22AO:0002
DATE: March 17, 2022
SUBJECT: Body Camera Footage and Investigative Reports
RULING:
Matt Brick
City of Windsor Heights
6701 Westown Pkwy, Suite 100
West Des Moines, IA 50266
Mr. Brick,
We are writing in response to your request dated January 31, 2022, 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.
BACKGROUND:
The issue at hand concerns whether body camera footage is a part of a peace officer’s investigative report under Iowa Code section 22.7(5). The advisory opinion is requested due to conflicting judicial opinions in the Fifth Judicial District of Iowa.
In 2015, the Iowa Public Information Board issued an Order for Dismissal in the matter of Cali Smith and City of Nevada Police Department, Complaint No. 14FC:0096. In this complaint, the Board denied a request for body camera footage by finding that “[t]he video is part of a ‘peace officers’ investigative reports,” and that such reports are “confidential without condition.” The Board based its decision in part on a 2014 Fifth Judicial District of Iowa decision made by Judge Robert Blink which supported the Board’s decision.See Allen v. Iowa Department of Public Safety, Case Number EQCE074161, Polk County Fifth Judicial District. There is also an unpublished Iowa Court of Appeals opinion from 2011, Neer v. State, which held that body camera footage was a part of a peace officer’s investigative report and not subject to disclosure.See Neer v. State, 798 N.W.2d 349 (Iowa Ct. App. 2011).
However, in October of 2020, Judge Paul Scott of the Fifth Judicial District of Iowa issued a conflicting ruling which found that body camera footage was not exempt from disclosure under Iowa Code section 22.7(5).See Harrison v. Parizek, Case Number CVCV057957, Polk County Fifth Judicial District. Specifically, Judge Scott stated that Neer was not controlling as it was an unpublished Iowa Court of Appeals opinion. Judge Scott found, in part, that the plain meaning of “investigative reports” does not include body camera video. Judge Scott went on to state that even if body camera footage were to be considered part of a peace officer’s investigative report, the Hawk Eye balancing test should be applied to determine if the investigative report may yet still be disclosed.
Most recently, the Iowa Supreme Court in Klein v. Iowa Public Information Board did not definitively resolve whether body camera footage is a part of a peace officer’s investigative report and thus is exempt from disclosure under Iowa Code section 22.7(5). The court in Klein determined that Klein has standing to seek judicial review of an Iowa Public Information Board decision regarding whether 911 calls, bodycam footage, and dashcam footage are a part of a peace officer’s investigative report. These matters are on remand before an Iowa district court for further determination.
QUESTION POSED:
In light of the conflicting rulings in the Fifth Judicial District of Iowa, is body camera footage part of a peace officer’s investigative report exempt from disclosure under Iowa Code chapter 22?
OPINION:
Under Iowa Code section 22.7, certain public records are to remain confidential unless otherwise ordered by a court, lawful custodian of the records, or another person duly authorized to release such records. This includes Iowa Code section 22.7(5), which states:
5. Peace officers’ investigative reports, privileged records or information specified in section 80G.2, and specific portions of electronic mail and telephone billing records of law enforcement agencies if that information is part of an ongoing investigation, except where disclosure is authorized elsewhere in this Code. However, the date, time, specific location, and immediate facts and circumstances surrounding a crime or incident shall not be kept confidential under this section, except in those unusual circumstances where disclosure would plainly and seriously jeopardize an investigation or pose a clear and present danger to the safety of an individual. Specific portions of electronic mail and telephone billing records may only be kept confidential under this subsection if the length of time prescribed for commencement of prosecution or the finding of an indictment or information under the statute of limitations applicable to the crime that is under investigation has not expired.
The Iowa Public Information Board has in the past found that body camera footage is a part of a peace officer’s investigative report. However, the Board’s previous decisions were issued prior to several more recent decisions on the issue of body camera footage and investigative reports issued by Iowa Courts.
One such decision on investigative reports came from the Iowa Supreme Court in Mitchell v. City of Cedar Rapids.Mitchell v. City of Cedar Rapids, 926 N.W.2d 222 (Iowa 2019). In this case, material was sought which related to an officer-involved shooting of a suspect which occurred during an altercation at a traffic stop.Id. at 225. In its decision, the Court first stated that investigative reports are to be exempt from disclosure and are to remain confidential under Iowa Code 22.7(5), no matter if the investigation is closed or ongoing.Id. at 232.
However, the Court stated that otherwise statutorily prohibited investigative reports may still be disclosed if the prohibited materials do not satisfy the Hawk Eye three-part balancing test. Id. at 234-35. See Hawk Eye v. Jackson, 521 N.W.2d 750, 753 (Iowa 1994) (stating “An official claiming the privilege must satisfy a three-part test: (1) a public officer is being examined, (2) the communication was made in official confidence, and (3) the public interest would suffer by disclosure”). Some case-specific factors should be considered when conducting the balancing test: whether the need for confidentiality is greater when reports are based on confidential informants, whether the information at issue references “named but innocent suspects”, and whether the investigation is ongoing, such that public disclosure would hinder the investigation.Mitchell, 926 N.W.2d at 233.
Due to conflicting decisions in the Fifth Judicial District of Iowa, the IPIB is not in a position to advise on whether body camera footage is a part of a peace officers investigative report. The Board does not have jurisdiction over the judicial branch or any of its employees.Iowa Code § 23.12. However, in light of the Mitchell decision, if body camera footage is found to be part of an investigative report, the Hawk Eye three-part balancing test will be applied to the situation to determine it’s exemption status. Judicial decisions, including Judge Scott’s decision, following the 2019 Mitchell ruling regarding the confidentiality status of investigative reports have applied the test set forth in Hawk Eye. See Williams v. City of Burlington, Iowa, 516 F. Supp. 3d 851, 876-78 (S.D. Iowa 2021). The party seeking the exemption will bear the burden of demonstrating the applicability of the exemption.Mitchell, 926 N.W.2d at 229. It is unclear from relevant judicial decisions whether a public officer is being “examined” under the Hawk Eye balancing test when a public official receives a records request. Hawk Eye, 521 N.W.2d at 753. (Mr. Brick in subsequent communications with the Iowa Public Information Board questioned whether the first prong of the Hawk Eye balancing test is satisfied when a public official receives a records request.)
Therefore, the Board is not able to uniformly state whether or not body camera footage is a part of a peace officer’s investigative report. If it is determined to be an investigative report, the Hawk Eye balancing test will be applied and the case-specific factors given in Mitchell should be considered.
BY DIRECTION AND VOTE OF THE BOARD:
Joan Corbin
E.J. Giovannetti
Barry Lindahl
Keith Luchtel
Monica McHugh
Rick Morain
Julie Pottorff
Suzan Stewart
SUBMITTED BY:
Logan L. Tucker
Legal Intern
ISSUED ON:
March 17, 2022