The Iowa Public Information Board
COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
On June 19, 2020, Nate Jones filed formal complaint 20FC:0061, alleging that the Iowa Department of Public Health (DPH) violated Iowa Code chapter 22.
In his complaint, he stated that on June 17, 2020, he requested a “copy of the emergency Iowa plan for a pandemic.” He alleged that he received a response from the DPH on June 18, 2020. The response provided a “brief summary” of the requested plan and then stated:
This pandemic plan is confidential under Iowa Code section 22.7(50), which provides that: “Information and records concerning physical infrastructure, cyber security, critical infrastructure, security procedures, or emergency preparedness developed, maintained, or held by a government body for the protection of life or property, if disclosure could reasonably be expected to jeopardize such life or property. Such information and records include emergency response protocols.” So, I’m unable to send you the document, but have provided an overview above.
Mr. Jones reported that other states have provided a copy of their pandemic plan. He further stated that he considers the confidentiality provisions of Iowa Code section 22.7 to be discretionary.
Heather Adams, assistant Attorney General, responded on behalf of the DPH. She noted:
As the Iowa Department of Public Health has indicated, it is the Department’s position that the plan and its attachments and annexes are confidential pursuant to Iowa Code section 22.7(50). This section provides in relevant part that the following documents are confidential:
Information and records concerning physical infrastructure, cyber security, critical infrastructure, security procedures, or emergency preparedness developed, maintained, or held by a governmental body for the protection of life or property, if disclosure could reasonably be expected to jeopardize such life or property. Such information and records include but are not limited to information directly related to vulnerability assessments; information contained in records relating to security measures such as security and response plans; …security or response procedures; emergency response protocols; and information contained in records that if disclosed would significantly increase the vulnerability of critical physical systems or infrastructures to attack.
The documents requested by Mr. Jones are emergency response plans and protocols directly covered by this exclusion. While an overview of the plan was provided to him, disclosing the entire plan and its attachments and annexes could jeopardize life or property, including but not limited to Department communication systems; government infrastructure, supplies, medications, and property; hospital equipment and other property; and the property of other state and local response partners.
In American Civil Liberties Union Foundation of Iowa, Inc., v. Records Custodian, Atlantic Community School District, 818 N.W.2d 231 (Iowa 2012), the Iowa Supreme Court discussed whether a balancing test is appropriate in reviewing a request for confidential records:
The Act essentially gives all persons the right to examine public records. Iowa Code § 22.2 (2009). However, it then lists specific categories of records that must be kept confidential by those responsible for keeping records. Id. § 22.7. Accordingly, these records are exempt from disclosure. Id. The general assembly has amended this list numerous times over the years. Over sixty categories of records are currently exempt from disclosure. See id. § 22.7. We have previously determined the general assembly intended that we broadly interpret the disclosure requirement, but narrowly interpret the confidentiality exceptions. DeLaMater v. Marion Civil Serv. Comm’n, 554 N.W.2d 875, 878 (Iowa 1996). We have also stated, however, that “where the legislature has used broadly inclusive language in the exception, we do not mechanically apply the narrow-construction rule.” Id.
And at 234:
We have reiterated this rule in response to arguments that we must nonetheless determine whether the public's “right to know” outweighs the government entity's interest in privacy even where we find section 22.7 exempts information from disclosure. See Gabrilson v. Flynn, 554 N.W.2d 267, 273 (Iowa 1996) (“ ‘[I]t is not our responsibility to balance competing policy interests. This balancing is a legislative function and our role is simply to determine the legislature's intent about those policy issues.’ ” (quoting Ne. Council on Substance Abuse, Inc. v. Iowa Dep't of Pub. Health, 513 N.W.2d 757, 761 (Iowa 1994))).
The Iowa Supreme Court has determined that balancing the public’s right to know against the government’s interest in privacy is not automatically applied when reviewing a confidentiality exemption in Iowa Code section 22.7. Some subsections may require balancing; others do not.
Section 22.7(50) is specific in that it lists examples of documents that do fall within the section, such as “emergency response protocols”, “emergency preparedness information”, and “vulnerability assessments” that “if disclosed would significantly increase the vulnerability of … infrastructures of a government body to attack.” A pandemic response plan clearly falls within this definition.
Iowa Code section 22.7 allows a lawful custodian to release an authorized confidential record, but does not require such release. The IPIB is not “duly authorized” to release an otherwise confidential record. In fact, Iowa Code section 23.6(6) requires the IPIB to maintain confidentiality.
Therefore, the DPH did not violate Iowa Code chapter 22 by declining to release records confidential under Iowa Code section 22.7(50).
Iowa Code section 23.8(1) requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and could have merit before the IPIB accepts a complaint. This complaint does not fulfill the requirements of Iowa Code section 23.8(1).
IT IS SO ORDERED: Formal complaint 20FC:061 is dismissed as legally insufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b).
Pursuant to Iowa Administrative Rule 497-2.1(3), the IPIB may “delegate acceptance or dismissal of a complaint to the executive director, subject to review by the board.” The IPIB will review this Order on July 16, 2020. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
Margaret E. Johnson, J.D.
1. “This discretion is in favor of broad public access and exemptions should be construed narrowly.” From Mr. Jones’ complaint.
2. American Civil Liberties Union Foundation of Iowa, Inc., v. Records Custodian, Atlantic Community School District, 818 N.W.2d 231, 233 (Iowa 2012)
3. Confidential records provided to the board by a governmental body or a government body shall continue to maintain their confidential status. Any member or employee of the board is subject to the same policies and penalties regarding the confidentiality of the document as an employee of the governmental body or a government body. Iowa Code section 23.6(6)
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of July, 2020, to:
Heather Adams, assistant Attorney General, counsel for the Iowa Department of Public Health