26FC:0175 Gregory Armstrong v. City of Hamburg - Investigative Report and Probable Cause Order

The Iowa Public Information Board

COMES NOW, Johnathon T. Harris, Staff Attorney for the Iowa Public Information Board (“IPIB”), and enters this Investigative Report: 

On July 4, 2026, Gregory Armstrong (Complainant) filed formal complaint 26FC:0175, alleging City of Hamburg (Respondent) violated Iowa Code 22.

The IPIB accepted this Complaint on July 16, 2026.

Facts

Complainant submitted a public records request to Respondent requesting all records of communication between a specific former member of the Zoning and Adjustment Board in his capacity as a member of that board and Complainant’s landlord. Complainant stated in his complaint that Respondent stated the records did not exist or were not covered and did not provide information on how the search was conducted.

On July 16, 2026, IPIB opened the complaint and requested information from Respondent. Respondent provided a response on July 17, 2026. Respondent, through their records custodian, stated that in responding to the records request, the records custodian examined zoning board meeting minutes during the timeframe in question and found that they did not contain any reference to Complainant, his residence, landlord, or family. Respondent also stated they interviewed the former zoning board member whose records were the subject of the records request. The former zoning board member stated that he did not have any communication with Complainant’s landlord related to city business. Respondent stated that, based on the zoning board minutes and the former board member’s statement that his personal devices contained no responsive records, the custodian concluded there was no reason to personally examine those devices. The custodian therefore did not personally examine the former board member’s devices. Based on their search, according to Respondent, the custodian concluded there were no responsive records to Complainant and informed him of that conclusion. Complainant then filed the present complaint.

Additional context to this matter is that Complainant’s landlord, whose alleged communications with the former board member are the subject of the records request, told Complainant that she was contacted by someone from the city regarding issues related to the state of Complainant’s residence. Complainant stated this message is proof that someone contacted her. IPIB requested the text message from Complainant, which he provided. The text provided by Complainant states, in part, “I just had the city contact me again about the yard clutter.”

Applicable Law

“Public records” includes all records, documents, tape, or other information, stored or preserved in any medium, of or belonging to this state or any county, city, township, school corporation, political subdivision, nonprofit corporation other than a fair conducting a fair event as provided in chapter 174, whose facilities or indebtedness are supported in whole or in part with property tax revenue and which is licensed to conduct pari-mutuel wagering pursuant to chapter 99D, or tax-supported district in this state, or any branch, department, board, bureau, commission, council, or committee of any of the foregoing. Iowa Code § 22.1(3)(a).

Every person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record. Unless otherwise provided for by law, the right to examine a public record shall include the right to examine a public record without charge while the public record is in the physical possession of the custodian of the public record. The right to copy a public record shall include the right to make photographs or photographic copies while the public record is in the possession of the custodian of the public record. Iowa Code § 22.2(1).

Analysis

It is difficult to affirmatively prove the nonexistence of a thing. That being said, the issue of public records being commingled with private records on a privately owned device is not novel. “What governs the issue is the content of the message. If it concerns public business relating to public duties of an official or employee, then it is a public record.” Margaret E. Johnson, AO21:0009 Public Records Maintained on Privately-Owned Electronic Devices, IPIB (Jan 20, 2022) https://ipib.iowa.gov/privately-owned-electronic-devices. The inverse is also true: a record that does not concern governmental business, whether located on a privately owned device or even on a public device or using a public email, for example, is not a public record. Respondent is therefore able to withhold any records that do not contain information related to public business.

The main issue in this matter is not just whether Respondent was justified in withholding records it considers non-public, but whether Respondent conducted an adequate search to determine whether responsive records exist. It is the mechanics of conducting searches of privately owned devices and accounts that make the commingling of public and private records such a complicated issue. The inherent privacy concerns that come along with the potential review of records on a privately owned device, and the potential refusal of the owner of the private device to submit to a search, all create the kind of difficulty associated with these matters.

Compounding this issue is that Chapter 22 does not provide any specific guidance on what the custodian must do to have conducted a legally sufficient search involving private devices. That brings us to the central issue: whether the custodian’s decision to rely on the former board member’s statement, rather than personally reviewing his private devices, constituted a legally sufficient search to conclude that no responsive records exist. To begin, there is no requirement to personally check privately owned devices for every records request. For example, IPIB employees do not keep public records on their private devices as policy. It is therefore not required that, every time IPIB receives a public records request, the IPIB custodian must review all of staff’s privately owned devices to affirm that there are no responsive public records on those devices.

