Advisory Opinion 24AO:0007
DATE: July 18, 2024
SUBJECT: Are private email communications sent from a government email address public records?
Tara Elcock
The Law Shop
413 Grant Street
Van Meter, IA 50261
Ms. Elcock,
We are writing in response to your request dated July 1, 2024 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.
This opinion concerns the use of a government email for private, personal matters. Advisory opinions may be adopted by the board pursuant to Iowa Code section 23.6(3) and Rule 497–1.2(2): “Any person may request a board advisory opinion construing or applying Iowa Code chapters 21, 22, and 23. An authorized agent may seek an opinion on behalf of any person. The board will not issue an opinion to an unauthorized third party. The 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:
Whether records should be disseminated as public record, and whether there is an exception to the dissemination when information is private information, not utilized in the course of official action.
You report that a police officer, a public employee, has been using his government email for communication in his ongoing personal, family matters, potentially including a district court custody case and juvenile child in need of assistance (“CINA”) cases involving the employee’s children. These emails include communications with the county attorney's office, the children's guardian ad litem, workers from Children and Families of Iowa, the children's mental health providers, school educators, and potentially others.
You state that a formal records request was made around May 8, 2024, for email records requesting the entirety of the email communications under the relevant domain for his work. You state the emails requested are extensive and include communications with Department of Human Services, the children's guardian ad litem, his former attorney and others at the law firm, the Madison County Attorney and Assistant Madison County Attorney and others in the office, City of Winterset Police Department and specific officers, the children's therapists, former therapist, Children and Families of Iowa and specific personnel, Families First Counseling Services and specific personnel, the court-appointed special advocates involved in the CINA matters, Winterset Community School District, the 5th Judicial Magistrate, the 5th Judicial Court Judge, and his current attorney and her firm. The records request sought the entirety of the email communications under the relevant domain dating back to February 14, 2020. You state the records requests should fall under the exception to dissemination pursuant to Iowa Code §§ 22.7 and 22.8.
You also state information requested is information that is private information involved in the district court custody case and the juvenile court CINA case as they relate to the children of the employee and his ex-wife. You further indicate none of the records were created in the course of business or in an official capacity and they do not provide any benefit to the general public as they related only to family matters.
OPINION:
Interpretation of Public Records
“By statutory definition, a public record is a record or document of or belonging to the state or local government. A document of the government is a document that was produced by or originated from the government. Documents belonging to the government would include those documents that originate from other sources but are held by public officers in their official capacity.” City of Dubuque v. Dubuque Racing Ass'n, 420 N.W.2d 450, 452 (Iowa 1988) (emphasis in the original); see also Diercks v. City of Bettendorf, 929 N.W.2d 273, ? (Iowa Ct. App. 2019) (looking to whether the records requested are “of or belonging to” a covered governmental body under section 22.1 based on whether they relate to a government function or duty).
In Dubuque Racing Association, a records request was made for the records held by city council members who also served on the board of a nonprofit racing association. In determining whether the records were public records, the Court had to determine whether the city council members on the board “were acting in their official capacity as public servants and whether disclosure of the minutes of the DRA board meetings will facilitate public scrutiny of the conduct of public officers. This decision does not turn on the physical location of the documents in question, rather, the appropriate inquiry is whether the documents are held by the city officials in their official capacity.” 420 N.W.2d at 453. “Simply because members of a city council serve on the board of directors of a private nonprofit corporation, the affairs of the corporation do not become the affairs of the government.” Id. at 453.
In United States v. Story County, the federal court found that “[n]ot every action taken (or email received/sent) by Sheriff Fitzgerald is carried out in his official capacity as Story County Sheriff nor necessarily relates to his elected duties.” 28 F. Supp. 3d 861, 871 (S.D. Iowa 2014). In determining whether Sheriff Fitzgerald’s emails regarding his position with the federal body were subject to Iowa’ public records law, the court found important that the requestor “would not be entitled to access” the emails if they had been sent and/or received from his board email account. Merely sending and/or receiving the emails from his county email address “did not transform the nature of those communications, neither did that use transform [the requestor’s] lack of access to them.” The emails were not “produced by or originated from” the Sheriff’s role as sheriff and were not held in his official capacity with the county. 28 F. Supp. 3d 861, 871–72 (S.D. Iowa 2014).
