Date:
05/16/2024
Subject:
Shawn Shearer/City of Iowa City- Dismissal Order
Opinion:
The Iowa Public Information Board
In re the Matter of: Shawn Shearer, Complainant
City of Iowa City, Respondent | Case Numbers: 24FC:0023 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 February 19, 2024, Shawn Shearer filed formal complaint 24FC:0023, alleging that City of Iowa City (“City”) violated Iowa Code chapter 22.
Facts
Mr. Shearer alleges violations by the City for a failure to maintain proper systems for the collection and preservation of public records.[1] His allegations include concerns that City’s business may not be conducted by electronic means through personal emails and text messages through accounts the City does not control. Iowa Code Chapter 22 requires the collection and preservation of public records. Communications regarding City businesses is not being captured or preserved by the City. Public records, within the meaning of Chapter 22, are being lost and are irretrievable by the City.
In response the City states it does not provide email addresses for all board and commission members. The City did create an email address for incoming communications to the entire Iowa City Ad-Hoc Truth and Reconciliation Commission (“TRC”). Members of the commission, however, cannot send emails from this email address. The City asserted that it has always treated personal emails and texts as public records when used for “City business.”
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.
What governs the issue is the content of the message. If it concerns public business relating to public duties of an official or employee, then it is a public record. … Iowa Code Section 22.1 includes “all records, documents, tape or other information, stored or preserved in any medium” in the definition of public records. Subsection 22.2(2) states that a governmental body cannot prevent access to a public record by contracting with a nongovernmental body (such as a cloud storage provider). Section 22.3A addresses public records and data processing software. The cumulative effect of these statutes is that a public record does not lose its public status by being retained on a privately owned electronic device.
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Iowa Code chapter 22 does not provide specific guidance concerning how a lawful custodian retrieves, reviews, and releases public records. It would be appropriate for a government body to develop a policy governing the use of private devices for government business. This policy could require that the lawful custodian have access to private devices and the mechanics of such access, including any privacy concerns.”
21AO:0009 Public records maintained on privately-owned electronic devices.
Analysis
This matter originally was received as a Petition for Declaratory Order asking IPIB to require the City to provide a City-controlled email address to members of the TRC to ensure no public records would be lost. As addressed above, Iowa Code chapter 22 does not have a specific requirement that government bodies utilize only government-provided resources. If a government body or its members or employees utilize their private email or cell phone for government business, their personal device or email address is subject to Iowa Code 22. This can create issues in retaining and retrieving the information that may not be adequately addressed in the Code as the technology and options continue to change and develop.[2] IPIB encourages the City to establish firm policies regarding the use of personal devices for Commission members and ensure education on compliance with public records requirements is provided.
At the heart of this issue brought to IPIB, however, is a records request dispute. It is uncertain from the documentation provided whether the breakdown in communication is between Mr. Shearer or the City. It is clear, however, that both parties could work more collaboratively to address the request process by providing clear requests and search terms including specifics about whose records are being requested and ensuring private emails and other communications are included in the search and production of documents by the City, if and when appropriate.
As far as this Complaint, however, there is no Chapter 22 violation by the City for failing to provide a government-controlled email address for Commission members.
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.
There is no requirement under Iowa Code chapter 22 to require government-controlled email addresses for all commission members and volunteers.
IT IS SO ORDERED: Formal complaint 24FC:0023 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 May 16, 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.
[1] Mr. Shearer originally sought a Declaratory Order, but agreed to recategorize it as a Complaint.
[2] See, e.g. 24FC:0003 Andrew Kida/Clinton County Dismissal Order (finding no violation under chapter 22 for deleted text messages on personal device prior to request being made).