Public Records Law Basics Public Records Law Basics New County Officers School New County Officers School

January 19, 2005January 19, 2005

David Vestal David Vestal General CounselGeneral Counsel

ISACISACdvestal@iowacounties.org

(515) 244-7181

ScopeScope

Today’s presentation will provide you with an understanding of the following points:

▪ What records are “public, open, confidential?”What records are “public, open, confidential?”

▪ How should my office prepare for and manage How should my office prepare for and manage public requests to review or copy records?public requests to review or copy records?

▪ What may I charge?What may I charge?

▪ What happens if I violate the law?What happens if I violate the law?

▪ Where can I get help if I’m unsure? Where can I get help if I’m unsure?

Origin and Purpose of the Origin and Purpose of the Public Records LawPublic Records Law

▪ ORIGIN: The first version of Iowa’s Public ORIGIN: The first version of Iowa’s Public Records Law was enacted in 1967Records Law was enacted in 1967

▪ PURPOSE: As a “sunshine” statute, the law is PURPOSE: As a “sunshine” statute, the law is intended to open the doors of government to intended to open the doors of government to public public scrutiny by providing everyone a right to scrutiny by providing everyone a right to examine examine and copy all public records which are not and copy all public records which are not designated designated by law to be confidential.by law to be confidential.

What is a Public Record?What is a Public Record?

all records, documents, tape, or other all records, documents, tape, or other information, stored or preserved in any mediuminformation, stored or preserved in any medium

▪ of or belonging to this state or any county, city, of or belonging to this state or any county, city, township. . . .township. . . .

▪ or any branch, department, board, bureau, or any branch, department, board, bureau, commission, council, or committee of any of the commission, council, or committee of any of the foregoing. foregoing.

Code § 22.1 definition

The Records may be in any Form:The Records may be in any Form:

▪Paper.Paper.

▪Audio or video tape.Audio or video tape.

▪Computer tape or computer readable medium. Computer tape or computer readable medium.

Location and Origin of the Record Location and Origin of the Record are NOT Controllingare NOT Controlling

▪ Chapter 22 reaches documents held by public Chapter 22 reaches documents held by public officials in their official capacity, regardless of officials in their official capacity, regardless of

origin.origin.

▪ Public records do not lose their character as Public records do not lose their character as public records merely because they are stored in a public records merely because they are stored in a

private facility.private facility.

Are all public records open for public Are all public records open for public inspection and copying?inspection and copying?

No, Public Records may be either Open or Confidential

▪ Open recordsOpen records – – ▸Under chapter 22, all public records are available to any person Under chapter 22, all public records are available to any person

for examination or copying and any use,for examination or copying and any use,▸UnlessUnless designated by law as confidential. designated by law as confidential.

▪ Confidential recordsConfidential records – – ▸Code § 22.7 lists 49 categories of records which are to be treated Code § 22.7 lists 49 categories of records which are to be treated

as confidential unless ordered released by a court, the lawful as confidential unless ordered released by a court, the lawful custodian, or another authorized person.custodian, or another authorized person.

▸These records subject to release at the discretion of the custodianThese records subject to release at the discretion of the custodian

Confidential RecordsConfidential Records – Several other provisions – Several other provisions of state and federal law identify records which of state and federal law identify records which

must be kept confidential, examples include:must be kept confidential, examples include:▸ criminal intelligence data (Iowa Code ch. 692)criminal intelligence data (Iowa Code ch. 692)▸ HIV test results (Iowa Code § 141.23)HIV test results (Iowa Code § 141.23)▸ mental health and hospitalization records (Iowa Code mental health and hospitalization records (Iowa Code ch. 229)ch. 229)

Can everyone have access to my public Can everyone have access to my public records?records?

Every person has the right to examine, copy and publish all open records. This includes:▪The right to examine without charge. The right to examine without charge.

▪The right to photograph or make copies.The right to photograph or make copies.

