Date:
07/18/2019
Subject:
Thomas O'Brien/Story County Medical Examiner - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Thomas O’Brien, Complainant And Concerning: Story County Medical Examiner, Respondent |
Case Number: 19FC:0056 Dismissal Order |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
On May 24, 2019, Thomas O’Brien filed formal complaint 19FC:0056 against the Story County Medical Examiner (County) alleging that the County violated Iowa Code chapter 22.
Mr. O’Brien filed a public record request on April 29, 2019, requesting three items from an investigation into the death of a specific named individual in January of 2009. He is requesting the release of the Form ME-1 to allow his inspection of:
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Probable cause of death, including any immediate, underlying, or contributing causes.
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Manner of death.
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Description of “how the injury occurred” (box 24d. of the death certificate)
He requested that any confidential information on the Form ME-1 be redacted, and that he be allowed to receive the form with such redactions. He alleged that he had not received a response from the County as of the time of the filing of this complaint.
The County was informed of the complaint on May 28, 2019. The County responded that day, noting that the requested record is available at the county recorder’s office, adding, “ME-1 forms are used by the Medical Examiner to record preliminary information, and the information listed on the ME-1 may or may not be reflective of the final, publicly available, cause and manner of death on the death certificate. We do not release ME-1 forms to the general public without the express consent of the County Attorney.”
An assistant county attorney filed a response on June 4, 2019. In his response, he noted that the original record request from Mr. O’Brien was filed with the County on December 11, 2018. The County responded to that record request on December 13, 2018, noting that “per Iowa Code 22.7(41), only the cause and manner of death can be released. Any other information can be released only to the legal next of kin or by court order.” The County did not respond to what it stated was a “duplicative request” filed on April 29, 2019.
Iowa Code section 22.7(41) states the following record shall be kept confidential:
41. a. Medical examiner records and reports, including preliminary reports, investigative reports, and autopsy reports.
b. Notwithstanding paragraph "a", the following shall be released as follows:
(1) Medical examiner-authored records and reports, including preliminary reports, investigative reports, and autopsy reports, shall be released to a law enforcement agency that is investigating the death, upon the request of the law enforcement agency.
(2) Preliminary reports of investigations by the medical examiner and autopsy reports for a decedent by whom an anatomical gift was made in accordance with chapter 142C shall be released to an organ procurement organization as defined in section 142C.2, upon the request of such organ procurement organization, unless such disclosure would jeopardize an investigation or pose a clear and present danger to the public safety or the safety of an individual.
(3) Autopsy reports shall be released to the decedent’s immediate next of kin upon the request of the decedent’s immediate next of kin unless disclosure to the decedent’s immediate next of kin would jeopardize an investigation or pose a clear and present danger to the public safety or the safety of an individual.
c. Information regarding the cause and manner of death shall not be kept confidential under this subsection unless disclosure would jeopardize an investigation or pose a clear and present danger to the public safety or the safety of an individual. (Emphasis added.)
Mr. O’Brien does not meet any of the exceptions listed in subsection 22.7 (41)(b). He would only be entitled to the information listed in subsection 22.7 (41)(c). Mr. O’Brien has referenced Iowa Attorney General opinions prior to the amendment of this statute in 2002 that allow the release of autopsy records. While these reports were released prior to 2002, the opening sentence of Iowa Code section 22.7(41) clearly includes Form ME-1 as a confidential record.
Mr. O’Brien said that he made the second request on April 29, 2019, because he wanted to file a formal complaint with the IPIB and had missed the statutory deadline of 60 days as required by Iowa Code section 23.7(1). He wrote in a June 7, 2019, email:
With regard to the Assistant County Attorney's "Duplicative request" complaint, Iowa Code 23.7 (Filing of complaints with the board), specifically states, "The complaints must be filed within sixty days from the time the alleged violation occurred or the complainant could of become aware of the alleged violation with due diligence." It didn't even come to my attention that there was an alleged violation until I came across Mr. Johnson's original response and took a closer look at the statute, which I concluded that Mr. Johnson's response was based more on his selective interpretation of what he would like the statute to mean. In my opinion, he failed to cite any specific provision of law which legally justified his refusal to produce the public record that I had requested. I sent another request once I became fully aware that a possible violation had occurred and received no response.
The IPIB cannot accept a complaint that is filed beyond the statutorily imposed deadline of 60 days unless the complainant can show that he could not have become aware of an alleged violation with due diligence.
Iowa Code section 23.7(1) requires a formal complaint to be filed within 60 days of the alleged violation. This complaint was not filed within 60 days of December 13, 2018. The IPIB does not have jurisdiction over this complaint.
In addition, there is statutory authority to withhold release of the Form ME-1.
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 all those requirements.
IT IS SO ORDERED: Formal complaint 19FC:0056 is dismissed as outside the jurisdiction of the IPIB and 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 July 18, 2019. 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.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of July, 2019, to:
Thomas O’Brien
Story County county attorney