Before the Iowa Public Information Board
In re the Matter of:
Richard Knowles, complainant
Crawford County Memorial Hospital,
Case Number: 15FC:0038
Probable Cause Report
(Amended, July 20, 2016)
SUMMARY: Formal complaint filed by Richard Knowles against the Crawford County Memorial Hospital (CCMH) alleging a violation of Iowa Code chapter 22 for failure to release the names and schedules of volunteers of the Hospital Foundation of Crawford County. Based upon a review of the complaint and case law concerning the issue, the Iowa Public Information Board (IPIB) ruled on June 16, 2016, that the names (but not the schedules) of the volunteers are public records and that CCMH had a viable defense in a contested case proceeding under Iowa Code §§ 22.8(4)(a) and 22.10(3)(b)(3). The contested records were released on July 19, 2016. Based upon this release, I recommend that the IPIB dismiss this complaint.
The issues can be stated as such: Are the Crawford County Memorial Hospital (CCMH) volunteers considered the same as employees under Iowa Code § 22.7(11), requiring the release of the names of the volunteers or does § 22.7(18) protect any and all communications from volunteers from release? If Iowa Code § 22.7(18) is applicable, then are the volunteers excluded from its protection because of their contractual relationship with CCMH? If a complaint is filed pursuant to Iowa Code § 23.5(3), what is the subsequent role of the Iowa Public Information Board in a district court petition for injunctive relief matter under Iowa Code § 22.8?
Richard Knowles filed his complaint with the Iowa Public Information Board (IPIB) on May 21, 2015. He filed this complaint pursuant to the provisions of Iowa Code § 23.5(3), election of remedies. According to that section, if someone files for injunctive relief pursuant to Iowa Code § 22.8, the person requesting access to the record can “remove the proceeding to the board (IPIB) for its determination by filing, within thirty days of the commencement of the judicial proceeding, a complaint with the board alleging a violation of chapter 22 in regard to the same matter.”
Richard Knowles’ complaint was filed within the 30 day deadline under Iowa Code § 23.5(3). On July 7, 2015, Judge Poulson of the Third Judicial District, State of Iowa, issued an order removing the action to the IPIB in case number EQCV038546, District Court, Crawford County. The order reads, in part, that the action is “removed to the Iowa Public Information Board for determination of the Respondent’s (Richard Knowles) public information request.”
The IPIB accepted the complaint on September 17, 2015. Pursuant to Iowa Code § 23.9, attempts were made to reach an informal resolution. Such steps were unsuccessful.
A formal investigation was conducted as required by Iowa Code § 23.10. As part of that investigation, IPIB staff reviewed the volunteer policies of CCMH. CCMH requires volunteers to undergo complimentary wellness screening (drivers and hosts) and vision screening (drivers only). Volunteers are asked for shirt sizes for designated clothing. Volunteers are trained on the operation of the transport vehicles. Volunteers are required to observe the provisions of the Health Insurance Portability and Accountability Act (HIPAA) and sign an acknowledgement agreeing to all the volunteer requirements.
A copy of the CCMH budget for 2015 was also requested and reviewed. There are no line items for volunteer expenses. Counsel for CCMH stated that volunteers “do their own fundraising and pay for their own expenses.”
CCMH partners with a foundation, The Hospital Foundation of Crawford County (HFCC). HFCC is a public charity organized under Iowa Code and an exempt organization under § 501(c)(3) of the Internal Revenue Code. Its purpose is to solicit gifts, grants, and bequests from the general public and from government entities to provide CCMH with financial support for capital improvements, equipment acquisition, operating expenses, programming needs, administrative and operational services, and any other purpose necessary to grow and develop CCMH.
HFCC bylaws state that HFCC is specifically organized to engage in activities to enhance the quality and services of CCMH by seeking, administering and allocating charitable giving to CCMH. There are eleven members on the board of directors. The officers include chairman, vice-chairman, president, vice-president and secretary-treasurer. The vice-president is the CFO of CCMH and the president is the CEO of CCMH.
According to tax records for the year ending June 30, 2014, HFCC reported revenue of $77,001.00; expenses of $53,618.00; and a disbursement of $11,615.00 to CCMH for operations, recruitment, maintenance, and expansion of the healthcare facilities and services of CCMH. No other program service accomplishments were reported. As part of the supplemental information on the return, $37,543.00 of the reported expenses were classified as fundraising expenses.
CCMH and HFCC entered into a collaboration agreement establishing the interaction of the hospital with the foundation. Both organizations agreed to provide adequate numbers and appropriately qualified personnel to perform the required duties. CCMH provides orientation to HFCC personnel who provide services pursuant to the agreement. The agreement specifically defines confidential information to include all information concerning the identity, location, and qualifications of staff members, professional, and employees, existing and prospective, of both CCMH and HFCC. It also includes, by agreement, personnel records of either HFCC or CCMH.
