The custodian cannot require the physical presence of the person requesting the public record. (2) In addition, a change in Chapter 22.3 in 2006 requires record custodians to respond to requests made in writing, by telephone or by electronic means. The spoken request is sufficient, so long as you reasonably identify the record sought. A written request might be helpful in a complex matter or one involving litigation. (See Sample FOI Request Letter.)
(1) Yes, so long as the letter deals with the discharge of public duties. For example, correspondence from a school superintendent to school board members about items on next week’s agenda should be open to public inspection. (2) If such correspondence contains information that is confidential by law, the remaining portion of the correspondence should be provided. That rule applies to other public records, too. Mere inclusion of some information that is confidential by law does not make an entire record confidential.
Yes. Under Chapter 22.2(2), “A governmental body shall not prevent the examination or copying of a public record by contracting with a nongovernmental body to perform any of its duties or functions.” In Gannon v. Board of Regents, 692 N.W.2d 31 (Iowa 2005), the Iowa Supreme Court said that a private foundation that solicited and managed donations for Iowa State University performed a government function and its records were “public records.” However, the Court said that not every private entity that performs a duty that could be considered a “government function” is subject to Chapter 22 and that arrangements must be viewed on a case-by-case basis.
Chapter 22 is silent as to the time for response to a records request. The time to locate a record can vary considerably depending on the specificity of the request, the number of potentially responsive documents, the age of the documents, the location of the documents, and whether documents are stored electronically. The large number of variable factors affecting response time makes it very difficult, and probably unwise, to establish any hard and fast objective standards. The statute was adopted more than forty years ago. Today’s electronic records environment adds to the complexity of this issue.
The only specific response time standard established by the statute addresses a good-faith reasonable delay incurred in order to determine whether a confidential document should be released. Iowa Code subsection 22.8(4)(d) states that a reasonable good-faith delay is not a violation of Chapter 22 if the purpose of the delay is:
“d. To determine whether a confidential record should be available for inspection and copying to the person requesting the right to do so. A reasonable delay for this purpose shall not exceed twenty calendar days and ordinarily should not exceed ten business days.”
While the Code states a delay under Iowa Code subsection 22.8(4)(d) shall not exceed twenty calendar days, the Iowa Supreme Court does not view this as an absolute deadline:
“Based on our review of section 22.8(4)(d), we believe it is not intended to impose an absolute twenty-day deadline on a government entity to find and produce requested public records, no matter how voluminous the request. Rather, it imposes an outside deadline for the government entity to determine ‘whether a confidential record should be available for inspection and copying to the person requesting the right to do so.’ We do not think we should extrapolate section 22.8(4)(d)’s twenty-day deadline to other contexts, when the legislature chose not even to include that deadline in other portions of section 22.8(4).” Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 461 (Iowa 2013).
According to an Iowa Attorney General Sunshine Advisory Opinion from August 2005, “Delay is never justified simply for the convenience of the governmental body, but delay will not violate the law if it is in good faith or reasonable.”
The Court in Horsfield also lists several considerations for determining if a delay is reasonable:
“Under this interpretation, practical considerations can enter into the time required for responding to an open records request, including “the size or nature of the request.” But the records must be provided promptly, unless the size or nature of the request makes that infeasible” Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 461 (Iowa 2013).
Best Practices: Communication between lawful custodians and records requestors is strongly encouraged. Communication and cooperation can reduce disagreements over responsiveness to records requests including issues of timing, redaction, and completeness. It is recommended that the custodian:
- Contact the requestor to acknowledge receipt of the request immediately and provide a probable timeline for record release.
- Make additional contact in the event of a potential delay to discuss possible ways to process the request in a timely manner.
- Work diligently to retrieve and release the records.
- Release records as they are ready unless the requestor has asked that the records be compiled and then released together.
The minutes should be available for public inspection as soon as they are prepared. An agency cannot delay access, pending formal approval or distribution to members.
Access to law enforcement records is spelled out in detail in an Attorney General’s opinion, Weeg to Holt, 82-10-3. That opinion interprets Chapter 22.7(5), which provides public access to “the date, time, specific location, and immediate facts and circumstances surrounding a crime or incident.”
The opinion notes that a news reporter or citizen does not have to know about a crime or incident to obtain information about it. The request could be a general one, to review the public record of police activities during the past 24 hours: “A citizen may request [Chapter 22.7(5)] information for a particular day or time, or for any number of days or times. The request is not required to specify the particular criminal incident for which the information is requested.”
Generally, the opinion calls for routine access to all “date, time, specific location and immediate facts and circumstances” information, and the record custodian carries “the burden of establishing facts necessary to withhold public records. . . .”
