22FC:0088 Eric Henley/Gilbert Comm. School Dist. - Dismissal Order

Date:
10/20/2022

Subject:
Eric Henley/Gilbert Comm. School Dist. - Dismissal Order

Opinion:

 

The Iowa Public Information Board

In re the Matter of: Eric Henely, Complainant And Concerning: Gilbert Community School District Board of Directors, Respondent

Case Number: 22FC:0088                                                                  Dismissal Order

 

COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.

Eric Henely filed formal complaint 22FC:0086 on September 2, 2022, alleging that the Gilbert Community School District Board of Directors (Board) violated Iowa Code chapter 22 on August 5, 2022.  

Mr. Henely alleged that on August 5, 2022, he sent an email to the Gilbert Community School District (District) records custodian requesting a copy of all documents being reviewed or considered by the Board during a Board meeting scheduled for August 8, 2022.  Later that same day, he alleged that the District superintendent contacted him to note “that she was redacting a portion of the district’s food service report to the Board because it contained the names of two employees who had recently resigned from the food service department.”1

He requested that the IPIB obtain an unredacted copy of the report to review for improper redactions, order the Board to provide an unredacted copy, and “fine anyone found to have participated in this violation as provided for in Iowa Code Section 22.10” if appropriate.

Mr. Henely included a copy of the report, with the redaction of paragraph two. On September 5, 2022, he provided copies of his record request, the Board meeting agenda, and the minutes of the August 8, 2022, Board meeting.

Legal counsel for the District responded to the complaint on September 7, 2022.  Counsel provided a copy of the unredacted board report at issue. (See Exhibit 1).  The paragraph noted the names of two new employees to the foodservice team.

Counsel explained that as of the date of Mr. Henely’s record request on August 5, 2022, the two new employees had not been approved by the Board and were only considered applicants.  She added that the names were confidential pursuant to Iowa Code section 22.7(18), referencing an explanation for allowing the redaction found on the IPIB website.2

The agenda for the August 8, 2022, Board meeting lists “g. Personnel, (i) Resignations/Hirings” as an agenda item, but not the names of employees.  The minutes for this meeting indicate that the Board approved the personnel changes as part of the consent agenda and lists the names of the individuals who resigned or were hired.  

The IPIB website link cited as the rationale for confidentiality of a job applicant’s information prior to hiring includes an analysis of the Iowa Supreme Court's 1988 opinion upholding confidentiality pursuant to Iowa Code section 22.7(18) and subsequent Polk County District Court analysis of the code section:

The Iowa Supreme Court ruled in April 1988 that under a 1984 amendment to Chapter 22 public agencies can make job applications confidential.

In City of Sioux City v. Greater Sioux City Press Club, 421 N.W.2d 895 (Iowa 1988), a five-member panel of the Iowa Supreme Court ruled that such confidentiality is provided for in subsection 18 of 22.7.

The Court ruled that job applications might be made confidential if the person so requests or if the public agency “could reasonably believe that those persons would be discouraged” from applying if applications were available for public inspection.

While subsection 18 does not provide confidentiality for communications required by law, rule or procedure, the Court stated that job applications were not required as part of the hiring process since the job applicant is applying voluntarily.

In a June 1992 decision, Des Moines Register and Tribune Company v. State Board of Regents and Douglas Creamer, Polk County Judge Arthur Gamble ruled that a private firm that had conducted a presidential search for Iowa State University was wrong in keeping secret the names of candidates who had no objections to disclosure.

To summarize, a communication to a government body can be kept confidential under 22.7(18) only if all of the following exist:

(1) The communication is not required by law, rule, procedure, or contract.

(2) It is from identified persons outside of government.

(3) The government body could reasonably believe those persons would be discouraged from communicating with government if the information was made public.

Nevertheless, the information can still be released if the person communicating with government consents to its release or if it can be released without identifying the person.3

Withholding the release of the names of the applicants in the report until the Board had publicly approved the resignation and hiring of the employees is not a violation of Iowa Code chapter 22.

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 those requirements.

IT IS SO ORDERED:  Formal complaint 22FC:0088 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 October 20, 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

1.  A copy of the communication was not made available by the parties.  The quoted language was provided by Mr. Henely.  It is uncertain whether the record custodian was referring to two resignations or new hires.  The names redacted were of the potential new employees.
2.  https://ipib.iowa.gov/faq/are-job-applications-public-records (Are Job Applications public records?)
3.  On December 17, 2021, the Iowa Supreme expanded on this analysis in its decision in Ripperger v. Iowa Public Information Board, 967 N.W.2d 540, stating that a list of names could be withheld under this code subsection:  “A contrary holding would lead to absurd results, such as making public a list of job applicants whose individual applications are confidential.” (at 551).  According to the Supreme Court, determining whether a lawful custodian could ‘reasonably believe’ that the disclosure of names would discourage communications to a government, is one for the record custodian to make:  “When, as here, the record custodian could reasonably believe disclosure of the list would deter such communications, that determination should be upheld, not second-guessed, even if others could reasonably disagree with the custodian.” (at 553).

CERTIFICATE OF MAILING

  

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

Eric Henely

Carrie Weber, legal counsel for the Gilbert Community School Board of Education