The Agreement continues:
5.3 Strictest Confidence. The parties hereto acknowledge and agree that the disclosure of Confidential Information will be in reliance upon the representations and covenants contained in this §, and that they shall hold all Confidential Information in strictest confidence. As used herein, “strictest confidence” means that the parties shall not, under any circumstances without the other party’s prior written consent, which such other party shall be under no obligation to grant, communicate, transmit, distribute, disseminate, or disclose any of the Confidential Information, either in writing or orally, directly or indirectly, individually or through an agent, employee, representative or other person, to any person, firm or entity.
5.4 Permissible Disclosures. Notwithstanding the foregoing, the following disclosures of Confidential Information shall not be prohibited: (i) information that is required to be disclosed by the recipient to comply with applicable laws or government regulations, provided that the recipient provides at least seven (7) days’ prior written notice of such disclosure to the disclosing party, to the extent permitted by law, and takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure; or (ii) information that is disclosed to either party’s attorney(s), accountants(s), or employees(s) who have a specific need to know such information and who are expressly obligated themselves to hold the Confidential Information in trust and confidence.
Under “FINANCIAL ARRANGEMENTS” both parties agree to provide monthly invoices and payments for each service provided pursuant to the Agreement. Indemnification clauses cover the agents, employees, officers, or representatives of either entity. Other documents are specifically listed as available to all personnel, including employees, contractors, subcontractors, agents and other persons providing services on behalf of HFCC to CCMH patients.
Attachments to the agreement direct CCMH to provide information technology, human resources, maintenance, and administrative services to HFCC, as well as provide insurance to CCMH. HFCC pays CCMH for each service or product.
It is uncertain whether CCMH or HFCC has direct supervisory authority over the individuals who volunteer with the shuttles as drivers and hosts. That distinction is immaterial. The Iowa Supreme Court in Gannon v. Board of Regents, 692 N.W.2d 31 (Iowa 2005), held that a private foundation that solicited and managed donations for Iowa State University performed a government function, and its records are public records under Chapter 22. A similar relationship exists between CCMH and HFCC. In addition, the entities jointly filed for an injunction prohibiting release of records to another individual in Crawford County district court.
In its response to the complaint, CCMH stated a belief that the names and schedules of the volunteers were confidential records pursuant to Iowa Code § 22.7(18). Richard Knowles questioned whether Iowa Code § 22.7(11) would instead apply, requiring the release of the names of volunteers. (A Memorandum filed by Richard Knowles on August 12, 2015, withdrew the request for schedules.)
Iowa Code § 22.7(11) allows personal information in personnel records to remain confidential with the exception of certain information:
a. Personal information in confidential personnel records of government bodies relating to identified or identifiable individuals who are officials, officers, or employees of the governmental bodies. However, the following information relating to such individuals contained in personnel records shall be public records:
(1) The name and compensation of the individual including any written agreement establishing compensation or any other terms of employment excluding any information otherwise excludable from public information pursuant to this § or any other applicable provision of law. For purposes of this paragraph, “compensation” means payment of, or agreement to pay, any money, thing of value, or financial benefit conferred in return for labor or services rendered by an official, officer, or employee plus the value of benefits conferred including but not limited to casualty, disability, life, or health insurance, other health or wellness benefits, vacation, holiday, and sick leave, severance payments, retirement benefits, and deferred compensation.
(2) The dates the individual was employed by the government body.
(3) The positions the individual holds or has held with the government body.
(4) The educational institutions attended by the individual, including any diplomas and degrees earned, and the names of the individual’s previous employers, positions previously held, and dates of previous employment.
(5) The fact that the individual was discharged as the result of a final disciplinary action upon the exhaustion of all applicable contractual, legal, and statutory remedies.
b. Personal information in confidential personnel records of government bodies relating to student employees shall only be released pursuant to 20 U.S.C. §1232g. (Emphasis added)
Iowa Code § 22.7(18) allows certain communications made to a government body to remain confidential:
18. Communications not required by law, rule, procedure, or contract that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them to that government body if they were available for general public examination. As used in this sub§, “persons outside of government” does not include persons or employees of persons who are communicating with respect to a consulting or contractual relationship with a government body or who are communicating with a government body with whom an arrangement for compensation exists. Notwithstanding this provision:
a. The communication is a public record to the extent that the person outside of government making that communication consents to its treatment as a public record.
b. Information contained in the communication is a public record to the extent that it can be disclosed without directly or indirectly indicating the identity of the person outside of government making it or enabling others to ascertain the identity of that person.
