18FC:0075 Patricia Husemann/University of Iowa - Acceptance Order

Date:
10/18/2018

Subject:
Patricia Husemann/University of Iowa - Acceptance Order

Opinion:

The Iowa Public Information Board

COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Acceptance Order.

Patricia Husemann filed formal complaint 18FC:0075 on September 12, 2018, alleging that the University of Iowa (UI) violated Chapter 22 of the Iowa Code (public records).  

Ms. Husemann received records from UI following a record request that was the subject of a previous formal complaint submitted to the IPIB (formal complaint 18FC:0046, dismissed on July 19, 2018, with the release of the requested records).  Following her review of the records released, she questioned whether all the records were released. On July 16, 2018, she was told that a number of emails were withheld as being confidential.

Legal counsel for UI responded to this complaint by noting that some of the withheld emails were confidential pursuant to Iowa Code section 22.7(18), communications not required by law, rule, procedure, or contract from identified persons outside of government that the government body could reasonably believe the sender would be discouraged from communicating if made public.

Other records he identified as being personal in nature and not concerning a public matter.  He cited IPIB language from a Frequently Asked Question (FAQ) that advises that “(s)ome private communications may arguably be withheld as not being a public record or as a confidential public record under Iowa Code Section 22.7.”

It should be noted that this FAQ  refers to the topic of whether the use of a personally owned electronic device precludes the release of an otherwise public record.  It does not refer to communications stored on government owned devices or systems.

Counsel also cites City of Dubuque v. Dubuque Racing Association, Inc., 420 N.W.2d 450 (Iowa 1988).  He cites the Iowa Supreme Court as ruling:  “A document of the government is a document that was produced by or originated from the government.  Documents belonging to the government would include those documents that originate from other sources but are held by public officers in their official capacity.”

The UI response also cites additional court decisions and an Attorney General opinion that support his argument that personal communications commingled with government records are not government records and therefore need not be released pursuant to Iowa Code chapter 22.

Without a review of the specific records, it is not known if the withheld records are public records as defined by Iowa Code section 22.1(3).  Iowa Code section 23.6(6) allows the IPIB to review records that may be confidential while maintaining that confidentiality.

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 18FC:0075 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 October 18, 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 October, 2018, to:

Patricia Husemann

Nathan Levin, legal counsel for the University of Iowa