18AO:0017
Date: September 20, 2018Subject: Applicability of Iowa Code § 22.7 (11) to camera footage of public traffic accidents if a Police Officer also is a party to that accident.
Lee Rood, Investigative Reporter
Des Moines Register
400 Locust Street
Des Moines, Iowa 50309
This opinion is in response to your filing of August 13, 2018, requesting an opinion from the Iowa Public Information Board (IPIB) pursuant to Iowa Code § 22.1 and 22.7 (11) 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.
FACTUAL STATEMENT: You request an advisory opinion concerning the confidentiality of police department camera footage of a traffic accident which involved a police officer as one of the parties. The police department is also using that footage in the officer’s personnel record.
In August of 2018, you requested copies of video footage of a traffic accident from an Iowa Police Department which involved a police officer as one of the parties. The police department declined to provide the footage. The department’s refusal to provide the camera footage involved concerns the video constituted “personal matters” in an employment record of a government/police employee.
QUESTION: May a Police Department remain in compliance with Iowa’s Open Records Statute, Section 22, if it declines to release video footage of a traffic accident because the accident had a police officer as a party, which the department also considers part of the officer’s personnel record?
OPINION:
The Iowa Open Records Act essentially gives all persons the right to examine public records. Iowa Code § 22.1, 22.2. A government body includes any agency supported in whole or in part with tax revenue, and a city police department constitutes a government body within the meaning of Iowa Code Iowa Code § 22.1. Furthermore, a camera video recording constitutes a record supported and created with public funds, also within the meaning of Iowa Code § 22.1.
A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. U.S. v. Knotts, 460 U.S. 276, 281 (1982).
Iowa Code section 22.7 lists over seventy types of records that are considered confidential and can be withheld from release by the records custodian. Subsection 22.7(11), personal information in confidential personnel records, was cited as the legal reason for the redactions.
Subsection 22.7(11) defines this confidential record as:
11. a. Personal information in confidential personnel records of government bodies relating to identified or identifiable individuals who are officials, officers, or employees of the government bodies. However, the following information relating to such individuals contained in personnel records shall be public records:
(1) The name and compensation of the individual including any written agreement establishing compensation or any other terms of employment excluding any information otherwise excludable from public information pursuant to this section or any other applicable provision of law. For purposes of this paragraph, “compensation” means payment of, or agreement to pay, any money, thing of value, or financial benefit conferred in return for labor or services rendered by an official, officer, or employee plus the value of benefits conferred including but not limited to casualty, disability, life, or health insurance, other health or wellness benefits, vacation, holiday, and sick leave, severance payments, retirement benefits, and deferred compensation.
(2) The dates the individual was employed by the government body.
(3) The positions the individual holds or has held with the government body.
(4) The educational institutions attended by the individual, including any diplomas and degrees earned, and the names of the individual’s previous employers, positions previously held, and dates of previous employment.
(5) The fact that the individual resigned in lieu of termination, was discharged, or was demoted as the result of a disciplinary action, and the documented reasons and rationale for the resignation in lieu of termination, the discharge, or the demotion. For purposes of this subparagraph, "demoted" and "demotion" mean a change of an employee from a position in a given classification to a position in a classification having a lower pay grade.
b. Personal information in confidential personnel records of government bodies relating to student employees shall only be released pursuant to 20 U.S.C. § 1232g.
Subsection 22.7(11) does not define personal information. Iowa Code section 22.7 does not list any exemption that specifically addresses the question you pose.
In the case A.C.L.U. Foundation of Iowa, Inc. v. Records Custodian, 818 N.W. 2d 231 (2012) the Iowa Supreme Court provided some guidance in interpreting governmental employee records of personal information which public custodians may withhold from public inspection. The Iowa Supreme Court held that:
“The General Assembly intended that courts broadly interpret the disclosure requirement, but narrowly interpret the confidentiality exceptions. However, where the legislature has used broadly inclusive language in the exception, courts do not mechanically apply the narrow construction rule . . . [Quoting another cited decision DeLaMater v. Marion Civil Service Commission, 554 N.W. 2d 875, 878 (Iowa 1996)] . . . Courts will usually first examine the specific statutory provision involved to see if the statute delineates exactly what types of records or other information are considered private and thus subject to the public disclosure exemption. If, however, the particular record, report, or other information sought to be disclosed is not specifically listed in the personal privacy provision as a personal matter, or if the provision does not define those matters, the disclosure of which would constitute an invasion of personal privacy, the courts most often will apply general privacy principles, which examination involves a balance of conflicting interests-the interest of the individual in privacy on the one hand against the interest of the public’s need to know on the other. . . In summary, to determine if requested information is exempt under section 22.7(11), we must first determine whether the information fits into the category of ‘personal information in confidential personnel records.’ We do this by looking at the language of the statute, our prior caselaw, and case law from other states. If we conclude the information fits into this category, then our inquiry ends. If it does not, we will then apply the balancing test under our present analytical framework.”
