Advisory Opinion 24AO:0014
DATE: January 14, 2025
SUBJECT: Is a government body required to produce bodycam video and lifeguard statements in response to a public record request pursuant to Chapter 22?
Dustin T. Zeschke
Swisher & Cohrt, P.L.C.
528 W. 4th Street
PO Box 1200
Waterloo, IA 50704-1200
Mr. Zeschke,
This Advisory Opinion is written in response to your request dated December 11, 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 confidentiality of bodycam videos and lifeguard statements contained within a peace officer investigative report. Advisory opinions may be adopted by IPIB 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.” 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 an advisory opinion, if followed, constitutes a defense to a subsequent complaint based on the same facts and circumstances.
QUESTION POSED:
Is a government body required to produce bodycam video and lifeguard statements in response to a public record request pursuant to Chapter 22?
OPINION:
This question arises from a public records request to a City for portions of a peace officer investigative report (“Report”). The Report involves an investigation into a tragic incident at a public swimming pool and the resulting death of a minor child. The Report has been closed and no charges were pursued. The Report includes bodycam video (“Video”) and witness statements (“Statements”) from lifeguards.
The specific questions raised are as follows:
- Is the City required to release the Video as public record?
- If the Video is released, can it be redacted and can the costs associated with redaction, including blurring software, be included as part of the overall costs for production?
- Is the City required to release Statements as public record, and if so, can the Statements be redacted?
Is the City required to release the Video as public record?
- Iowa Code § 22.7 expresses clear intent to establish confidentiality for specific types of public records, including peace officer investigative reports and medical records.
Iowa Code § 22.7 creates confidentiality for certain types of public records: “[T]he following public records shall be kept confidential unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information:” It is clear the intent of Iowa Code § 22.7 is to allow specific types of public records to remain confidential due to the unique circumstances and sensitive information contained within.
Peace officer investigative reports (Iowa Code § 22.7(5)) and medical records (Iowa Code § 22.7(2)) are among the exceptions explicitly identified. Both provisions are applicable to the Video that is the subject of this Advisory Opinion. Each provision is applied individually below.
Peace Officers’ Investigative Reports - Iowa Code § 22.7(5)
A.1. Definition of Peace Officer Investigative Reports
The analysis begins with the definition of a peace officer investigative report. The Iowa Public Information Board interprets peace officer investigative reports to include all of the information gathered by officers as part of an investigation into a crime or incident. (23AO:0003, Confidentiality of Police Investigative Files) This position has been further confirmed by Iowa courts. For example, in Klein v. Iowa Public Information Board, the Iowa Public Information Board determined 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). This position was upheld by the court. 968 N.W.2d 220, 222 (Iowa 2021). Additional cases confirming the confidentiality of supplemental information becoming part of the peace officer investigative report include lab reports taken in connection with a criminal investigation (AFSCME v. Iowa Dep’t of Pub. Safety) and video recording, use of force reports, and pursuit reports related to an officer's encounter with an individual in relation to an arrest (Neer v. State). 434 N.W.2d 401, 403 (Iowa 1988); 798 N.W.2d 349, 349 (Iowa Ct. App. 2011)
Under the facts of this case, the Video is part of the Report and is subject to the same protections afforded to the Report pursuant to Iowa Code § 22.7(5). This is not the end of the analysis.
The fact that a peace officer investigative report exists does not make it confidential. Rather, a balancing test must be applied to determine whether the Videos, as part of the Report, should remain confidential. The next question is whether the facts, as outlined in this Advisory Opinion, allow for the qualified privilege of confidentiality to extend to the Videos as part of the Report.
A.2. Qualified Privilege of Confidentiality – Balancing Test
The confidentiality afforded to peace officer investigative reports under 22.7(5) is a qualified, rather than categorical, privilege. Mitchell v. City of Cedar Rapids, 926 N.W.2d 222, 232–234 (Iowa 2019). This means a public record claimed to be confidential on the basis that it is part of a peace officer investigative report is not singularly sufficient to maintain confidentiality. Id.
In addition to demonstrating the public record is part of a peace officer 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).
The analysis outlined by Mitchell, as applied to the facts of this Advisory Opinion, will focus on balancing public interests as it relates to disclosure. Before applying the balancing test, it should be noted that the first and second elements of Mitchell are satisfied. Without knowing the full details of the Report, for the opinion, it will be presumed the facts meet the first two elements of the Mitchell test.
Part three of the Mitchell test requires the weighing of the public interest in disclosure against the potential harm such disclosure may cause. Factors weighing 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. at 234. Additionally, the ongoing nature of an investigation weighs in favor of confidentiality to ensure 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.
The facts presented in this case indicate the Video shows the minor child receiving medical care and CPR. While providing medical care, the minor child’s partially unclothed body can be viewed. In addition, the Video follows the minor child into the ambulance and hospital. Under the facts presented, none of the factors weighing in favor of disclosure are present. There is an absence of matters of public interest such as police cover-up or officer involved shootings that would weigh in favor of disclosure. More importantly, there is potential harm attached to the release of the Video due to significant privacy interests involving the minor child and the minor child’s family. There is also potential harm to the general public in releasing graphic and sensitive images.
There is no public interest that could benefit from disclosure of the Video as part of the Report. The balancing test weighs in favor of confidentiality based on the facts of this Advisory Opinion.
- Medical Records - Iowa Code § 22.7(2)
Iowa Code § 22.7(2) provides confidentiality for records of various types of medical treatment. The law reads the following shall be maintained as confidential:
Hospital records, medical records, and professional counselor records of the condition, diagnosis, care, or treatment of a patient or former patient or a counselee or former counselee, including outpatient. Iowa Code § 22.7(2).
