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Records Requests and Legal Issues

Introduction and Overview. Responding to Open Records RequestsWhat records are covered by Iowa law?Responding to a request.What records may be kept confidential?Enforcement of the open records law.Responding to Requests for Personnel FilesWhat records make up a personnel file?Responding to a

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Records Requests and Legal Issues

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    1. Records Requests and Legal Issues

    2. Introduction and Overview Responding to Open Records Requests What records are covered by Iowa law? Responding to a request. What records may be kept confidential? Enforcement of the open records law. Responding to Requests for Personnel Files What records make up a personnel file? Responding to a request.

    3. Iowa Open Records Law Chapter 22 of the Iowa Code requires state government entities like the University of Iowa to provide the public with access to its records. The federal Freedom of Information Act (“FOIA”) imposes similar requirements on federal institutions. 5 U.S.C. 552. Discuss purpose of these laws. Similar to Open Meetings Laws/Government in the Sunshine Act. -transparent gov’t b/c the gov’t works for the people – accountability. General Rule – disclosure is required! There are limited exceptions that apply.Discuss purpose of these laws. Similar to Open Meetings Laws/Government in the Sunshine Act. -transparent gov’t b/c the gov’t works for the people – accountability. General Rule – disclosure is required! There are limited exceptions that apply.

    4. Iowa Open Records Law Definition of a “Public Record” “All records, documents, tapes, or other information stored or preserved in any medium” that belong to a governmental body, as well as “investment policies, instructions, trading orders, or contracts, whether in the custody of the public body responsible for the public funds or a fiduciary or other third party.” ICA § 22.1(3). Applies to university records. Includes electronic records such as e-mail. Highlight: -documents that belong to a governmental body…whether in the custody of the Univ or a 3rd party. -regardless of location if you are conducting official Univ business then it “belongs” to the Univ. -ex. Your personal email account with hotmail or yahoo. When would an email on this private account “belong” to the Univ?? Official Univ business being conducted. -ex. Does that mean everything on your Univ email account “belongs” to the Univ? Not necessarily b/c acceptable use policy allows for some personal use. So an email that invites someone to a social lunch that is non-work related is purely personal. This would not “belong” to the Univ and therefore would NOT be subject to Open Records Request. Discuss the privacy issues related to an employees email or C:\drive.Highlight: -documents that belong to a governmental body…whether in the custody of the Univ or a 3rd party. -regardless of location if you are conducting official Univ business then it “belongs” to the Univ. -ex. Your personal email account with hotmail or yahoo. When would an email on this private account “belong” to the Univ?? Official Univ business being conducted. -ex. Does that mean everything on your Univ email account “belongs” to the Univ? Not necessarily b/c acceptable use policy allows for some personal use. So an email that invites someone to a social lunch that is non-work related is purely personal. This would not “belong” to the Univ and therefore would NOT be subject to Open Records Request. Discuss the privacy issues related to an employees email or C:\drive.

    5. Iowa Open Records Law Who may request access to public records? ANYONE! The law does not limit the class of persons who may request access to public records. Requestor doesn’t need to sign their name or explain their reason.

    6. Iowa Open Records Law NOTE: A subpoena is different from an open records request. Subpoena is a court order and the rules for responding to a subpoena differ from the rules under the Open Records law. If you or your department is served with a subpoena, please notify the University Office of the General Counsel immediately.

    7. Iowa Open Records Law In what form must the request be made? Requests may be made by telephone, e-mail, in person, or in writing. The request need not contain any magic words. In fact, a “FOIA request” triggers the state’s obligations, even though FOIA pertains only to federal records.

    8. Iowa Open Records Law What to do with an Open Records request at the University: Immediately send to Linda Kettner in the Office of University Relations. 101 Jessup Hall 319-384-0030 phone University Relations will then work with the OGC and others to compile the request.

    9. Iowa Open Records Law Responding to a Records Request Iowa Code 22.3: all records examinations and copying must be done under the supervision of the custodian of records. Iowa Code 22.3: allows the state to charge a “reasonable fee” for expenses associated with copying or inspection. University policy specifies: $15/hour for actual time spent compiling the request (over 1 hour) 10 cents per page for copies (over 20 pages) $75/hour for computer programming time, if needed to extract data Iowa Code 22.4: records should be made available during customary office hours. Open Records law provides for ACCESS. For example: hardcopies may be given for some things while electronic files may be given for others while visual onsite inspection may be initially offered for others. -ex. Annual salary list for the newspaper – electronic document -ex. Personnel file – currently hardcopy but some may be electronic access. Definition of custodian of record – person that has charge of property, papers, or other valuables; the regular keeper of the particular record. Ex. Steve Parrott, University Relations is the Custodian of Records.Open Records law provides for ACCESS. For example: hardcopies may be given for some things while electronic files may be given for others while visual onsite inspection may be initially offered for others. -ex. Annual salary list for the newspaper – electronic document -ex. Personnel file – currently hardcopy but some may be electronic access. Definition of custodian of record – person that has charge of property, papers, or other valuables; the regular keeper of the particular record. Ex. Steve Parrott, University Relations is the Custodian of Records.

