24FC:0120 Paul Dorr/Osceola County - Investigative Report

Date:
07/17/2025

Subject: 
Paul Dorr/Osceola County  - Investigative Report and Probable Cause Order

Opinion:

The Iowa Public Information Board

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

On December 2, 2024, Paul Dorr filed formal complaint 24FC:0120, alleging Osceola County violated Iowa Code chapter 22.

The IPIB accepted this Complaint on December 19, 2024. 

Facts

Paul Dorr sought public records related to an internal investigation file involving a public official. The County responded stating the records were confidential and cited IPIB Advisory Opinion 23AO:0004: Confidentiality of Documents in Personnel Investigation. Dorr seeks reconsideration by IPIB of the advisory opinion. Dorr’s argument is that an elected official is not an employee; therefore, the elected official cannot fall within the confidentiality granted by Iowa Code § 22.7(11). In a previous report, IPIB addressed why 23AO:0004 was legally sound. As such, this portion of the complaint will not be further addressed.

Dorr alleged the records sought were previously provided as a public record and cannot now be withheld as confidential. The County agreed the record was previously released in a confidential disclosure June 9, 2023, to an individual member of the media. The County argued, however, the disclosure did not destroy the confidentiality of the record as the record was released in an extremely limited manner during an “off the record” conversation, the record was never published or released to the public, and the custodian of these records, intended to keep the record confidential.  

Applicable Law

“The following public records shall be kept confidential, unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information:

…

Personal information in confidential personnel records of government bodies relating to identified or identifiable individuals who are officials, officers, or employees of the government bodies.” Iowa Code 22.7(11)(a).

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. See City of Riverdale v. Diercks, 806 N.W.2d 643 (Iowa 2011).

Analysis

Previous Public Disclosure of the Confidential Record

As determined in the previous Report, there was no dispute the record was disclosed to a member of the media in an “off-the-record” disclosure with an intention the record would retain its confidential nature. No news article was written about the record or the disclosure nor was there any further disclosure of the information.

In City of Riverdale v. Diercks, the mayor played video from a confrontation with an individual to a member of the media. When the plaintiff requested a copy of the video, the city claimed the footage was confidential under Iowa § 22.7(50). 806 N.W.2d 643, 647 (Iowa 2011). 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. While the mayor in the Riverdale case did not expect the media to keep the matter private, it is difficult to see how the media disclosure in the Dorr matter in an “off the record” manner, does not similarly destroy the confidentiality claim. “[D]isclosure to a third party waives confidentiality.” Id. (citing State v. Demaray, 704 N.W.2d 60, 66 (Iowa 2005); Miller v. Cont’l Ins. Co., 392 N.W.2d 500, 504 (Iowa 1986)).

Despite the intention of the County for the record to retain its confidentiality, prior precedent makes clear disclosure of the record to the media by the lawful custodian precludes the County from declaring the record confidential when requested by Dorr. The IPIB previously redirected the case for consideration of whether any formal confidentiality agreement or other facts precluding disclosure to Dorr existed.

No additional information was submitted by the County to demonstrate a non-disclosure agreement. Further, the County’s response states “Although the County Attorney and Auditor did release the above-mentioned record to one individual member of the media, this record was released in an extremely limited manner during an ‘off the record’ conversation, the record was never published or released to the public, and the County Attorney and Auditor, the custodian of these records, intended to keep this record confidential.”

“The County Attorney, whose personnel record this was, and the County Auditor, both intended for and reasonably believed that this ‘off the record’ release would maintain the confidentiality of the record in question. Furthermore, case law suggests that the custodian may disclose confidential records, subject to the constraints of the law and such disclosure does not remove them from the general protection of section 22.7 as it relates to the public. See, e.g., Citizens' Aide/Ombudsman v. Miller, 543 N.W.2d 899, 900 (Iowa 1996) (holding investigatory power of citizens' aide allows disclosure of otherwise confidential records, but confidential status is maintained); Iowa Civil Rights Comm'n, 313 N.W.2d at 495 (holding statutory exceptions are inapplicable when Commission issues subpoena duces tecum, but other protections afforded by law may apply). In other words, the Custodian of Record with the approval of the identified or identifiable individual(s) who is an official, officer, or employee of the government body should be allowed to selectively release personnel records in a limited manner that maintains their privacy, without compromising the confidentiality of those records.”

The release, however, was not to a regulatory body charged with keeping the information confidential, such as the IPIB (Iowa Code § 23.6(6)) or the Ombudsman’s Office (Iowa Code § 2C.9(5)). The release was not made as the result of a judicial requirement such as from a subpoena duces tecum. The release was to a member of the media. Whether the release was “off the record” or some other informal agreement regarding disclosure, release to the media is a public release. There is no general confidentiality related to disclosure to the media and nothing in the Iowa Code protects the release of confidential information to the media from further disclosure.

Therefore, to the extent the information was provided to the media, that information is a public record. It is likely that only partial information was disclosed to the media. Disclosing some of the information does not make all of the information public. Only the portion of the record that has previously been disclosed must be provided as part of this current public records request. The undisclosed portion of the should be redacted or withheld as confidential, if applicable.

IPIB Action

The Board may take the following actions upon receipt of a probable cause report: 

a. Redirect the matter for further investigation;

b. Dismiss the matter for lack of probable cause to believe a violation has occurred;

c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or

d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding.

Iowa Admin. Code r. 497-2.2(4).

Recommendation

It is recommended IPIB make a determination that probable cause exists to believe a violation has occurred, but exercise administrative discretion to dismiss the matter at the August 21, 2025, Board Meeting if the records are provided to Dorr by August 1, 2025.

By the IPIB Executive Director

_________________________

Erika Eckley, J.D.