Public Records Law Basics New County Officers School January 19, 2005

1. Public Records Law Basics New County Officers School January 19, 2005 David Vestal General CounselISACdvestal@iowacounties.org(515) 244-7181

2. Scope Today’s presentation will provide you with an understanding of the following points: • What records are “public, open, confidential?” • How should my office prepare for and manage public requests to review or copy records? • What may I charge? • What happens if I violate the law? • Where can I get help if I’m unsure?

3. Origin and Purpose of the Public Records Law • ORIGIN: The first version of Iowa’s Public Records Law was enacted in 1967 • PURPOSE: As a “sunshine” statute, the law is intended to open the doors of government to public scrutiny by providing everyone a right to examine and copy all public records which are not designated by law to be confidential.

4. What is a Public Record? • all records, documents, tape, or other information, stored or preserved in any medium • of or belonging to this state or any county, city, township. . . . • or any branch, department, board, bureau, commission, council, or committee of any of the foregoing. Code § 22.1 definition

5. The Records may be in any Form: • Paper. • Audio or video tape. • Computer tape or computer readable medium.

6. Location and Origin of the Record are NOT Controlling • Chapter 22 reaches documents held by public officials in their official capacity, regardless of origin. • Public records do not lose their character as public records merely because they are stored in a private facility.

7. Are all public records open for public inspection and copying? • Open records – • Under chapter 22, all public records are available to any person for examination or copying and any use, • Unless designated by law as confidential. • Confidential records – • Code § 22.7 lists 49 categories of records which are to be treated as confidential unless ordered released by a court, the lawful custodian, or another authorized person. • These records subject to release at the discretion of the custodian No, Public Records may be either Open or Confidential

8. Confidential Records – Several other provisions of state and federal law identify records which must be kept confidential, examples include: criminal intelligence data (Iowa Code ch. 692) HIV test results (Iowa Code § 141.23) mental health and hospitalization records (Iowa Code ch. 229)

9. Can everyone have access to my public 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 photograph or make copies. • The right to publish or otherwise disseminate a public record or the information in the record.

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

11. When can people come to the office to examine and copy records? • People can examine and copy public records any time during your office hours. If your office is not open at least 30 hours per week: • the rights may be exercised at any time between 9:00a.m. -12:00 noon and 1:00p.m. -4:00p.m. • Monday through Friday • except legal holidays.

12. Who responds to requests for public records? Lawful custodian responsible for records • The “lawful custodian” of records is generally the government body currently in possession of the records. • “Each government body shall delegate to particular officials or employees of that governmental body the responsibility for implementing [chapter 22]” • The contact person shall be publicly announced. • However, the Board of Supervisors remains the “lawful custodian” of books and records maintained by the Auditor as clerk to the Board. (1992 OAG p. 167)

13. Understand the Law The public records contact person should: • Know what public records are maintained in the office; • Know which of the records are open and which are confidential or may contain confidential information; • Know how they are going to respond when someone asks to see or receive a copy of a particular public record.

14. How should requests for access be managed? • Do not relinquish control of the records. • Provide a place for examination and copying. • Provide a reasonable number of copies. • Move to a separate location, if necessary.

15. Can I request that a person who asks for a public record identify himself? Yes, but you cannot require that someone identify himself in order to get a public record.

16. Can I require a request for a copy of a public record to be in writing? • No - if they ask for it orally, they are entitled to it. • You do not have to comply with a written request. • But - many agencies honor requests for records which are sent my mail or email for mutual convenience. • What about using a request form? You may use a form for people to make public records requests, as long as the form is not mandatory.

17. How specifically must a person describe records he/she is requesting? • The request must reasonably describe the records. A description is reasonable if it allows the person familiar with the records to locate the record with a reasonable amount of effort. • For example: a request for Board minutes may be for may be for a particular day or time, or for any number of days or times, without stating a particular issue or action item.