Applying this analysis to the factual situation you presented, as noted in the above paragraphs, Iowa Code Section 22.7 (11) does not specifically list video footage from a traffic accident that a government body also uses to consider in determining personnel matters as something specifically exempt by the plain language of the statute from disclosure. Therefore, one could first look to case law from Iowa to determine whether police department video footage from a traffic accident constitutes a public record which a government body may exempt from disclosure under the Open Records Act, Iowa Code Section 22. A.C.L.U. Foundation of Iowa, Inc. v. Records Custodian, 818 N.W. 2d 231 (2012).
In the case Doe v. University of Iowa, 828 N.W. 2d 326, the Iowa Court of Appeals provided further clarification for determining how the balancing test applies between the public’s right to know versus a governmental employee’s interest in privacy. The Iowa Appeals Court held the balancing test involved five factors in determining whether the public’s right to know outweighed an employee’s right to privacy, including:
“(1) the public purpose of the party requesting the information; (2) whether the purpose could be accomplished without the disclosure of personal information; (3) the scope of the request; (4) whether alternative sources for obtaining the information exists; and (5) the gravity of the invasion of personal privacy.” Doe v. University of Iowa, 2013 Iowa App. LEXIS 3, at 12-13.
In Doe v. University of Iowa, a public employee disputed whether a news organization could examine an employment settlement agreement paid with government funds for an investigative story. In that case, the Iowa Appeals Court reasoned that a news organization’s purpose involved public education about how taxpayer money was being spent on resolving private employment disputes, which weighed in favor of disclosure.
The Court considered the second factor, whether the news organization’s purpose could be accomplished without the disclosure of personal information, and found that without reviewing the settlement agreement, the news organization could not educate the public.
The Court found that the third factor, the scope of the request, was fairly limited to the types of settlement agreements involving taxpayer dollars, and that a narrow or limited request weighs in favor of disclosure.
For the fourth factor, the Court found limited evidence of alternative sources existed outside of testimony, and that factor weighed in favor of the employee’s right to privacy.
Considering the fifth factor, the gravity of the invasion of personal privacy, the Court examined that the settlement agreement itself provided that it would remain confidential to the extent permitted by law. However, the Court ruled in favor openness of the public record, reasoning that the University of Iowa could not contract beyond its authority to do so under the Open Records Act, Section 22.
Applying that balancing test to the police department’s refusal to provide police video of a public traffic accident, since it is not specifically exempted under Iowa Code Section 22.7 (11), considering the first factor (1) the public purpose of the party requesting information, it is clear from your article that the public purpose of the Des Moines Register requesting this information serves several purposes: a family’s desire to know more about what caused the accident in getting insurance coverage, the Iowa Public’s right to know about how police officers’ driving mistakes cause greater danger to the roadways, educating the Iowa Public on how police driving errors may contribute to dangerous roadways, as well as educating the Iowa Public on how use of its tax dollars for video footage of traffic accidents contributes to a better understanding of auto collisions. This factor weighs in favor of disclosure, as everyone using the roadways and paying taxes has an interest in safe driving and proper determination of the cause of auto accidents when they occur.
The second factor, whether the purpose could be accomplished without the disclosure of personal information also weighs in favor of disclosure. The other drivers were facing forward when the officer allegedly rear ended their vehicle. The witnesses lacked the view and information that the camera footage could provide, or that objective analysis of the video could provide. Furthermore, it is doubtful that a traffic accident which occurs in a traditionally public forum, a street, in full public view of anyone outside on that day, affords the officer a large expectation of privacy.
The third factor, the scope of the request, [to view camera footage of the traffic accident in which the officer is alleged to have caused a rear end accident], seems fairly limited to the objectives of educating the public about ensuring safe roadways and use of its taxpayer money in accomplishing that purpose. It does not seek personal details such as the officer’s home phone number, the officer’s private disciplinary admonitions or annual reviews that one could more rightfully regard as “personal information” within the meaning of Iowa Code Section 22.7 (11).
The fourth factor, there exists no indication that any alternative sources for obtaining this information exist, as is referenced in analyzing the second factor. The other parties/witnesses to the accident involve a family facing forward unable to visualize what occurred behind them at the moment of the accident. Therefore, the written and audiovisual police records provide the only source of learning what caused the accident and provide public education on how officer mistakes may contribute to unsafe roadways.
The fifth factor, the gravity of the invasion of personal privacy, also weighs in favor of disclosure. Something which occurs in full public view on a public roadway does not afford anyone a strong expectation of privacy. An officer has a right to expect privacy in annual reviews, personal reprimands in the file, his/her home address or telephone number from his/her work file, but not a right to expect any more privacy than any other citizen while operating a public vehicle, with taxpayer funded body cameras, on a public roadway in full public view.
Therefore, we conclude that police departments may not refuse to release camera footage of traffic accidents on public roadways, merely because one of the parties to the traffic accident happens to serve the police force, and the department considers the information as a factor in its personnel determinations.
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.
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.
BY DIRECTION AND VOTE OF THE BOARD.
Mary Ungs-Sogaard, Chair
E.J. Giovanetti
Keith Luchtel
Monica McHugh
Frederick Morain
William Peard
Julie Pottorff
Suzan Stewart
Renee Twedt
Prepared by:
Amanda T. Adams