Advisory Opinion 21AO:0002
DATE: May 20, 2021
SUBJECT: Request for Victim Impact Statement
Iowa Department of Inspections and Appeals
321 East 12th Street
Des Moines, IA 50319
Sent via email to email@example.com
We are writing in response to your request dated April 8, 2021, 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 an IPIB opinion, if followed, constitutes a defense to a subsequent complaint based on the same facts and circumstances.
The Iowa Department of Inspections and Appeals (DIA) received a request for a copy of a December, 2020, administrative law judge’s proposed decision. In response, a redacted version was provided. The released copy included redactions of the victim’s name and petitioner’s address pursuant to Iowa Code section 22.7(18), as well as the victim impact statement (VIS) pursuant to Iowa Code sections 22.7(2), 915.21, and 901.4.
The record requestor responded, stating that Iowa Code sections 22.7(2), 915.21, and 901.4 did not permit the redaction of the VIS and asked what specific language in the respective code sections allowed for the redaction. In this case, the VIS existed only as a written document. It was not read aloud to be entered into the record.
The DIA and the Iowa Attorney General’s Office maintain the following position:
“Pursuant to Iowa Code section 22.7(2), ‘confidential communications between a crime victim and the victim’s counselor are not subject to disclosure except as provided in section 915.20A,’ which relates to a victim counselor privilege. Victims work with these counselors to create their victim impact statements. Although it is accurate that victim impact statements can be read orally into the record, pursuant to Iowa Code section 915.21, this may only be done by the victims themselves, essentially granting only the victim the right to waive any confidentiality they have over the statement.
“The ALJ decision in question indicates that the victim impact statement was ‘filled out’ not read aloud, which indicates it existed only in its written format. Iowa Code 915.21 states that written/signed VIS shall be included in the presentence investigation report. Iowa Code section 901.4 unambiguously states ‘The presentence investigation report is confidential.’ Therefore, without a court order to unseal or open the file, the VIS remains confidential.”
Should a victim impact statement be released as part of an administrative law judge’s decision?
Iowa Code section 22.7(2) 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:
“Hospital records, medical records, and professional counselor records of the condition, diagnosis, care, or treatment of a patient or former patient or a counselee or former counselee, including outpatient. However, confidential communications between a crime victim and the victim’s counselor are not subject to disclosure except as provided in section 915.20A. However, the Iowa department of public health shall adopt rules which provide for the sharing of information among agencies and providers concerning the maternal and child health program including but not limited to the statewide child immunization information system, while maintaining an individual’s confidentiality.” (Emphasis added).
In regard to confidential communications between a crime victim and the victim’s counselor, Iowa Code section 22.7(2) states that such records are not subject to disclosure except as provided in Iowa Code section 915.20A. If a VIS qualifies as a confidential communication between a crime victim and the victim’s counselor, then Iowa Code chapter 22 would not require the release of that record except as provided in Iowa Code section 915.20A.
Pursuant to Iowa Code section 23.1 and as noted above, 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. The IPIB is not specifically granted the authority to determine compliance with Iowa Code sections 901.4 (presentence investigation report confidentiality/access), 915.20A (victim counselor privilege), or 915.21 (victim impact statement). Therefore, we do not issue an opinion concerning the applicability of those statutes to this matter.
BY DIRECTION AND VOTE OF THE BOARD:
Zachary S. Goodrich
May 20, 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.