Date:
08/18/2022
Subject:
Ken Bode/Woodbury Sheriff's Office - Dismissal order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Ken Bode, Complainant And Concerning: Woodbury County Sheriff’s Office, Respondent |
Case Number: 22FC:0063
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.
Ken Bode filed formal complaint 22FC:0063 on June 28, 2022, alleging that the Woodbury County Sheriff’s Office (Sheriff) violated Iowa Code chapter 22 on May 4, 2022.
Mr. Bode alleged that on May 4, 2022, he visited the Sheriff and requested to see records. He alleged he was told the Woodbury County Attorney would need to authorize the release of the records he wanted, copies of certain videos and call records.
Mr. Bode alleged he then went to the county attorney’s office where he was told that they were not allowed to speak directly with him as he was the defendant in a criminal case and represented by legal counsel.
According to Mr. Bode, he had previously tried to access these records by subpoena, but the subpoena was quashed by a judge. He indicated that he needed the records for his Department of Transportation (DOT) hearing. He stated that he did have some records that were provided to him by his defense counsel through discovery.
Mr. Bode stated that the specific records he has requested are:
- Radio dispatch/call records from 5/24/21, 10:30 p.m. to midnight.
- Record of a “check area call” the two deputies were responding to when Mr. Bode was arrested in May 2021.
- The two videos recorded by a named deputy at 11:06 p.m. and 9:47 p.m.
The Woodbuty County Attorney responded to the complaint on July 13, 2022. He confirmed that the Sheriff personnel and the county attorney personnel are not allowed to speak directly to a criminal defendant represented by legal counsel without legal counsel present.
The county attorney confirmed that Mr. Bode’s legal counsel has been provided with all discovery in the criminal case. The county attorney also provided Mr. Bode with videos, interview statements, traffic stops, dispatch records, and other information concerning earlier activities unrelated to the criminal arrest to assist Mr. Bode with his DOT hearing. 2
Other records not directly related to the events surrounding the arrest were not released pursuant to Iowa Code section 22.7(5), confidential peace officer investigative reports.
Mr. Bode replied to the county attorney’s response on July 15, 2022, stating that he wanted to view all the records he subpoenaed and questioned whether the county attorney had provided him with all “exculpatory evidence.”3
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.”
Subsection 22.7(5) includes:
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.
There is no right in Iowa Code chapter 22 to demand that the lawful custodian allow a person to personally review confidential records. Mr. Bode does not have a right to review peace officers’ investigative reports.
There may be other barriers to proceeding further with this complaint. Iowa Code section 23.7(1) requires that a complaint be filed within 60 days of the alleged violation. Mr. Bode references his previous attempts to access these records, dating back to at least December of 2021.
Iowa Code section 23.8(2) also states that a complaint cannot be accepted by the IPIB if it “relates to a specific incident that has previously been finally disposed of on its merits by the board or a court.” Mr. Bode stated that a court quashed his subpoena seeking these records before he filed this complaint with the IPIB.
If confidential records are needed for a DOT hearing, an administrative judge can also issue a subpoena to review the records for that hearing.
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 does not meet the necessary requirements for acceptance.
IT IS SO ORDERED: Formal complaint 22FC:0063 is dismissed as legally insufficient and 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 August 18, 2022. 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. Woodbury County case AGCR111658. First Motion for Discovery filed on December 6, 2021. Ethically, the criminal prosecutor is not allowed to speak with a criminal defendant who is represented by counsel without the defendant’s attorney present.
2. It is not unusual for a criminal defendant to conduct a subsequent DOT hearing or appeal pro se, as the defense attorney is typically court-appointed only to represent an individual in the criminal matter and not in ancillary matters, such as a license revocation hearing by the DOT.
3. This is commonly referred to as the “Brady rule” which is a pretrial discovery rule that was established by the United States Supreme Court in Brady v. Maryland (1963). The rule requires that the prosecution must turn over all exculpatory evidence to the defendant in a criminal case. This is not a requirement of Iowa Code chapter 22. The proper place to raise this issue is in the criminal case.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of August, 2022, to:
Ken Bode
Woodbury County Sheriff’s Office