IPIB AO 2018-19
IPIB AO 2018-19
SUBJECT: When are documents possessed by public officials “public record” as defined by Iowa Code § 22.1 (3) (a-b)?
November 15, 2018
Mr. Brent L. Hinders
Hopkins & Huebner, P.C.
Des Moines Office
2700 Grand Avenue, Suite 111
Des Moines, Iowa 50312-5215
Dear Mr. Hinders:
This opinion is in response to your filing of October 11, 2018, requesting an opinion from the Iowa Public Information Board (IPIB) pursuant to Iowa Code § 22.1 (3)(a-b), Iowa Code § 22.1 (2), 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 requested an advisory opinion regarding the circumstances under which the individuals comprising the Adair County Board of Supervisors possess “public records” requiring disclosure under Iowa Code § 22. As noted in the first paragraph, generally the IPIB’s jurisdiction is limited to the application of Iowa Code Chapters 21, 22, and 23, and rules in Iowa Administrative Code chapter 497.
A record request containing more than 29 items was addressed to the supervisors. It was not clear to you which of these requests contain legitimate requests for public documents under the Open Records Act. The Public Records request comes from a law firm seeking to acquire information about members of the Board of Supervisors’ ties to various utilities and other energy projects, referred to collectively herein as “wind energy projects.”
QUESTION: Are documents possessed by public officials automatically “public records” as defined by Iowa Code § 22.1 (3) (a-b)? How do you determine if records meet the definition of public records pursuant to Iowa Code § 22.1 (3)?
Whether the communications between the wind energy projects and board members require disclosure as open records depends on the facts which show whether they received those letters in their roles as public officials or in their private lives.
- Iowa Code Enumerates Acts within the Scope of a Governmental Body/Official’s Duties
There exist certain standards in the Iowa Code which define when an individual acts as on his/her own behalf or in his or her role as a member/representative of a governmental body. The Iowa Code governing the State Auditor’s responsibilities, § 11.1 defines a government body (department) as ‘. . . Any authority charged by law with official responsibility for the expenditure of public money of this state.’ A second part of the definition in Iowa Code § 11.1 defines a government body (department) as ‘Any agency receiving money from the general revenues of the state.’
Iowa Code § 331.212 defines which actions require a majority vote of a county board of supervisors before taking formal action: levying a tax, entering into a contract for erection of a public building, making a settlement with a county officer, buying or selling real estate, designating a new site for a county building, changing the boundaries of a township, appropriating money to aid in the construction of a highway or a bridge, or appointing or removing an officer from office. Iowa Code § 331.301 (2), states ‘a power of a county is vested in the board, and a duty of a county shall be performed by or under the direction of the board except as otherwise provided by law.’
Iowa Code § 22.1 concerning open records defines a “government body” as “. . . any county,” or an officer of the foregoing responsible for implementing the requirements of this chapter.
B. Case Law Enumerates which Documents and Actions Constitute Public Acts and Public Records in Official Capacity
- Iowa Case Law
In State v. Barnholtz, 613 N.W. 2d 218 (2000), the Iowa Supreme Court defined a public document as follows:
‘A public record, strictly speaking, is one made by a public officer in pursuance of a duty, the immediate purpose of which is to disseminate information to the public or to serve as a memorial of official transaction for the public reference.’
The Court reasoned that by statutory definition, a public record is a document of or belonging to the state or local government, that was produced from or originated from the government. The Court held that documents belonging to the government would include those documents that originate from other sources but are held by public officers in their official capacity. State v. Barnholtz, 613 N.W. 2d 218 (2000).
In City of Dubuque v. Dubuque Racing Association, 420 N.W. 2d 450 (1988), the Iowa Supreme Court held that simply because members of a City Council serve as members of the Board of Directors of a private nonprofit the affairs of the nonprofit do not become the affairs of the government. In so holding, the Iowa Supreme Court reasoned members of the general public should have access to the writings possessed by public officers in connection with their official functions. This is so members of the public can determine whether those who have been entrusted with the affairs of the government are honestly, faithfully, and competently performing their functions as public servants. However, the Court held that not every act by someone who holds public office constitutes the public’s business or a governmental function.
In an Iowa Southern District Federal Court case, the Court held a sheriff who also served the federal government who wrote emails from the County’s email service concerning his federal position belonged to the federal government rather than Story County, Iowa. United States v. Story County, Iowa, 28 F. Supp. 3d 86 (S.D. Iowa 2014). In so holding, the Court reasoned that the physical location of a record is not determinative as to whether it is a federal agency record.
ii. Case Law from Other States Providing Guidance
Case law from other states holds, like Iowa, that the content and the purpose of the document’s creation distinguishes the public from the private. A bill or contract received at a Board of Supervisors Member’s private residence may or may not qualify as a public record.
