The Iowa Public Information Board
In re the Matter of: Andrew Kida, Complainant And Concerning: Clinton County, Respondent |
Case Number: 24FC:0003 Dismissal Order
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COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order:
On January 4, 2024, Andrew Kida filed formal complaint 23FC:0003, alleging that Clinton County (“County”) violated Iowa Code chapter 22.
Facts
Mr. Kida alleges he made a public records request to the County on November 15, 2023, requesting all email, text messages, and social media communications between County Supervisor Erin George and City of Clinton Councilwoman Rhonda Kearns between January 1, 2023, and November 14, 2023. A similar request was filed with the City of Clinton, which is not the subject of this complaint.
In comparing the records provided by the County with those provided by the city, Mr. Kida alleges the County failed to provide some records of text messages he received from the city. He alleges he made a follow up request on December 26, 2023, asking for the omitted text messages. In response, he was told by the County’s attorney that some text messages had been deleted from Supervisor George’s phone due to space constraints on her phone. Mr. Kida believes the deletions seem “odd” because he received texts from early in October and some from late in November, but the messages for in between those dates were deleted.
He stated text threads between Ms. George, Ms. Kearns and multiple other unnamed individuals are the only ones missing, along with the associated attachments. He alleges the most distasteful and revealing information was contained in the deleted thread, but multiple other threads with messages on the same days were not deleted. He alleges names and contacts within those messages are being protected, and deleting the messages was intentional.
In response, the County stated that the records that existed were provided to Mr. Kida. In regards to the deleted text messages, the County provided a signed statement from Supervisor George stating the following in regards to a search of her personal iPhone, “I searched these device(s) for the above requested records [Kida’s request] to the best of my ability and believe and have turned them over to [redacted] the Clinton County Attorney for review and release as recommended. Further, upon learning of the above records request, I have not deleted or altered any records which may be related to the above records request. Also, if I should discover any relevant record(s) after this search I will provide them in a timely manner.” A sworn affidavit from Supervisor George affirming that no messages were deleted after receiving the request.
Applicable Law
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.” 21AO:0009: Public Records Maintained on Privately-owned Devices. “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).
“Commingling public communications and reports with private communications on a privately owned electronic device can create difficulty in responding to an open records request. Some communications may arguably be withheld as not being a public record or as a confidential public record under Iowa Code Section 22.7. First and foremost, however, the public business communications are public records, and the custodian must review all records on a device to determine whether they are within a request for examination and copying to justify any denial of release.” 21AO:0009: Public Records Maintained on Privately-owned Devices.
“[T]here is nothing in Iowa Code chapter 22 that mandates a governmental body to create a record that does not otherwise exist.” 15AO:0004: Creation of Records and Associated Fees.
Analysis
In this matter, the text messages on Supervisor George’s personal phone related to County business are public records and would be required to be released if no confidential exception applies. In this case, however, some of the messages were deleted. Mr. Kida has brought this complaint to determine whether these deletions violate Iowa Code chapter 22.
While IPIB strongly recommends against utilizing text messages or similar technology to conduct public business as well as avoiding utilizing a privately-owned cell phone for public business, Supervisor George did. Text messages that had not been deleted were provided in response to the request.
As stated frequently, Iowa’s public records law has no retention requirements for records. Had the text messages been deleted after a request was made, such action would have amounted to a refusal to comply with the request—a clear violation of chapter 22. Supervisor George signed a sworn affidavit, though, affirming the text messages were deleted prior to the records request being made. No contrary evidence has been provided besides the copies of the messages provided in response to a request to another governmental body. Under these facts, a violation of Iowa Code chapter 22 is unlikely to be found.
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.
No evidence presented that text messages were deleted after the records request was submitted.
IT IS SO ORDERED: Formal complaint 24FC:0003 is dismissed as it is legally insufficient pursuant to Iowa Code § 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b).
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 April 18, 2024. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
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Erika Eckley, J.D.