Advisory Opinion 20AO:0007
DATE: February 18, 2021
SUBJECT: Public records request
Matthew S. Brick
Brick Gentry P.C.
6701 Westown Parkway, Suite 100
West Des Moines, Iowa 50266
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We are writing in response to your request dated December 10, 2020, 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.
We note at the outset that the IPIB’s jurisdiction is limited to the application of Iowa Code chapters 21, 22 and 23, as well as 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.
Your request pertains to a records request received by your client the Des Moines Area Regional Transit Authority (DART). DART is a public corporation organized under Iowa Code chapters 28E and 28M. The records request stated, in relevant part:
“We are wanting to see any and all complaint records related to the contract that is held by DART for providing transportation for Des Moines Public Schools. We are requesting to go back five years or the entire time DART has held the contact [sic] which should have began [sic] in 2011.”
As noted in your request for an advisory opinion, your client has been working with the requester to provide a relevant response.
As further noted, “DART seeks further clarification on the scope ‘public records’ under Iowa Code section 22.1, the right to examine under Iowa Code section 22.2 and 22.3A, as well as the right to keep certain information confidential under Iowa Code section 22.7.”
The questions posed in your request are included below in the body of this opinion.
Section 22.2(1)(3)(a) defines public records to include ‘all information, stored or preserved in any medium.’ The information requested does not exist in the format requested: to what extent is DART required to create a document responsive to the request?
Iowa Code section 22.1(3)(a) states, in part, that a public record includes “all records, documents, tape, or other information, stored or preserved in any medium.” While a record may exist in a format different from what was requested, if the record exists it should be produced in accordance with Iowa Code chapter 22.
Pursuant to Iowa Code section 22.3A(2)(d), DART may make an electronic public record in a specific format as requested, but is under no obligation to do so, so long as the public record already exists in a format that is useable with commonly available software.
Section 22.3A states that “a government body may provide, restrict, or prohibit access to data processing software ... whether the data processing software is separated or combined with a public record.” What is DART’s obligation to provide access to the data processing software which contains information regarding complaints?
Pursuant to Iowa Code section 22.3A(2)(a), a public record shall not be withheld from the public because it is combined with data processing software. However, access to a public record combined with data processing software may be restricted or prohibited pursuant to a contractual relationship with a nongovernmental body (such as the maker of the software).
Section 22.7(1) exempts “[p]ersonal information in records regarding a student, prospective student, or former student maintained, created, collected or assembled by or for a school corporation or educational institution maintaining such records.” As the complaints all involve students of the Des Moines Public School, to what extent is DART required to provide said complaints?
If the records involving Des Moines Public Schools (DMPS) students are created by DART and for DART, then Iowa Code section 22.7(1) would not apply. If DART created the records for DMPS pursuant to a contractual obligation to DMPS, then Iowa Code section 22.7(1) could apply. While there are other laws that specifically govern records of students, such as the Family Educational Rights and Privacy Act, those laws are designed and tailored by use solely by educational institutions.
As some of the complaints are handled by Des Moines Police Officers, is the information compiled by those officers for a complaint a “peace officer’s investigative report” for purposes of Iowa Code 22.7(5)?
Iowa Code section 22.7(5) refers to peace officers. Records in the custody of DART do not qualify as peace officers’ investigative reports, even though peace officers may be involved in the process for creating a DART complaint.
Section 22.7(18) states that information provided by individuals (victims, witnesses, students, etc.) “not required by law, rule, procedure, or contract that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them to that government body if they were available for general public examination.” To what extent does this exemption apply to witnesses or victims who would be otherwise unwilling to provide information if they were aware their statements would be public records?
As noted in IPIB AO 2017-09, a communication to a government body can be kept confidential under Iowa Code section 22.7(18) only if all of the following exist:
The communication is not required by law, rule, procedure, or contract.
It is from identified persons outside of government.
The government body could reasonably believe those persons would be discouraged from communicating with government if the information was made public.
And, nevertheless, the information can still be released if the person communicating with government consents to its release or if it can be released without identifying the person.
The criteria above would be the test to be used by DART to determine whether Iowa Code section 22.7(18) is applicable. We also note that the aforementioned test and excerpt represents only part of Iowa Code section 22.7(18).
If DART is required to provide the requested information, is the attached response format compliant with Iowa Code Chapter 22?
Iowa Code chapter 22 does not prescribe any specific format for production of records. As such, the IPIB does not offer an opinion on this question.
To what extent is DART allowed to charge its actual costs to create (not just provide) documents responsive to this request?
If DART were to store an electronic public record in a format that is not useable with commonly available software, then DART would be responsible for making the record useable with commonly available software as part of the record production process. DART would also bear whatever costs it incurred in making the record useable with commonly available software. See Iowa Code section 22.3A(2)(c).
However, if DART already stored electronic public records in a format that is useable with commonly available software (such as PDF), then it would not be required to re-format the record in another format. If a different format is requested DART may re-format the records into the requested format, but the reasonable costs of re-formatting the record can be charged to the requester. See Iowa Code section 22.3A(2)(d).
BY DIRECTION AND VOTE OF THE BOARD:
Zachary S. Goodrich
February 18, 2021
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.
 After reviewing the contract entered into by DART and DMPS, it appears that no such contractual obligation exists. Additionally, the contract does not address records management.
 Family Education Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g.
 Iowa Code section 22.7(18): Communications not required by law, rule, procedure, or contract that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them to that government body if they were available for general public examination. As used in this subsection, “persons outside of government” does not include persons or employees of persons who are communicating with respect to a consulting or contractual relationship with a government body or who are communicating with a government body with whom an arrangement for compensation exists. Notwithstanding this provision:
a. The communication is a public record to the extent that the person outside of government making that communication consents to its treatment as a public record.
b. Information contained in the communication is a public record to the extent that it can be disclosed without directly or indirectly indicating the identity of the person outside of government making it or enabling others to ascertain the identity of that person.
c. Information contained in the communication is a public record to the extent that it indicates the date, time, specific location, and immediate facts and circumstances surrounding the occurrence of a crime or other illegal act, except to the extent that its disclosure would plainly and seriously jeopardize a continuing investigation or pose a clear and present danger to the safety of any person. In any action challenging the failure of the lawful custodian to disclose any particular information of the kind enumerated in this paragraph, the burden of proof is on the lawful custodian to demonstrate that the disclosure of that information would jeopardize such an investigation or would pose such a clear and present danger.