Advisory Opinion 24AO:0008
DATE: August 15, 2024
SUBJECT: Lawful custodian of public record on personal device
Ray Lough
Benton County Attorney
Benton County Attorney’s Office
111 E. 4th Street – Courthouse 3rd Floor
Vinton, Iowa 52349
Mr. Lough,
We are writing in response to your request dated July 3, 2024, requesting an advisory opinion from the Iowa Public Information Board (IPIB) pursuant to Iowa Code chapter 23 and Iowa Administrative Code rule 497-1.3.
This opinion concerns a government employee’s use of a personal cell phone to record government business, the development of a transcript of the recording, and the lawful custodian of the recording. Advisory opinions may be adopted by the board pursuant to Iowa Code section 23.6(3) and Rule 497–1.2(2): “Any person may request a board advisory opinion construing or applying Iowa Code chapters 21, 22, and 23. An authorized agent may seek an opinion on behalf of any person. The board will not issue an opinion to an unauthorized third party. The board may on its own motion issue opinions without receiving a formal request.” We note at the outset that IPIB’s jurisdiction is limited to the application of Iowa Code chapters 21, 22, and 23, and rules in Iowa Administrative Code chapter 497. Advice in a Board opinion, if followed, constitutes a defense to a subsequent complaint based on the same facts and circumstances.
QUESTION POSED:
Whether a recording of government activity made by a government employee on their personal device and the corresponding transcript of the recording constitutes a public record, whether production of a transcript will suffice in lieu of the recording, and who is considered the lawful custodian of the public record.
You report that a meeting between county officials occurred in April. At this meeting, an employee of the Benton County Auditor’s Office recorded the meeting. Subsequently, the Human Resources Director for Benton County requested the recording as a public record. The employee of the Benton County Auditor’s Office who recorded the meeting refused to provide the recording and instead provided a typed transcript of the recording. Additional requests for the recording as a public record have been made and denied. The employee of the Benton County Auditor’s Office claims that the recording contains confidential information. The questions related to this recording are as follows:
- Does the transcript of the recording satisfy the public records request or is the government employee required to produce the actual recording?
- Should the Director of Human Resources make the public records request directly to the employee who has custody of the recording?
- What steps must the County Attorney’s Office take to secure the recording if it is a public record?
OPINION:
Definition of Public Records
A “Public Record” is defined as including all records, documents, tape, or other information stored or preserved in any medium, of or belonging to this state or any county. (Iowa Code § 22.1(3)(a)).
The recording made by the employee of the County Auditor’s Office is a recording of an interaction between and amongst government officials related to government business. Clear precedent exists to establish that “any medium,” as used to define a public record, includes personal recording devices.[1] The use of a personal cell phone to record and maintain a public record does not alleviate responsibility to provide a public record upon request. The recording is a public record that belongs to the county. It is a violation of Iowa Code Chapter 22 to refuse to disclose a public record unless it falls within an exception.
In the request for this Advisory Opinion, it was noted that the recording was transcribed and the written transcription was provided as a public record. It should be noted that the IPIB Board has previously determined that underlying notes used to create minutes are an independent public record. “Despite potential changes, such as converting the notes from handwritten to typed, the content of the record is substantially the same which points to it not existing in a prior form.” See IPIB Advisory Opinion 20AO:0006. This situation mirrors the facts addressed in 20AO:0006. An underlying recording was used to create a transcription. The underlying recording is a public record.
The request for this Advisory Opinion also noted that the County Auditor’s Office cited to confidentiality in refusing to provide the recording. There is no additional information provided to support the recording as confidential. As outlined above, precedent exists to establish that the recording used to create the transcription is also a public record. Even if the recording contains confidential information that was not included in the transcription, this factor does not support confidentiality. The recording could be provided as a public record with redaction of any confidential portions.
This recording should be released as a public record, with or without redaction, unless a reason exists to classify the recording as confidential pursuant to Iowa Code § 22.7.
Legal Custodian of Public Records
Having established the recording is a public record that should be released, the next question is who should release the public record. The “Lawful Custodian” of a public record is defined as the government body currently in physical possession of the public record. Iowa Code § 22.1(2). Any entity that meets the definition of government body pursuant to Iowa Code § 22.1(1) must comply with Iowa Code Chapter 22.
