redacted. The information requested does not involve a crime. The information requested is not subject to an exception from confidentiality found in Section 22.7(18). Therefore, these specific records remain confidential.

The release of the information requested is governed by precedent set in City of Sioux City v. Greater Sioux City Press Club and by Des Moines Register and Tribune Company v. State Board of Regents and Douglas Creamer.  It addition, the materials fit within the requirements of confidentiality found in Iowa Code section 22.7(18).

The two specific records requests that have not been provided are:

• Application Materials, or at least a list of materials solicited from each of the four finalists
• Signed statements received from each candidate

There are no ‘lists’ of materials solicited from each of the four finalists.  Application materials from all candidates should be confidential under Iowa law.  Redacted copies of the signed statements were previously released. (Exhibit 6).

 

IPIB Action

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”.

Recommendation

There is not sufficient evidence to find probable cause for a violation of Chapter 22.  Recommend dismissal. 

 

Respectfully submitted this 12th day of April, 2016.

Margaret E. Johnson, JD
Deputy Director

With the assistance of Hannah Fordyce, legal extern

Cc:       IPIB
            Stephen Voyce
            Tim Cook, attorney for the Iowa Board of Regents
            Josh Lehman, Iowa Board of Regents