The Iowa Public Information Board
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Revised Acceptance Order.
On September 17, 2020, Laura Belin filed formal complaint 20FC:0095, alleging that the University of Iowa (UI) violated Iowa Code chapter 22 in its interpretation of Iowa Code section 22.7(65).
Ms. Belin stated that she requested certain records from the UI on April 23, 2020. She was quoted a fee for the records, which she paid on May 11, 2020. She stated she continued to inquire about the status of her record request during the summer. The records were released to her on July 31, 2020. The UI noted that the delay in releasing records was due to an unusually high number of records requests being processed at that time.
Following receipt of these records, Ms. Belin alleged that she requested attachments in the provided emails on August 10, 2020. She also requested the full text of an April 22, 2020, email from a UI doctor that was redacted in the records she received on July 31, 2020.
On August 13, 2020, the UI clarified that the requested attachments were included with the emails and instructions were provided to Ms. Belin on how to access them. The redacted email was not released, as the UI determined it was confidential pursuant to Iowa Code section 22.7(65). Ms. Belin disagrees with this interpretation.
The redacted email concerns the following: On April 21, 2020, a reporter emailed a UI doctor with questions concerning their work on predictive modeling for the COVID-19 pandemic in Iowa. The UI doctor had previously responded to reporters in their capacity as Head of the Department of Biostatistics. Before responding on this occasion, the UI doctor sent an email on April 22, 2020, to two Iowa Department of Public Health (IDPH) officials with the language to be used in the response to the reporter.
The UI doctor provided IDPH officials the opportunity to review the language for any concerns or suggested revisions. The language composed by the UI doctor on April 22, 2020, for a response to the reporter is what was redacted in the email to the IDPH officials.
Legal counsel for the UI responded to the complaint on September 29, 2020. The response argues that Iowa Code section 22.7(65) does apply to the doctor’s email, citing the IPIB advisory opinion AO 2015-01 and the criteria set forth in that opinion for the interpretation of the code section.
Counsel states, “Even if the faculty member was considered a public official authorized to adopt or execute official policy and a response to the media inquiry was considered the execution of official policy, the faculty member did not use the draft version of the statement in the final version/response to the media inquiry.”
The UI does not consider the UI employee to be a public official nor was he authorized to execute official policy on behalf of the university.
Ms. Belin responded to UI’s statements with the following:
Although the University of Iowa now maintains that Dr. Cavanaugh is not a "public official," he was named to lead the group of UI researchers working on modeling for the Iowa Department of Public Health. In that role, he was authorized to communicate with IDPH and with members of the media.
Many Iowa reporters sought and received comments from Dr. Cavanaugh about the working group and its recommendations to the IDPH during the spring and early summer. At no time were any of us told Dr. Cavanaugh couldn't speak to the press or that we needed to go through a UI communications staffer. In other words, Dr. Cavanaugh was authorized by the university to answer reporter questions like the one Barbara Rodriguez submitted, the reply to which has been redacted by UI.
At issue in this matter is the interpretation of Iowa Code section 22.7(65), which describes certain records as confidential:
65. Tentative, preliminary, draft, speculative, or research material, prior to its completion for the purpose for which it is intended and in a form prior to the form in which it is submitted for use or used in the actual formulation, recommendation, adoption, or execution of any official policy or action by a public official authorized to make such decisions for the governmental body or government body. This subsection shall not apply to public records that are actually submitted for use or are used in the formulation, recommendation, adoption, or execution of any official policy or action of a governmental body or government body by a public official authorized to adopt or execute official policy for the governmental body or government body. (Emphasis added).
The IPIB provided guidance for the interpretation of this subsection in AO 2015-01 by listing requirements to be met when determining applicability:
IPIB establishes the following criteria to determine if a document falls within this exception:
1. The document is tentative, preliminary, draft, speculative or research material;
2. The document exists in a form prior to completion of its intended purpose;
3. The document exists in a form prior to the form that is ultimately submitted for use or used in the actual formulation, recommendation, adoption or execution of any official policy or action by a public official with authority to make such decisions; and
4. The document must not have been submitted to or used by a public official authorized to adopt or execute official policy. (Emphasis added.)
Legal counsel for the UI cites Iowa Code sections 68B.2(17), (20), and (22) for the definition of “public official”:
68B.2(17). “Official” means all statewide elected officials, the executive or administrative head or heads of an agency of state government, the deputy executive or administrative head or heads of an agency of state government, members of boards or commissions as defined under section 7E.4, and heads of the major subunits of departments or independent state agencies whose positions involve a substantial exercise of administrative discretion or the expenditure of public funds as defined under rules of the board adopted in consultation with the department or agency and pursuant to chapter 17A. “Official” does not include officers or employees of political subdivisions of the state, members of the general assembly, legislative employees, officers or employees of the judicial branch of government who are not members or employees of the office of attorney general, members of state government entities which are or exercise the same type of authority that is exercised by councils or committees as defined under section 7E.4, or members of any agricultural commodity promotional board, if the board is subject to a producer referendum.
(20). “Public employee” means state employees, legislative employees, and local employees.
(22). “Public official” means officials, local officials, and members of the general assembly.
The IPIB advisory opinion does not provide guidance for determining the definition of “public official.” The IPIB has not addressed the definition of “public official” in the context of Chapters 21, 22, or 23.
Iowa Code section 23.8 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 meets those requirements.
IT IS SO ORDERED: Formal complaint 20FC:0095 is accepted as legally sufficient pursuant to Iowa Code section 23.8(1) and Iowa Administrative Rule 497-2.1(2)(a). Parties are directed to work with IPIB staff to reach an informal resolution pursuant to Iowa Code section 23.9.
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 February 18, 2021. 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. Iowa Code chapter 22 does not provide an explicit deadline for production of records. The delay in this matter appears to be a good-faith reasonable delay and therefore is not grounds for acceptance.
2. Pursuant to Iowa Code section 23.6(6), IPIB staff conducted a confidential review of the email.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of February, 2021, to:
Ian Arp, legal counsel for the University of Iowa