Advisory Opinion 24FC:0003
DATE: August 15, 2024
SUBJECT: Data and Public Records Requests
This opinion concerns Data and Public Records Requests. Advisory opinions may be adopted by the board pursuant to Iowa Code section 23.6(3) and Rule 497–1.2(2): “[t]he 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:
What does Iowa law require with regard to compiling research data in a government database that isn't actually a data point tracked by the government?
OPINION:
Does Iowa law require a government body to provide a record that must be pulled from a database or other electronic version of public records?
“‘Public records’ includes all records, documents, tape, or other information, stored or preserved in any medium, of or belonging to” the government body. Iowa Code § 21.2(3)(a) (emphasis added). The key issue is that the information must be “stored” or “preserved.”
Iowa Code § 22.3A(1)(d) defines “data” as “a representation of information, knowledge, facts, concepts, or instructions that has been prepared or is being prepared in a formalized manner and has been processed, or is intended to be processed, in a computer.”
Iowa Code § 22.3A(2)(a) allows a government body to “provide, restrict, or prohibit access to data processing software” but the government body must “establish policies and procedures to provide access to public records which are combined with its data processing software.” A public record cannot be withheld merely because it is in the data processing software. Id. A government body cannot acquire an “electronic data processing system for the storage, manipulation, or retrieval of public records that would impair the government body’s ability to permit the examination of a public record and the copying of a public record in either written or electronic form.” Iowa Code § 22.3A(2)(b).
“A database management system (DMS) is the visual interface that organizes the data, translates the data from zeros and ones, and allows users to access and view the data in a manner they can understand. … a database management system is roughly the same as a library card catalog. Each card is a piece of data, all the cards together are the database, and the cabinet that keeps everything organized, cross-referenced, and accessible to library patrons is the DMS. Without the cabinet, you’d be faced with a pile of cards and no way to find what you are looking for…. Each of those cards in the card catalogue is a writing that contains information, and it happens to be in paper form. For databases, each piece of data in the DMS is a writing that contains information, and it happens to be in digital form.” Sarah Doar “Data as Records: PRA Disclosure of Database Information” Nov. 13, 2022 access at https://mrsc.org/stay-informed/mrsc-insight/november-2022/data-as-records-pra-disclosure-of-database-inform (explaining Washington public records law).
Iowa Code clearly requires that a public record stored as “data” within a data processing software must be provided. In Ripperger v. Iowa Public Information Board, the Iowa Supreme Court agreed that a list of property owners who had asked to have their names removed from the public name search function on county tax assessor's website was a “public record” subject to Open Records Act because the list was stored electronically and could be extrapolated from the county tax assessor database. 967 N.W.2d 540, 550 (Iowa 2021).[1]
A fundamental difference between hard copy records and computerized records . . . is that the former may reside within computer systems until they are demanded, sometimes requiring the application of codes or additional programming to be retrieved from host systems in systematic and comprehensible form.
. . .
[E]lectronic information always needs some type of transformation to be understood. While written information can be read instantaneously, no one can look at electronic bits of data and understand their meaning. These bits of data often require specialized software for reorganization into readable form.
Grodsky, supra, 31 Jurimetrics at 27-28, 30 n. 59.
No. 96-2-1, 1996 WL 169619, at *2 (Iowa A.G. Feb. 2, 1996) (emphasis added).
For instance, the list in the Ripperger case was able to be extrapolated from data that already existed in the system to provide the public name search function block to occur. “The disabled name list is itself a compilation of communications to the Assessor from or on behalf of property owners requesting removal from the public website’s search-by-name function.” The information was a public record because it was a datapoint that existed in the system. The list could be created from the existing public dataset. The county did not have to program the system to create a new set of data. 967 N.W.2d at 550.
Merely because the record is stored electronically or within a database or other software program does not eliminate the requirement to provide the public record upon request in compliance with Iowa Code chapter 22.
Does Iowa law require a government body to perform a customized search and manipulation of data when it chooses to utilize a database or other electronic version of public records? For instance, one dataset requested is confidential, so a request has been made for the government body to do a calculation internally utilizing the confidential information and another dataset to provide a new datapoint not currently stored in the government’s system or used or stored by the government body.
