Date:
11/16/2017
Subject:
Cherie Pichone/Waterloo Community Schools - Acceptance Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Cherie Pichone, Complainant And Concerning: Waterloo Community Schools, Respondent |
Case Number: 17FC:0064 Acceptance Order |
COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Acceptance Order.
On September 18, 2017, Cherie Pichone filed complaint 17FC:0064, alleging that the Waterloo Community School District (School) violated Iowa Code chapter 22 by wrongly withholding records she requested. She requested copies of records generated by the School when investigating an allegation that she had improperly enrolled her child in the school district. The investigation did not indicate that her child was improperly enrolled.
Some records, but not all, were released. The records released also included some redactions. Ms. Pichone is challenging the legitimacy of the redactions as well as the withholding of records.
The School responded to the complaint, stating that the redactions occurred to protect the identity of the individual who notified the School of the possible improper enrollment. The rationale for this is Iowa Code section 22.7(18), also known as the whistleblower exemption. The School did not provide documentation of whether the IPIB requirements for using this section have been met:
A communication to a government body can be kept confidential under Iowa Code section 22.7(18) only if all of the following exist:
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The communication is not required by law, rule, procedure, or contract.
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It is from identified persons outside of government.
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The government body could reasonably believe those persons would be discouraged from communicating with government if the information was made public.
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And, nevertheless, the information can still be released if the person communicating with government consents to its release or if it can be released without identifying the person. (IPIB Advisory Opinion AO 2017-09)
The School also retained the records generated during the investigation, citing Iowa Code section 22.7(65), the ‘draft’ exemption. Again, it is uncertain if the records meet the IPIB criteria for using this section:
Iowa Code section 22.7(65) states:
“Tentative, preliminary, draft, speculative, or research material, prior to its completion for the purpose for which it is intended and in a form prior to the form in which it is submitted for use or used in the actual formulation, recommendation, adoption, or execution of any official policy or action by a public official authorized to make such decisions for the governmental body or the government body. This subsection shall not apply to public records that are actually submitted for use or are used in the formulation, recommendation, adoption, or execution of any official policy or action of a governmental body or a government body by a public official authorized to adopt or execute official policy for the governmental body or the government body.”
IPIB establishes the following criteria to determine if a document falls within this exception:
1. The document is tentative, preliminary, draft, speculative or research material;
2. The document exists in a form prior to completion of its intended purpose;
3. The document exists in a form prior to the form that is ultimately submitted for use or used in the actual formulation, recommendation, adoption or execution of any official policy or action by a public official with authority to make such decisions; and
4. The document must not have been submitted to or used by a public official authorized to adopt or execute official policy.
In applying this criteria, the document must truly be a draft that is not in its final form to be submitted to a public official who has authority to make decisions regarding the subject matter to which the draft applies. In addition, if the draft has been submitted to a public official authorized to adopt or execute official policy, the exception does not apply. (IPIB Advisory Opinion AO 2015-01)
There is no allegation that Iowa Code section 22.7(1), personal records regarding a student, applies to the redacted or withheld records.
The disputed records have not been provided to the IPIB for review, so it is uncertain whether the exemptions would apply. Accepting this complaint would allow IPIB staff to review the withheld and redacted records.
Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and could have merit before the IPIB accepts a complaint. This complaint meets those requirements.
IT IS SO ORDERED: Formal complaint 17FC:0064 is accepted pursuant to Iowa Code section 23.8(1) and Iowa Administrative Rule 497-2.1(2)(a). Parties are directed to engage in reaching an informal resolution, with the assistance of IPIB staff, pursuant to Iowa Code section 23.9.
Pursuant to Iowa Administrative Rule 497-2.1(3), the IPIB may “delegate acceptance or dismissal of a complaint to the executive director, subject to review by the board.” The IPIB will review this Order on November 16, 2017. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
_________________________________
Margaret E. Johnson
Dated this ____ day of _________, 2017.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of ________, to:
IPIB
Cherie Pichone
Steven Weidner, counsel for Waterloo Community Schools