▪The right to publish or otherwise disseminate a The right to publish or otherwise disseminate a public record or the information in the record.public record or the information in the record.

Access toAccess to Confidential RecordsConfidential Records

▪ Confidential records, which are not available for Confidential records, which are not available for public public inspection, must be made available to inspection, must be made available to members of governing members of governing bodies who have a need the bodies who have a need the information in the records in order information in the records in order to perform to perform their duties. These individuals may not further their duties. These individuals may not further disclose confidential records or information.disclose confidential records or information.

When can people come to the office to When can people come to the office to examine and copy records?examine and copy records?

▪People can examine and copy public records any People can examine and copy public records any time during your office hours. If your office is not time during your office hours. If your office is not open at least 30 hours per week:open at least 30 hours per week:

▪the rights may be exercised at any time between the rights may be exercised at any time between 9:00a.m. -12:00 noon and 1:00p.m. -4:00p.m.9:00a.m. -12:00 noon and 1:00p.m. -4:00p.m.

▪ Monday through Friday Monday through Friday

▪except legal holidays. except legal holidays.

Who responds to requests for public Who responds to requests for public records?records?

Lawful custodian responsible for records

The “lawful custodian” of records is generally the The “lawful custodian” of records is generally the government government body currently in possession of the records.body currently in possession of the records.

▸ “ “Each government body shall delegate to particular officials Each government body shall delegate to particular officials or employees of that governmental body the or employees of that governmental body the

responsibility responsibility for implementing [chapter 22]”for implementing [chapter 22]”▸ The contact person shall be publicly announced.The contact person shall be publicly announced.

However, the Board of Supervisors remains the “lawful However, the Board of Supervisors remains the “lawful custodian” of books and records maintained by the Auditor as custodian” of books and records maintained by the Auditor as clerk to the Board. (1992 OAG p. 167)clerk to the Board. (1992 OAG p. 167)

Understand the LawUnderstand the Law

The public records contact person should:

▪ Know what public records are maintained in the Know what public records are maintained in the office;office;

▪ Know which of the records are open and which Know which of the records are open and which are confidential or may contain confidential are confidential or may contain confidential

information;information;

▪ Know how they are going to respond when Know how they are going to respond when someone asks to see or receive a copy of a someone asks to see or receive a copy of a particular public record.particular public record.

How should requests for access be How should requests for access be managed?managed?

▪Do not relinquish control of the records. Do not relinquish control of the records.

▪Provide a place for examination and copying.Provide a place for examination and copying.

▪Provide a reasonable number of copies.Provide a reasonable number of copies.

▪Move to a separate location, if necessary. Move to a separate location, if necessary.

Can I request that a person who asks for a Can I request that a person who asks for a public record identify himself?public record identify himself?

Yes, but you cannot require that someone identify Yes, but you cannot require that someone identify himself in order to get a public record.himself in order to get a public record.

Can I require a request for a copy of a Can I require a request for a copy of a public record to be in writing?public record to be in writing?

No - if they ask for it orally, they are entitled to it. No - if they ask for it orally, they are entitled to it. You do not have to comply with a written request.You do not have to comply with a written request. But - many agencies honor requests for records But - many agencies honor requests for records which are sent my mail or email for mutual which are sent my mail or email for mutual convenience. convenience. What about using a request form? You may use a What about using a request form? You may use a form for people to make public records requests, form for people to make public records requests,

as long as the form is not mandatory.as long as the form is not mandatory.

How specifically must a person describe How specifically must a person describe records he/she is requesting?records he/she is requesting?

▪The request must reasonably describe the records. The request must reasonably describe the records.

A description is reasonable if it allows the person A description is reasonable if it allows the person familiar with the records to locate the record with a familiar with the records to locate the record with a reasonable amount of effort. reasonable amount of effort.

▪For example: a request for Board minutes may be For example: a request for Board minutes may be for may be for a particular day or time, or for any for may be for a particular day or time, or for any number of days or times, without stating a particular number of days or times, without stating a particular issue or action item. issue or action item.

