17AO:0009 Is the Fayette County Solid Waste Commission (Commission) required to release certain job application information pursuant to a public records request under Iowa Code chapter 22?

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Advisory Opinions: Confidential

17AO:0009 

Date: September 21, 2017
  Subject: Is the Fayette County Solid Waste Commission (Commission) required to release certain job application information pursuant to a public records request under Iowa Code chapter 22?

John S. Anderson
Anderson, Wilmarth, Van Der Maaten, Belay, Fretheim, Gipp & Zahasky Law Firm
212 Winnebago Street, POB 450
Decorah, IA  52101

QUESTION:  Is the Fayette County Solid Waste Commission (Commission) required to release certain job application information pursuant to a public records request under Iowa Code chapter 22?

Dear Mr. Anderson:

On July 19, 2017, you posed a question to the Iowa Public Information Board (IPIB) concerning the release of certain records in the custody of the Fayette County Solid Waste Commission (Commission).  In particular, the Commission has job applications from applicants for a production worker position at the Fayette County Recycling Center.  The open position was advertised on January 31, 2017, and the successful applicant hired in March 2017.

You further noted that a radio station asked for copies of all completed job applications, a list of all applicants invited for an interview, the name(s) of any applicant(s) offered the job and the date(s) of such offer(s), and the name of the applicant who accepted the job.  The only records within the custody of the Commission are the job applications.  The other requested records do not exist.

You stated that all applicants were contacted concerning this request, and only one applicant consented to the release of the information.  You added that the Commission β€œbelieves that job applicants will be discouraged from applying for a job with the Commission if their job application is available for public examination and is not confidential.  Among other concerns, a concern expressed by members of the Commission is that potential job applicants would be discouraged from applying out of fear that their current employer may take negative action against them if the current employer discovers the job applicant is searching for another job.”    

In 1988, the Iowa Supreme Court ruled that Iowa law allows for job applications to be kept confidential, under the current Iowa Code section 22.7(18), 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.

In 1992, a Polk County district court judge ruled that if an applicant had no objection to the release, then Iowa Code section 22.7(18) would not apply.

On the IPIB website, this guidance on interpreting Section 22.7(18) is offered:

A communication to a government body can be kept confidential under Iowa Code section 22.7(18) only if all of the following exist:

  1. The communication is not required by law, rule, procedure, or contract.
  2. It is from identified persons outside of government.
  3. The government body could reasonably believe those persons would be discouraged from communicating with government if the information was made public.
  4. 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:

  1. Is this application required by a law, rule, procedure, or contract?
  2. Is the applicant someone who is not currently an employee of the Commission?
  3. Is our belief that this applicant would be discouraged from applying if the application was made public reasonable?
  4. 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.

You indicate that there are no records that satisfy the remainder of the records request.  However, the individual hired would be an employee of the Commission.  In that case, Iowa Code section 22.7(11) outlines the information that must be released from employee personnel files in answer to the last record request.

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
Mary Ungs-Sogaard, Chair
E. J. Giovannetti
Keith Luchtel
Monica McHugh
Rick Morain
William Peard
Julie Pottorff
Suzan Stewart
Renee Twedt
 

Submitted by:
Margaret E. Johnson
Executive Director