Date:
09/20/2018
Subject:
Vern Ancelet/Burlington Police Department - Probable Cause Report and Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Vern Ancelet, Complainant And Concerning: Burlington Police Department, Respondent |
Case Number: 17FC:0074 Probable Cause Order |
This matter comes before the Iowa Public Information Board (IPIB) this 20th day of September, 2018, to consider a Probable Cause Report.
The Probable Cause Report recommends that the IPIB determine that probable cause does not exist to believe that the Burlington Police Department violated Iowa Code chapter 22.
The IPIB has determined that there is a lack of probable cause to believe that the Burlington Police Department violated Iowa Code chapter 22.
Pursuant to Iowa Administrative Rule 497-2.2(4)(b) the IPIB adopts the findings and recommendations of the Probable Cause Report and dismisses this complaint.
So ordered this 20th day of September, 2018.
_____________________________________
IPIB Chair
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of September, 2018, to:
Vern Ancelet
Holly Corkery, counsel for the Burlington Police Department
Before The Iowa Public Information Board
|
In re the Matter of: Vern Ancelet, Complainant And Concerning: Burlington Police Department, Respondent |
Case Number: 17FC:0074 Probable Cause Report |
COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and submits this Probable Cause Report:
On October 20, 2017, Vern Ancelet filed complaint 17FC:0074, alleging that the Burlington Police Department (BPD) violated Iowa Code chapter 22 by failing to release certain requested records. The records requested were police body camera footage.
Some records, but not all, were released. The records released were edited and incomplete, according to Mr. Ancelet. He challenged the legitimacy of the redactions as well as the withholding of records.
BPD responded to the complaint and noted that the records requested were confidential pursuant to Iowa Code section 22.5 as peace officers’ investigative reports.
Mr. Ancelet requested two sets of records from BPD as public records: records concerning an incident involving him and records concerning a police-involved shooting on the same day. He received the records concerning the second event. The first set of records were withheld as confidential records.
The IPIB accepted this complaint on January 18, 2018. Former IPIB legal counsel worked with the parties to reach an informal resolution. This effort was unsuccessful.
To assist with the informal resolution efforts, BPD provided copies of all records. The confidential records were provided with the protections of Iowa Code section 23.6(6), requiring that the records remain confidential.
The withheld records relate to a police investigation arising from an incident on June 19, 2015. Police responded to a domestic and medical incident involving Mr. Ancelet. Body camera footage was recorded by the two responding officers.
It is apparent from a confidential review of the recordings that the protections of Iowa Code section 22.7(2) and 22.7(5) apply:
22.7 Confidential records.
The following public records shall be kept confidential, unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information:
...
2. Hospital records, medical records, and professional counselor records of the condition, diagnosis, care, or treatment of a patient or former patient or a counselee or former counselee, including outpatient. However, confidential communications between a crime victim and the victim’s counselor are not subject to disclosure except as provided in section 915.20A. However, the Iowa department of public health shall adopt rules which provide for the sharing of information among agencies and providers concerning the maternal and child health program including but not limited to the statewide child immunization information system, while maintaining an individual’s confidentiality.
...
5. Peace officers’ investigative reports, privileged records or information specified in section 80G.2, and specific portions of electronic mail and telephone billing records of law enforcement agencies if that information is part of an ongoing investigation, except where disclosure is authorized elsewhere in this Code. However, the date, time, specific location, and immediate facts and circumstances surrounding a crime or incident shall not be kept confidential under this section, except in those unusual circumstances where disclosure would plainly and seriously jeopardize an investigation or pose a clear and present danger to the safety of an individual. Specific portions of electronic mail and telephone billing records may only be kept confidential under this subsection if the length of time prescribed for commencement of prosecution or the finding of an indictment or information under the statute of limitations applicable to the crime that is under investigation has not expired.
The interpretation of Iowa Code section 22.7(5) is currently being litigated by the IPIB. However, that would not impact the applicability of Iowa Code section 22.7(2).
Unlike the matters being litigated by the IPIB in a separate complaint, Mr. Ancelet was present during the majority of this recording and may have access to the records separate from a public record request.
As the withheld records are confidential pursuant to Iowa Code sections 22.7(2) and 22.7(5), there is no probable cause to believe that BPD violated Iowa Code chapter 22.
IPIB Action
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:
a. Redirect the matter for further investigation;
b. Dismiss the matter for lack of probable cause to believe a violation has occurred;
c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter;
d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding; or
e. Direct administrative resolution of the matter under subrule 2.1(6) without making a determination as to whether a violation occurred.”
Subrule (e), above references subrule 2.1(6), which states:
“2.1(6) Administrative resolution. To assist with resolving complaints in an informal and expeditious manner, the board may, at any time during the complaint process, order administrative resolution of a matter by directing that a person take specified remedial action. A board order directing remedial action shall constitute final agency action for purposes of judicial review under Iowa Code chapter 17A.”
Recommendation
I would recommend that the IPIB make a determination that there is no probable cause to believe a violation of Iowa Code chapter 22 has occurred and dismiss this complaint pursuant to Iowa Code section 23.10 and Iowa Administrative Rule 497 - 2.2(4)(b).
By the IPIB Executive Director
_________________________________
Margaret E. Johnson, J.D.
Respectfully submitted this 14th day of September, 2018.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the 14th day of September, 2018, to:
Vern Ancelet
Holly Corkery, counsel for the Burlington Police Department