21FC:0104 Cherie Pichone/University of Iowa Police Department - Probable Cause Report & Dismissal Order

Date:
07/15/2022

Subject:
Cherie Pichone/University of Iowa Police Department - Probable Cause Report & Dismissal 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                            Probable Cause Order

 

This matter came before the Iowa Public Information Board (IPIB) on July 21, 2022, to review the Probable Cause Report and enter an Order based upon such review.

The Probable Cause Report recommends that the IPIB determine that probable cause does not exist to believe that the University of Iowa Police Department violated Iowa Code chapter 22.  The Report also recommends that the IPIB dismiss this formal complaint.

Upon review and consideration of the Probable Cause Report, the IPIB enters the following findings and order pursuant to Iowa Administrative Rule 497-2.2(4)(a-d):

_______ Finds that there is insufficient evidence to enter an order and redirects the matter for further investigation.

___XX____ Finds that there is a lack of probable cause to believe a violation has occurred and dismisses the matter.

_______ Finds that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismisses the matter.

_______ Finds that probable cause exists to believe a violation has occurred, designates a prosecutor, and directs the issuance of a statement of charges to initiate a contested case proceeding.

So ordered this 21st day of July, 2022.

 

_____________________________________

IPIB Chair

 

CERTIFICATE OF MAILING

This document was sent by electronic mail on the ___ day of July, 2022, to:

Cherie Pichone

Nathan Levin, counsel for the University of Iowa Police Department

 

 

Before 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                            Probable Cause Report

 

COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and respectfully submits this Probable Cause Report.

BACKGROUND

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 videos 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 analyzed the release of the videos 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 videos would not be released as they were not subject to disclosure pursuant to Iowa Code sections 22.7(2) and 22.7(5).  The videos were captured by police officer body cam videos recorded at the University of 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. 

On February 28, 2022, legal counsel for UIPD provided links to information about the National Crime Information Center (NCIC) database maintained by the FBI (https://www.fbi.gov/services/cjis/ncic and https://irp.fas.org/agency/doj/fbi/is/ncic.htm), the Federal Driver’s Privacy Protection Act at 18 U.S.C. §2721 (https://www.law.cornell.edu/uscode/text/18/2721), and Iowa Code Chp. 692 - Criminal History and Intelligence Data (https://www.legis.iowa.gov/docs/ico/chapter/692.pdf) all of which established the confidentiality of the information redacted from the police incident report and dispatch logs.

The IPIB accepted this complaint on February 17, 2022.  Pursuant to Iowa Code section 23.9, the parties negotiated with IPIB staff to reach an informal resolution.  The parties initially agreed upon proposed terms of an informal resolution.  Ms. Pichone later determined that she was unwilling to execute the informal resolution.

INVESTIGATION

On May 18, 2022, upon the issuance of a subpoena, I was able to meet with the associate director of the University of Iowa Police and review the two videos recorded by the UIPD during the incident in question.  Each video was a body cam video recorded during an incident at the University of Iowa hospital when the officers were called to assist hospital staff with discharging Ms. Pichone from medical care.  

Each video was 44 minutes long and depicted the interior of the hospital and the exterior of the hospital.  Both videos recorded medical information and patient/medical staff  interactions.  

The UIPD and the hospital continued to assert that the recordings are confidential pursuant to Iowa Code section 22.7(2) and 22.7(5) and under federal law protection of the Health Insurance Portability and Accountability Act (HIPAA).

ANALYSIS

Iowa Code section 22.7 states that certain public records “shall be kept confidential, unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information.” 

Included in the categories of confidential records are records defined as confidential pursuant to Iowa Code section 22.7(2):

2. Hospital records, medical records, and professional counselor records of the condition, diagnosis, care, or treatment of a patient or former patient or a counselee or former counselee, including outpatient. However, confidential communications between a crime victim and the victim’s counselor are not subject to disclosure except as provided in section 915.20A. However, the Iowa department of public health shall adopt rules which provide for the sharing of information among agencies and providers concerning the maternal and child health program including but not limited to the statewide child immunization information system, while maintaining an individual’s confidentiality.

