23AO:0003
DATE: August 17, 2023
SUBJECT: Confidentiality of Police Investigative Files
RULING:
This opinion concerns the confidentiality of information contained in peace officer investigative reports under chapter 22. Advisory opinions may be adopted by the board pursuant to Iowa Code section 23.6(3) and Rule 497–1.2(2): “[t]he board may on its own motion issue opinions without receiving a formal request.” We note at the outset that IPIB’s jurisdiction is limited to the application of Iowa Code chapters 21, 22, and 23, and rules in Iowa Administrative Code chapter 497. Advice in a Board opinion, if followed, constitutes a defense to a subsequent complaint based on the same facts and circumstances.
QUESTION POSED:
Under Iowa Code § 22.7(5), what information in police investigative reports is protected from disclosure and to what extent?
OPINION:
Iowa Code § 22.7(5) provides confidentiality for certain information contained in police investigative reports, making that information exempt from disclosure when requested under chapter 22. Given the frequency of complaints to the Iowa Public Information involving information withheld under § 22.7(5), the Board has requested this advisory opinion explaining the scope of the protection provided by the statute.
The full text of § 22.7(5) is copied below:
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.
This section specifies three general categories of information that are protected from disclosure: 1) peace officers’ investigative reports; 2) privileged records or information specified in section 80G.2; and 3) specific portions of law enforcement agencies’ electronic mail and telephone billing records that are part of an ongoing investigation. This advisory opinion deals only with the first category of protected information, “peace officers’ investigative reports.”
What information is considered to be part of an investigative report?
The Iowa Public Information Board interprets peace officers’ investigative reports to include all of the information gathered by officers as part of an investigation into a crime or incident. For example, in Klein v. Iowa Public Information Board, a police officer responding to a 911 call about a domestic assault accidentally shot and killed one of the participants. Klein v. Iowa Public information Board, 968 N.W.2d 220, 222. The family of the victim submitted a public records request to the Iowa Division of Criminal Investigation, the Burlington Police Department, and the Des Moines County Attorney, seeking the release of information related to the shooting. Id. Among the information sought to be obtained was the 911 call, body camera video, and dash camera video from the incident. Id. The custodians of these records refused to release them, prompting the family to file a complaint with IPIB. The complaint proceeded to a contested case, in which the Board ruled that the 911 call, body camera video, and dash camera video were part of the peace officers’ investigative reports and thus were confidential records under § 22.7(5).[1]
Lab reports taken in connection with a criminal investigation constitute a part of a peace officers’ investigative report. AFSCME v. Iowa Dep't of Pub. Safety, 434 N.W.2d 401, 403 (Iowa 1988). The Court of Appeals, in an unpublished case, Neer v. State, held that video recording, use of force reports, and pursuit reports related to an officer's encounter with an individual in relation to an arrest were part of the investigative report. Neer v. State, 798 N.W.2d 349, 349 (Iowa Ct. App. 2011) (Iowa App. Feb. 23, 2011). “To require an item-by-item assessment of everything within a criminal investigation file would, for all practical purposes, eliminate the investigative report exemption.” Id.
Qualified Privilege of Confidentiality
The confidentiality afforded to police investigative reports under 22.7(5) is a qualified, rather than categorical, privilege. See Mitchell v. City of Cedar Rapids, 926 N.W.2d 222, 232–234 (Iowa 2019). This means that a record claimed to be confidential on the basis that it is part of a police investigative report cannot be determined to be confidential based on a mere showing of that fact alone. See id. Stated differently, demonstrating that a particular record is part of a police investigative report is a necessary, but not sufficient, condition to an ultimate determination that the record is in fact confidential under § 22.7(5).[2]
In addition to demonstrating that the record in question is part of an investigative report, “[a]n official claiming the privilege must satisfy a three-part test: (1) a public officer is being examined, (2) the communication [to the officer] was made in official confidence, and (3) the public interest would suffer by disclosure.” Mitchell v. City of Cedar Rapids, 926 N.W.2d 222, 232 (Iowa 2019) (citing Hawk Eye v. Jackson, 521 N.W.2d 750, 752 (Iowa 1994)).[3]
While the balancing test “remains the controlling precedent for disputes over access to police investigative reports” (id. at 234), the application of the test involves interpretive nuances that originate from the Court’s treatment of § 22.7(5) and § 622.11 as “essentially the same” statutory provisions. Hawk Eye v. Jackson, 521 N.W.2d 750, 753 (Iowa 1994); State ex rel. Shanahan v. Iowa Dist. Ct. for Iowa Cnty., 356 N.W.2d 523, 528 (Iowa 1984).
First, the reference to examination of a public officer in part one of the test does not limit its application to only testimonial contexts. State ex rel. Shanahan, 356 N.W.2d 523, 528 (Iowa 1984). Rather, “the privilege targets and protects the communication itself, including any written report of the communication, and not just oral examination of the public officer.” Id. In practice, this means that the request for a record that is determined to be part of a police investigative report satisfies part one of the test, as “the privilege may be invoked at any stage of proceedings where confidential communications would otherwise be disclosed, not just when a witness is testifying.” Id.
