21AO:0009
DATE: January 20, 2022
SUBJECT: Public records maintained on privately-owned electronic devices
Dustin Zeschke
528 West Fourth St.
Waterloo, IA 50701
Mr. Zeschke,
We are writing in response to your request dated December 23, 2021, requesting an advisory opinion from the Iowa Public Information Board (IPIB) pursuant to Iowa Code chapter 23 and Iowa Administrative Code rule 497-1.3.
We note at the outset that the IPIB’s jurisdiction is limited to the application of Iowa Code chapters 21, 22, and 23, as well as rules in Iowa Administrative Code chapter 497. Advice in an IPIB opinion, if followed, constitutes a defense to a subsequent complaint based on the same facts and circumstances.
BACKGROUND:
The issue at hand concerns whether public records maintained by a city’s elected officials and employees on privately owned electronic devices are subject to the requirements of Iowa Code chapter 22, and, if so, how are such records to be retrieved to fulfill a public records request.
You provided this background information:
We have an open records request that seeks all text messages, emails, documents, etc. contained on City elected officials and City employees privately held computers and cell phones. The 20AO:0001 Informal Guidance, dated May 21, 2020, provides "IPIB has consistently noted on its website that a public record is created when a government official or employee uses a privately owned electronic device such as a cell phone to conduct official government business." The guidance on your website then provides "the public business communications are public records, and the custodian must review all records on a device to determine whether they are within a request for examination and copying to justify any denial of release."
A few noteworthy comments are that these devices are not under the possession or control of the public entity. The cell phones and computers are private property owned by the individual employees or city council members. These employees could refuse to provide their text messages or emails to the City. Additionally, if the custodian who must review them is the individual who is gathering the records, this would create an invasion of privacy issue having that person review texts and emails on someone's private property.
QUESTIONS POSED:
- Are emails, text messages, and documents located on privately owned devices, such as a cell phone or private computer, subject to an open records request?
- If such documents are subject to an open records request, who must review the devices to determine whether the emails, text messages, and documents are responsive to the request?
OPINION:
Question 1
If a government official or employee uses privately owned electronic devices or services, such as cell phones, computers, email accounts, smart phones, or such to conduct official government business, then the record generated is a public record.
What governs the issue is the content of the message. If it concerns public business relating to public duties of an official or employee, then it is a public record. Recent years have shown a rapid explosion in electronic device ownership, making it easy to start a project at work, fine tune it at home, email drafts to colleagues and others, refine it on the work computer, carry it around the world on a flash drive or store it indefinitely ‘in a cloud.’ Because of this ease of portability and expansion of the work site, the term “public records” no longer refers to a document in a paper file in a drawer in an office.
This issue has been addressed in Iowa in a limited manner. Iowa Code Section 22.1 includes “all records, documents, tape or other information, stored or preserved in any medium” in the definition of public records. Subsection 22.2(2) states that a governmental body cannot prevent access to a public record by contracting with a nongovernmental body (such as a cloud storage provider). Section 22.3A addresses public records and data processing software. The cumulative effect of these statutes is that a public record does not lose its public status by being retained on a privately owned electronic device.
The Iowa Supreme Court, in a 1967, pre-email decision, addressed the idea that you must look at the contents of the document or communication to determine whether it is a public record: “It is the nature and purpose of the document, not the place where it is kept, which determines its status”, Linder v. Eckard, 152 N.W.2d 833, 835 (Iowa 1967).
To allow a governmental body to avoid public records disclosure by simply requiring that officers or employees use their privately owned electronic devices would be to completely thwart the transparency goals of Chapter 22.
Question 2
Commingling public communications and reports with private communications on a privately owned electronic device can create difficulty in responding to an open records request. Some communications may arguably be withheld as not being a public record or as a confidential public record under Iowa Code Section 22.7. First and foremost, however, the public business communications are public records, and the custodian must review all records on a device to determine whether they are within a request for examination and copying to justify any denial of release.
Iowa Code chapter 22 does not provide specific guidance concerning how a lawful custodian retrieves, reviews, and releases public records. It would be appropriate for a government body to develop a policy governing the use of private devices for government business. This policy could require that the lawful custodian have access to private devices and the mechanics of such access, including any privacy concerns.
All government officials and employees should be advised that a failure to cooperate with the release of public records pursuant to Iowa Code chapter 22 could make them liable for civil enforcement proceedings under Iowa Code section 22.10. This could include the imposition of civil damages, payment of costs and attorney fees, and possibly removal from office or position.
The IPIB has also recommended that a government could require the use of a specific government email address anytime a government official or employee uses a private device to conduct government business. That could facilitate the retrieval of public records and guard against any privacy concerns.
Any entity that meets the definition of the government body pursuant to Iowa Code section 22.1(1) must comply with Iowa Code chapter 22. The lawful custodian of such records is the government body or a publicly designated responsible official or employee of the government body. It is ultimately the responsibility of the government body to ensure that the requirements of the public records laws are followed.
BY DIRECTION AND VOTE OF THE BOARD:
Joan Corbin
E.J. Giovannetti
Barry Lindahl
Keith Luchtel
Monica McHugh
Rick Morain
Julie Pottorff
Suzan Stewart
SUBMITTED BY:
Margaret E. Johnson
Executive Director
ISSUED ON:
January 20, 2022
Pursuant to Iowa Administrative Rule 497-1.3(3), a person who has received a board opinion may, within 30 days after the issuance of the opinion, request modification or reconsideration of the opinion. A request for modification or reconsideration shall be deemed denied unless the board acts upon the request within 60 days of receipt of the request. The IPIB may take up modification or reconsideration of an advisory opinion on its own motion within 30 days after the issuance of an opinion.
Pursuant to Iowa Administrative Rule 497-1.3(5), a person who has received a board opinion or advice may petition for a declaratory order pursuant to Iowa Code section 17A.9. The IPIB may refuse to issue a declaratory order to a person who has previously received a board opinion on the same question, unless the requestor demonstrates a significant change in circumstances from those in the board opinion.