In In re Silberstein, 11 A. 3d 629 (2011), the Commonwealth Court of Pennsylvania held that emails on a government official’s personal computer failed to qualify as public records. In so holding, the Court reasoned that a “record” means information that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business, or activity of the agency. The requests were connected with applications for development projects. The Court held, in its denial of the open records request, that the information stored on the Commissioner’s personal computer was not produced with the authority of the township, nor later ratified, adopted, or confirmed by the township.
In Toensing v. Attorney General, 178 A. 3d 1000 (2017) the Supreme Court of Vermont held that access to public records does not exclude otherwise qualifying records placed in officials’ private accounts. However, those records must otherwise qualify as a public record, being produced or acquired in the course of state agency business.
C. Adair County Resolutions and Auditor’s Guidelines Provide Guidance on Which Acts Constitute Public Acts
In a document called Resolution 2018, dated January 2, 2018, a resolution from the Board of Supervisors in Adair County holds that the Chairperson of the Board is authorized to sign contracts, deeds, and other necessary and lawful papers on behalf of Adair County, including documents for the USDA. The Vice-Chairman is authorized to do so in the Chairperson’s absence. It is significant that the January 2, 2018, resolution says one member is authorized to do such acts “on behalf of Adair County.” This suggests that in order for an Adair County Board Member to act in his/her official capacity, said person must act binding the common good of county residents.
D. Analysis of the Requests Considering Case Law of Iowa, Persuasive Precedent in Neighboring States, and Statutes
The above-quoted statutes and case law suggest that the Chair, Vice-Chair, or any other board member only acts as an officer of the board or county on business when he or she is conducting a formal act defining the rights and obligations of Adair County residents, or authorizing county revenues for taxation or expenditure, or entering into contracts on behalf of all County residents. The above statutes, case law, and County resolutions suggest that not every act, bill, contract, or other transaction entered into by a County Board of Supervisors Member is a public act on behalf of the County, only those actions which concern binding public business.
The list of requests you presented this office, numbers 1 to 13, requests contracts between various wind energy projects (wind farms) individually and as a group, with each of the members of the County Board of Supervisors. Unless the Chair or Vice-Chair is acting to bind the county, as per the resolutions, contracts between wind energy projects for easements or service to the members’ personal residences are not public records. Furthermore, contracts or bills involving a limited liability company which has a member who happens to serve on the County Board of Supervisors fail to constitute “public records.” Contracts between a wind energy project and the entire board acting to bind all residents of Adair County, like a wind energy project in a county public park, would constitute public records.
The second set of requests, numbers 15 to 29, requests all copies of communication, including letters, emails, and telephone calls between various wind energy projects, and communications between board members regarding wind energy projects. Whether a public records disclosure is required also depends on whether the wind energy projects were communicating with the members as individuals concerning their rights and obligations regarding their personal residences and families, as private members of an LLC or trust, or the wind energy projects communicated with the board members seeking to negotiate business binding the entire county.
In conclusion, whether the contracts and/or various communications between the Adair County Board of Supervisors and the various wind energy projects constitute public records which must be disclosed depends on the action they memorialized. Required disclosure also depends on how the documents were created. If the documents, communications, and contracts were intended to bind the board members as individuals for their own personal residences and families, or as business members of a non-County business entity, they fall outside the scope of Iowa Code chapter 22, the Open Records Act. If they are negotiating to bind the common welfare of Adair County, then they are public records. But even if they are public records, the County may give the wind energy projects the opportunity to review the request and seek an injunction in District Court under Iowa Code § 22.8. Even if the requests constitute personal and private records, the board members may release them if they voluntarily wish to do so.
Some of these records may be confidential as a matter of law for other reasons. Under Iowa Code § 22.7 (3) some of these records, of any category, might qualify as trade secrets. Iowa Code § 22.7 (18) protects certain communications from persons outside the government to the government not required by law, procedure, or contract, if those persons would be discouraged from communicating with the government for that reason. Confidential records under Iowa Code § 22.7 (18), may be released if the persons consent. Furthermore, there could involve concerns of cybersecurity or data processing software, exempt from disclosure under Iowa Code §§ 22.7 (33) and (38).
The Iowa Public Information Board has no power to interpret or give advisory opinions on ethical issues outside of Iowa Code chapters 21 and 22. The IPIB has not seen any of the disputed records in question and cannot speculate as to what they show. If the disputed records, whether public or not, show evidence one or more Board of Supervisors members have a financial relationship with a utility, that relationship could ethically conflict with their responsibilities on the board. If such a conflict does or may exist, someone should consult Iowa Code § 68B.2A on Conflicts of Interest for those working for the government, and Iowa Code § 68B.34A for legal guidance. This opinion only concerns the duty of disclosure of records under Iowa Code chapter 22 and does not constitute an ethical endorsement of any other type of issue.
BY DIRECTION AND VOTE OF THE BOARD.
Mary Ungs-Sogaard, Chair
Prepared by: Amanda T. Adams
Issued on: November 15, 2018