Advisory Opinion 23AO:0008
DATE: December 21, 2023
SUBJECT: Confidentiality of Draft Documents
Debra Schiel-Larson
Via email [redacted]
Ms. Schiel-Larson,
We are writing in response to your request dated October 11, 2023, requesting an advisory opinion from the Iowa Public Information Board (IPIB) pursuant to Iowa Code chapter 23 and Iowa Administrative Code rule 497-1.3.
We note at the outset that the IPIB’s jurisdiction is limited to the application of Iowa Code chapters 21, 22 and 23, as well as 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:
Would IPIB please clarify the Draft Documents confidentiality exception. What records are exempt from disclosure under Iowa Code § 22.7(65)?
OPINION:
Iowa Code section 22.7(65) allows certain public records to be withheld as confidential “draft documents”:
Tentative, preliminary, draft, speculative, or research material, prior to its completion for the purpose for which it is intended and in a form prior to the form in which it is submitted for use or used in the actual formulation, recommendation, adoption, or execution of any official policy or action by a public official authorized to make such decisions for the governmental body or the government body.
This subsection shall not apply to public records that are actually submitted for use or are used in the formulation, recommendation, adoption, or execution of any official policy or action of a governmental body or a government body by a public official authorized to adopt or execute official policy for the governmental body or the government body.
No Iowa case law interpreting section 22.7(65) exists. The origin of the exception dates back to 2007, when the Iowa Legislature assembled an Interim Study Committee to review Iowa Code chapters 21 and 22.[1] Professor Arthur Bonfield proposed the addition to the Committee to allow for a “deliberative” exception to Iowa’s public records law.[2]
In proposing the exception, Professor Bonfield stated “[This exception] should apply only to nonfactual policy, opinion, or idea materials, and such very tentative or very preliminary materials could be withheld only for periods prior to the final formulation of an actual recommendation or proposal, which would be well before any actual authoritative action on any such recommendation or proposal.”[3]
The purpose of the exception, according to the legislative history, is “to encourage the creation and free exchange by government employees and officials of new and innovative preliminary and tentative ideas for later more careful and deliberate consideration and that such a privilege would only apply well prior to any decision to propose, adopt, implement, or act on them.”[4]
In advisory opinion AO 2015-01, the IPIB provided the following criteria to assist in determining whether a document falls under the 22.7(65) exception:
- The document is tentative, preliminary, draft, speculative or research material;
- The document exists in a form prior to completion of its intended purpose;
- The document exists in a form prior to the form that is ultimately submitted for use or used in the actual formulation, recommendation, adoption or execution of any official policy or action by a public official with authority to make such decisions; and
- The document must not have been submitted to or used by a public official authorized to adopt or execute official policy.
In advisory opinion 20AO:0006, IPIB utilized the criteria above to determine that notes taken by a city clerk during a council meeting and used to prepare the council minutes are not confidential under Iowa Code § 22.7(65) because the “notes taken at the meeting are essentially what is submitted to the council as minutes. Despite potential changes, such as converting the notes from handwritten to typed, the content of the record is substantially the same which points to it not existing in a prior form.” Similarly, “the notes are not in a form prior to the form that is ultimately submitted to the city council for official use.”
The present advisory opinion (23AO:0008) seeks to provide additional analysis and guidance on the application of section 22.7(65) while keeping in mind the purpose for which the exception was created.
Clause-by-clause Analysis
- Tentative, preliminary, draft, speculative, or research material,
The document at issue (that is, the document claimed to be confidential) must be a document that is unfinished, subject to further revision, or otherwise ancillary to the creation of a primary, final document.[5]
- prior to its completion for the purpose for which it is intended
The document at issue (“it”) must be incomplete “for the purpose for which it is intended.” “The purpose for which it is intended” is context dependent, but presumably would relate to “the formulation, recommendation, adoption, or execution of any official policy or action.”[6]
- and in a form prior to the form in which it is submitted for use or used
In essence, this phrase expresses the same meaning that the second sentence of the statute already expresses:[7] if the same document that is claimed to be confidential was actually submitted for use or was used in government policy making or action, that document is not a confidential draft document and cannot be withheld under this section.
- in the actual formulation, recommendation, adoption, or execution of any official policy or action
In order to be confidential under section 22.7(65), the document at issue must have been created in the context of official government policy-making or action. For example, a draft letter to the editor of an academic journal, written by a professor of a public university and concerning the professor’s opinions about an article the journal previously published, would not be confidential under section 22.7(65) because it does not relate to the “formulation, recommendation, adoption, or execution of any official policy or action.”[8]
In other words, if the purpose or impetus for creating the document at issue was not connected to an effort to create or implement official government policy or action, the exemption would not apply.[9]
The use of the word “official” implies the type of policies or actions contemplated by the statute are not informal, personal, or otherwise outside of authoritative government action.
by a public official authorized to make such decisions for the governmental body or the government body.
This phrase adds further clarification to the requirement that the government policy making or action to which the document relates must be official and authoritative.
- This subsection shall not apply to public records that are actually submitted for use or are used in the formulation, recommendation, adoption, or execution of any official policy or action of a governmental body or a government body by a public official authorized to adopt or execute official policy for the governmental body or the government body.
As explained above, the second sentence of section 22.7(65) means that if the document at issue was “actually submitted for use or was used in the formulation, recommendation, adoption, or execution of official government policy or action,” it cannot be withheld as confidential under this section.[10]
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:
IPIB Staff
ISSUED ON:
December 21, 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.
The following chart may provide additional assistance in evaluating whether this exemption applies:
[1] All documents received and submitted by the Interim Study Committee are accessible via the following link: https://www.legis.iowa.gov/committees/meetings/documents?committee=615&ga=ALL (last accessed December 5, 2023).
[2] Arthur E. Bonfield & Alan Vestal, State Government in the Sunshine: Chapters 21 and 22 of the Code of Iowa: Presentation to Joint Interim Study Committee on Freedom of Information, Open Meetings, and Public Records Iowa General Assembly, September 6, 2007, p. 14.
[3] Id.
[4] Id.
[5] See id. (“The General Assembly should, therefore, at least consider seriously the desirability of explicitly exempting from required public disclosure some materials in very preliminary and very tentative working papers of government officials or employees.”) (emphasis in original).
[6] See id. (“The argument would be that the custodians of very tentative notes, very preliminary drafts, should be able to withhold them from public scrutiny, if they choose, for brief periods, while decisionmakers have a chance to think about them, and should be able to withhold them from public scrutiny only up to the time the public officials or public employees actually formulate on the basis of such earlier tentative and preliminary deliberative materials specific recommendations or proposals for future authoritative actions.”) (emphasis in original).
[7] The second sentence of section 22.7(65) states “[t]his subsection shall not apply to public records that are actually submitted for use or are used in the formulation, recommendation, adoption, or execution of any official policy or action of a governmental body or a government body by a public official authorized to adopt or execute official policy for the governmental body or the government body.”
[8] See Bonfield & Vestal, supra note 2 (“[The documents] could be withheld only for periods prior to the final formulation of an actual recommendation or proposal, which would be well before any actual authoritative action on any such recommendation or proposal.”) (emphasis in original).
[9] See id. (“[The] brief exemption should not apply to factual material. It should apply only to nonfactual policy, opinion, or idea materials, and such very tentative or very preliminary material.”).
[10] See id. (“It should be stressed that the purpose of such a deliberative privilege exemption is only to encourage the creation and free exchange by government employees and officials of new and innovative preliminary and tentative ideas for later more careful and deliberate consideration and that such a privilege would only apply well prior to any decision to propose, adopt, implement, or act on them.”).