18AO:0015
Date: June 21, 2018
Subject: Application of Iowa Code section 22.7 to email addresses and cellular telephone numbers
Jill Kistler, county attorney
Allamakee County Courthouse
110 Allamakee Street
Waukon, Iowa 52172
Dear Ms. Kistler:
This opinion is in response to your filing of May 10, 2018, 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: You request an advisory opinion concerning the confidentiality of certain information collected by the Allamakee county treasurer.
In 2016, the Allamakee county treasurer initiated a practice of requesting email addresses and telephone numbers from taxpayers. The treasurer did this by asking taxpayers to fill out a voluntary form to provide an email address and cellular telephone number to make it easier for the treasurer’s office to contact taxpayers if a question would arise.
The form specifically stated: “This information will be used for our office only.” It is not mandatory for anyone to provide this information.
QUESTION:
Does Iowa Code section 22.7(18) allow this form to be protected from public release as a confidential record?
OPINION:
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(18) pertains to the records you include in your request.
Subsection 22.7(18) defines this confidential record as:
18. Communications not required by law, rule, procedure, or contract that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them to that government body if they were available for general public examination. As used in this subsection, “persons outside of government” does not include persons or employees of persons who are communicating with respect to a consulting or contractual relationship with a government body or who are communicating with a government body with whom an arrangement for compensation exists. Notwithstanding this provision:
a. The communication is a public record to the extent that the person outside of government making that communication consents to its treatment as a public record.
b. Information contained in the communication is a public record to the extent that it can be disclosed without directly or indirectly indicating the identity of the person outside of government making it or enabling others to ascertain the identity of that person.
c. Information contained in the communication is a public record to the extent that it indicates the date, time, specific location, and immediate facts and circumstances surrounding the occurrence of a crime or other illegal act, except to the extent that its disclosure would plainly and seriously jeopardize a continuing investigation or pose a clear and present danger to the safety of any person. In any action challenging the failure of the lawful custodian to disclose any particular information of the kind enumerated in this paragraph, the burden of proof is on the lawful custodian to demonstrate that the disclosure of that information would jeopardize such an investigation or would pose such a clear and present danger.
The IPIB has reviewed this section and provided the following opinion on its interpretation in IPIB AO 2017-09:
A communication to a government body can be kept confidential under Iowa Code section 22.7(18) only if all of the following 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.
In your scenario, these steps would require that the following questions should be answered before an application is withheld:
- Is this application required by a law, rule, procedure, or contract?
- Is the applicant someone who is not currently an employee of the Commission?
- Is our belief that this applicant would be discouraged from applying if the application was made public reasonable?
- When asked, did the applicant agree to the release?
If the answers to these questions are No, Yes, Yes, and No, then it would appear that Iowa Code section 22.7(18) would allow the Commission to withhold release of the job applications. If any answer to these questions is different, then section 22.7(18) would not apply.
Note that in this previous IPIB opinion, the records in question were job applications. There has been court interpretation on applying Iowa Code section 22.7(18) to job applications.
In 1988, the Iowa Supreme Court ruled that Iowa law allows for job applications to be kept confidential in City of Sioux City v. Greater Sioux City Press Club, 421 N.W.2d 895 (Iowa 1988). The Court ruled that applications could be kept confidential if the public agency could reasonably believe that applicants would be discouraged from applying otherwise. The Court reasoned that job applications are not required communications to the government body as applicants apply voluntarily. A Polk County district court judge expanded this analysis in 1992, to add that if an applicant has no objection to the release, then section 22.7(18) does not apply.
In your scenario, taxpayers who are not employees of government meet the requirements of the first two questions. Since the form specifically states that the information “will be used for our office only” the answer to the third question is probably “yes.” The only remaining issue is whether each taxpayer has granted approval for the release.
It may be difficult to determine approval since each form is individually distributed and collected. The form could be modified to include a ‘check-off’ line to allow each taxpayer to indicate approval for the release.
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
Keith Luchtel
Monica McHugh
Frederick Morain
William Peard
Julie Pottorff
Suzan Stewart
Renee Twedt
Submitted by:
Margaret E. Johnson, Executive Director