Date:
02/17/2022
Subject:
Cherie Pichone/University of Iowa Police Department - Acceptance Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Cherie Pichone, Complainant And Concerning: University of Iowa Police Department, Respondent |
Case Number: 21FC:0104 Acceptance Order |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Acceptance Order.
On November 9, 2021, Cherie Pichone filed formal complaint 21FC:0104, alleging that the University of Iowa Police Department (UIPD) violated Iowa Code chapter 22 by refusing to release public records.
Ms. Pichone alleged that on October 3, 2021, she sent an email to the UIPD requesting “all communications including emails and phone calls, images, and videos regarding myself being removed from the University of Iowa Hospitals and Clinics on October 1st 2021.”
She further alleged that on November 5, 2021, she received a response from the Director of Legislative Operations and Project Management for the University of Iowa indicating that there was one incident report and two dispatch entries that were responsive to her request. The email also advised that the cost for the records would be $5.00 per report, for a total of $15.00.
The Director informed her that the video would not be released as it was part of a police investigative report and not subject to disclosure pursuant to Iowa Code section 22.7(5).
Ms. Pichone questioned whether the UIPD appropriately analysed the release of the video as required by the Iowa Supreme Court in Mitchell v. City of Cedar Rapids, 926 N.W. 2d 222, (Iowa 2019).1
Legal counsel for the UIPD responded to the complaint on December 3, 2021. Counsel stated that the reports were available to Ms. Pichone upon payment of the $15.00 fee. He added that the video would not be released as it is not subject to disclosure pursuant to Iowa Code sections 22.7(2) and 22.7(5). The video was captured by a police officer body cam video recorded at the Iowa Hospital & Clinics. Counsel added that this makes the video confidential under Iowa Code section 22.7(2) as well as under federal law protection of the Health Insurance Portability and Accountability Act (HIPAA).2
Legal counsel did not provide any information in support of withholding the video through the use of a Mitchell analysis.
IPIB staff suggested that Ms. Pichone retrieve the records that were available. Upon her review of the records she received, she asked for an explanation of the reasons for the redactions, as some pages were completely redacted.
Ms. Pichone provided a copy of the records she received. Some pages included redactions that probably contained personal information that would normally be redacted for the release of public records. The rationale for other redactions was not as apparent.
Legal counsel has not provided an explanation for the redactions nor has he agreed to allow IPIB staff review the video under the confidentiality protection of Iowa Code section 23.6(6). Without this information, it is difficult to assess whether the requested records are 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 meet those requirements.
IT IS SO ORDERED: Formal complaint 21FC:00104 is accepted pursuant to Iowa Code section 23.8(1) and Iowa Administrative Rule 497-2.1(2)(a). Parties shall cooperate with IPIB staff to reach an appropriate informal resolution to resolve the complaint 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 February 17, 2022. 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.
1. In the Mitchell decision issued in March 2019, the Iowa Supreme Court required the lawful custodian to engage in a “balancing test” to determine whether a video recording should be released. This analysis includes “the absence of any confidential informants or ‘named but innocent suspects,’ or any ongoing police investigation, and the presence of a heightened public interest in police use of force.” (at 233).
2. HIPAA is codified at 45 C.F.R. sections 160, 162, and 164 and protects the unauthorized release of certain information by “health plans, health care clearinghouses, and to any health care provider who transmits health information in electronic form in connection with transactions for which the Secretary of HHS has adopted standards under HIPAA (the ‘covered entities’).” The UIPD is not one of the covered entities, so in all likelihood, HIPAA is not applicable in this case.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of February, 2022 to:
Cherie Pichone
Nathan Levin, legal counsel for the University of Iowa Police Department