Advisory Opinion 24AO:0009
DATE: August 15, 2024
SUBJECT: Clarification on the definition of a government body and whether a nongovernment body may serve as the lawful custodian of public records for purposes of open records requests
We are writing in response to your anonymous request dated July 14, 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 the definition of a government body. 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:
- Is a charitable foundation that is associated with a public institution of higher education in Iowa a government body and subject to Iowa Code chapter 22?
- If the charitable foundation is determined to be a government body, would the foundation or the university serve as the lawful custodian?
- If the university is determined to be the lawful custodian, would the university then have physical possession of the public records?
- What, if any, limitations exist on the foundation records outside of Iowa Code chapter 22.7?
OPINION:
I. Is a charitable foundation that is associated with a public institution of higher education in Iowa a government body and subject to Iowa Code chapter 22?
Under Iowa Code section 22.1(1), unless its "facilities or indebtedness are supported in whole or in part with property tax revenue and [it] is licensed to conduct pari-mutuel wagering pursuant to chapter 99D," a charitable foundation is not a government body. As it does not fall under section 22.1(1)’s definition of a government body, a charitable foundation associated with a public institution of higher education in Iowa is not a government body.
Gannon v. Board of Regents did not reach the issue of whether the Iowa State University Foundation was a government body, but rather held that the Foundation was “performing a government function” for Iowa State University. 692 N.W.2d 31, 38–39 (Iowa 2005). It further held that it “assume[d] in this appeal [that the ISU Foundation was] a nongovernment body.” Gannon, 692 N.W.2d at 44. Physical possession of public records by a nonprofit does not transform that nonprofit into a government body under Chapter 22. Only the entities defined in Iowa Code § 22.1 are government bodies subject to public records.
Gannon did not hold that all private entities that contract with government organizations perform government functions. Rather, the particular contractual relationship between ISU and the ISU Foundation created a “highly interwoven and symbiotic relationship” between the government body and private organization, and only because of this was the foundation performing a government function and the records requested subject to Chapter 22. As with government entities, not all records created by nongovernment entities performing government functions are public records under Chapter 22. The test developed in KMEG Television, Inc. v. Iowa State Board of Regents, 440 N.W. 382, 386 (Iowa 1989) (abrogated on other grounds by Gannon) was whether the records would “advance [the university’s] statutory objects. However, the service performed on behalf of the university “need not be listed in the statute books to be a function of a university” Gannon, 692 N.W.2d at 40.
II. If the charitable foundation is determined to be a government body, would the foundation or the university serve as the lawful custodian?
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. Chapter 22 is intended to apply to government entities, not to private entities. If a private entity was the lawful custodian of public records, those records would not be subject to Chapter 22, and the rationale of Gannon and subsequent cases is that a government entity may not use a private entity to shield public records from Chapter 22.
More support for this rationale comes from the test for determining whether records held by private entities are public records, which “does not turn on the physical location of the documents in question, rather, the appropriate inquiry is whether the documents are held by [public] officials in their official capacity.” City of Dubuque v. Dubuque Racing Ass'n, Ltd., 420 N.W.2d 450, 453 (Iowa 1988). This holding indicates that a physical custodian and a lawful custodian would be separate entities if the physical custodian was a private entity and the records in question were generated on behalf of a public entity.
III. If the university is determined to be the lawful custodian, would the university then have physical possession of the public records?
As previously stated, requests for the production of public records under Chapter 22 must be made to the public institution, not to the nonprofit acting on its behalf. The public institution must ensure appropriate procedures are in place to facilitate the timely retrieval and delivery of public records should such records be requested under Chapter 22.
IV. What, if any, limitations exist on the foundation records outside of Iowa Code chapter 22.7?
Public records generated by a nonprofit on behalf of a public institution are to be treated like public records generated by a government entity. Iowa Code § 22.7 lists the types of public records that may be withheld as confidential. Public records generated by a nonprofit organization performing a government function would be treated as any other public records under Iowa Code chapter 22.
BY DIRECTION AND VOTE OF THE BOARD:
Joan Corbin
E. J. Giovannetti
Barry Lindahl
Joel McCrea
Monica McHugh
Luke Martz
Jackie Schmillen
SUBMITTED BY:
Erik Johnson
Legal Intern
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.