What May I Charge?What May I Charge?

You are allowed to recover your expenses for supervising and for copying:

▪ Charge a reasonable fee for supervising records Charge a reasonable fee for supervising records and for copies.and for copies.

▪ Do not charge more than the actual cost of Do not charge more than the actual cost of

supervising and copying.supervising and copying.

▪ Apply fees uniformly to everyone.Apply fees uniformly to everyone.

Calculating FeesCalculating Fees

“All expenses of the work shall be paid by the person desiring to examine or copy the record.”

▪ The fee The fee maymay include: include:▸ a reasonable charge for time spent supervising examination a reasonable charge for time spent supervising examination

of the records;of the records;▸ a reasonable charge for time spent retrieving records;a reasonable charge for time spent retrieving records;▸ the actual cost of providing a copy;the actual cost of providing a copy;▸ the actual cost of providing a place for examination of the the actual cost of providing a place for examination of the

records, if necessary.records, if necessary.

Fee LimitationsFee Limitations“ The fee for the copying service determined by the

lawful custodian shall not exceed the cost of providing the service.” Iowa Code § 22.3

The fee The fee may notmay not include fixed or overhead costs, such as: include fixed or overhead costs, such as:▸DepreciationDepreciation▸Equipment maintenanceEquipment maintenance▸ElectricityElectricity▸InsuranceInsurance

You You may notmay not recover the costs associated with creating recover the costs associated with creating records as a part of day-to-day governmental functionsrecords as a part of day-to-day governmental functions

Records RetentionRecords Retention

▪ With few exceptions, state & federal law do not With few exceptions, state & federal law do not dictate government record retention policies.dictate government record retention policies.

▸ Federal EEOC regulations require county personnel records Federal EEOC regulations require county personnel records to be kept for two years from the last action – either decision to be kept for two years from the last action – either decision not to hire, or if hired, date of separation. 29 CFR § 1602.31.not to hire, or if hired, date of separation. 29 CFR § 1602.31.

What if I do not have the information in the What if I do not have the information in the form requested?form requested?

Chapter 22 does not require you to generate records.

▪ People sometimes ask for a record you do not People sometimes ask for a record you do not routinely generate, for example a listing of items routinely generate, for example a listing of items contained on other records.contained on other records.

▪ Chapter 22 does not require you to make records.Chapter 22 does not require you to make records.

▪ If you have the requested information within If you have the requested information within open public records in your office, offer the open public records in your office, offer the requestor an opportunity to examine the records.requestor an opportunity to examine the records.

What if I’m unsure whether the record is What if I’m unsure whether the record is confidential?confidential?

Locate and Review the Record

▪ Take time to decide whether to allow access - Take time to decide whether to allow access - consult with your counsel, if necessary.consult with your counsel, if necessary.

▪ Section 22.8 allows a “good faith, reasonable Section 22.8 allows a “good faith, reasonable delay” to determine the record is confidential. delay” to determine the record is confidential.

Do not take more than 10 business days.Do not take more than 10 business days.

What happens to me if I violate the What happens to me if I violate the law?law?

The Public Records Law can be enforced by:▪Any aggrieved person.Any aggrieved person.

▪A taxpayer to the State of Iowa. A taxpayer to the State of Iowa.

▪A citizen of the State of Iowa.A citizen of the State of Iowa.

▪The Attorney General.The Attorney General.

▪A county attorney. A county attorney.

Upon Finding a Violation a Court shall:

Issue an injunction ordering violators to comply. Issue an injunction ordering violators to comply.

Assess damages between $100 -$500.Assess damages between $100 -$500.

Order payment of costs and attorney fees. Order payment of costs and attorney fees.

Issue an order removing from office any person Issue an order removing from office any person

who has had two prior violations for which damages who has had two prior violations for which damages

were assessed. were assessed.

In Addition to these Remedies the Court may:

Order a person to refrain for one year from future Order a person to refrain for one year from future violations. violations.