Part two of the test concerns whether the information sought to be obtained and made public was communicated to the officer “in official confidence.” Both civilians and other peace officers may communicate information in official confidence; therefore, whether the information comes from a civilian or an officer is not itself a determinative factor. See id. The Court has held that reports to officers regarding a motor vehicle accident are not made in “official confidence” because motor vehicle accident reports under Iowa statutes are not confidential. Shannon by Shannon v. Hansen, 469 N.W. 2d 412, 415 (Iowa 1991); see also Grocers Wholesale Coop, Inc. v. Nussberger Trucking Co., 192 NW2d 753, 753 (Iowa 1971); Iowa Code § 321.271.
In contrast, the Court has indicated that “reports or memorandum [shared between officers] . . . solely for purposes of a police internal review of the incident” are likely made in official confidence. Mitchell, 926 N.W.2d 222, 235 (Iowa 2019). However, the Court has also noted that although officer-to-officer communications “might initially be made in confidence, there is still an expectation that the communicating officer might be expected to testify in a public proceeding especially if it involves something the officer personally witnessed,” and “[t]he same can be said of civilian witnesses.”
Part three of the test requires the weighing of the public interest in disclosure against the potential harm that such disclosure may cause. Hawk Eye v. Jackson, 521 N.W.2d 750, 753 (Iowa 1994). Factors that weigh in favor of confidentiality include the use of confidential informants; the presence of named, but innocent suspects; and the presence of “hearsay, rumor, or libelous comment” in the investigation materials. Id. Additionally, the ongoing nature of an investigation weighs in favor of confidentiality. Id. Nondisclosure allows law enforcement to test out findings and theories about cases under investigation; it also works to ensure that the overall investigation is not jeopardized before its conclusion. Id.
When the investigation involves matters of public interest and debate, such as when a police shooting or cover-up of improper police behavior are involved, such factors weigh in favor of disclosure. For example, in Hawk Eye, concerns regarding leniency or a cover up in regards to disciplining police officers involved in potential misconduct were matters of great public concern that the Court cited in requiring disclosure. Id.
In Mitchell, the Court held that investigative reports involving allegations of a white police officer’s excessive use of force against an African-american motorist were “issues of great public concern” that outweighed the potential harm that might result from such disclosure. Mitchell v. City of Cedar Rapids, 926 N.W.2d 222, 233 (Iowa 2019). See also Williams v. City of Burlington, 516 F.Supp.3d 851, 877 (S.D. Iowa 2021) (following Mitchell by releasing police investigation documents for similar reasons but excluding any reports prepared by the city for internal review or discipline).
Additionally, when factors weighing in favor of confidentiality are absent, the Court considers this absence to weigh in favor of disclosure. Hawk Eye, 521 N.W.2d at 753.
Information that is generally not protected, even if occurring within otherwise protected investigative reports
The statute also states that the following information is generally not protected, even if it occurs within one of the three categories of protected information: the date, time, specific location, and immediate facts and circumstances surrounding a crime or incident. However, if the disclosure of the date, time, location, and immediate facts and circumstances of a crime would seriously jeopardize an investigation or pose a clear and present danger to the safety of an individual, then the information may be kept confidential. Mitchell v. City of Cedar Rapids, 926 N.W.2d 222, 233 (Iowa 2019).
BY DIRECTION AND VOTE OF THE BOARD:
Daniel Breitbarth
Joan Corbin
E.J. Giovannetti
Barry Lindahl
Joel McCrea
Monica McHugh
Julie Pottorff
Jackie Schmillen
SUBMITTED BY:
Daniel M. Strawhun
Legal Counsel
Iowa Public Information Board
ISSUED ON:
August 17, 2023
Pursuant to Iowa Administrative Rule 497-1.3(3), a person who has received a board opinion may, within 30 days after the issuance of the opinion, request modification or reconsideration of the opinion. A request for modification or reconsideration shall be deemed denied unless the board acts upon the request within 60 days of receipt of the request. The IPIB may take up modification or reconsideration of an advisory opinion on its own motion within 30 days after the issuance of an opinion.
Pursuant to Iowa Administrative Rule 497-1.3(5), a person who has received a board opinion or advice may petition for a declaratory order pursuant to Iowa Code section 17A.9. The IPIB may refuse to issue a declaratory order to a person who has previously received a board opinion on the same question, unless the requestor demonstrates a significant change in circumstances from those in the board opinion.
[1] Although the Iowa Supreme Court did not review the Board’s determination of this legal issue in its opinion, the case still serves as an example of the Board's stance.
[2] In contrast, a categorical privilege of confidentiality requires only that the party who wishes to avail itself of the protection against disclosure demonstrate that the record at issue fits within the category of information protected under the statute. Mitchell v. City of Cedar Rapids, 926 N.W.2d 222, 233–234 (Iowa 2019). Section 22.7(11), which protects “personal information in confidential personnel records,” is an example of such a categorical privilege. Id. at 233.
[3] This test originates from State ex rel. Shanahan v. Iowa Dist. Court, 365 N.W.2d 523, 528 (Iowa 1984).