Date:
11/15/2018
Subject:
Timothy Allen/Union County Sheriff - Dismissal Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Timothy Allen, Complainant And Concerning: Union County Sheriff, Respondent |
Case Number: 18FC:0065 Dismissal Order |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
Timothy Allen filed complaint 18FC:0065 with the IPIB on August 10, 2018. He alleged that the Union County Sheriff’s Office (Sheriff) violated Iowa Code chapter 22 by not providing the public records he requested.
Mr. Allen provided a copy of an email he sent to the Sheriff on July 8, 2018. Referencing a March 2001 arson death, he requested that the Sheriff provide “a copy of the case file in its entirety to me at my expense. In the alternative, I request that you make the original case file available in its entirety to me so that I may conduct this review and make digital reproductions as necessary.”
He received a response from the Sheriff on July 9, 2018. The reply indicated that the Sheriff does not have any records responsive to his record request. The criminal investigation requested is an investigation by the Fire Marshal with the Iowa Department of Public Safety (DPS).
Mr. Allen was told to direct his record request to the Department of Public Safety. He sent an email to an investigator with the fire marshal's office on July 9, 2018. His email asked for answers to three questions. His email did not request any records.
His three questions were answered. The investigator replied that the Fire Marshal “has possession of the investigative reports for this incident that were created by the SFM (State Fire Marshal) Division.” He also noted that each agency involved with the investigation would have that agency’s records.
The county attorney for Union County filed a response to the complaint with the IPIB. The response noted that the Sheriff did not have any responsive records and that record requests should be filed with SFM. This information was again provided to Mr. Allen.
The response also noted that the investigation has not been closed and that the statute of limitations for homicide has not expired. The county attorney noted that even if the Sheriff had any records, the confidentiality protections of Iowa Code section 22.7(5) should apply, as the release of any records would “plainly and seriously jeopardize” this investigation.
Roxann Ryan, the director of the Department of Public Safety, confirmed that DPS is the lawful custodian of the records at issue. She also confirmed that DPS rarely releases the entire investigative file of an open investigation. Ms. Ryan explained that releasing the file could allow a perpetrator to avoid arrest and prosecution. Some information in the file should only be known to the investigator and the perpetrator. This release would jeopardize the success of the criminal investigation.
On October 19, 2018, Mr. Allen filed a writ of mandamus in Union County District, requesting that the court “command the Respondents to provide immediate and unrestricted access to the documentation he requested.” (Case number EQCV018618) This action was filed naming both the Sheriff and the Union County Attorney.
Iowa Code section 22.1(2) defines the lawful custodian as “the government body currently in physical possession of the public record” or as “the government body owning that record.” The Sheriff does not have physical possession of this investigative file and does not own the record.
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 does not meet those requirements.
IT IS SO ORDERED: Formal complaint 18FC:0065 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 November 15, 2018. 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, J.D.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of November, 2018, to:
Timothy Allen
Timothy Kenyon, county attorney