In Kirkwood Institute v. Sand, the Iowa Supreme Court reviewed a situation in which a government employee used his personal email to conduct official government business and whether the government body’s delay in producing the email records was reasonable. In reviewing the situation, the court was clear that the requestor was “entitled to see the actual, complete record.” 6 N.W.3d 1, 9 (Iowa 2024); see also 21AO:0009 Public records maintained on privately-owned electronic devices (“If a government official or employee uses privately owned electronic devices or services, such as cell phones, computers, email accounts, smart phones, or such to conduct official government business, then the record generated is a public record. What governs the issue is the content of the message.”).[1]
These cases demonstrate the fundamental principle of Iowa’s public records law that the record itself, rather than the location the record is stored, dictate whether it is a public record required to be disclosed under Iowa Code chapter 22. “It is the nature and purpose of the document, not the place where it is kept, which determines its status,” Linder v. Eckard, 152 N.W.2d 833, 835 (Iowa 1967); see also 18AO:0019 When are documents possessed by public officials “public record” as defined by Iowa Code § 22.1 (3) (a-b)? (whether the various communications constitute public records which must be disclosed depends on the action they memorialized and how the documents were created; if intended to bind the individuals or non-county business entity, they fall outside the scope of Iowa Code chapter 22).[2]
Application to the records requested
The facts provided indicate the records requested include email communications from a city police officer to individuals involved in his child custody case, investigations and juvenile court matters regarding his children. The records request asks for all email communications from February 2020 through May 2024 to identified agencies, individuals, and email addresses.
There are — as this question clearly spells out — highly personal, private and potentially privileged communications. As a police officer, there may also be records responsive to this request created in the officer’s official capacity to some of these agencies as part of his duties to investigate matters within his scope and responsibility as a police officer. Case law has consistently stated, that whether a document is a public record depends on the nature of the document and whether they are created and/or held by the police officer in his official capacity.
Records related to the police officer’s children, his personal court cases, and his personal communications with his attorneys and counselors would not be created or held by him in his official capacity and would not be public records. Records to any of these individuals, agencies, or email addresses as part of his investigative role as a police officer would be public records subject to disclosure according to Iowa Code chapter 22.
As stated in previous IPIB guidance, commingling public communications and reports with private communications creates difficulty in responding to an open records request. Utilizing a government email address for personal and deeply private conversations poses as great a risk as utilizing private resources for public business. Public business communications are public records, and it is the custodian’s responsibility to review all records to determine whether they are within a request for examination and copying to justify any denial of release. Iowa Code chapter 22 does not provide specific guidance concerning how a lawful custodian retrieves, reviews, and releases public records.[3]
Best practices suggest personal and public communications should not be commingled. This situation is a clear illustration of why this practice should be followed. Government bodies should also enact policies to prohibit the commingling, but also address situations in which public and private communications are combined whether it occurs on public devices or on private devices. It is ultimately the custodian’s responsibility to review records responsive to the records request and respond to the requestor as appropriate under their obligation as outlined in Iowa Code chapter 22 and case law.
BY DIRECTION AND VOTE OF THE BOARD:
Joan Corbin
E.J. Giovannetti
Barry Lindahl
Luke Martz
Joel McCrea
Monica McHugh
Jackie Schmillen
SUBMITTED BY:
Erika Eckley
Executive Director
Iowa Public Information Board
ISSUED ON:
July 18, 2024
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] https://ipib.iowa.gov/when-become-public-records
[2] https://ipib.iowa.gov/privately-owned-electronic-devices
[3] See 21AO:0009 Public records maintained on privately-owned electronic devices; located at https://ipib.iowa.gov/privately-owned-electronic-devices