Date:
01/19/2017
Subject:
Jason Clayworth / University of Iowa - Probable Cause Report and Order
Opinion:
Before the Iowa Public Information Board
SUMMARY: Formal complaint filed by Jason Clayworth, against the University of Iowa (UI) on November 6, 2014, alleging a violation of Iowa Code Chapter 22 for failure to release certain records. Complaint was accepted by the Iowa Public Information Board (IPIB) on December 18, 2014. Efforts to resolve this matter informally pursuant to Iowa Code section 23.9 were unsuccessful. A formal investigation has been conducted. Recommend that this matter be dismissed for lack of probable cause.
BACKGROUND
On November 6, 2014, Jason Clayworth filed a formal complaint alleging that the University of Iowa (UI) violated Iowa Code chapter 22 by refusing to release records requested in August of 2014 by Mr. Clayworth and Bryce Miller, another media representative from the Des Moines Register.
Counsel for UI initially informed Mr. Clayworth on September 5, 2014, that the emails would be reviewed by UI staff to ensure that no confidential information was inadvertently released. In addition, UI counsel expressed concern that the records requested could contain information that was prohibited from release by the Federal Educational Rights and Privacy Act (FERPA) and/or the Health Insurance Portability and Accountability Act (HIPAA).
Some records were initially released on November 2, but others were denied. In particular, communications between an UI employee and another named person were not released.
Mr. Clayworth also expressed concerns with the UI policy that allowed individual employees to retrieve emails and other records rather than utilizing an independent or neutral service to retrieve records. This could allow individual employees to conduct an inadequate search or to delete records that were subject to release. He also indicated that he did not object to the redaction of information in each record that could violate FERPA or HIPAA protections.
After the complaint was filed, counsel for UI filed a formal response on November 25, 2014. In that response, UI included a copy of the UI policy that states if a document is a student record under FERPA then it will be treated as private and confidential. The records at issue were considered FERPA protected as they were either communications from students or from a parent of a student. Counsel also noted that redacting names would not allow the release of the records, as the identity of the student could be determined from the content of the email. The Field Hockey program is relatively small, and the students participating more easily identified by the content of the records at issue.
UI counsel also noted that some of the emails concerned personnel issues, identified as confidential pursuant to Iowa Code section 22.7(11).
Prior to the acceptance of the complaint, IPIB staff met with all parties to discuss possible informal resolution. Due to the complexity of the issues, and the need to pursue further negotiations, the decision was made to recommend acceptance of the complaint. The IPIB formally accepted the complaint on December 18, 2014.
After acceptance, additional attempts were made to reach an informal resolution. The records at issue were reviewed by Charlie Smithson, then Executive Director of the IPIB, and by Margaret Johnson, Interim Executive Director. An Investigative Report and Recommendations was submitted to the IPIB members on February 15, 2016, but no action was taken. That report recommended that the complaint be dismissed for lack of probable cause.
DISCUSSION
Iowa Code section 22.7(1) identifies certain student records as confidential: “Personal information in records regarding a student, prospective student, or former student maintained, created, collected or assembled by or for a school corporation or educational institution maintaining such records….” There is no argument that these records are student records that can be considered confidential pursuant to this section.
Mr. Clayworth indicated in his record requests that he understood that the UI would need to review and redact any personal information from the emails requested. UI responded that redacting names of the students would not be sufficient to protect the personal information of the students.
Both parties acknowledged that the protections granted by the Family Educational Rights and Privacy Act (FERPA) also would govern the release of the requested records. Parties were unable to agree upon the level of redaction that could be possible under FERPA provisions for release of the records.
FERPA is a federal law designed to protect the privacy of students and parents with respect to educational records. The full text of FERPA is found at 34 CFR 99, 20 U.S.C. 1232g. The Iowa Supreme Court has ruled that Iowa Code chapter 22 incorporates the confidentiality provisions from FERPA (Press Citizen Company, Inc. V. University of Iowa, 817 N.W.2d 480 (Iowa 2012)).
FERPA restricts the release of any “personally identifiable information” from educational records. The term includes names and addresses of students and parents, social security and student numbers, indirect identifiers (date of birth, place of birth), and two additional definitions that specifically relate to the issues in this complaint:
- Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or
- Information requested by a person who the educational agency or institution reasonably believes knows the identity or the student to whom the educational record relates.”
(34 CFR 99.3, 20 U.S.C. 1232g)
The requested records concerned specific students and parents of students in the UI Field Hockey program and specific incidents concerning how the students were treated by named individuals associated with the Field Hockey program and with UI. There was no level of redaction possible that would protect against the release of personally identifiable information. The in camera review by IPIB staff confirms this position.
FERPA does allow the release of personally identifiable information in certain circumstances that are not applicable to this factual situation. There are also provisions in the federal law that permits a parent or eligible student to consent in writing to the release of certain records. Such consent must include specific information and identify the specific recipients of the information. This is not a waiver of the FERPA privacy protections that attach to the educational record.
Based upon the review of the records and the specific provisions of Iowa Code section 22.7(1) and federal law protections under FERPA, there is no probable cause to believe there has been a violation of Chapter 22. The complaint should be dismissed pursuant to Iowa Code section 23.10(2).
Mr. Clayworth also raised concerns about how UI retrieves records pursuant to a request for records under Chapter 22 and how and where records are retained at UI. UI does not have a central location for record storage, nor does it have a designated lawful custodian overseeing the entire university. As a result, email records are often stored on the writer or recipient’s computer, and UI relies upon that person to retrieve any requested records.
While these concerns are valid, record retrieval and retention is not addressed by Chapter 22. Therefore, for the purposes of this complaint, the IPIB has no jurisdiction over the issues, and probable cause cannot be found pursuant to Iowa Code section 23.10(2).
RECOMMENDATION
The IPIB has several options upon receipt of a probable cause report. According to Iowa Administrative Rule 497 - 2.2(4):
“Board action. Upon receipt and review of the staff investigative report and any recommendations, the board may:
-
Redirectthematterforfurtherinvestigation;
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Dismissthematterforlackofprobablecausetobelieveaviolationhasoccurred;
-
Makeadeterminationthatprobablecauseexiststobelieveaviolationhasoccurred,but,asanexerciseofadministrativediscretion,dismissthematter;or
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Makeadeterminationthatprobablecauseexiststobelieveaviolationhasoccurred,designateaprosecutoranddirecttheissuanceofastatementofchargestoinitiateacontestedcaseproceeding”.
Probable cause is not specifically defined in Chapters 21, 22 and 23. It is defined in legal dictionaries as the “apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution, or that a cause of action has accrued, justifying a civil lawsuit.”
Based upon the formal investigation conducted by IPIB staff, and upon Iowa Code section 22.7(1) and federal laws (FERPA), I recommend that the IPIB enter a finding the probable cause does not exist to believe that a violation has occurred and dismiss this complaint pursuant to Iowa Code section 23.10(2) and Iowa Administrative Rule 497 – 2.2(4)(b).
Respectfully submitted this 29th day of December, 2016. Margaret E. Johnson, JD
Interim Executive Director
Cc: IPIB
Jason Clayworth
Carroll Reasoner, counsel for the University of Iowa