November 14, 2013
Iowa Association of Municipal Utilities (IAMU)
Attn: Julie Smith
RE: Request for formal opinion 13FO:0003, concerning utility records and Iowa Code Sections 22.2 and 388.9A
Dear Ms. Smith:
The Iowa Public Information Board (IPIB) is in receipt of your request for a formal opinion from the IPIB. The question you pose is as follows:
Whether section 388.9A should be interpreted as an outright declaration of confidentiality of all utility customer records or whether the statute gives the city the ability to make a decision as to which records will be kept confidential. This section specifically excepts the restriction in chapter 22 and could have been written as an exception and included within chapter 22 --- so IAMU believes the Iowa Public Information Board has the authority to interpret this question.
Iowa Code Section 22.2 states:
Every person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record of the information contained in a public record…. (Emphasis added.)
City and other utility records have historically been considered public records, and citizens had the right to request and receive copies of these records, unless a confidentially exemption under Section 22.7 applied. In 2012, the Iowa Legislature added section 388.9A to the Code, which reads:
Notwithstanding section 22.2, subsection 1, public records of a city utility or combined utility system, or a city enterprise or combined city enterprise as defined in section 384.80, which shall not be examined or copied as of right, include private customer information. Except as required pursuant to chapter 476, “private customer information” includes information identifying a specific customer and any record of a customer account, including internet-based customer account information. (Emphasis added.)
This legislation’s origins can be traced back to House File 2395 and House Study Bill 651. While Iowa has no official statement of legislative history, explanations are provided as a part of each of these bills. HSB 651 was a much more extensive bill which evolved through the committee process to become HF 2395. The actual enactment was Senate File 2058, an individually sponsored bill, which was amended on the floor of the Senate to adopt the language of House bill, HF 2395. The different explanations filed with the three different bills contain a common thread: the intent to grant a discretionary power to utilities for the handling of customer records in order to protect the privacy of those customers.
The operative language of this statute can be reduced to this simple statement which reflects the legislative intent: “. . . public records of a city utility . . . which shall not be examined or copied as of right, include private customer information.” The legislation also provides a definition of private customer information as set forth above.
Anecdotal information provided indicates concerns had been expressed by the covered entities about new technological data collection methods for utility billing which, if the data were made publicly available, would allow derivation of detailed information about account holders. Concerns were also expressed about compliance with consumer credit and debt collection statutes, state and federal.
This board’s jurisdiction is limited to interpretation and application of Code chapters 21 and 22. The question presented requires us to consider the relationship between Code sections 22.2 and 388.9A.
While we have no authority to render a binding interpretation of section 388.9A, we do have an obligation to address the application of section 22.2 to the records which are the subject of section 388.9A.
Section 388.9A does not provide that any records within its purview are no longer public records. The records affected by section 388.9A are limited to private customer records under the definition stated within the section. We conclude that those records are still public records subject to chapter 22. We believe that section 388.9A does, however, hold in abeyance application of the provisions of chapter 22 to private customer records which would otherwise be subject to inspection and copying. As to those records, the section 22.2 right to examine and copy is suspended at the discretion of the utility. In other words, section 388.9A is a grant of discretion to utilities concerning the release of specified information that otherwise would be subject to release as a matter of right under section 22.2.
Note, that our use of the term “utility” is limited to those entities specified in section 388.9A.
Pursuant to Iowa Administrative Code Section 497—1.3, this Opinion has been reviewed, approved and its issuance directed by action of the Iowa Public Information Board. Opinions issued pursuant to Section 497—1.3 are subject to modification or reconsideration within 30 days of issuance as provided in Subsection 497—1.3(3) and are not effective until 30 days have passed and any timely request for modification or reconsideration has been acted upon.
Keith Luchtel, J.D.