Date:
12/15/2022
Subject:
Michael Merritt/City of Newton - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Michael Merritt, Complainant And Concerning: City of Newton, Respondent |
Case Number: 22FC:0116
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.
Michael Merritt filed formal complaint 22FC:0116 on October 14, 2022, alleging that the City of Newton (City) violated Iowa Code chapter 22. The initial complaint did not provide a date of offense.
On November 3, 2022, Mr. Merrit provided a copy of a letter he received from legal counsel for the City. (See Exhibit 1.) This letter recited Mr. Merritt’s record request and the responses provided by the City.
Legal counsel for the City responded to the complaint on November 9, 2022. In reference to the public records that were not provided, legal counsel stated that the requested records (interior and exterior security camera footage) were confidential pursuant to Iowa Code sections 22.7(5) and 22.7(50).1 The other records were available upon payment of $80.00 in fees (incident reports, body camera, and dash camera footage).
On November 28, 2022, Mr. Merritt submitted copies of various photos and videos in support of his allegation that Iowa Code sections 22.7(5) and 22.7(50) do not apply to the requested records. Three videos included footage recorded by Mr. Merritt while standing underneath each of the security cameras whose video footage he requested. A separate video was the body camera video footage of a City police officer who responded to a vehicle/pedestrian incident.
Mr. Merritt also included an analysis as to why he did not believe Iowa Code sections 22.7(5) and 22.7(50) would apply to security camera footage from cameras mounted in public view in public spaces.
Iowa Code section 22.7(5) defines certain peace officer investigative reports 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.
Iowa Code section 22.7(50) defines certain security records as confidential:
50. Information and records concerning physical infrastructure, cyber security, critical infrastructure, security procedures or emergency preparedness information developed, maintained, or held by a government body for the protection of life or property, if disclosure could reasonably be expected to jeopardize such life or property.
a. Such information and records include but are not limited to information directly related to vulnerability assessments; information contained in records relating to security measures such as security and response plans, security codes and combinations, passwords, restricted area passes, keys, and security or response procedures; emergency response protocols; and information contained in records that if disclosed would significantly increase the vulnerability of critical physical systems or infrastructures of a government body to attack.
b. For the purpose of this subsection, "cyber security information and records" include but are not limited to information and records relating to cyber security defenses, threats, attacks, or general attempts to attack cyber system operations.
The parties provided differing analyses of the applicability of Iowa Code section 22.7(5), citing case law and using a balancing test to determine whether the public interest in the camera footage would outweigh the need to withhold the record.
However, it is not necessary to determine whether Iowa Code section 22.7(5) would apply, as Iowa Code section 22.7(50) does allow the withholding of the footage from security cameras.
The IPIB has applied Iowa Code section 22.7(50) to security systems and records produced by such systems in formal advisory opinion AO 2017-01 (booking videos, audio recordings from jail security, headcounts and housing assignments, duty rosters, security watches, and jail layouts) and in a number of formal complaints. 2
The probable cause report in formal complaint 15FC:0002 included security camera footage from within a publicly accessible courthouse as records protected by Iowa Code 22.7(50) as “security measures”:
“That section lists a number of specific examples of information and records covered by the section – video camera recordings is not one of those listed. The catch-all phrase “information contained in records that if disclosed would significantly increase the vulnerability of critical physical systems or infrastructures of a government body to attack” can be interpreted to include these security recordings. A release of the recordings, as a public record, even if jurors are not present, would allow the general public to determine how the security system works, what the video range is and the quality of the videotaping, leading to the distinct possibility that the security system could be compromised or that its weaknesses be exploited.” (Emphasis added.)
Similarly, in this complaint as well, the release of footage from the security cameras would disclose the range of the cameras, the quality and frequency of the recordings, whether each camera is a working camera or a dummy camera, and how the effectiveness of each camera can be compromised or exploited.
The purpose of Iowa Code section 22.7(50) is to protect the integrity of security systems such as the one implemented by the City of Newton. Therefore, it was within the scope of Iowa Code section 22.7(50) for the City to withhold the security camera footage as confidential.
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:0116 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 December 15, 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. Both Mr. Merritt and the City provided additional comments concerning a ban issued by the City restricting his email access to certain City personnel and allegations that the City is falsely accusing him of a criminal offense at numerous times during the pendency of this complaint. These issues are not within the jurisdiction of the IPIB and will not be further addressed in this Order.
2. Formal complaints 22FC:0065 (exterior library security camera footage), 22FC:0025 (security and response plans), 19FC:0129 (audit logs), 17FC:0071 (video surveillance footage), 17FC:0012 (building floor plans), 16FC:0031, (recorded telephone calls), and 15FC:0002 (courthouse surveillance cameras).
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of December, 2022, to:
Michael Merritt
Matt Brick, city attorney for the City of Newton