c. Information contained in the communication is a public record to the extent that it indicates the date, time, specific location, and immediate facts and circumstances surrounding the occurrence of a crime or other illegal act, except to the extent that its disclosure would plainly and seriously jeopardize a continuing investigation or pose a clear and present danger to the safety of any person. In any action challenging the failure of the lawful custodian to disclose any particular information of the kind enumerated in this paragraph, the burden of proof is on the lawful custodian to demonstrate that the disclosure of that information would jeopardize such an investigation or would pose such a clear and present danger. (Emphasis added)
Volunteers as Employees
Can volunteers be considered employees in some circumstances? Did the legislature intend for “employees” to include volunteers for purposes of § 22.7(11) and § 22.7(18)? The Iowa Code defines “employee” in § 91A.2 and § 669.2(4). These two definitions of “employee” are used in two different contexts. Iowa Code chapter 91A is titled “Wage Payment Collection.” In Iowa Code § 91A.2 an “employee” is defined as “a natural person who is employed in this state for wages by an employer….” Iowa Code chapter 669 is titled “State Tort Claims.” Iowa Code § 669.2(4) defines employee of the state as:
“any one or more officers, agents, or employees of the state or any state agency, including members of the general assembly, and persons acting on behalf of the state or any state agency in any official capacity, temporarily or permanently in the service of the state of Iowa, whether with or without compensation, but does not include a contractor doing business with the state…”
In Hook v. Lippolt, the Supreme Court of Iowa stated “[i]t is important to keep in mind that the term ‘employee’ as used in chapter 669 includes unpaid volunteers as well as paid workers.” 755 N.W.2d 514, 519 (Iowa 2008).
“The goal of statutory construction is to determine legislative intent. We determine legislative intent from the words chosen by the legislature, not what it should or might have said. Absent a statutory definition or an established meaning in the law, words in the statute are given their ordinary and common meaning by considering the context within which they are used. Under the guise of construction, an interpreting body may not extend, enlarge or otherwise change the meaning of a statute.” Auen v. Alcoholic Beverages Div., Iowa Dept. of Com., 679 N.W.2d 586, 590 (Iowa 2004).
The interpretation of a statute requires an assessment of the statute in its entirety, not just isolated words or phrases. In State v. Gonzalez, 718 N.W.2d 304, 308 (Iowa 2006) the Court ruled that the court “will often seek a reasonable interpretation that achieves the statute's purpose and avoids absurd results” and “may consult a dictionary in order to determine the ordinary meanings of words used by the legislature.”
The Merriam-Webster dictionary gives a simple and a full definition of “employee.” The simple definition of employee is “a person who works for another person or for a company for wages or a salary.” The full definition of employee is “one employed by another usually for wages or salary and in a position below the executive level.” The full definition of employee states an individual is “usually” employed for wages or salary, implying that an individual can be employed for other than wage and salary.
Another term that could be used is “compensation.” Iowa Code § 22.7(11)(a)(1) defines “compensation” to include “payment of, or agreement to pay, any money, thing of value, or financial benefit conferred in return for labor or services rendered by an official, officer, or employee plus the value of benefits conferred including but not limited to casualty, disability, life, or health insurance, other health or wellness benefits, vacation, holiday, and sick leave, severance payments, retirement benefits, and deferred compensation.” (Emphasis added)
Under the terms of CCMH volunteer policies, possible sources of compensation are: 1) volunteers whom have worked eight hours during the week will receive a 10 percent discount to the Good Samaritan Thrift Store, 2) the Hospital Foundation of Crawford County reimburses drivers the cost of obtaining a Chauffer’s license, 3) drivers receive a complimentary wellness and vision screening, 4) all hosts and hostesses receive a complimentary wellness screening, and 5) each volunteer is asked to complete a free, non-invasive health assessment and TB Titer.
Comparing Iowa Code §§ 22.7(11) and 22.7(18)
The Hospital argues that Iowa Code § 22.7(18) should govern whether or not the names of the volunteers can be released. Iowa Code § 22.7(18) governs times when a member of the public might be reluctant to freely give the government body information if they knew that information was to be made public. City of Sioux City v. Greater Sioux City Press Club, 421 N.W.2d 895 (Iowa 1988) and Des Moines Register and Tribune Company v. State Board of Regents and Douglas Creamer (a June 1992 Polk County District Court decision) utilized this statute in ruling that potential employees might not be forthcoming with applications if they knew all of the application materials would be made public. The rationale behind this is that they would want to avoid their current employer knowing they are applying for another job. Here, the information sought is not contained within an application, but is a listing of the names of the individuals.
If for some reason an individual did not want his/her name released, that person could seek an injunction pursuant to Iowa Code § 22.8 to restrain the examination and release of that public record. The law requires a showing that the examination of such public record is clearly not in the public interest and such examination would substantially and irreparably injure such person. CCMH pursued this option by filing a petition for declaratory and injunctive relief on May 4, 2015, in the Crawford County District Court (case number EQCV038546).
