16FC:0031

Date:
06/22/2017

Subject:
Fred Cailey/Page County Sheriff's Office - Probable Cause Order

Opinion:

Before The Iowa Public Information Board

In re the Matter of: Fred Cailey, Complainant And Concerning: Page County Sheriff’s Office, Respondent

Case Number: 16FC:0031                                                           Probable Cause Report                                      Revised

 

Summary:  Fred Cailey filed a formal complaint against the Page County Sheriff’s Office, requesting an audio recording from the county jail.  The Sheriff denied the request.  The complaint was accepted by the Iowa Public Information Board (IPIB) on September 15, 2016.  Efforts to resolve the complaint informally were unsuccessful.  Based upon a review of the recording and IPIB Advisory Opinion AO 2017-01, there is no probable cause to believe a violation has occurred.  Dismissal is recommended.

 

On March 30, 2016, Fred Cailey filed a complaint with the Iowa Public Information Board (IPIB), alleging a violation of Chapter 22 of the Iowa Code by the Sheriff of Page County (Sheriff).

Specifically, Mr. Cailey alleged that the Sheriff violated Chapter 22 on March 21, 2016, by failing to provide a copy of a phone call recorded at the Page County Jail.  The Sheriff responded by denying the release of the recording, stating:

“Because that jail phone call is part of a law enforcement investigative report, it is governed by the exception regarding law enforcement reports which are considered confidential records, the release of which are governed by Iowa Code Section 22.7(5). Because your request is for a public record that is considered confidential pursuant to Iowa Code Section 22.7(5), it is not subject to release.”

 

The IPIB accepted this complaint on September 15, 2016.  The IPIB, in its order, stated that the acceptance was “to determine the status of this complaint in light of (other) determinations,” referencing the contested cases currently pending before the Department of Inspections and Appeals.  In addition, the IPIB received a request for an advisory opinion on September 7, 2016, the resolution of which could impact this complaint.

 

Pursuant to Iowa Code section 23.9, IPIB staff consulted with both parties to reach an informal resolution.  During the course of this process, Page County referred negotiations to an attorney representing the county on possible civil litigation following the death of the inmate whose phone call was requested by Mr. Cailey.  The estate and family of the deceased inmate also retained counsel to determine whether a legal action would be filed.

 

Counsel for Page County submitted a request to the IPIB on September 7, 2016, requesting that the IPIB review a list of documents the family’s attorney wanted to obtain.  Both attorneys agreed to accept the IPIB decision on whether the various documents were confidential records.  One of the records involved with that request was a copy of the telephone recordings made by the inmate for a certain time period just prior to the incident that resulted in her death.  One of these calls was the call that Mr. Cailey sought.  

 

The IPIB, in advisory opinion AO 2017-01 (Attachment 1), advised that the audio recordings of communications from the deceased inmate can be classified as confidential pursuant to Iowa Code section 22.7(50).  The opinion states:  “This section makes those records relating to jail security procedures confidential if disclosure could ‘reasonably be expected to jeopardize...employees, visitors, persons or property.’”

 

Iowa Code section 23.6(6) allows the IPIB to examine “a record of a governmental body or government body that is the subject matter of a complaint, including any record that is confidential by law.”  I examined the recording at issue.  The recorded conversation included information concerning the introduction of contraband into the jail and methods to evade the jail contact and communication monitoring systems.  This information could affect “jail security procedures” as protected by Iowa Code section 22.7(50).  Release of this recording could “reasonably be expected to jeopardize” jail employees, inmates, and visitors.

 

Pursuant to Iowa Code section 23.6(6), this record continues to maintain its confidential status.  This section states:  “Any member or employee of the board is subject to the same policies and penalties regarding the confidentiality of the document as an employee of the governmental body or government body.”

 

Counsel for the deceased’s family opposes the release of any recordings of the deceased as a public record.  Mr. Cailey has been in contact with this attorney, who has provided information that his clients have approved for release to Mr. Cailey.  On April 13, 2017, this attorney sent a letter to Mr. Cailey promising to release more information when the civil case is filed.  Litigation is still pending at this time.

 

The initial response from the Sheriff cited Iowa Code section 22.7(5) (peace officer investigative report) as the rationale for determining the records are confidential.  Upon closer investigation and review, the IPIB Advisory Opinion determined that the protection of Iowa Code section 22.7(50) is more appropriate.  Because this record is confidential under this subsection, it is unnecessary to determine if the record is also confidential under Iowa Code section 22.7(5).

 

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”.

e. Direct administrative resolution of the matter under subrule 2.1(6) without making a determination as to whether a violation occurred.

 

Recommendation

There is insufficient evidence to support a finding of probable cause for a violation of Chapter 22.  I recommend dismissal.  

If the IPIB members want to review the confidential information prior to determining probable cause, the Board should redirect the matter for further investigation and review the recording in closed session pursuant to Iowa Code section 21.5(1)(a).

Respectfully submitted this ___ day of _______, 2017.

 

Margaret E. Johnson, JD

Interim Executive Director

Iowa Public Information Board

Wallace Building, Third Floor

502 E. 9th Street

Des Moines, Iowa 50319

(515) 725-1783

(515) 725-1789 (fax)

Margaret.Johnson@iowa.gov

www.ipib.iowa.gov

 

Cc:     IPIB

    Fred Cailey

    Page County Attorney

    Robert Livingston, special counsel for Page County

   

Iowa Public Information Board

In re the Matter of: Fred Cailey, Complainant And Concerning: Page County Sheriff’s Office, Respondent

Case Number: 16FC:0031                                                           Probable Cause Order

 

This matter comes before the Iowa Public Information Board (IPIB) this 22nd day of June, 2017, to consider the revised probable cause report filed on June 15, 2017.

 

Upon review of the probable cause report and its findings and recommendations, the IPIB finds there is no probable cause to believe that a violation of Iowa Code chapter 22 has occurred.

 

Therefore, the IPIB approves and adopts the findings and recommendations of the probable cause report and orders that this complaint is dismissed.

 

So ordered this 22nd day of June, 2017.

 

 

 

________//ss//_____________________________

IPIB Chair

 

 

Cc:     IPIB

    Fred Cailey

    Page County Attorney

    Robert Livingston, special counsel for Page County