It was clear from viewing the body cam videos that both the audio and video recordings captured by the body camera equipment depicted the care and treatment of a patient at the University of Iowa Hospitals.  While Ms. Pichone may have other legal avenues available to her to possibly obtain access to the recordings, these records are properly withheld when requested as public records. 

The federal Health Insurance Portability and Accountability Act (HIPAA) codified in 45 C.F.R. sections 160, 162, and 164 does not allow health organizations, such as the University of Iowa Hospitals & Clinics to release private patient records without consent.  Ms. Pichone can consent to the release of her medical records, but her records would still be confidential pursuant to Iowa law.

Iowa Code section 22.7(5) also defines these records as confidential:

5. Peace officers’ investigative reports, privileged records or information specified in section 80G.2, and specific portions of electronic mail and telephone billing records of law enforcement agencies if that information is part of an ongoing investigation, except where disclosure is authorized elsewhere in this Code. However, the date, time, specific location, and immediate facts and circumstances surrounding a crime or incident shall not be kept confidential under this section, except in those unusual circumstances where disclosure would plainly and seriously jeopardize an investigation or pose a clear and present danger to the safety of an individual. Specific portions of electronic mail and telephone billing records may only be kept confidential under this subsection if the length of time prescribed for commencement of prosecution or the finding of an indictment or information under the statute of limitations applicable to the crime that is under investigation has not expired.

In 2019, the Iowa Supreme Court discussed the use of a balancing test to determine whether confidential records should be released in Mitchell v. City of Cedar Rapids.  In this case, material was sought which related to an officer-involved shooting of a suspect which occurred during an altercation at a traffic stop. In its decision, the Court first stated that investigative reports are to be exempt from disclosure and are to remain confidential under Iowa Code 22.7(5), no matter if the investigation is closed or ongoing.3

The Iowa Supreme Court stated that otherwise statutorily prohibited investigative reports may still be disclosed if the prohibited materials do not satisfy a three-part balancing test as set forth in Hawk Eye v. Jackson, 521 N.W.2d 70, 753 (Iowa 1994).   The three-part test includes:  whether a public officer is being examined, whether the communication was made in official confidence, and whether the public interest would suffer by disclosure.

The Hawk Eye case-specific factors should also be considered when conducting a balancing test:  whether the need for confidentiality is greater when reports are based on confidential informants, whether the information at issue references “named but innocent suspects”, and whether the investigation is ongoing, such that public disclosure would hinder the investigation.

On March 17, 2022, the IPIB issued a formal advisory opinion, 22AO:0002, and concluded that body camera footage, if part of an investigative report, would be subject to a balancing test analysis:  However, in light of the Mitchell decision, if body camera footage is found to be part of an investigative report, the Hawk Eye three-part balancing test will be applied to the situation to determine it’s exemption status.

A Mitchell/Hawk Eye analysis is not required if the record would still remain confidential pursuant to another subsection of Iowa Code section 22.7.  Therefore, the recordings at issue can be withheld as confidential hospital and medical records.

CONCLUSION

It is clear from the results of the formal investigation that there is no probable cause to believe that the UIPD violated Iowa Code chapter 22. 

IPIB ACTION

The IPIB has several options upon receipt of a probable cause report. According to Iowa Administrative Rule 497 - 2.2(4):

“Upon receipt and review of the staff investigative report and any recommendations, the board may: 

a.  Redirect the matter for further investigation;

b.  Dismiss the matter for lack of probable cause to believe a violation has occurred;

c.   Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or

d.  Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding”.

RECOMMENDATION

 

For the aforementioned reasons, I recommend the IPIB determine probable cause does not exist to believe the University of Iowa Police Department violated Iowa Code chapter 22. 

I further recommend that the IPIB dismiss this complaint pursuant to Iowa Administrative Rule 497 - 2.2(4)(b). 

Respectfully submitted this 21st day of July, 2022, by:

 

Margaret E. Johnson, J.D.

Executive Director

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.
3. Mitchell v. City of Cedar Rapids, 926 N.W.2d 222, at 225 and 232 (Iowa 2019).

CERTIFICATE OF MAILING

This document was sent by electronic mail on this _____ day of July, 2022, to:

Cherie Pichone

Nathan Levin, legal counsel for the University of Iowa Police Department