Find a person guilty of a simple misdemeanor for Find a person guilty of a simple misdemeanor for

a knowing violation. a knowing violation.

What defenses are available to me?What defenses are available to me?

Ignorance of the law is not a defense, but no damages will be assessed against you if you: ▪Voted against the violation.Voted against the violation.

▪Refused to participate in the violation.Refused to participate in the violation.

▪Engaged in reasonable efforts to resist or prevent Engaged in reasonable efforts to resist or prevent the violation.the violation.

▪Had good reason to believe and in good faith Had good reason to believe and in good faith believed facts which, if true, would have indicated believed facts which, if true, would have indicated compliance with the law.compliance with the law.

Reasonably relied upon a decision of a court or Reasonably relied upon a decision of a court or an opinion of the attorney general or the attorney for an opinion of the attorney general or the attorney for the governmental body. the governmental body.

APPLYING PUBLIC RECORDS APPLYING PUBLIC RECORDS LAWLAW

ExamplesExamples

Personnel RecordsPersonnel Records

▪ ““Personal information” in public employee personnel records Personal information” in public employee personnel records may be kept confidential.may be kept confidential. Personal information includes:Personal information includes:

▸ performance evaluations, performance evaluations, ▸ disciplinary investigations and actions,disciplinary investigations and actions,▸ home address and telephone information,home address and telephone information,▸ medical records & reason for sick leave use.medical records & reason for sick leave use.

Personal information does NOT include:Personal information does NOT include:▸ name,name,▸ salary,salary,▸ workplace contact information,workplace contact information,▸ amount of vacation or sick leave used.amount of vacation or sick leave used.

CorrespondenceCorrespondence

▪ Letters or other correspondence received and Letters or other correspondence received and sent by public officers and employees in their sent by public officers and employees in their official capacity are public records.official capacity are public records.

▪ Most correspondence will be open and accessible Most correspondence will be open and accessible to the public.to the public.

▪ Some correspondence may be kept confidential Some correspondence may be kept confidential under Code § 22.7(18), if:under Code § 22.7(18), if:

▸ it came from a person outside of government,it came from a person outside of government,▸ it was submitted voluntarily (not required), andit was submitted voluntarily (not required), and▸ you believe it would not be submitted if released.you believe it would not be submitted if released.

E-MailE-Mail

E-mail received and sent by public officials and employees is a public record.

▪ Because it is a public record, you should have all Because it is a public record, you should have all employees sign a document acknowledging that can employees sign a document acknowledging that can all email.all email.

Other Computerized Public RecordsOther Computerized Public Records

IOWA CODE § 22.3A

▪ You may restrict access to data processing software, but not You may restrict access to data processing software, but not electronically stored open public records.electronically stored open public records. You are prohibited from acquiring a software system which You are prohibited from acquiring a software system which

impairs your ability to provide public access to public records.impairs your ability to provide public access to public records. Charges:Charges:

▸You bear the cost of separating the public records from You bear the cost of separating the public records from software systems.software systems.

▸You may not charge more than the actual cost of providing You may not charge more than the actual cost of providing copies of records in an electronic format.copies of records in an electronic format.

Emergency Management and Homeland Emergency Management and Homeland Security InformationSecurity Information

Sensitive information may be kept confidential

▪ See Iowa Code § 22.7(45).See Iowa Code § 22.7(45). Records of a municipal corporation may be kept confidential Records of a municipal corporation may be kept confidential where disclosure could reasonably be expected to jeopardize where disclosure could reasonably be expected to jeopardize the security or the public health and safety.the security or the public health and safety.

Such records include:Such records include:▸ vulnerability assessments,vulnerability assessments,▸ architectural or construction drawings, diagrams, or plans,architectural or construction drawings, diagrams, or plans,▸ records pertaining to security and response plans.records pertaining to security and response plans.

Settlement DocumentsSettlement Documents

▪ See Iowa Code§ 22.13.See Iowa Code§ 22.13.

