24FC:0120 Paul Dorr/Osceola County - Probable Cause Report

Date:
04/17/2025

Subject:
Paul Dorr/Osceola County   - Probable Cause Report

Opinion:

The Iowa Public Information Board

COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Probable Cause 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).

Dorr also alleges the records have previously been provided as a public record and cannot now be withheld as confidential.

In response, the County agrees with the scope of 23AO:0004 covering elected officials based on the language of Iowa Code § 22.7(11) including the personnel records of “identified or identifiable individuals who are officials, officers, or employees of the government bodies.”

The County agrees the record was previously released in a confidential disclosure June 9, 2023. The County released the record to an individual member of the media. The County argues, however, this disclosure does not destroy the confidentiality of the record. The County states 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

Reconsideration of 23AO:0004: Confidentiality of Documents in Personnel Investigation

Dorr argues the IPIB was incorrect to conclude an investigation regarding a public official could be included within the confidentiality provisions of Iowa Code § 22.7(11) because an elected official and does not have a personnel file. Dorr argues elected officials report to the voters, so they cannot be “employees” and Iowa Code § 22.7(11) cannot apply to them. Additionally, Dorr’s argument hinges on the fact that in other parts of the Iowa Code the legislature has utilized the phrase “elected officials” rather than merely “officials” when the statutory provisions apply to public or elected officials. Additionally, Dorr alleges IPIB was guilty of eisegesis[1] when interpreting Iowa Code § 22.7(11) and should correct its misinterpretation caused by this bias.

There is legal debate as to whether elected or public officials are employees of the government body.[2]See, e.g., Dierks v. Scott County, Case No. 23-1729, argument Dec. 18, 2024 (https://www.iowacourts.gov/iowa-courts/supreme-court/supreme-court-oral-argument-schedule/case/23-1729). Resolution of this matter, however, is not required because the language of Chapter 22 resolves the issue raised by Dorr. 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); see also City of Dubuque v. Dubuque Racing Ass'n, 420 N.W.2d 450, 453 (Iowa 1988) (Determining a public record does not turn on the physical location of the record). So, whether the investigation document is held in a “personnel file” or merely is within a category of that type of record is the inquiry. ACLU v. Atlantic Community Sch. Dist., 818 N.W.2d 231, 235 (Iowa 2012) (“to determine if requested information is exempt under section 22.7(11), we must first determine whether the information fits into the category of ‘[p]ersonal information in confidential personnel records.’”); Des Moines Indep. Cmty. Sch. Dist. v. Des Moines Register, 487 N.W.2d 666, 670 (Iowa 1992) (“It does not detract from this qualification that the documents were deposited in investigation files. The nature of the record is not controlled by its place in a filing system.”)

Iowa Code § 22.1(1) defines the following as subject to the requirements of the public records chapter: “‘Government body’ means this state, or any county, … 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 this chapter.” If the legislature is required to state “elected official” rather than merely “official” to make any provision apply to elected or public officials, then no elected or public official would be subject to Iowa Code chapter 22 requirements. If Dorr’s interpretation is accepted, then the legislature did not intend to make the public records law apply to elected officials because they did not state “elected officials.” This interpretation would create an absurd result as no one disputes elected officials are subject to Iowa Code chapter 22 requirements. Therefore, when the legislature refers to “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” in Iowa Code § 22.7(11), the legislature is referring to the same “officials, officers, or employees who are subject to the requirements of chapter 22. This would include elected officials.

For these reasons, advisory opinion 23AO:0004 does not require revision to eliminate the category of personnel records from a public official from the confidentiality requirements of Iowa Code § 22.7(11).

Previous Public Disclosure of the Confidential Record

There is 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.

Despite the intention of the County for the record to retain its confidentiality, absent any binding confidentiality agreement, prior precedent makes clear disclosure of the record to the media precludes the County from declaring the record confidential when requested by Dorr.

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 this 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)).

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 this matter be redirected for further investigation to determine whether any formal, binding non-disclosure agreement exists between the County and the member of the media. And whether, absent the agreement, the County will provide the requested records pursuant to this Report.

By the IPIB Executive Director

Erika Eckley, J.D.

[1] Dorr stated, “Eisegesis is the practice of interpreting a text by inserting one’s own ideas, biases, or agenda into its meaning.”

[2] Arguments for and against examine hiring and firing decisions, payroll and benefits, federal regulations, etc.