Date:
07/15/2021
Subject:
Ben Uker/Iowa State Patrol - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Ben Uker, Complainant And Concerning: Iowa State Patrol, Respondent |
Case Number: 21FC:0044
Revised Dismissal Order
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COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Revised Dismissal Order:
On May 24, 2021, Ben Uker, through legal counsel, filed formal complaint 21FC:0044, alleging that the Iowa State Patrol (ISP) violated Iowa Code chapter 22.
Mr. Uker alleged that the ISP failed to properly respond to a record request his legal counsel made on April 9, 2021, requesting eight separate categories of records. The ISP responded to this request on April 29, 2021, providing copies of some of the records and information concerning the release of other records, as explained in Attachment A.
As noted in the attachment, some of the records (see requests three, six, and eight) were considered confidential pursuant to Iowa Code section 22.7(5) (peace officer’s investigative reports) and section 22.7(11) (personnel records). Other materials were not in the custody of the ISP. Mr. Uker’s attorney was provided with the proper custodian for those record requests (see requests one, four, and seven).
Iowa Code section 22.7(5) states that peace officer’s investigative reports are confidential, except for specific information: “date, time, specific location, and immediate facts and circumstances.” Mr. Uker received this information with the release of the Complaint for Citation # P09 0SCH 210319 143336 5, dated March 19, 2021.
The Iowa Supreme Court held in Mitchell et al. v. Cedar Rapids et al., that investigative records keep their confidential status even after an investigation closes. 926 N.W. 2d 222, 232 (Iowa 2019).
Iowa Code section 22.7(11) requires the release of the “documented reasons and rationale” from an individual’s personnel file “if “the individual resigned in lieu of termination, was discharged, or was demoted as the result of a disciplinary action….” Mr. Uker requested the “internal affairs file” and “copies of all written complaints against that officer.” These records, if such exist, would be confidential.
The ISP is not the “lawful custodian” of records numbered one, four, and seven, as defined by Iowa Code section 22.1(2), as the ISP does not have possession or own those records.
The ISP did not violate Chapter 22 by declining to release certain records that were either not in their custody or were confidential.
Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and have merit before the IPIB accepts a complaint. This complaint does not meet those requirements.
IT IS SO ORDERED: Formal complaint 21FC:0044 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 July 15, 2021. 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. Mr. Uker’s attorney submitted a request for discovery in his traffic case on May 5, 2021, listing the same eight records. On May 24, 2021, the Iowa District Court for Black Hawk County issued an order granting two of his requests and denying the other six. Mr. Uker entered a plea in that case on June 14, 2021.
2. Although not asserted by the ISP, copies of any communications would also be confidential pursuant to Iowa Code 22.7(18), if received from persons outside the ISP.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of July, 2021, to:
Ben Uker
Benjamin Kohn, legal counsel for Ben Uker
Sgt. Alex Dinkla, Iowa State Patrol
Jeff Peterzalek, Assistant Attorney General, legal counsel for the ISP