Date: November 16, 2017
Subject: Whether a recorded conversation between law enforcement and the guardian/conservator of a protected person can be considered confidential.
206 S. 2nd Street
Rock Rapids, IA 51246
Dear Ms. Mayer:
This opinion is in response to your letter of June 6, 2017, requesting an opinion from the Iowa Public Information Board (IPIB) pursuant to Iowa Code section 23.6 and rule 497—1.2. 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: A peace officer employed by Lyon County contacted the court-appointed guardian/conservator of a protected person concerning possible criminal conduct involving the protected person as a victim. The protected person owns property within Lyon County, but resides in a care center. The sheriff’s office received calls reporting that others had been entering into the property, raising concerns of criminal trespass. The guardian/conservator was contacted by law enforcement to determine whether law enforcement should issue a trespass warning to this individual. The guardian/conservator requested this protection on behalf of her ward.
Two individuals received official documentation of the guardian/conservator’s trespass warning. These individuals have subsequently requested the release of the telephone recording as a public record.
The call to the guardian/conservator was made from the desk telephone of the peace officer. All such calls are recorded and placed into the peace officer’s investigative report. No citations or arrest warrants have been made, however, future violations of the trespass warning could result in criminal charges.
- Is a telephone recording between a peace officer and a guardian/conservator concerning possible criminal activity a confidential record pursuant to Iowa Code sections 22.7(5), 22.7(18), and/or 22.7(62)?
- Does the time frame described in Iowa Code section 22.8(4)(d) apply to requests for a determination of the confidentiality of a record from the IPIB under Iowa Code section 22.8(4)(c)?
- Should any contents of the recording that reference personal matters of the ward’s property, medical care and condition, or ongoing care needs be kept confidential under Iowa Code chapter 22?
- Are there other provisions of the Iowa Code that may prohibit release of some or all of the recording?
Question 1: Is a telephone recording between a peace officer and a guardian/conservator concerning possible criminal activity a confidential record pursuant to Iowa Code sections 22.7(5), 22.7(18), and/or 22.7(62)?
A recording of a telephone conversation in the custody of a government body, such as the Lyon County Sheriff’s Department, is a record within the definition of Iowa Code section 22.1(3)(a):
3. a. “Public records” includes all records, documents, tape, or other information, stored or preserved in any medium, of or belonging to this state or any county, city, township, school corporation, political subdivision, nonprofit corporation other than a fair conducting a fair event as provided in chapter 174, whose facilities or indebtedness are supported in whole or in part with property tax revenue and which is licensed to conduct pari-mutuel wagering pursuant to chapter 99D, or tax-supported district in this state, or any branch, department, board, bureau, commission, council, or committee of any of the foregoing.
Iowa Code section 22.7 outlines over 70 types of records that can be retained as confidential. You identified three subsections and questioned whether this record could be considered confidential under each subsection.
Iowa Code section 22.7(5) provides that peace officer’s investigative reports can be withheld as confidential. You state that the recording in question was created as part of a criminal investigation. The contents of the record could fall within this section, as long as the noted information (“date, time, specific location, and immediate facts and circumstances”) is released.
Iowa Code section 22.7(18) provides that certain communications received by a government body can be kept confidential. The Iowa Public Information Board has previously opined that for this section to apply, all of the following must exist:
- The communication is not required by law, rule, procedure, or contract.
- It is from identified persons outside of government.
- The government body could reasonably believe those persons would be discouraged from communicating with government if the information was made public.
- And, nevertheless, the information can still be released if the person communicating with government consents to its release or if it can be released without identifying the person.
This section could apply if you can establish that these four criteria exist. The criteria may only apply to conservations initiated by a person outside of government.
Iowa Code section 22.7(62) provides that certain records maintained by the department on aging can be considered as confidential. This section would not seem to apply, as the record was created and is maintained by the Lyon County Sheriff.
Question 2: Does the time frame described in Iowa Code section 22.8(4)(d) apply to requests for a determination of the confidentiality of a record from the IPIB under Iowa Code section 22.8(4)(c)?
Iowa Code section 22.8 provides the mechanism for the “lawful custodian or any other person to seek an injunction to restrain examination of a specific public record or a narrowly drawn class of public records.”
Subsection 22.8(4) allows for a “good-faith, reasonable delay by a lawful custodian in permitting the examination and copying of a government record….” Four subsections describe the allowed purpose for such a delay.
Subsection 22.8(4)(d) states that a delay is permissible to allow for a determination of whether a confidential record can be available, but that this delay “shall not exceed twenty calendar days and ordinarily should not exceed ten business days.” (Emphasis added.)
Iowa Code section 22.8(4)(c) permits a delay to “determine whether the government record in question is a public record, or a confidential record.” No time frame is included in this subsection.
It does not appear that the time limitations imposed in subsection 22.8(4)(d) apply to subsection 22.8(4)(c). Had the legislature intended to impose specific time frames throughout section 22.8(4), those time frames would have been included in the opening paragraph of this subsection, or, at least, repeated in each of the four subsections describing the allowed purpose.
In addition, it is understandable that determining whether a government record is a confidential record (22.8(4)(c)) could be dependent upon the time necessary to seek input from others. Subsection 22.8(4)(d) assumes that the record in question has already been determined to be a confidential record, and the purpose for any subsequent delay is limited to a relatively quicker decision of whether or not to release this confidential record. This delay would also allow a limited amount of time for another person to seek an injunction as allowed by Iowa Code section 22.8(1).
Question 3: Should any contents of the recording that reference personal matters of the ward’s property, medical care and condition, or ongoing care needs be kept confidential under Iowa Code chapter 22?
Iowa Code section 22.7 describes numerous records that can be kept confidential. Section 22.7(2) applies to medical records referencing the condition, diagnosis, care, or treatment of a person. There could be parts of the recording that fall within this subsection. It may be possible to redact portions of the recording that are protected by this subsection.
Question 4: Are there other provisions of the Iowa Code that may prohibit release of some or all of the recording?
This question is not within the jurisdiction of the Board. Rule 497-1.2 states:
497—1.2(23) Requirements for requesting board advisory opinions. 1.2(1) Jurisdiction. The board will only issue advisory opinions pertaining to Iowa Code chapters 21 and 22, or rules adopted thereunder. The board shall not have jurisdiction over the judicial or legislative branches of state government or any entity, officer, or employee of those branches, or over the governor or the office of the governor.
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. Giovannetti
Margaret E. Johnson, Executive Director
November 16, 2017