24FC:0064 Mark Milligan/Monroe County Sheriff’s Office - Acceptance Order

Date:
10/17/2024

Subject:
Mark Milligan/Monroe County Sheriff’s Office  - 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 July 30, 2024, Mark Milligan filed formal complaint 24FC:0064, alleging that the Monroe County Sheriff’s Office (County) violated Iowa Code Chapter 22.

Facts

This case involves a missing persons case opened regarding Harry Dennis Lane Milligan on July 1, 1984. The Complainant, Mark Milligan, is the brother of the missing person.

Over the course of forty years, Milligan has requested and has been granted access to the case file. On May 13 of this year, Milligan again requested access to the case file. The request included basic case file information, such as handwritten and typed reports, interview reports, and photographs. The request also included more detailed information, such as DNA results, DNA profiles, and requests and responses regarding adoption records in Iowa and Colorado.

On July 24, 2024, the Monroe County Attorney’s Office responded to Milligan’s request and indicated the disappearance of Henry Milligan was an active investigation and the records would be treated as confidential with the exception of information regarding the date, time, specific location, and immediate facts and circumstances surrounding the crime or incident. In response, Milligan filed a complaint with the IPIB.

Applicable Law

 “[P]eace officers’ investigative reports, privileged records or information specified in section 80G.2, and specific portions of electronic mail and telephone billing records of law enforcement agencies if that information is part of an ongoing investigation…” Iowa Code § 22.7(5).

Iowa Courts have held refusal to provide a public record merely because it is a peace officer investigative report is not enough. Rather, a balancing test must be applied to determine whether a record should remain confidential. “An official claiming the privilege must satisfy a three-part test: (1) a public officer is being examined, (2) the communication was made in official confidence, and (3) the public interest would suffer by disclosure.” Hawk Eye v. Jackson, 521 N.W.2d 750, 753 (Iowa 1994); accord Shannon v. Hansen, 469 N.W.2d 412, 414 (Iowa 1991). 

In Hawk Eye, a local newspaper sought the release of an officer investigation related to a civil suit. The Court’s analysis focused on the third prong of the balancing test and determined that any public harm created by the disclosure of the investigatory report was far outweighed by the public harm accruing from its nondisclosure. Id. at 753-54. The Court agreed with the district court that it was appropriate to order the governmental body to turn over the investigative file.

This same balancing test was applied by the Supreme Court in Mitchell v. City of Cedar Rapids nearly 25 years later, with a similar outcome. In Mitchell, the Court applied Hawk Eye and determined the public interest favored disclosure. 926 N.W.2d 222, 232 (Iowa 2019). The Court found the record in the case was “devoid of evidence that disclosure would harm any specific individual.” Id. The Court also favored disclosure because the case involved officer injuries to a civilian, which was considered to be a matter of public concern.

Previously Released Public Records

Public disclosure by a lawful custodian with authority to disclose may waive later claims of confidentiality under Iowa Code § 22.7 with regard to the same records. The Court does not permit preferential or inconsistent treatment when it comes to public records requests. In City of Riverdale v. Diercks, a security camera above the city clerk’s desk recorded a heated confrontation between the plaintiff and the city’s mayor. 806 N.W.2d 643, 646–47 (Iowa 2011). A local news reporter requested the footage, which the mayor played for him without consulting the city attorney. The plaintiff thereafter requested the same footage, which the city withheld pursuant to § 22.7(50). The Court found the City could no longer claim confidentiality once the mayor, acting as a lawful custodian, had already provided the same record to a third party with no restrictions or expectation of confidentiality. The Court stated, “It is untenable for Riverdale to play the video for a reporter covering the dispute between the parties and yet withhold the same video from the defendants who requested it.” Id. at 658.

Analysis

There are two arguments that support disclosure of portions of the missing persons file in this case:

Previously Released Public Records

Milligan has demonstrated he, and others, have been granted access to the case file over the years. 

In 2021, portions of the case file were released to the media. The county attorney, at the time, indicated records concerning a ‘historic investigation’ would be provided with redaction of any confidential information. In 2022, Milligan was granted access to files. He was informed by the county attorney they were in a secure room and a mess, but Milligan could review and make copies at his expense. Milligan maintains he has been granted access to the case file on other occasions over the years.

Evidence shows the case file, to various degrees, has been previously released. At times, access to portions of the file were unfettered. At other times, redacted versions of portions of the file were produced. The County cannot now withhold a case file that has been released as public record in the past. Disclosure to a third party waives an argument of confidentiality.

Peace Officers’ Investigative Reports and the Balancing Test

The County denied access to the case file based on Iowa Code § 22.7(5). The Hawk Eye balancing test was not applied in determining whether it was appropriate to deny access. Iowa courts have clearly stated that the test must be applied to justify a denial.

If the Hawk Eye balancing test had been applied, IPIB staff believe it would support release of portions of the requested case file. This case is over forty years old. An argument can be made that any protected statements made or witness statements collected would no longer present a cooling effect for other witnesses or endanger witnesses if released. Furthermore, there are allegations made by Milligan the file has not been properly maintained. This would support the position that that any public harm created by the disclosure of portions of the file would outweigh the public harm accruing from its nondisclosure. 

In conclusion, portions of this case file have been previously released and no argument was made to support confidentiality, other than a blanket statement referencing an ongoing peace officers’ investigation. This is a complicated request that involves records spanning a forty-year investigation. There are records that should clearly be released to Milligan within the case file. There are other portions of the case file that likely should be redacted. This case should be accepted to allow IPIB staff to work with the parties to ensure appropriate release of public records.

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 County failed to produce records that have historically been deemed public records and failed to provide appropriate justification for denial of public records. This case should be accepted for further review to determine which records should be released and which should be redacted or deemed confidential.

IT IS SO ORDERED:  Formal complaint 24FC:0064 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 October 17, 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.