24FC:0057: Jody Phillips, Erin Pedrick, and Tracy Diehl/Pekin Community School District - Acceptance Order

Date:
09/19/2024

Subject:
Jody Phillips, Erin Pedrick, and Tracy Diehl/Pekin Community School District  - Acceptance Order

Opinion:

The Iowa Public Information Board

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

On May 5, 2024, Erin Pedrick filed formal complaint 24FC:0057, alleging that the Pekin Community School District (PCSD) violated Iowa Code Chapter 22. After review of the information and clarification of the complainants, Jody Phillips and Tracy Diehl were added as complainants. IPIB officially opened and provided the complaint to PCSD on July 9, 2024. 

Facts

The Complaint makes several allegations against the PCSD. Amidst the allegations, the Complainants state that a public records request was submitted to the PCSD on April 25, 2024. The complaint states that this records request “is the main focus on what we are asking for your help with.” IPIB staff have focused on the public records request and have determined that other allegations within the complaint are outside the jurisdiction of IPIB. 

The public records request made by the Complainants on April 25, 2024, involves the use of private cell phones utilized by members of the PCSD Board. Specifically, the Complainants requested text messages or screenshots from members of the PCSD Board related to events occurring at specific periods of time. The following is the public records request made by the Complainants:

1. For the time period August 1, 2023 to present (April 25, 2024) has JJ Greiner or Mike Davis sent any text message to any other board member conversing, threatening, indicating or otherwise stating how a board member should vote on any official school board business? 
2. For the time period August 1, 2023 to January 1, 2024 has Sherry Bemis or Mike Davis sent any text message to any other board member conversing, threatening, indicating or otherwise stating any displeasure with how that board member voted on an official school board business vote? 
3. Between March 11, 2024 and March 31, 2024 did any board member send a text message or screenshot photo to any other individual sharing information regarding Derek Philips' resignation letter and his call for a special board meeting? 
4. Between March 24, 2024 and April 5, 2024 did any board member send a text message or screenshot photo to any other individual sharing a letter sent to the board members by a parent group - either sending the letter in whole or partial?

The PCSD responded on May 2, indicating that they did not have any public records responsive to the request.

Ms. Phillips responded to the PCSD on the same date requesting the procedure used by PCSD to determine there were no records.

The PCSD responded on May 5, indicating they consulted the school’s attorney, took into account any elements of confidentiality, and asked each PCSD board member to review their phones to determine if any records existed in response to the request.

Upon the filing of the complaint, counsel for PCSD responded and maintained the position the PCSD Board did not have any responsive records to provide and a prior IPIB opinion established that Chapter 22 does not provide specific guidance concerning how a lawful custodian retrieves, reviews, and releases public records on private devices.

Applicable Law

Iowa Code § 22.2 mandates that every person shall have the right to examine and copy a public record.

A “Public Record” is defined as including all records, documents, tape, or other information stored or preserved in any medium, of or belonging to this state or any county. (Iowa Code § 22.1(3)(a)). Clear precedent exists to establish that “any medium,” as used to define a public record, includes personal cell phones.[1] The use of a personal cell phone to record and maintain a public record does not alleviate responsibility to provide a public record upon request. 

Analysis

The PCSD response to the IPIB complaint is concerning. The response from PCSD emphasized that cell phones are not issued to the PCSD Board and are personal devices. The PCSD response goes on to state, “Simply put, neither the law itself nor any IPIB interpretation of the law requires a public agency to obtain private cell phone records in order to respond to a public records request.” This position is inconsistent with IPIB’s prior decisions, Iowa case law, and Chapter 22.

Iowa law has made it clear that public records exist on private devices. This was made clear even before the prevalent use of cell phones. “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).

The law has evolved to address the increasing breadth of locations that may contain public records, including private email servers and cell phones. For example, Iowa Code § 22.2(2) states a governmental body cannot prevent access to a public record by contracting with a nongovernmental body (such as a cloud storage provider). 

Over the years, several court cases and IPIB orders and advisory opinions have reinforced the importance of recognizing that private devices can contain public records. 

It is clear precedent that a private device can contain public records. It is also clear precedent that the lawful custodian has an affirmative duty to produce any public records on a private device. “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.” IPIB Advisory Opinion - 21AO:0009.

It is unequivocally established the PCSD had a duty to determine whether public records existed on personal devices and to secure any public records in response to the Complainants’ request. The PCSD did take some steps to secure the public records. An email was sent to all members of the PCSD Board. The email forwarded the request from the Complainants and stated, “Please see the request below. If there are any texts you might have saved on your phone that you have questions about, please let me know.” The email did not clearly state the texts must be provided or explain the duty to respond to the public records request. The information provided by PCSD reflects only two PCSD Board members responded. 

One response from a PCSD Board member asked, “So you want me to screenshot all of the messages I have to any other board member about voting on a certain issue between the dates, correct?” The board member and Superintendent proceeded to have a phone conversation. While we do not know the content of the phone conversation, the board member followed up afterwards and indicated she did not have any texts for those dates.

The PCSD also indicated, in response to the Complainants, they do not have a policy or procedure for capturing public records on private devices.

IPIB staff finds that the PCSD response shows a lack of knowledge regarding responsibility for providing public records on private devices. IPIB staff recommends acceptance of this Complaint to further review the surrounding facts and circumstances.

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. This complaint meets the necessary requirements for acceptance.

The complaint has presented facts and circumstances that are within IPIB’s jurisdiction, are legally sufficient, and have merit. This case should be accepted to further review the case and determine next steps for resolution.

 IT IS SO ORDERED:  Formal complaint 24FC:0057 is accepted pursuant to Iowa Code § 23.8(1) and Iowa Administrative Rule 497-2.1(2)(a). 

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 September 19, 2024.  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] Linder v. Eckard, 152 N.W. 2d 833, 835 (Iowa 1967); Kirkwood Institute v. Sand, 6 N.W. 3d 1, 9 (Iowa 2024); 18AO:0019 When are documents possessed by public officials “public record” as defined by Iowa Code § 22.1 (3)(a-b)?; 21AO:0009 Public records maintained on privately-owned electronic devices.