Date:
01/18/2018
Subject:
Charles Tobin/Marion Independent School District - Probable Cause Report & Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Charles Tobin, Complainant And Concerning: Marion Independent School District, Respondent |
Case Number: 17FC:0033 Probable Cause Report |
COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and submits this Probable Cause report pursuant to Iowa Code section 23.10(1):
Background Information
On April 26, 2017, Charles Tobin filed formal complaint 17FC:0033 against the Marion Independent School District (District). He alleged that the District violated Iowa Code chapter 22 by denying his client's request for certain records maintained by the District. His client, KCRG-TV 9, requested copies of email correspondence between the school superintendent and the principal and copies of emails between school administration and local law enforcement. The emails concerned allegations of an alleged sexual assault of kindergarten students.
The District responded with the release of some, but not all, of the requested records. The District stated that Iowa Code sections 22.7(1) (student records), 22.7(4) (attorney work product), 22.7(11) (personnel), and 22.7(18) (outside communications) defined the remaining records as confidential.
The IPIB accepted this complaint on July 20, 2017. Pursuant to Iowa Code section 23.9, parties worked with IPIB staff to reach an informal resolution. Efforts to reach an informal resolution were unsuccessful, leading to a formal investigation and probable cause report as outlined in Iowa Code section 23.10.
The District identified the records that were not released and provided copies of those records to me for a confidential review. Iowa Code section 23.6(6) allows the IPIB to review confidential records as long as confidentiality is maintained:
“.... Confidential records provided to the board by a governmental body or a government body shall continue to maintain their confidential status. 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.”
The confidential records consisted of five email conversations concerning the incident. Each conversation contained multiple pages of the same email and any response. There are a total of 53 pages, although most pages were reproduced several times in a conversation.
It was readily apparent that almost all of the records were confidential records pursuant to Iowa Code section 22.7(1):
1. Personal information in records regarding a student, prospective student, or former student maintained, created, collected or assembled by or for a school corporation or educational institution maintaining such records. This subsection shall not be construed to prohibit a postsecondary education institution from disclosing to a parent or guardian information regarding a violation of a federal, state, or local law, or institutional rule or policy governing the use or possession of alcohol or a controlled substance if the child is under the age of twenty-one years and the institution determines that the student committed a disciplinary violation with respect to the use or possession of alcohol or a controlled substance regardless of whether that information is contained in the student’s education records. This subsection shall not be construed to prohibit a school corporation or educational institution from transferring student records electronically to the department of education, an accredited nonpublic school, an attendance center, a school district, or an accredited postsecondary institution in accordance with section 256.9, subsection 48.
A few records were confidential under the provisions of Iowa Code section 22.7(11):
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 resigned in lieu of termination, was discharged, or was demoted as the result of a disciplinary action, and the documented reasons and rationale for the resignation in lieu of termination, the discharge, or the demotion. For purposes of this subparagraph, "demoted" and "demotion" mean a change of an employee from a position in a given classification to a position in a classification having a lower pay grade.
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.
One record, titled “Talking Points for Parent Meetings”, was reviewed and recommended for release as not being a confidential records. That record was released on November 2, 2017. Additional records were released by the District on February 7 and 23, 2017, including 11 email conversations that were not student records, prior to the filing of this complaint.
The records that were not released are considered confidential pursuant to Iowa Code.
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;
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; or
e. Direct administrative resolution of the matter under subrule 2.1(6) without making a determination as to whether a violation occurred.”
Recommendation
I recommend that the IPIB find that there is no probable cause to believe a violation has occurred., pursuant to Iowa Administrative Rule 497-2.2(4)(b).
Respectfully submitted this ___ day of _______, 2018.
_______________________________________________
Margaret E. Johnson, JD
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)
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ____ day of January, 2018, to:
Charles Tobin
Holly Corkery, council for Marion School District
The Iowa Public Information Board
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In re the Matter of: Charles Tobin, Complainant And Concerning: Marion Independent School District, Respondent |
Case Number: 17FC:0033 Probable Cause Order |
This matter comes before the Iowa Public Information Board (IPIB) this 18th day of January, 2018, to consider a Probable Cause report.
The Probable Cause Report recommends that the IPIB determine that probable cause does not exist to believe that the the Marion Independent School District violated Iowa Code chapter 22.
The IPIB has determined that there is no Probable Cause to believe that the Marion Independent School District violated Iowa Code chapter 22.
Pursuant to Iowa Administrative Rule 497-2.2(4)(b) the IPIB adopts the findings and recommendations of the Probable Cause report and dismisses this complaint.
So ordered this 18th day of January, 2018.
_____________________________________
IPIB Chair
Cc: Charles Tobin
Holly Corkery, counsel for Marion School District