Iowa Code § 22.7(11) deals with employees of a government organization. It generally states that confidential personnel records must be kept confidential, but that names, compensation, and dates employed may be released. Iowa Code chapter 22 does not define a “government employee”, but several indicators suggest the volunteers could be considered hospital employees for the purposes of this statute.
The volunteers for the hospital are similar to employees in many ways. The presence of a volunteer agreement indicates an employment relationship as the volunteers are expected to meet certain criteria and follow certain procedures in exchange for minimal health care services and other small benefits. For purposes of state liability protection, volunteers are considered “employees.”
As noted earlier, Iowa Code § 669.2(4) defines an employee as including “persons acting on behalf of the state or any state agency …in any official capacity, whether with or without compensation...” Hospital volunteers are acting on behalf of the hospital without compensation and would fit within this definition of government employee. Hook v. Trevino, 839 N.W.2d 434 (Iowa 2013) and Hook v. Lippolt, 755 N.W.2d 514, 519 (Iowa 2008), both confirm that volunteers are considered government employees in a tort context. A 1976 Attorney General Opinion also states that volunteers in a hospital situation are state employees for the purposes of liability protection. 1976 WL 375980.
However, these hospital volunteers might not be considered government employees by a court of law. In the state tort cases above, the court is careful to limit volunteers being treated like employees to liability contexts. Furthermore, in a chapter on wages, Iowa Code § 91A.2 defines an “employee” as “a natural person who is employed in this state for wages by an employer.” An argument could be made that the minimal benefits received as a hospital volunteer constitutes wages, but certainly not in the context this statute envisioned wages.
Iowa Code § 22.7(18) does not apply to individuals outside of the government body who are “communicating with respect to a consulting or contractual relationship with a government body….” The CCMH volunteers are required to review and sign policy agreements prior to acceptance as a volunteer. This relationship could remove them from this confidentiality exclusion.
Proceedings under Iowa Code § 23.5(3)
Iowa Code § 23.5(3) provides the authority for a court to transfer an Iowa Code § 22.8 injunctive relief proceeding from district court to the IPIB. The subsection states:
If a person files an action pursuant to section 22.8 seeking to enjoin the inspection of a public record, the respondent or person requesting access to the record which is the subject of the request for injunction may remove the proceeding to the board for its determination by filing, within thirty days of the commencement of the judicial proceeding, a complaint with the board alleging a violation of chapter 22 in regard to the same matter.
Although the statue and the administrative rules do not provide clear direction, it appears that upon removal to the IPIB under this subsection, the IPIB would then proceed forward to hold an injunctive relief hearing under Iowa Code § 22.8.
Iowa Code § 22.8 requires certain procedures and findings:
1. The district court may grant an injunction restraining the examination, including copying, of a specific public record or a narrowly drawn class of public records. A hearing shall be held on a request for injunction upon reasonable notice as determined by the court to persons requesting access to the record which is the subject of the request for injunction. It shall be the duty of the lawful custodian and any other person seeking an injunction to ensure compliance with the notice requirement. Such an injunction may be issued only if the petition supported by affidavit shows and if the court finds both of the following:
a. That the examination would clearly not be in the public interest.
b. That the examination would substantially and irreparably injure any person or persons.
2. An injunction shall be subject to the rules of civil procedure except that the court in its discretion may waive bond.
3. In actions brought under this section the district court shall take into account the policy of this chapter that free and open examination of public records is generally in the public interest even though such examination may cause inconvenience or embarrassment to public officials or others. A court may issue an injunction restraining examination of a public record or a narrowly drawn class of such records, only if the person seeking the injunction demonstrates by clear and convincing evidence that this section authorizes its issuance. An injunction restraining the examination of a narrowly drawn class of public records may be issued only if such an injunction would be justified under this section for every member within the class of records involved if each of those members were considered separately.
At the June 16, 2016, meeting of the IPIB, the parties agreed that CCMH had a defense to a finding of probable cause for a violation pursuant to Iowa Code sections 22.8(4)(a) and 22.10(4). The IPIB then ruled that names of the volunteers should be considered public records and are not confidential under the provisions of Iowa Code section 22.7. Based upon CCMH’s request for injunctive relief, the IPIB determined that a hearing to consider this relief would be scheduled.
CCMH released the names of the volunteers to local media on July 19, 2016. Said information is now available to the complainant.
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; or
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”.
Based upon the release of the contested records by CCMH and the agreement entered into by the parties and approved by the IPIB on June 16, 2016, I recommend that this complaint be dismissed.
Respectfully submitted this 20th day of July, 2016.
Margaret E. Johnson, Deputy Director
With the assistance of Hannah Fordyce, legal extern, and Adrienne Howard, legal intern
Daniel Fisher, counsel for Richard Knowles
Brian Melhus, counsel for CCMH