▪ A written summary of the terms of settlement, A written summary of the terms of settlement, including amounts of payments made to or through a including amounts of payments made to or through a claimant, against a governmental body, by an insurer claimant, against a governmental body, by an insurer must be prepared and filed.must be prepared and filed.

▪ The summary shall be treated as a public record.The summary shall be treated as a public record.

Social Security NumbersSocial Security Numbers▪ Social Security Numbers are NOT universally Social Security Numbers are NOT universally

treated as confidential.treated as confidential.

▪ The federal “privacy act” requires some SSN The federal “privacy act” requires some SSN information to be kept confidential.information to be kept confidential.

▪ State law requires some SSNs to be kept State law requires some SSNs to be kept confidential.confidential.

▪ As a general rule, SSNs which are voluntarily As a general rule, SSNs which are voluntarily provided may be disclosed on open records.provided may be disclosed on open records.

▪ Because the rules vary, seek legal advice before Because the rules vary, seek legal advice before releasing SSN information.releasing SSN information.

Tape of Transcript of a 911 CallTape of Transcript of a 911 Call

▪ Generally, the 911 tape or transcript is a public Generally, the 911 tape or transcript is a public record, which must be disclosed upon request.record, which must be disclosed upon request.

▪ 911 tapes or transcripts may be confidential: 911 tapes or transcripts may be confidential: ▸ As a part of an ongoing criminal investigation file, As a part of an ongoing criminal investigation file, oror▸ As a communication from someone from outside of government As a communication from someone from outside of government

which would not occur if made public.which would not occur if made public.

▪ Because the result will vary depending upon the Because the result will vary depending upon the circumstances, seek legal advice before releasing circumstances, seek legal advice before releasing this information.this information.

Arrest WarrantsArrest Warrants

▪ The warrant should be considered a part of an The warrant should be considered a part of an ongoing criminal investigation file, and may be kept ongoing criminal investigation file, and may be kept confidential under Code § 22.7 (4)confidential under Code § 22.7 (4)

▪ The lawful custodian has the discretion to release The lawful custodian has the discretion to release the fact that the warrant exists or the warrant itself. the fact that the warrant exists or the warrant itself.

▪ HOWEVER: Information filed with the court to HOWEVER: Information filed with the court to get an arrest warrant is confidential under Code § get an arrest warrant is confidential under Code § 804.29, and MAY NOT BE released 804.29, and MAY NOT BE released untiluntil a peace a peace officer has made the arrest and has made the officer has made the arrest and has made the officer's return on the warrant. officer's return on the warrant.

Four Guiding PrinciplesFour Guiding Principles

When handling public records requests

▪Requester not required to identify himself.Requester not required to identify himself.

▪Why the requestor wants the record is irrelevant.Why the requestor wants the record is irrelevant.

▪Public records cannot be withheld without cited Public records cannot be withheld without cited legal authority.legal authority.

▪There is always time to ask for legal advice if you There is always time to ask for legal advice if you don’t know whether a record can be provided.don’t know whether a record can be provided.

ResourcesResources

Surfing the Web

▪ Iowa Attorney General - outlines and Q & A: Iowa Attorney General - outlines and Q & A: www.state.ia.us/government/ag/Sunshine_adv/www.state.ia.us/government/ag/Sunshine_adv/

▪ Iowa State Association of Counties – Iowa State Association of Counties – www.iowacounties.orgwww.iowacounties.org

▪Iowa Citizens’ Aide/Ombusdman’s Office – Iowa Citizens’ Aide/Ombusdman’s Office –

www.legis.state.ia.us/ombudsmanwww.legis.state.ia.us/ombudsman

Additional ResourcesAdditional Resources

▪ Iowa Freedom of Information Council - Iowa Freedom of Information Council - Handbook with text of laws and Q & A: Handbook with text of laws and Q & A: www.drake.edu/journalism/foi/ifoi2.htmlwww.drake.edu/journalism/foi/ifoi2.html

Questions?Questions?