Date:
09/17/2020
Subject:
Debra O'Brien/Story County Medical Examiner - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Debra O’Brien, Complainant And Concerning: Story County Medical Examiner, Respondent |
Case Number: 20FC:0079
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 August 14, 2020, Debra O’Brien filed formal complaint 20FC:0079, alleging that the Story County Medical Examiner (SCME) violated Iowa Code chapter 22.
Ms. O’Brien alleged that on August 6, 2020, she requested the “cause and manner of death” concerning an individual who died in 2009 from the SCME. Her request states:
Pursuant to Iowa Code, Section 22.7, Subsection 41, I am hereby requesting a copy of a record containing public information that was created by a publicly appointed official employed at your office. This makes the Story County Medical Examiner’s Office the legal custodian of this record. I would like a copy of the information listed under the following sections of the Preliminary Report of Medical Examiner form (ME-1), regarding the death of Craig Stotts on January 24, 2009, …
1. Probable cause of death, including any contributing causes.
2. Manner of death.
Ms. O’Brien stated she was not requesting the entire report, as such would be considered confidential under Iowa Code section 22.7(41)(a); instead she wanted a copy of the ME-1 with all confidential information redacted.
The SCME responded to her request on August 11, 2020, noting that the ME-1 form is not released as it is considered a confidential record. According to the SCME response, the information required to be released pursuant to Iowa Code section 22.7(41)(c) was available through the Iowa Department of Public Health. An electronic link was provided.
On August 20, 2020, the Story County Attorney's Office responded to the complaint. Ethan Anderson, Assistant Story County Attorney, stated that the ME-1 is not released as it is a preliminary report:
It remains the position of the County Attorney that 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.
Iowa Code section 22.7(41) states the following records are 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.)
Form ME-1 is a preliminary report that is filled out at the scene of the death or soon afterward and provided to the medical examiner as part of the investigation into a death. (See Exhibit 1). It contains personal information about the decedent, as well as information about impressions from the scene. It may be filled out by qualified medical personnel, local law enforcement, emergency medical first responders, or others. In 2009 the form was often filled out by hand; it is now completed and sent electronically. The form is difficult to effectively ‘redact’ and still maintain confidentiality as required by Iowa Code.
Iowa Code section 22.7(41)(a) specifically states that preliminary reports such as the ME-1 are confidential. The information that is required to be released is available from the Iowa Department of Public Health (IDPH). Ms. O'Brien was provided with a link to the IDPH website.
Iowa Code section 23.8(1) 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 20FC:0079 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 September 17, 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, J.D.
1. Mr. Anderson also referenced formal complaint 19FC:0056, which concerned a request for the same information filed by Thomas O’Brien on May 24, 2019. The dismissal order noted: 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. Formal complaint 19FC:0056 was dismissed on July 18, 2019, because it was filed more than 60 days from the date of alleged violation (See Iowa Code section 23.7(1)).
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of September, 2020, to:
Debra O’Brien
Dr. Jamie Weydert, Story County Medical Examiner
Ethan Anderson, Assistant Story County Attorney