20AO:0001 Informal Guidance
May 22, 2020
SUBJECT: Automatically deleting electronic applications
Dear Mr. Clayworth:
On March 11, 2020, you requested an opinion from the Iowa Public Information Board (IPIB). At the IPIB meeting on April 16, 2020, the board directed me to answer your question informally.
You asked whether Iowa Code chapter 22 offers guidance about the use of automatically deleting applications by government employees and elected officials. You stated that applications such as Snapchat, WhatsApp, and Signal can be set to delete communications within seconds after being read. You said you are aware that there are government officials in Iowa who have these applications installed on their cell phones.
Your question is: Does Iowa Code chapter 22 prohibit the use of applications on telephones that automatically delete communications within seconds of being read?
The IPIB has consistently noted on its website that a public record is created when a government official or employee uses a privately owned electronic device such as a cell phone to conduct official government business. A frequently asked question on the IPIB website states:
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. Recent years have shown a rapid explosion in electronic device ownership, making it easy to start a project at work, fine tune it at home, email drafts to colleagues and others, refine it on the work computer, carry it around the world on a flash drive or store it indefinitely ‘in a cloud.’ Because of this ease of portability and expansion of the work site, the term “public records” no longer refers to a document in a paper file in a drawer in an office.
This issue has been addressed in Iowa in a limited manner. Iowa Code Section 22.1 includes “all records, documents, tape or other information, stored or preserved in any medium” in the definition of public records. Subsection 22.2(2) states that a governmental body cannot prevent access to a public record by contracting with a nongovernmental body (such as a cloud storage provider). Section 22.3A addresses public records and data processing software. The cumulative effect of these statutes is that a public record does not lose its public status by being retained on a privately owned electronic device.
The Iowa Supreme Court, in a 1967, pre-email decision, addressed the idea that you must look at the contents of the document or communication to determine whether it is a public record: “It is the nature and purpose of the document, not the place where it is kept, which determines its status”, Linder v. Eckard, 152 N.W.2d 833, 835 (Iowa 1967).
To allow a governmental body to avoid public records disclosure by simply requiring that officers or employees use their privately owned electronic devices would be to completely thwart the transparency goals of Chapter 22.
However, Iowa Code chapter 22 does not specifically address record retention, whether it is a piece of paper in a file drawer, electronic data on a computer program, or a text sent via a cell phone. Other chapters in the Iowa Code may govern retention of specific records, such as court records, vital records, licensing records, tax records, and such. If the electronic record consists of a record such as one of these, using an application that automatically deletes a record created on a cell phone could violate Iowa law.
I would not recommend that government officials and employees use a cell phone application that automatically deletes texts or emails when conducting government business.
Thank you for contacting the Iowa Public Information Board. If you have additional questions, please contact me.
Margaret E. Johnson, J.D.