24FC:0080 Tiffany South/Iowa Girls High School Athletic Union - Dismissal Order

Date:
10/17/2024

Subject:
Tiffany South/Iowa Girls High School Athletic Union - Dismissal Order

Opinion:

The Iowa Public Information Board

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

On September 23, 2024, Tiffany South filed formal complaint 24FC:0080, alleging the Iowa Girls High School Athletic Union violated Iowa Code chapter 22.

Facts

Tiffany South, was previously employed by the CAM Community School District as head coach for the South West Area Team (“S.W.A.T.”), a girls’ wrestling team. The S.W.A.T. Girls Wrestling Booster Club (“Booster Club”) was an independent non-profit organized to support the team. The Iowa Girls High School Athletic Union (“IGHSAU”) is the governing body for interscholastic girls wrestling in the state of Iowa.

In March 2024, the School District conducted an internal investigation involving South and S.W.A.T., the details of which are outside the scope of the present complaint before IPIB. Following this investigation, at the end of the 2023-2024 school year, the School District declined to renew South’s contract.

On August 29, 2024, South submitted a records request to IGHSAU, requesting 1) “All emails, texts, notes, or documents regarding Tiffany South” and 2) “All emails, texts, notes, or documents regarding the S.W.A.T. Girls Wrestling Booster Club” produced between November 2023 and the time of the request. This request was made concurrently with a similar records request made to the School District, which is the subject of a separate formal complaint (24FC:0079).

IGHSAU, through legal counsel Brad Epperly, responded that both the March 2024 investigation and subsequent decisions regarding South’s employment were handled solely by the School District, without IGHSAU’s involvement. Epperly also stated that IGHSAU was coordinating with the School District concerning the release of records, given IGHSAU’s position that any responsive records in their possession would be duplicative.

On September 18, 2024, South submitted an updated records request to IGHSAU, seeking records related to South’s pending FOIA/Chapter 22 requests, in addition to the original two categories.

On September 23, 2024, South filed formal complaint 24FC:0080 against IGHSAU, alleging a failure to provide requested records, as well as a failure to provide a responsive timeline upon receipt of the records request, both in violation of chapter 22.

On October 1, 2024, IGHSAU released what it purported to be “all documents responsive to [South’s] request.” In an accompanying letter, IGHSAU asserted 1) that it had not withheld any documents pursuant to any claims of confidentiality or privilege, 2) that all responsive records in its possession were provided by either the School District or the Booster Club, and 3) that it did not have any other records on the subject aside from those disclosed. 

IGHSAU also argued that it did not constitute a “government body” subject to chapter 22, meaning it did not consider itself subject to Iowa open records law in the first place.

Applicable Law

“‘Government body’ means this state, or any county, city, township, school corporation, political subdivision, tax-supported district . . . or other entity of this state, or any branch, department, board, bureau, commission, council, committee, official, or officer of any of the foregoing or any employee delegated the responsibility for implementing the requirements of [chapter 22].” Iowa Code § 22.1(1).

“‘Lawful custodian’ means the government body currently in physical possession of the public record. The custodian of a public record in the physical possession of persons outside a government body is the government body owning that record. The records relating to the investment of public funds are the property of the public body responsible for the public funds.” Iowa Code § 22.1(3).

Analysis

IGHSAU’s Classification Under § 22.1’s Definition of “Government Body”

IGHSAU is an affiliate member of the National Federation of State High School Associations (NFSHSA). NFSHSA is a national nonprofit with 501(c)(3) status. IGHSAU is a 501(c)(3) organization whose mission is “to govern fair, safe and sportsmanlike interscholastic competition in a manner which emphasizes the educational enhancement of all participants.”[1]

IGHSAU is governed by an eight-person Board of Directors, which includes six elected members, each of whom must be an active administrator of one of IGHSAU’s member schools, and appointees selected by the Iowa Association of School Boards and the Iowa Department of Education. IGHSAU also includes four Representative Councils serving four geographic districts (Southeast, Northeast, Southwest, and Northwest), ten Sport Advisory Committees specific to each sport governed by IGHSAU, and a Student Athlete Advisory Committee, comprised of female student-athletes elected from across the state. CAM Community School District is a current member.