Furthermore, the Iowa Supreme Court held in Mitchell et al. v. Cedar Rapids et al., that investigative records keep their confidential status after an investigation closes. 926 N.W. 2d 222, 232 (Iowa 2019).
In Mitchell, the Supreme Court used a balancing test to decide which records constitute information relating to the date, time, specific location, and immediate facts and circumstances. The Court held that certain facts such as the absence of any confidential police informants named in the record, absence of named but innocent suspects, a completed investigation, and the presence of heightened public interest can weigh in favor of disclosure.
Yes, Iowa defines public records (22.1) to include “all records, documents, tape, or other information, stored or preserved in any medium . . .,” a definition that plainly includes electronic data. Further, Section 22.3A addresses several issues regarding access to data processing software and public records.
So far, court decisions and common sense suggest the following:
- A government agency cannot force a requester to take or pay for a computerized record in a prohibitive or expensive format. Chapter 22.3 limits the fees that agencies may charge for records to the actual cost of providing the service.
- Simply because information could be available via a government computer does not make the information a public record. Government agencies do not have to create data through cross tabulations or selective analysis of data. They could do so if the requester is willing to pay for the staff time. An advisory opinion by the Iowa Public Information Board (Dec. 18, 2014) said that there is no obligation for a government body to provide information in a form other than that which exists at the time of the request. However, the IPIB urged "a cooperative approach as a best practice" that fulfills the legislative objective of access to public information.
- The record custodian should be the agency that generated the record in the first place and not the computer processor or administrative unit that oversees computer services for a public agency.
- In Iowa, the law provides no distinction between a citizen's right to access information stored on paper or stored electronically.
- With a few exceptions, Iowa law treats all records requests the same. That is, it doesn't make any difference who the requester is or whether he or she intends to use the record for personal or commercial use.
The Iowa Supreme Court ruled in April 1988 that under a 1984 amendment to Chapter 22 public agencies can make job applications confidential.
In City of Sioux City v. Greater Sioux City Press Club, 421 N.W.2d 895 (Iowa 1988), a five-member panel of the Iowa Supreme Court ruled that such confidentiality is provided for in subsection 18 of 22.7.
The Court ruled that job applications might be made confidential if the person so requests or if the public agency “could reasonably believe that those persons would be discouraged” from applying if applications were available for public inspection.
While subsection 18 does not provide confidentiality for communications required by law, rule or procedure, the Court stated that job applications were not required as part of the hiring process since the job applicant is applying voluntarily.
In an June 1992 decision, Des Moines Register and Tribune Company v. State Board of Regents and Douglas Creamer, Polk County Judge Arthur Gamble ruled that a private firm that had conducted a presidential search for Iowa State University was wrong in keeping secret the names of candidates who had no objections to disclosure.
To summarize, a communication to a government body can be kept confidential under 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.
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 addition, a communication regarding an illegal act can be kept confidential if disclosing it would jeopardize a continuing investigation or pose a clear and present danger to the safety of an individual.
Exemption 22.7(11) by its terms shields only “personal information in confidential personnel records” from disclosure. In Des Moines Independent Community School District Public Records v. Des Moines Register & Tribune Co., 487 N.W.2d 666 (Iowa 1992), this exemption was analyzed by the Court with mixed results.
The Court first stated that a settlement agreement under which public funds were paid to a former school principal must be disclosed even though the agreement related to a personnel matter and its express terms called for confidentiality. However, the Court gave wide latitude to the trial court’s interpretation of exemption 22.7(11). The Supreme Court affirmed the lower court determination that information gathered by an in-house investigative committee in connection with complaints of racism and sexism was contained in “job-performance” documents that the Legislature intended to remain secret.
The Supreme Court thereby, in this case, upheld the trial court’s interpretation that “personal information in confidential records” was not limited to “personal” data and could be extended to records not contained in a personnel file. This approval of the apparent extension of 22.7(11) to “job performance” information may be used by government agencies to keep many aspects of job performance and evaluation information secret unless the General Assembly takes action to narrow this interpretation of the exemption. The case, however, does nothing to affect long-standing standards of public access to salary information, and other records not directly related to job evaluation.
In Clymer v. City of Cedar Rapids, 601 N.W.2d 42 (Iowa 1999), the Supreme Court further addressed what personal information about a public employee is a matter of public record. The Court ruled that the public should have access to information concerning a public employee’s sick leave benefits — including pay, dates taken and hours accrued. (It is likely, however, that additional information about an employee’s medical condition, including the reason for using sick leave, remains “personal information.”) Other payroll information that a governmental body may release includes the employee’s full name, department, job title, hire date, bargaining unit, and complete and detailed information about monetary compensation. However, the employee’s gender, home address and birth date are personal and may be kept confidential.