Iowa Code Chapter 22 goes on to state, “Each government body shall delegate to particular officials or employees of that government body the responsibility for implementing the requirements of this chapter and shall publicly announce the particular officials or employees to whom responsibility for implementing the requirements of this chapter has been delegated.” Iowa Code § 22.1(2). This means that the lawful custodian of such records is the government body or a publicly designated responsible official or employee of the government body.
The lawful custodian or the publicly designated responsible official or employee of the government body must determine whether to release requested documentation as a public record. It should be noted that failure to cooperate with the release of public records pursuant to Iowa Code chapter 22 could result for civil enforcement proceedings under Iowa Code § 22.10 and liability for failure to comply. This could include the imposition of civil damages, payment of costs, and attorney fees. Best practice is to consult with legal counsel, including county attorneys, for guidance on whether a document should be released as a public record. It is the responsibility of the government body to ensure that the requirements of public records laws are followed.
The specific question presented is whether the Director of Human Resources should make the public records request directly to the employee who has custody of the recording. The answer is no. The public records request should be made to the government body, and more specifically, the publicly-designated, responsible official or employee of the government body.
Steps Required to Secure Public Records
The next question relates to the steps that should be taken to secure the public record. It is the responsibility of the government body or lawful custodian of public records to review all records on a device to determine whether they fall within the scope of a public records request and whether there is justification for denial of release. While Iowa Code Chapter 22 does not provide specific guidance concerning how a lawful custodian retrieves, reviews, and releases public records, it is clear that the legal custodian must make this determination. It is ultimately the custodian’s responsibility to review records responsive to the records request and respond to the requestor as appropriate under their obligation as outlined in Iowa Code chapter 22 and case law.
Best practices dictate that a government body should develop a policy governing the use of private devices for government business. This policy could require that the government body or lawful custodian have access to private devices and could establish the specifics of access.
As indicated above, best practices also include discussion of the public records request with legal counsel if there is a question regarding disclosure. This will ensure that governmental bodies comply with Iowa law and avoid civil damages, payment of costs, and attorney fees.
Finally, it should be noted that prior Advisory Opinions established by this Board have warned of the consequences of and responsibilities related to the commingling of public communications and reports with private communications on a privately-owned electronic device. For additional guidance, see the following Advisory Opinions: 18AO:0019 When are documents possessed by public officials “public record” as defined by Iowa Code § 22.1 (3)(a-b); 21AO:0009 Public records maintained on privately-owned electronic devices; 24AO:0007 Are private email communications sent from a government email address public records.
BY DIRECTION AND VOTE OF THE BOARD:
Joan Corbin
E.J. Giovannetti
Barry Lindahl
Luke Martz
Joel McCrea
Monica McHugh
Jackie Schmillen
SUBMITTED BY:
Kim Murphy
Deputy Director
Iowa Public Information Board
ISSUED ON:
August 15, 2024
Pursuant to Iowa Administrative Rule 497-1.3(3), a person who has received a board opinion may, within 30 days after the issuance of the opinion, request modification or reconsideration of the opinion. A request for modification or reconsideration shall be deemed denied unless the board acts upon the request within 60 days of receipt of the request. The IPIB may take up modification or reconsideration of an advisory opinion on its own motion within 30 days after the issuance of an opinion.
Pursuant to Iowa Administrative Rule 497-1.3(5), a person who has received a board opinion or advice may petition for a declaratory order pursuant to Iowa Code section 17A.9. The IPIB may refuse to issue a declaratory order to a person who has previously received a board opinion on the same question, unless the requestor demonstrates a significant change in circumstances from those in the board opinion.
[1] Linder v. Eckard, 152 N.W. 2d 833, 835 (Iowa 1967); Kirkwood Institute v. Sand, 6 N.W. 3d 1, 9 (Iowa 2024); 18AO:0019 When are documents possessed by public officials “public record” as defined by Iowa Code § 22.1 (3)(a-b)?; 21AO:0009 Public records maintained on privately-owned electronic devices.