In this instance where there does appear to be commingling, was the custodian entitled to rely on the former board member’s statement that there were no responsive records? Under these circumstances, the custodian’s decision not to personally search the former board member’s devices likely was not a violation. The search conducted by the custodian revealed no zoning board business relating to Complainant or his landlord. The custodian had no reason to doubt the former board member’s statement that no responsive records existed, and relying on that statement without a further personal search was not a violation.

These kinds of searches happen internally in governmental bodies as well. For example, custodians sometimes ask members of a board or government employees to review their own emails to provide responsive public records even if the public records are not commingled. Specific facts and circumstances of a situation may require that the custodian conduct a more in-depth search, but the method itself is not facially prohibited.

Whether a custodian must conduct a more thorough personal search is therefore a fact-specific inquiry, turning on whether there is sufficient evidence to doubt the reliability of the record holder’s statement that no responsive records exist. Here there is not. First, Respondent found no evidence that any communication or business regarding Complainant or his landlord had come before the board within the time frame provided for in the records request. In other words, nothing else found in the search suggested the records exist. Second, Complainant provided a text message from his landlord as proof of interaction from the city; however, there is nothing about the text that suggests that it is related to the former board member at all. The text provided to IPIB only states “I just had the city contact me again about the yard clutter.” Assuming Complainant’s landlord is telling the truth, there is no reason presented to IPIB that it must be the former board member that contacted Complainant’s landlord. There may well be records of communications between the city and Complainant’s landlord. But Complainant’s request is narrow: it seeks only communications between the landlord and the former board member. Crucially, this text message does not tend to make it more or less true that the former board member specifically was the one to contact Complainant’s landlord. This means Complainant’s evidence does nothing to cast doubt on the former board member’s statement that no public records exist of conversations between him and Complainant’s landlord.

All this said, it is not best practice either to allow for the commingling of public and private records or to not have a policy in place for how these searches are conducted:

It would be appropriate for a government body to develop a policy governing the use of private devices for government business. This policy could require that the lawful custodian have access to private devices and the mechanics of such access, including any privacy concerns… The IPIB has also recommended that a government could require the use of a specific government email address anytime a government official or employee uses a private device to conduct government business. That could facilitate the retrieval of public records and guard against any privacy concerns. Margaret E. Johnson, AO21:0009 Public Records Maintained on Privately-Owned Electronic Devices, IPIB (Jan 20, 2022) https://ipib.iowa.gov/privately-owned-electronic-devices.

A policy will avoid judgment calls on the part of the custodian and give the public more faith that the results of their records requests are accurate. While it is the recommendation of IPIB staff that under these specific circumstances the search conducted by Respondent is not a violation of Chapter 22, a policy would help to prevent the ambiguity that creates the perception of misconduct and may help to prevent future disputes. It is highly recommended that Respondent create such a policy.

Because there is insufficient evidence of the inadequacy of Respondent’s records search, and insufficient evidence to doubt the veracity of the former board member’s statement that there are no responsive records on his personal devices, it was not a violation of Chapter 22 to inform Complainant there were no responsive records to his request.

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

Because the search was reasonably conducted and the custodian discovered no responsive records, there is insufficient evidence to find probable cause that a violation of Chapter 22 occurred. Therefore, it is recommended the Board dismiss for lack of probable cause to believe a violation has occurred.

By the IPIB Staff Attorney:

_______________________

Johnathon T. Harris, J.D.

CERTIFICATE OF MAILING

This document was sent on September 11, 2026, to:

Gregory Armstrong, Complainant

Colleen Pelser Clerk City of Hamburg, Respondent

The Iowa Public Information Board

Under Iowa Admin. Code r. 497-2.2(4) the Board takes the following action: 

☐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.

By the Board Chair

___________________________________

Catherine Lucas

CERTIFICATE OF MAILING

This document was sent on September 17, 2026, to:

Gregory Armstrong, Complainant

City of Hamburg, Respondent