In 2011, the Legislature amended Chapter 22.7(11) to require government agencies to release details of employees' compensation and terms of employment; the dates of employment and positions held, and resume-type information.
In 2017, the Iowa Legislature added new sections concerning the release of additional information when an individual resigned in lieu of termination, was discharged, or was demoted as a result of a disciplinary action. In those situations, the government body must also release the “documented reasons and rationale” for the action. The IPIB issued advisory opinion 2018-08 which states:
“In order to meet the new requirement in 22.7(11)(a)(5), government bodies must say which law, rule, or policy, if any, they believe the employee violated and provide at least one sentence about the behavior or incident that triggered the action. The explanation should include details, such as the date(s) of alleged behavior, location, and how it was discovered.”
(1) The definition of public records under 22.1(3) is broad enough to encompass email messages and other electronic correspondence. (2) State Records Commission policies govern the maintenance and retention of state agency records. In addition, various sections of the Iowa Code address other public records. For example, Chapter 372.13(5) contains requirements for retention of some city records, such as council minutes, ordinances and resolutions. Local government bodies are encouraged to adopt their own records retention policies and to follow them consistently. Deleting a typical email message under such a policy should pose no legal problems. However, if the message remains retrievable or recoverable then the government body would be obliged to provide it upon request, though the requester can be charged a reasonable fee for retrieval.
Section 388.9A may restrict the release of some utility records or portions of records that are public records under Iowa Code Chapter 22.
Iowa Code Section 22.2 states:
"Every person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record of the information contained in a public record…."
City and other utility records have historically been considered public records, and citizens had the right to request and receive copies of these records, unless a confidentially exemption under Section 22.7 applied. In 2012, the Iowa Legislature added section 388.9A to the Code, which reads:
"Notwithstanding section 22.2, subsection 1, public records of a city utility or combined utility system, or a city enterprise or combined city enterprise as defined in section 384.80, which shall not be examined or copied as of right, include private customer information. Except as required pursuant to chapter 476, “private customer information” includes information identifying a specific customer and any record of a customer account, including internet-based customer account information."
This legislation’s origins can be traced back to House File 2395 and House Study Bill 651. While Iowa has no official statement of legislative history, explanations are provided as a part of each of these bills. HSB 651 was a much more extensive bill which evolved through the committee process to become HF 2395. The actual enactment was Senate File 2058, an individually sponsored bill, which was amended on the floor of the Senate to adopt the language of HF 2395. The different explanations filed with the three different bills contain a common thread: the intent to grant a discretionary power to utilities for the handling of customer records in order to protect the privacy of those customers.
The operative language of this statute can be reduced to this simple statement which reflects the legislative intent: “. . . public records of a city utility . . . which shall not be examined or copied as of right, include private customer information.” The legislation also provides a definition of private customer information as set forth above.
Anecdotal information provided indicates concerns had been expressed by the covered entities about new technological data collection methods for utility billing which, if the data were made publicly available, would allow derivation of detailed information about account holders. Concerns were also expressed about compliance with consumer credit and debt collection statutes, state and federal.
Section 388.9A does not provide that any records within its purview are no longer public records. The records affected by section 388.9A are limited to private customer records under the definition stated within the section. These records are still public records subject to chapter 22. Section 388.9A does, however, hold in abeyance application of the provisions of chapter 22 to private customer records which would otherwise be subject to inspection and copying. As to those records, the section 22.2 right to examine and copy is suspended at the discretion of the utility. In other words, section 388.9A is a grant of discretion to utilities concerning the release of specified information that otherwise would be subject to release as a matter of right under section 22.2.
Note, that the use of the term “utility” is limited to those entities specified in section 388.9A.
Iowa Code Section 22.2 grants every person the right to examine and copy a public record. This right includes “the right to examine a public record without charge while the public record is in the physical possession of the custodian of the public record.”
Section 22.3 sets forth the procedure to arrange for viewing and/or copying of public records. Section 22.3(1) allows a custodian to “adopt and enforce reasonable rules regarding the examination and copying of the records and the protection of the records against damage or disorganization.” The custodian is to provide a suitable place for examination and copying, but if it is impracticable to use the office of the custodian, then “the person desiring to examine or copy shall pay any necessary expenses of providing a place for the examination and copying.” When the custodian is a part-time employee, it will require cooperation and coordination to set up the times and location for record review.
Section 22.3 also allows a government body to charge a “reasonable fee for the services of the lawful custodian or the custodian’s authorized designee in supervising the examination and copying of the records.” There is no set fee in the statutes; the government body must utilize “actual costs.” Prepayment can be required prior to fulfilling the request or releasing the records.