Membership in IGHSAU is open to all accredited junior and senior high schools in the state of Iowa, including both public and private schools, with applications for membership subject to the approval of the Board of Directors. The IGHSAU Board of Directors has the discretionary authority to sanction member schools for just cause, including probation or suspension.

While the public schools which comprise most of the membership of IGHSAU are undoubtedly government bodies, this fact does not make IGHSAU itself a government body. See Iowa Code § 22.1(1). IGHSAU is not an entity of the state, nor of any political subdivision, nor is it a school corporation or a nonprofit licensed to conduct pari-mutuel wagering. IGHSAU does not meet the definition of a government body.

In Gannon v. Board of Regents, the Iowa Supreme Court considered the “highly interwoven and symbiotic relationship” between a public university and the nonprofit charitable foundation it contracted with for the purpose of raising money and managing university finances, including money. 692 N.W.2d 31, 42 (Iowa 2005). In Gannon, the Court held that the university could not “avoid disclosure of what would otherwise be a public record” by contracting away responsibility for a government function to its charitable foundation. Id. While the scope of government function was fact-dependent, a non-governmental entity’s records could still therefore be considered public records subject to public scrutiny. Id. at 44.

Nevertheless, even where a non-governmental entity generates and possesses public records subject to chapter 22, this does not make them government bodies themselves, nor does it make them lawful custodians with regards to those records. See Iowa Code § 22.1(2) (“The custodian of a public record in the physical possession of persons outside a government body is the government body owning that record. The records relating to the investment of public funds are the property of the public body responsible for the public funds.”); City of Dubuque v. Dubuque Racing Association, Ltd., 420 N.W.2d 450, 453 (“This decision [of whether records belong to a government body under § 22.1] does not turn on the physical location of the documents in question, rather, the appropriate inquiry is whether the documents are held by the [government] officials in their official capacity”); 24AO:0009: The Definition of a Government Body and Whether a Nongovernment Body May Serve as the Lawful Custodian of Public Records for Purpose, https://ipib.iowa.gov/advisory-opinion-24ao0009-definition-government-body-and-whether-nongovernment-body-may-serve-lawful (“Regardless of how ‘highly interwoven and symbiotic’ the relationship is between a government entity and a private entity, a private entity may never be the lawful custodian of public records, regardless of whether it generated those records”).

IGHSAU’s delegated authority to organize and govern interscholastic girls’ sports in the state of Iowa could potentially be considered performing a government function if there is found to be a “highly woven ad symbiotic relationship” with the government bodies it represents. If so, then at least a portion of records generated by it on behalf of its public-school members may qualify as public records, which chapter 22 treats the same as any other public record generated by a government body. Nevertheless, requests for the production of such public records would never be made to IGHSAU. They must be made to the government body which qualifies as the lawful custodian of the records, not to the non-governmental entity acting on its behalf. 24AO:0009: The Definition of a Government Body and Whether a Nongovernment Body May Serve as the Lawful Custodian of Public Records for Purpose.

IGHSAU’s involvement in this case appears to be limited to email correspondence with the School District and the SWAT Booster Team following the district’s investigation and subsequent decision not to renew South’s contract. To the extent these may be public records, the lawful custodian would be the School District, and the same would be true for any hypothetical public records generated by IGHSAU if it performs government functions on behalf of the School District. In other words, while IGHSAU may be in physical possession of records subject to public scrutiny under chapter 22, the responsibility for disclosure of any public records would lie with the School District as the government body and lawful custodian.

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.

Specifically, the complaint is likely legally insufficient, as IGHSAU is not a government body under § 22.1. 

IT IS SO ORDERED:  Formal complaint 24FC:0080 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 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.

[1] https://ighsau.org/about/history/