Date:
05/21/2020
Subject:
David Roston/University of Iowa - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: David Roston, Complainant And Concerning: University of Iowa, Respondent |
Case Number: 20FC:0018
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 February 19, 2020, David Roston filed formal complaint 20FC:0018, alleging that the University of Iowa (UI) violated Iowa Code chapter 22.
Mr. Roston alleged that he submitted a record request on February 6, 2020, requesting copies of emails between two named UI employees concerning his client, Cole Converse. He added that he received a response on February 12, 2020, denying his record request. He provided a copy of the denial which stated that the requested records were protected by the attorney-client privilege.
This complaint was forwarded to the UI Office of General Counsel on February 21, 2020. On April 8, 2020, legal counsel responded to the complaint. The response included a copy of an email from another UI attorney dated December 11, 2019, which responded to his record request filed in December 2019. That email stated, “Communications between the Office of General Counsel and its client, the University, are privileged.”
The February 12, 2020, response to Mr. Roston’s request for records stated: “As previously conveyed to you on December 11, 2019, communications between the Office of the General Counsel and its client, the University, are privileged.”
The UI Office of General Counsel later responded with additional arguments for the preservation of attorney-client privilege. First and foremost, counsel noted that a number of the requested documents were provided pursuant to Family Educational Rights and Privacy Act (FERPA). UI released more documents through the FERPA request than would have been released under a public records request. The remaining documents, which were not provided, are communications between the Office of General Counsel and its client, the University.
Iowa Code section 23.7(1) states: “The complaint must be filed within sixty days from the time the alleged violation occurred or the complainant could have become aware of the violation with reasonable diligence.” The initial records request was denied on December 11, 2019. The complaint filing date of February 19, 2020, is beyond the statutory time limit for filing a formal complaint with the IPIB pursuant to this Code section.
Mr. Roston argued that the initial record request was for student records pursuant to FERPA and the second, separate request was for public records. In both requests, the records which were not released were the same records. Changing the language of a record request does not change the nature of the denial in this factual situation.
As further noted by the Office of General Counsel, the issue of attorney-client privilege stands on its own outside of Iowa Code chapter 22 and IPIB’s jurisdiction. Sources of this privilege include various sections of the Iowa Code, the Iowa Rules of Professional Conduct, and common law. The Iowa Attorney General has also issued a “Sunshine Advisory” which recognizes three types of documents exempt from public examination and copying, one of which are documents covered by attorney-client privilege.
IPIB has recognized the exemption of attorney-client privileged documents when reviewing public records requests and dismissed past complaints for this reason, citing the aforementioned sources. UI has not waived privilege; therefore, the emails in question remain confidential under attorney-client privilege.
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 is beyond the jurisdiction of the IPIB.
IT IS SO ORDERED: Formal complaint 20FC:0018 is dismissed as beyond the jurisdiction of the IPIB 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 21, 2020. 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
1. A copy of the February 12, 2020, UI response was included as Exhibit B in the complaint filed by Mr. Roston.
2. Student records are not accessible to anyone (including the student themselves) under Iowa Code section 22.7(1).
3. 18FC:0023 was dismissed by the Board on 5/17/2018 and cited Iowa Rules of Professional Conduct 32:1.6, and Iowa Code 22.7(4) as allowing public records to remain confidential when protected by attorney-client privilege.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of May, 2020, to:
David Roston
Office of the General Counsel, the University of Iowa