Actual costs are defined in Section 22.3(2) to include “only those expenses directly attributable to supervising the examination of and making and providing of copies of public records. Actual costs shall not include charges for ordinary expenses or costs such as employment benefits, depreciation, maintenance, electricity, or insurance associated with the administration or the office of the lawful custodian.”
Although not required by law, it is best practices for a government body to have a policy in place concerning fees.
Section 22.3A governs access to data processing software. Procedures for charging fees for retrieval of public records stored electronically are outlined in that section.
The fees charged by government bodies are an issue across the state. While other states have laws that set the fees, Iowa allows the fees to be set based upon actual costs, which can vary widely. The IPIB is currently reviewing policies statewide and determining what the IPIB can do to interpret the laws and assist government bodies in establishing appropriate policies. The IPIB does not have the authority to amend current law; that would be up to the Iowa Legislature.
Most likely, yes. 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.
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 private 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.
BEST PRACTICES: Advise your staff that email communications are subject to review and disclosure, even if written, drafted, communicated and/or stored on the staff member’s privately purchased and owned electronic device or email service. Use of a dedicated folder or flash drive should be considered.
A “lawful custodian” is defined as the “government body currently in physical possession of the public record.” (Iowa Code Section 22.1(2)). If records are maintained outside the physical possession of the government body, such as a contracted service, the government body owning that record is the “lawful custodian.” The government body cannot prevent the examination or copying of a public record by contracting with a nongovernment storage provider.
As an example, paper records might be generated in a public office as required by the duties of that office. As part of an overall government policy, those records might be stored in a climate controlled off-site storage facility. Even though the records are in the physical possession of a non-government body, the custodian of the records is the government office that initially generated those records.
Another situation that could arise is when a government body uses an internet service to store records ‘in the cloud.’ A records request would be directed to the government body responsible for the collection and maintenance of those records, not the internet company that is paid to store the records.
The lawful custodian of records relating to investment of public funds is the public body responsible for oversight of those funds.
Iowa Code Section 22.1(2) requires each government body to “delegate to particular officials or employees of that government body the responsibility for implementing the requirements of (Chapter 22) and shall publicly announce the particular officials or employees to whom responsibility for implementing the requirements of this chapter has been delegated.”
BEST PRACTICES: A government body must determine who the designated lawful custodian will be and post that information in a public manner. This may include a link on the government website, signage at the offices of the government, or, preferably, both.
The Iowa Public Information Board (IPIB) issued an advisory opinion on this issue on July 19, 2018 (18AO:0006).
The IPIB reviewed the statutory language of Iowa Code section 22.11(a), which allows for certain personal information in personnel records to be considered a confidential record. The section also outlines information that is not considered confidential. Email addresses are not specifically listed as information that must be released.
The Iowa Supreme Court provided some guidance on the definition of ‘personal information’ in Clymer v. City of Cedar Rapids, 601 N.W.2d 42 (Iowa 1999). In allowing the personal addresses of public employees to be withheld, the Court reasoned:
“…the basic theme emerging from the few cases dealing with disclosure of public employees’ addresses is that such information does not serve the core purpose of the freedom of information statutes – to enlighten the public about the operation or activities of the government. Put another way, a public employee has a substantial privacy interest in his or her address that outweighs the public interest in disclosure, unless the information is necessary to open the government’s actions to the light of public scrutiny.” Id. at 47.
Applying the Clymer decision, personal email addresses of government officials and employees, like home addresses, are personal information that would not become public records upon appointment of the person to a board or other government body. But, should personal email addresses be regularly used for public business, the email addresses may lose their “personal” nature and become public records. The IPIB cautions government bodies not to withhold personal email addresses as confidential while continuing to use the personal email addresses regularly to conduct public business.
The IPIB encourages government bodies to release email addresses that are used regularly as a point of communication of government business. To the extent that government bodies object to the release of email addresses that they additionally use for unrelated personal communications, the IPIB notes that a separate email account can be created solely for the purpose of conducting government business.
Whether government bodies use personal email or the government email system, it is clear that the communication itself may be a public record as determined by the content.
Yes, prepared minutes are public records regardless of whether the governmental body has officially approved them. A recording of a meeting is also a public record.
Yes, if the record relates to government business.
An Iowa Public Information Board Advisory Opinion (18AO:0019) issued on November 15, 2018, states that whether any given item constitutes a public record requires determining if the government official was acting as a public official or a private citizen when receiving, responding to, or generating that document.
If the record concerns are negotiating for the common good, welfare, or rules binding the public body and citizens as a whole, then they fall within the scope of Chapter 22 and are usually public records.
You should always contact the specific state agency through its website, by mail, by email, or by telephone. However, you may also try the State of Iowa website at https://iowaopenrecords.nextrequest.com/. A request to this link will be forwarded to the appropriate agency.