23FC:0026: Sydney Crnkovich/Carroll County Sheriff’s Office - Dismissal Order

Date:
06/15/2023

Subject:
Sydney Crnkovich/Carroll County Sheriff’s Office - Dismissal Order

Opinion:

The Iowa Public Information Board

COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order:

Sydney Crnkovich filed formal complaint 23FC:0026 on February 22, 2023, alleging that the Carroll County Sheriff’s Office (CCSO) violated Iowa Code chapter 22.

Facts
Ms. Crnkovich alleged that she requested a copy of a 911 call concerning the report of a deceased body. She alleged that the CCSO denied the request.1

The CCSO responded to the complaint on February 27, 2023, and stated that the 911 call would not be released as a public record as it was part of a peace officer’s investigative report2 and was confidential pursuant to Iowa Code section 22.7(5) and (18). It was later clarified that the recording was also not released pursuant to Iowa Code § 622.11.

In responding for the CCSO, the Carroll County attorney originally asked the IPIB not to “close the file”, stating he would “like to litigate subsection 18….” as a reason to withhold a 911 call. But his later statements in response to this Complaint seemed to contradict his statement asking that IPIB “Please commence a contested case.” The attorney did not provide clarification of his intention, so it is assumed at this point is not asking the Board to accept the complaint.

It is also important to note that this Complaint is analyzed under Chapter 22, which provides that “[e]very person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.”3 Facts regarding the specific reasons for wanting the record or other facts specific to individuals involved in this Complaint are not relevant as to whether there is a violation of the Open Records law and are therefore not part of the analysis.

Iowa Law Provisions
Iowa Code § 22.7(5) allows certain police officer reports to be withheld as confidential regardless after applying balancing test analysis under Hawk Eye v. Jackson, 521 N.W.2d 750, 753 (Iowa 1994) to determine the value of confidentiality over public interest in disclosure. This test was explicitly affirmed as a vital requirement for confidentiality of police investigatory files in Mitchell v. City of Cedar Rapids, 926 N.W.2d 222 (Iowa 2019). Iowa Code § 622.11 provides that a “public officer cannot be examined as to communications made to the public officer in official confidence, when the public interests would suffer by the disclosure.”4

Iowa Code § 22.7(18) allows a government body to withhold certain communications made to the government body in limited circumstances:
18. Communications not required by law, rule, procedure, or contract that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them to that government body if they were available for general public examination. …
a. The communication is a public record to the extent that the person outside of government making that communication consents to its treatment as a public record.
b. Information contained in the communication is a public record to the extent that it can be disclosed without directly or indirectly indicating the identity of the person outside of government making it or enabling others to ascertain the identity of that person.
c. Information contained in the communication is a public record to the extent that it indicates the date, time, specific location, and immediate facts and circumstances surrounding the occurrence of a crime or other illegal act, except to the extent that its disclosure would plainly and seriously jeopardize a continuing investigation or pose a clear and present danger to the safety of any person. In any action challenging the failure of the lawful custodian to disclose any particular information of the kind enumerated in this paragraph, the burden of proof is on the lawful custodian to demonstrate that the disclosure of that information would jeopardize such an investigation or would pose such a clear and present danger.

Analysis under Iowa Code § 22.7(5)
The balancing test under Hawk Eye, requires that “An official claiming the privilege must satisfy a three-part test: (1) a public officer is being examined, (2) the communication was made in official confidence, and (3) the public interest would suffer by disclosure.” 521 N.W.2d at 753.

In regards to the balancing test required for Iowa Code § 22.7(5) and § 622.11, CCSO stated that its analysis included the following: “‘A public officer cannot be examined as to communications made to the public officer in official confidence, when the public interests would suffer by the disclosure.’ The balancing of the public’s interest in public safety and disclosure is best left with the learned discretion of the elected county official. The wholesale disclosure of 911 calls to those with no particular interest in a matter does not serve the public interest.”

In this case, the facts known are that the 911 call involves an incident in which the caller found a dead body. There is no information provided that this involved any kind of situation in which the public would have a compelling interest in knowing more than the general information that is not confidential under Iowa Code §22.7(5). In this situation, it is difficult to see a public interest that is met by releasing the 911 phone call under what would be a traumatic situation for all individuals involved.

Analysis under Iowa Code § 22.7(18)
In addition to confidentiality as part of a police investigation, CCSO has also claimed the 911 call should be withheld as confidential under Iowa Code § 22.7(18). The IPIB has established criteria to use when determining whether other communications can be withheld under this subsection:

A communication to a government body can be kept confidential under Iowa Code section 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.
4. And, 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.5

In regards to the 911 call, the analysis shows-

1. The communication is not required by law, rule, procedure, or contract.
The communication was an individual making a call to a government dispatch through 911 in regards to finding a deceased individual. There is no specific law or rule in this situation that requires an individual to make a report to law enforcement regarding their discovery.

2. It is from identified persons outside of government.
The individual making the 911 call has not been identified by name, but the caller is known and no facts establish that the call was made from an individual in an official capacity acting on behalf of the CCSO or other agency.

3. The government body could reasonably believe those persons would be discouraged from communicating with government if the information was made public.
CCSO states, “Emergency callers to 911 do not imagine that their spoken words and identify will be revealed to anyone for the asking with the audio being placed on the internet for all the world to hear.”

4. And, 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.
CCSO states that the 911 caller has not consented to the release. With regards to an audio recording of a person speaking, it would be nearly impossible to release it without it identifying the individual.

These factors weigh in favor of withholding the 911 call as confidential under Iowa Code § 22.5(18) as well.

Conclusion
Iowa Code § 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and have merit before the IPIB accepts a complaint. Following a review of the allegations on their face, it is found that this complaint does not meet those requirements.

IT IS SO ORDERED: Formal complaint 23FC:0026 is dismissed as it is legally insufficient pursuant to Iowa Code § 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b). Based on a balancing of public interest with potential for harm caused by disclosure, the 911 call was appropriately withheld as confidential and not subject to disclosure as a public record under Iowa Code Chapter 22.

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 June 15, 2023. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
_________________________
Erika Eckley, J.D.

1 At the time of the request, the police were still investigating the matter.

2 The Board has held peace officers’ investigative reports include all of the information gathered by the officers as part of the investigation and incorporated into the reports. “To require an item-by-item assessment of everything within a criminal investigation file would, for all practical purposes, eliminate the investigative report exemption.” Neer v. State, 2011 WL 662725 (Iowa App. Feb. 23, 2011).

3 Iowa Code § 22.2(1).

4 Iowa Code § 622.11 has been interpreted as requiring essentially the same analysis for confidentiality as Iowa
Code § 22.7(5).

5 See IPIB Advisory Opinion AO 2018-15 and AO 2017-09.