The medical care and treatment of a patient may also trigger the protections of the federal Health Insurance Portability and Accountability Act (HIPAA). 45 C.F.R. §§ 160, 162, and 164.
Based on the information presented for this Advisory Opinion, the Video includes footage of medical treatment provided to the minor child. The Video recorded transport in the ambulance while the minor child received treatment from emergency responders. The Video also recorded the minor child receiving medical treatment at the hospital. The Video clearly depicts the medical care and treatment of a patient and should remain confidential under Iowa Code § 22.7(2) when requested as public record. This is consistent with prior cases determined by the IPIB. See, e.g. 21FC:0104; Cherie Pichone v. University of Iowa Police Department.
If the Video is released, can it be redacted and can the costs associated with redaction, including blurring software, be included as part of the overall costs for production?
The second portion of the City’s question involves the ability to redact portions of the Video and to charge costs of any redaction. As indicated in the analysis above, the City can withhold the Video as part of the Report. As lawful custodian, the City may decide to release portions or all of the Video with redactions. See Iowa Code § 22.7: The following public records shall be kept confidential, unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information. (Emphasis added.)
If the City determines the Videos should be released with redaction, the law allows the City to charge redaction costs.
Iowa Code § 22.3(2) states as follows:
The lawful custodian may charge a reasonable fee for the services of the lawful custodian or the custodian’s authorized designee in supervising the examination and copying of the records….Actual costs shall not include charges for ordinary expenses or costs such as employment benefits, depreciation, maintenance, electricity, or insurance associated with the administration of the office of the lawful custodian.
The provision goes on to state:
Costs for legal services should only be utilized for the redaction or review of legally protected confidential information.
Another relevant portion of Chapter 22 involves data processing software. Iowa Code § 22.3A(2)(d):
An electronic public record shall be made available in the format in which it is readily accessible to the government body if that format is useable with commonly available data processing or database management software. The government body may make a public record available in a specific format requested by a person that is different from that in which the public record is readily accessible to the government body and may charge the reasonable costs of any required processing, programming, or other work required to produce the public record in the specific format in addition to any other costs allowed under this chapter.
These provisions, in whole, demonstrate that Iowa Code Chapter 22 allows government bodies to redact public records as necessary for disclosure and to assess the costs for redaction.
This position was further affirmed in the recent Supreme Court case, Teig v. Chavez, 8 N.W.3d 484 (Iowa 2024). The Court found that the legislative intent of Iowa Code Chapter 22 was to allow for recovery of expenses for production of public records beyond just copying costs. The Court states, “Thus, for requests taking more time to fulfill, the amendments to section 22.3(1) clarify that in addition to copying costs, custodians can charge for other expenses incurred in producing the records, as long as they are “reasonable and communicated to the requester upon receipt of the request.” Id. at 496-97. The Court goes on to state, “The general assembly’s continued use of the same word “expenses” in relation to recovery of costs incurred in fulfilling a request for public records reveals that it considered such expenses to not be limited to copying costs, as Teig argues.” Id.
Iowa law supports the ability of the City to charge for redactions and blurring of public records, whether it be the purchase and use of blurring software or blurring services provided by a vendor.
Is the City required to release Statements as public record, and if so, can the Statements be redacted?
The final question raised by the City relates to Statements obtained during the peace officer investigation. The Statements are written on a report required pursuant to Iowa Administrative Code:
“Reports. Swimming pool and spa operators shall report to the local inspection agency, within one business day of occurrence, all deaths; near drowning incidents; head, neck, and spinal cord injuries; and any injury which renders a person unconscious or requires immediate medical attention.” 641 IAC 15.4(7).
The report is required by another government entity. The question is whether the City is the lawful custodian of the Statements or whether the government entity requiring and receiving the Statements is the lawful custodian.
- Is the City the lawful custodian of the Statements?
The determination of which government body is the lawful custodian of the public record hinges on the specific facts of the case. If the record is required by, created for, and filed with a specific government entity, the circumstances indicate the specific government body requiring the Statements is the lawful custodian. This means any requests for Statements as public record should be directed to the lawful custodian.
The sole use of a designated government body’s form being used to capture these Statements does not by itself make the Statements the custody of another government body. If the form was used solely for the purposes of capturing the Statements for the peace officer investigative report and nothing was ever filed with another government body, then the City would be the lawful custodian of the Statements and an analysis must be applied to determine whether the City should release the Statements.
Applying the same analysis applied to the Video, the City should to review the full content of the Statements and determine: 1. Whether the balancing test favors disclosure or retention of the public record under the Mitchell test; and 2. Whether the Statements contain any medical information that could be deemed confidential pursuant to Iowa Code § 22.7(2).
If the City determines the Statements must or may be released, the City may redact any portions containing confidential information. The City may assess reasonable costs for redaction.
Reminder regarding disclosure.
The City is reminded that Iowa Code § 22.7(5) does mandate that portions of the peace officer investigative report should be released, even if the report is deemed confidential:
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 § 22.7(5).
BY DIRECTION AND VOTE OF THE BOARD:
Joan Corbin
E.J. Giovannetti
Barry Lindahl
Catherine Lucas
Luke Martz
Joel McCrea
Monica McHugh
Jackie Schmillen
SUBMITTED BY:
Kimberly Murphy, J.D.
Deputy Director
Iowa Public Information Board
ISSUED ON:
January 16, 2025
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.