Date:
05/17/2018
Subject:
Robert Colwell/Iowa Department of Human Services - Revised Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Robert Colwell, Complainant And Concerning: Iowa Department of Human Services, Respondent |
Case Number: 18FC:0023
REVISED DISMISSAL ORDER
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COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order:
On March 20, 2018, Dr. Robert Colwell filed this formal complaint, alleging that the Iowa Department of Human Services (DHS) violated Iowa Code chapter 22 by failing to release public records he requested. Dr. Colwell provided his timeline of his request:
- A request for records was filed with DHS on February 13, 2018.
- DHS acknowledged receipt of the request on February 13, 2018.
- On February 27, 2018, Dr. Colwell contacted DHS to inquire about the status of his request.
- On February 28, 2018, he was advised that there were no responsive records for one part of his request.
- On March 1, 2018, he asked about the other two items in his record request.
- Dr. Colwell followed up on March 6, 2018. DHS responded that a date for completion of the record request was forthcoming.
- Dr. Colwell again requested a response on March 13, 2018, at which time he was told the records would be ready by the “end of the week.”
- ​When he did not receive the records, Dr. Colwell left a voicemail on March 16, 2018, and emailed DHS on March 19, 2018.
DHS was notified of this complaint on March 20, 2018. DHS responded, providing copies of 78 pages of records that were released to Dr. Colwell on March 20, 2018. Included with the records was a cover letter that stated that the records addressed two of his three record requests. The letter also stated that there were no records responsive to his third request.
Dr. Colwell reported to the IPIB that he believed there were records responsive to his third request. DHS informed the IPIB that the record request required working with three different DHS divisions. Since some records were “encrypted” and contained “PHI (personal health information)”, retrieving the records involved additional time.
On March 29, 2018, Dr. Colwell noted that in past record requests, he had received copies of emails between individuals and departments in DHS. He questioned why this record request did not contain similar chains of emails.
On April 4, 2018, DHS replied that the emails that Dr. Colwell sent to DHS were not included in the record release, as he did not request those emails. If he needed copies of those, they could be provided to him. Later that day, Dr. Colwell provided to the IPIB over 200 pages of copies he received from earlier requests and a court order from his previous litigation against DHS.
DHS notified IPIB on April 11, 2018, that even after an additional search in April, no responsive emails were found. It was noted that some emails were not released due to attorney work product, which is confidential pursuant to Iowa Code section 22.7(4). In addition, DHS stated that attorney/client privilege was not waived, and certain communications with DHS legal staff were withheld.
DHS stated: “The Department identified a total of five email threads involving Department staff communicating directly with counsel in the AG’s office concerning Dr. Colwell’s claims, seeking legal advice from counsel, or providing information to counsel concerning Dr. Colwell’s claims.”
After the filing of this complaint, Dr. Colwell asked for an explanation as to why certain emails are considered “attorney client privileged.” Attorney/client privilege is defined in Iowa Rule of Professional Conduct 32:1.6:
Rule 32:1.6: CONFIDENTIALITY OF INFORMATION
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b) or required by paragraph (c).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services; (3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services; (4) to secure legal advice about the lawyer’s compliance with these rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or (6) to comply with other law or a court order; or (7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
(c) A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent imminent death or substantial bodily harm.
(d) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
It is not necessary to review and determine whether these records are attorney/client privileged or whether the privilege has been waived. Iowa Code section 22.7(4) allows public records to be withheld as confidential when related to litigation or claim made by or against a public body.
Dr. Colwell received the responsive records on March 20, 2018, twenty-five (25) business and 36 calendar days after his request. This does not appear to be an unreasonable amount of time.
Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and have merit before the IPIB accepts a complaint. This complaint does not fulfill those requirements.
IT IS SO ORDERED: Formal complaint 18FC:0023 is dismissed as legally insufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b).
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 May 17, 2018. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
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Margaret E. Johnson, J.D.
Dated this _____ day of _______, 2018.
Cc: Dr. Robert Colwell
Matt Highland, public information officer for DHS