This is an evolving issue in public records law across the country as more public records are stored in electronic format that would allow for customized searches and potentially expand the scope of and requirement to provide information from public records for virtually any data information stored by a government body. More information continues to be stored electronically in databases and software used by governmental bodies. The use of email and the ability to generate spreadsheets and complex documents are available to every government employee with access to a cell phone or computer. The question raised is whether Iowa Code chapter 22 mandates a government entity to manipulate and search its electronic data to answer every customized request for a data point that could be generated through computer programming and manipulation regardless of the government entity’s use of or need for the information.
In Ripperger, the records request was for an electronically created list from existing information in the county’s database. Similar to a search for keywords in stored emails or pulling existing data from a database, the extrapolated data is pulled from records already in the government body’s database or software system being gathered in response to the request for the electronic record. It does not require creating information not previously stored or preserved by the government body.
Iowa’s public records requirements have always held that a government body is not required to create a record that does not exist. The question posed here is whether a government body is required to provide a record that only exists through information generated from calculations based on data in a database or software system owned by the government body. In other words, does it matter if the request is not seeking existing public records related to the decision-making activities of the body, but is instead, requiring the government body create a record to respond to the public records request?
There is a fundamental difference from requesting a public record of existing data from the government body, even if some type of manipulation is required to make the data readable, and seeking to require the governmental body to utilize its electronic system to do calculations or create new datasets that are not part of the system used or preserved by the government body. The mere collection of data by the government entity does not compel it to utilize the data for any and all requests beyond simply producing a list of the government’s existing data. The existing data is the public record.
States differ on approach to addressing this issue.[2] A few states have, specifically through statute or court interpretation, required the information to be provided, but any costs for providing the information are paid by the requester. Most states that have considered this question have allowed government entities to use discretion in determining whether to create a customized search of records. This discretion typically stems from the underlying interpretation that a government body does not have to create a public record that does not exist. Iowa’s statute and precedent lend themselves to the majority’s interpretation of not requiring government bodies to create a customized search or manipulate and calculate public data.
The purpose of Chapter 22 is to provide public scrutiny of a government’s decision-making activities through a requirement to provide public records to the public upon request.[3] Requiring a government entity to perform custom searches and programming to manipulate existing data on behalf of any requester greatly expands this intention and would require government entities to do calculations and research of public records for all requesters merely because some public data existed within a database. This would expand the requirement beyond the provision of providing access to public records used in the decision-making process.
Requiring the government body to retrieve data and manipulate or calculate the data to provide new datapoints not previously “stored” or “preserved” is essentially asking the government entity to answer a question or create a new record rather than to provide an existing public record. The government body could choose to create this record and could charge for the cost of the programming. But, nothing in Iowa Code chapter 22 mandates that the government body perform this service.
BY DIRECTION AND VOTE OF THE BOARD:
Joan Corbin
E.J. Giovannetti
Barry Lindahl
Luke Martz
Joel McCrea
Monica McHugh
Jackie Schmillen
SUBMITTED BY:
Erika Eckley
Executive 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 requester demonstrates a significant change in circumstances from those in the board opinion.
[1] In Ripperger, the list was held to be a confidential record because the underlying information the list was based on was confidential under Iowa Code § 22.7(18).
[2] See https://www.rcfp.org/open-government-sections/b-can-the-requester-obtain-a-customized-search-of-computer-databases-to-fit-particular-needs/ (outlining how states handle searches on computer databases as records requests).
[3] “The purpose of [Chapter 22] is ‘to open the doors of government to public scrutiny [and] to prevent government from secreting its decision-making activities from the public, on whose behalf it is its duty to act.’” City of Riverdale v. Diercks, 806 N.W.2d 643, 652 (Iowa 2011) (citing Rathmann v. Bd. of Dirs., 580 N.W.2d 773, 777 (Iowa 1998)); see also Iowa Civil Rights Comm'n v. City of Des Moines, 313 N.W.2d 491, 495 (Iowa 1981).