Date:
01/28/2019
Subject:
Andy Trumbauer/City of Jesup - Probable Cause Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Andy Trumbauer, Complainant And Concerning: City of Jesup, Respondent |
Case Number: 18FC:0003 Fourth Revised Probable Cause Report |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and submits this Fourth Revised Probable Cause report. (Revisions in boldface type.)
On January 5, 2018, Andy Trumbauer filed complaint 18FC:0003 with the IPIB, alleging that the City of Jesup (City) violated Iowa Code chapters 21 and 22.
Mr. Trumbauer alleged that the City violated Iowa Law by failing to release a public record, specifically a recording made before, during, and after a budget workshop meeting held at City Hall on the evening of December 18, 2017. He requested the footage from 30 minutes prior to the start of the meeting until one hour after adjournment.
The requested video was not released. The city attorney stated in a letter dated January 3, 2018, that the record was confidential pursuant to Iowa Code sections 22.7(65) and 22.15. Preliminary review of the facts indicate that these sections do not apply to the content of this record.
This formal complaint was accepted by the IPIB on February 15, 2018. Pursuant to Iowa Code section 23.9, IPIB staff attempted to resolve the complaint through an informal resolution.
Portions of the requested records were released to the complainant on January 3, 2018. However, the recording made after the meeting was adjourned on December 18, 2017, was not released.
Counsel for the City stated that the retained video was confidential pursuant to Iowa Code section 22.7(65). That section allows the retention of a public record that is:
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.
The IPIB issued advisory opinion AO 2015-01 interpreting this section of the Iowa Code. In that opinion, the IPIB stated that four criteria must be met for this subsection to apply:
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.
In applying this criteria, the document must truly be a draft that is not in its final form to be submitted to a public official who has authority to make decisions regarding the subject matter to which the draft applies. In addition, if the draft has been submitted to a public official authorized to adopt or execute official policy, the exception does not apply.
This advisory opinion does not address whether this subsection can apply to a video recording.
Counsel for the City argued that AO 2015-01 does not apply to this complaint because the record is a video recording rather than a document. Instead, he states the recording is confidential under Iowa Code section 22.7(65) as “preliminary material used in the formulation of any official action.”
He explained:
“Nevertheless, the conservation, and the video recording of it, meets all the criteria of subsection 65. It was preliminary and speculative, it occurred prior (to) completion of the appointment, it did not exist in a form to be used in the actual appointment, and it involved an official governmental action. See Iowa Code section 22.7(65). The fact that no one knew they were being recorded is irrelevant. Iowa Code section 22.7(65) protects the ability of government actors to deliberate in confidence. The City has rightly asserted that protection in this case.”
The recording equipment installed at the city hall ran on a continual feed in 2017, counsel reported. Since then, the equipment is only used to record official government functions. It is unlikely that the two councilmembers captured on the December 2017 video were aware that their conversations were being recorded until after the recording was made.
Counsel for the City provided a copy of the video to the IPIB for review, with the record to remain confidential pursuant to Iowa Code section 23.6(6). The IPIB reviewed this confidential recording prior to considering this second revised probable cause report.
On August 16, 2018, the IPIB met in a closed session to view the subject video recording, with the record to remain confidential pursuant to Iowa Code section 23.6(6). Following the closed session, the IPIB determined that there is probable cause to believe the City violated Iowa Code chapter 22 and directed IPIB staff take additional steps to reach an informal resolution.
The City voted 4 to 1 at a meeting on October 2, 2018, to reject the IPIB’s settlement offer.
On November 6, 2018, the City voted to resolve this complaint by agreeing to allow Mr. Trumbauer to view the video without copying. The City would maintain that the video is not confidential nor a public record. Following the viewing, the video would be destroyed.
The City also agreed to issue a statement that the video recording device at City Hall mistakenly recorded private conversations and that steps have been taken to prevent the recording of private conversations or events in the future.
Mr. Trumbauer does not agree to these terms.
At the November 15, 2018, IPIB meeting, new counsel for the City requested a continuance to December to allow for the filing of additional information. On December 7, 2018, counsel submitted a revised and supplemental response (attached). This response raised an additional defense to release of the recording, citing Iowa Code section 22.7(11). This section allows certain “(p)ersonal information in confidential personnel records of government bodies relating to identified or identifiable individuals who are officials, officers, or employees of the government bodies” to be withheld from release as a confidential record.
Counsel argued that the recording, because it captures a private conversation between City officials and an employee, should be confidential unless it can be shown that the interest of the individuals captured on the video in maintaining their privacy outweighs the interest of the public in the release of the record.
Using the analysis of the Iowa Supreme Court in the DeLaMater v. Marion Civil Serv. Comm’n, 524 N.W.2d 875 (Iowa 1996), counsel argued that in balancing the conflicting interests of Mr. Trumbauer for release against the privacy interests of the individuals recorded without their knowledge, the IPIB should find that the privacy interests outweigh the public’s right to know.
Counsel requests that the IPIB dismiss the complaint as lacking probable cause to believe a violation occurred, or, in the alternative, that the IPIB direct “final administrative resolution of this matter consistent with the City’s proposal that Complainant be permitted to view, but not copy or disseminate, the Redacted Video.”
My opinion is that the recording does not meet the requirements for confidentiality as a tentative, preliminary, draft, speculative, or research material, and that Iowa Code section 22.7(65) is not intended to allow “government actors to deliberate in confidence.”
Although the new rationale for withholding the recording as a personnel record using the DeLaMater balancing test is well argued, this analysis is only appropriate if the IPIB determines that the recording should be considered a personnel record. Iowa Code section 22.7(11) does not define personal information within the personnel record, but read in context with the entire section, the information described within the section refers to personal information that would routinely be kept as a record involving personal information about an official or employee and not a record of comments made by the individuals.
The IPIB has recently determined that images involving a government employee recorded in a government record were not personal information as envisioned by Iowa Code section 22.7(11). (See advisory opinion IPIB AO 2018-17, concerning video footage on a public traffic accidents involving an Ankeny police officer, and formal complaint 18FC:0089, Jason Parrott and Fort Madison School District, withdrawn on November 14, 2018, with the release of video footage picturing a school employee.)
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 probable cause to believe a violation of Iowa Code chapter 22 has occurred.
The IPIB should then determine whether to enter a finding of probable cause, designate a prosecutor, and initiate a contested case pursuant to Iowa Administrative Rule 497-2.2(4)(d); dismiss the complaint as an exercise of administrative discretion pursuant to Iowa Administrative Rule 497-2.2(4)(c); or direct administrative action without a finding of probable cause pursuant to Iowa Administrative Rule 497-2.2(4)(e). Counsel for the City requests that the IPIB direct final resolution with the City allowing the recording to be viewed, but not copied or disseminated, by Mr. Trumbauer.
By the IPIB Executive Director
_________________________________
Margaret E. Johnson, J.D.
Respectfully submitted this ____ day of _________, 2018.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of ________, 2018, to:
Andy Trumbauer
Emily Ellingson and Nathan Kooker, counsel for the City of Jesup