    10. Iowa Open Records Law What if the University has the data but no actual document exists? University has obligation to extract/compile the data May charge computer programming fee if new or original programming is required $75/hour No duty to “create” a record.No duty to “create” a record.

    11. Iowa Open Records Law Confidential Records: I.C.A. 22.7 provides for several categories of confidential records that are not subject to disclosure. Personal information about students – past, current, or former. The Family Educational Rights and Privacy Act (FERPA) is a federal law that also protects the privacy of student records. 20 U.S.C. 1232g. Hospital, medical, and counseling records. Personnel records. Attorney work product. Personal student info examples: student grades, salary as a GA/TA/RA, other non-directory info. Personnel records – defined later. Attorney work product –records which represent and constitute the work product fo an atty, which are related to litigation or claim made by or against a public body. – does not include ALL attorney communication, different from atty-client privilege.Personal student info examples: student grades, salary as a GA/TA/RA, other non-directory info. Personnel records – defined later. Attorney work product –records which represent and constitute the work product fo an atty, which are related to litigation or claim made by or against a public body. – does not include ALL attorney communication, different from atty-client privilege.

    12. Iowa Open Records Law Confidential Records (cont.) Trade secrets. Examinations. Certain financial records. Reports provided to government agencies that contain information that would give advantage to competitors and serve no public purpose. See the OGC for further discussion on these exceptions. There are 57 current exceptions to the Open Records Law but the general rule is that the item SHOULD be disclosed. See the OGC for further discussion about this topic or to review exceptions that may apply to your specific area of the University.See the OGC for further discussion on these exceptions. There are 57 current exceptions to the Open Records Law but the general rule is that the item SHOULD be disclosed. See the OGC for further discussion about this topic or to review exceptions that may apply to your specific area of the University.

    13. Iowa Open Records Law Data Processing Systems: The law specifically excludes access to any data processing system used by a state entity. Enforcement: If a court finds that a state entity failed to comply with a lawful request, I.C.A. 22.10 allows the court to: issue an injunction mandating compliance, impose fines ranging from $100 to $500 per occurrence, require the custodian to pay for the production of the records and the requestor’s attorneys’ fees, and/or find the custodian guilty of a criminal misdemeanor. The Univ does not have to provide access to the system but may be required to provide access to the data the system holds.The Univ does not have to provide access to the system but may be required to provide access to the data the system holds.

    14. Requests for Personnel Files Iowa Code Chapter 91B.1 gives employees the right to access and copy their personnel file. Personnel files include “performance evaluations, disciplinary records, and other information concerning employer-employee relations.” The employer may be present while the employee is viewing the file and may charge a “reasonable fee” for each copied page. University copy fee is 10 cents per copy. Note that unlike the open records law, this law does not allow the employer to charge for time spent responding to the request. If you get a request for an employee’s or former employee’s personnel file from their attorney, we ask that you route the request through the OGC immediately. The OGC will then work with you to compile the personnel file by contacting all of the necessary units/depts/orgs. -if the employee (not the ‘ees atty) requests a copy of the file - the department should still compile the file from the entire Univ.If you get a request for an employee’s or former employee’s personnel file from their attorney, we ask that you route the request through the OGC immediately. The OGC will then work with you to compile the personnel file by contacting all of the necessary units/depts/orgs. -if the employee (not the ‘ees atty) requests a copy of the file - the department should still compile the file from the entire Univ.

    15. Requests for Personnel Files Responding to a Request The law requires employers to provide access to personnel information kept in a variety of sources, not just the personnel files kept by the person or department to whom the request is made. Possible locations of personnel information: Departmental files Central Human Resources, including payroll and benefits Dean’s file and/or College file Provost’s Office files Hospital HR file Files kept by past departments Mary Cross, Secretary in the OGC, is very familiar with this process. She may work with you and an OGC attorney to review these possible locations.Mary Cross, Secretary in the OGC, is very familiar with this process. She may work with you and an OGC attorney to review these possible locations.

    16. Requests for Records Example: Your department receives a letter from a member of the Iowa City community asking for all emails, records, documents, etc. regarding the University’s contract with EXAMPLE CORPORATION.

    17. Requests for Records Example: Your department/college receives a subpeona for any and all academic records, including but not limited to, all classes attended and courses completed for EXAMPLE A. STUDENT from 1995 to the present.

    18. Requests for Records Example: An employee comes into the HR Rep’s office and asks to see his personnel file.

    19. Requests for Records Example: An attorney sends you a letter on behalf of her client (a former University employee) requesting a full and complete copy of her client’s personnel file.

    20. Review Open Records Requests Records covered by Iowa law. Responding to a request. Confidential records. Enforcement of the open records law. Requests for Personnel Files Records that make up a personnel file. Responding to a request.

    21. Questions? Office of the General Counsel 319-335-3696 or 319-335-3237 319-335-2830 fax 120 Jessup Hall general-counsel@uiowa.edu www.uiowa.edu~gencouns

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