IPIB 19 AO: 003
DATE: July 18, 2019
SUBJECT: The limits of confidentiality in a peace officer’s investigative report under Iowa Code § 22.7 (5).
IPIB 19 AO: 003
July 18, 2019
Mr. Michael Heilman
Brick Gentry P.C.
6701 Westown Parkway, Suite 100
West Des Moines, Iowa 50266
Dear Mr. Heilman:
This opinion is in response to your filing of June 17, 2019, requesting an opinion from the Iowa Public Information Board (IPIB) pursuant to Iowa Code § 22.7 (5), § 279.9A, and rule 497—1. 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.
You asked four (4) questions regarding the confidential status of materials which may qualify as a part of a peace officer’s investigative report, how long those records may be held confidentially, which records constitute confidential materials, and how Iowa Code § 22.7(5) interplays with confidentiality requirements of Iowa Code § 622.11 and § 80G.2.
QUESTION ONE: Are peace officer’s investigative reports, privileged records and information in 80G.2 exempt from disclosure under Chapter 22, regardless of whether there is an ongoing investigation? See Mitchell v. City of Cedar Rapids, 926 N.W. 2d 222, 232 (Iowa 2019) (stating ‘We hold that police investigative reports do not lose their confidential status under section 22.7 (5) when the investigation closes.’)
OPINION: The Iowa Supreme Court has noted in Mitchell v. City of Cedar Rapids, 926 N.W. 2d 222, 232 (Iowa March 6, 2019) that police investigative reports do not lose their confidential status under section 22.7 (5) when the investigation closes. “We hold that police investigative reports do not lose their confidential status under section 22.7(5) when the investigation closes.”
Iowa Code section 80G.2 says:
1. a. A law enforcement officer shall not be examined or be required to give evidence in any criminal proceeding that requires the disclosure of any records or information relating to any of the following:
(1) Identification documents or other documents necessary to conduct a lawful undercover criminal investigation.
(2) Personal identifying information about the law enforcement officer or immediate family member of the law enforcement officer, or other information unrelated to the law enforcement officer’s professional duties which could be used to threaten, harm, or intimidate the law enforcement officer or immediate family member of the law enforcement officer, or other information that could reasonably be construed to constitute an unwarranted invasion of privacy of the law enforcement officer or immediate family member of the law enforcement officer.Personal information that is knowingly and voluntarily disclosed by the law enforcement officer or immediate family member of the law enforcement officer may be redisseminated.
A law enforcement officer who is called to testify shall not disclose information that is subject to nondisclosure
as a result of a court order, statute, contract, or a condition or requirement of a grant.
2. In determining whether nondisclosure of confidential or privileged information about a law enforcement officer may affect a defendant’s right to present a defense, the court shall make findings on the record regarding the impact of disclosure on the personal safety of the law enforcement officer or immediate family member of the law enforcement officer if the evidence is disclosed, the probative value of the confidential or privileged information about the law enforcement officer, the impact of disclosure on public safety, the potential for partial or limited disclosure of the privileged information, and the defendant’s constitutional right to present a defense. Any privileged information that is admitted for purposes of a pretrial hearing or a preliminary admissibility determination shall remain confidential.
It is not necessary to evaluate this section to answer your question as the Iowa Supreme Court in Mitchell evaluating Iowa Code §22.7(5) ruled that information in 80G.2 remains confidential when the investigation closes.
QUESTION TWO: What constitutes a peace officer’s investigative report (s) for purposes of Iowa Code 22.7 (5)?
OPINION: The statutory language of Iowa Code § 22.7(5) does not specifically define what materials constitute a ‘peace officer’s investigative report.’ But Iowa Court case law and Iowa Public Information Board opinions offer some guidance.
In the case of AFSCME et al. v. Iowa Department of Public Safety, the Iowa Supreme Court held that lab reports constitute a part of a peace officer’s investigative report even though they constitute something other than an officer’s written finding. 434 N.W. 2d 401, 403 (Iowa 1988).
In Neer v. State, the Iowa Court of Appeals held that video recordings, among other things, also constitute part of a peace officer’s investigative report. 798 N.W. 2d 349 (Iowa Court of Appeals 2011).
The IPIB decided in 17 IPIB001 FC:0030 and 17IPIB002 FC:0034 that peace officers’ investigative reports include the information gathered as part of the investigation and incorporated into the reports. The IPIB held that body camera videos, 911 calls, and autopsy reports from the medical examiner all constituted part of a peace officer’s investigative report.
QUESTION THREE: Is information/records gathered or prepared for and in the course of a criminal investigation confidential pursuant to Iowa Code section 22.7 (5)? See e.g., IPIB AO 2017-05 (stating the contents of telephone records created as part of a criminal investigation ‘could fall within [Iowa Code section 22.7(5)] . . .
OPINION: Information and records gathered or prepared for and in the course of a criminal investigation can be confidential. Iowa Code § 22.7 states:
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. . . (5) Peace officers’ investigative reports.
This language allows the lawful custodian discretion to release confidential records. Such release is not required, but is permissible and would not constitute a violation of Iowa Code Chapter 22.
Iowa Code § 22.7(5) includes language requiring the release of certain information from a peace officer’s confidential reports.
However, the date, time, specific location, and immediate facts and circumstances surrounding a crime or incident shall not be kept confidential under this section, except in those unusual circumstances where disclosure would plainly and seriously jeopardize an investigation or pose a clear and present danger to the safety of an individual.
Even if the record is confidential under Iowa Code § 22.7(5) the Mitchell decision outlined a balancing test to be used in determining what records should be released pursuant to this requirement.
QUESTION FOUR: Is information that would be protected from examination under Iowa Code section 622.11 confidential for purposes of Iowa Code 22.7(5)?
Iowa Code section 622.11 says:
A public officer cannot be examined as to communications made to the public officer in official confidence, when the public interests would suffer by the disclosure.
Question Number Four is beyond the jurisdiction of the IPIB. This section relates to the examination of public officers, not to the release of records of a government body.
BY DIRECTION AND VOTE OF THE BOARD.
Mary Ungs-Sogaard, Chair
Prepared by: Amanda T. Adams
Issued on: ____________________________
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.