17AO:0001 Concerning Confidential Records Pursuant to Iowa Code section 22.8(4)(c)

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Advisory Opinions
Advisory Opinions: Confidential

17AO:0001

Date: January 19, 2017

Subject: Request for Guidance Concerning Confidential Records Pursuant to Iowa Code section 22.8(4)(c)

Robert Livingston, Counsel for Page County, Iowa

QUESTION:  Are the records requested from Page County, Iowa, public records available for release or confidential records pursuant to Iowa Code section 22.7?

Dear Mr. Livingston:

On September 6, 2016, you requested an advisory opinion concerning certain records in the custody of Page County and whether such records were public records or confidential records.  The record requestor, J. Benton Stewart, II, is an attorney representing the estate and minor children of a woman who was incarcerated in the Page County Jail.  During her incarceration, she became ill and subsequently died after medical treatment was sought.

Mr. Stewart did not request these items as public records, but instead requested “copies of the following items:”

  1. All videos from Booking and Housing for Page County from November 19 - December 2, 2015.

  2. All audio recordings of communications from Jessica Lee during her incarceration at Page County Jail from November 19 - December 2, 2015. (telephone or otherwise)

  3. Headcounts alphabetical and/or numeric of all housing assignments at Page County Jail (shows person who may have had close contact during the booking and housing.) from November 19 - December 2, 2015.

  4. All incident reports and disciplinary reports related to Jessica Lynn Lee from Page County Jail.

  5. All incident reports authored by the person who found Jessica Lynn Lee in her cell on December 1, 2015.

  6. Total number of facility incident reports written over the past three years dealing with “Drug related incidents inside the facilities commonly known as the Page County Jail.”We are just requesting the number, not the actual report.

  7. Total number of incident reports written over the past three years on Suicides and Attempted Suicides within the facilities at Page County Jail.

  8. Duty rosters on December 1, 2015, for Page County Jail.

  9. Duty roster of Medical Staff on duty at Page County Jail on December 1, 2015.

  10. All security watches and inmate well being watch reports for Page County Jail for November 19 - December 2, 2015.

  11. Grandmother’s call from Jessica, did she call or notify anyone at the facility.

  12. Documents reflecting date and time when recorded call on December 1, 2015, between Jessica Lee and her grandmother was accessed electronically.The phone number is 402-345-8413.

  13. The names of the other inmates in the Page County Jail from November 19 - December 9, 2015.

  14. Documents which show the layout of the jail, the inmate cells, and the inmates’ telephone areas where Jessica Lynn Lee was housed between November 19 - December 1, 2015, at the Page County Jail.

  15. The names of all of Jessica Lynn Lee’s cellmates from November 19 - December 1, 2015, at the Page County Jail.

  16. Copies of all recorded call from all inmates, excluding attorney privileged calls, made on or after December 1, 2015, through and including December 15, 2015.

  17. Complete intake records from November 19, 2015, including all medical assessments completed during intake for Jessica Lynn Lee.

  18. Jessica Lynn Lee’s medical records created by or for Page County Jail for all of her incarcerations between January 1, 2008 and December 1, 2015.This includes any medical reports received from outside vendors who performed contract work on behalf of the Page County Jail.

  19. Records from the jail clinic which list any personal hygiene items (i.e., sanitary pads) requested by and provided to Jessica Lee between November 19, 2015 and December 1, 2015.

  20. The mortality review report created for Jessica Lee.

The documentation you provided included two “Demands for Preservation” of any evidence, information, paper or electronic data relating to Jessica Lee.

Your letter included proposed responses to each requested item.  Some of the items requested are confidential records pursuant to Iowa Code section 22.7(50). This section makes those records relating to jail security procedures confidential if disclosure could “reasonably be expected to jeopardize … employees, visitors, persons or property.”  This exclusion applies to numbers 1, 2, 3, 8, 9, 10, and 14. Subsection 22.7(50)(b) directs the government body to adopt a rule or policy identifying the records to which this subsection applies.

Iowa Code section 22.7(9) defines certain criminal records as confidential: “Criminal identification files of law enforcement agencies. However, records of current and prior arrests and criminal history shall be public records.”  The provision applies to request numbers 13 and 15. Note, however, that to the extent these items include arrest and criminal history records, those portions of the requested records are public records.

Iowa Code section 22.7(18) could apply to number 16. You may want to determine whether inmates are advised that all telephone calls are recorded. If so, then it would not appear that outgoing calls are confidential.  Inmates could seek an injunction to prohibit release of any outgoing call. Calls to attorneys were excluded.

Numbers 17, 18, and 19 are confidential pursuant to Iowa Code section 22.7(2), the section that protects medical record release. You asked whether the federal Health Insurance Portability and Accountability Act (HIPAA) laws prohibit release. Determining the applicability of a federal law is beyond the jurisdiction of the IPIB. It is not necessary to review whether HIPAA applies for the purpose of this advisory opinion as Iowa Code section 22.7(2) does apply.

Iowa Code section 22.7(41) prohibits the release of what is commonly known as medical examiner records and reports.  That section does allow for limited release to certain individuals.  Mr. Stewart may be able to access request number 20 as counsel for the next of kin.  That would not, however, allow a release of this record to the general public.  Certain information from the medical examiner's report is public information, such as the cause and manner of death.

Items numbered 4, and 5 relate to certain incident reports and records related to Jessica Lynn Lee during her incarcerations at the Page County Jail.  Some records may be part of a peace officer investigative report, and therefore, deemed confidential pursuant to Iowa Code section 22.7(5).  Note, however, that section 22.7(5) does require the release of the “date, time, specific location, and immediate facts and circumstances surrounding a crime or incident….”  The Page County Jail would be required to release this information for any records within its possession.  Section 22.7(9), as noted above, also requires the release of certain arrest and criminal history records.

Two of the noted requests, numbered 6 and 7, do not ask for records. Instead, a compilation of certain information is requested. If such a record compiling this information exists, then it would appear to be a public record and not confidential under Iowa Code section 22.7. These two requests also appear to be discovery requests and not a request for a public record.

Item numbered 11 is not a record request. It appears to be an interrogatory request pursuant to discovery rules.  The IPIB does not review discovery requests.

If the record requested in Item 12 exists as a separate document, then it appears to be a public record.  Additional information is required to determine if this record would be confidential under Iowa Code section 22.7(5).

Mr. Stewart was contacted about his intent in requesting the listed items. He indicated that he did not consider his request to be a public records request, but a request unique to his position as the attorney for the estate. He is licensed in Florida and indicated that the information requested would not be public records under Florida law. He also expressed concern that the estate and survivors would consider seeking an injunction if the information was released publically.

You also posed two additional questions. The first was whether the Jail would be required to release the information mandated under Iowa Code section 22.7(5), discussed earlier. If the Jail is the lawful custodian of the peace officers investigative reports, then the Jail would be responsible for compiling and releasing the necessary information.

The second question asked what documentation would be needed to determine whether Mr. Stewart represents the next of kin for the release of medical examiner records under Iowa Code section 22.7(41). That question should be raised with the medical examiner’s office or the Page County attorney.

This opinion is requested from the Iowa Public Information Board (IPIB) pursuant to Iowa Code section 23.6 and rule 497-1.2. We note 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.

BY DIRECTION AND VOTE OF THE BOARD
Suzan Stewart, Chair
Keith Luchtel
William Peard
Renee Twedt  
Mary Ungs-Sogaard

Submitted by:
Margaret E. Johnson
Interim Executive Director