18. What May I Charge? You are allowed to recover your expenses for supervising and for copying: • Charge a reasonable fee for supervising records and for copies. • Do not charge more than the actual cost of supervising and copying. • Apply fees uniformly to everyone.

19. Calculating Fees “All expenses of the work shall be paid by the person desiring to examine or copy the record.” • The fee may include: • a reasonable charge for time spent supervising examination of the records; • a reasonable charge for time spent retrieving records; • the actual cost of providing a copy; • the actual cost of providing a place for examination of the records, if necessary.

20. Fee 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 may not include fixed or overhead costs, such as: • Depreciation • Equipment maintenance • Electricity • Insurance • You may not recover the costs associated with creating records as a part of day-to-day governmental functions

21. Records Retention • With few exceptions, state & federal law do not dictate government record retention policies. • Federal EEOC regulations require county personnel records 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.

22. What if I do not have the information in the form requested? Chapter 22 does not require you to generate records. • People sometimes ask for a record you do not routinely generate, for example a listing of items contained on other records. • Chapter 22 does not require you to make records. • If you have the requested information within open public records in your office, offer the requestor an opportunity to examine the records.

23. What if I’m unsure whether the record is confidential? Locate and Review the Record • Take time to decide whether to allow access - consult with your counsel, if necessary. • Section 22.8 allows a “good faith, reasonable delay” to determine the record is confidential. Do not take more than 10 business days.

24. What happens to me if I violate the law? The Public Records Law can be enforced by: • Any aggrieved person. • A taxpayer to the State of Iowa. • A citizen of the State of Iowa. • The Attorney General. • A county attorney.

25. Issue an injunction ordering violators to comply. Assess damages between $100 -$500. Order payment of costs and attorney fees. Issue an order removing from office any person who has had two prior violations for which damages were assessed. Upon Finding a Violation a Court shall:

26. Order a person to refrain for one year from future violations. Find a person guilty of a simple misdemeanor for a knowing violation. In Addition to these Remedies the Court may:

27. 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. • Refused to participate in the violation. • Engaged in reasonable efforts to resist or prevent the violation. • Had good reason to believe and in good faith believed facts which, if true, would have indicated compliance with the law.

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

29. APPLYING PUBLIC RECORDS LAW Examples

30. Personnel Records • “Personal information” in public employee personnel records may be kept confidential. • Personal information includes: • performance evaluations, • disciplinary investigations and actions, • home address and telephone information, • medical records & reason for sick leave use. • Personal information does NOT include: • name, • salary, • workplace contact information, • amount of vacation or sick leave used.

31. Correspondence • Letters or other correspondence received and sent by public officers and employees in their official capacity are public records. • Most correspondence will be open and accessible to the public. • Some correspondence may be kept confidential under Code § 22.7(18), if: • it came from a person outside of government, • it was submitted voluntarily (not required), and • you believe it would not be submitted if released.

32. E-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 employees sign a document acknowledging that can all email.

33. Other Computerized Public Records IOWA CODE § 22.3A • You may restrict access to data processing software, but not electronically stored open public records. • You are prohibited from acquiring a software system which impairs your ability to provide public access to public records. • Charges: • You bear the cost of separating the public records from software systems. • You may not charge more than the actual cost of providing copies of records in an electronic format.

34. Emergency Management and Homeland Security Information • See Iowa Code § 22.7(45). • Records of a municipal corporation may be kept confidential where disclosure could reasonably be expected to jeopardize the security or the public health and safety. • Such records include: • vulnerability assessments, • architectural or construction drawings, diagrams, or plans, • records pertaining to security and response plans. Sensitive information may be kept confidential

35. Settlement Documents • See Iowa Code§ 22.13. • A written summary of the terms of settlement, including amounts of payments made to or through a claimant, against a governmental body, by an insurer must be prepared and filed. • The summary shall be treated as a public record.

36. Social Security Numbers • Social Security Numbers are NOT universally treated as confidential. • The federal “privacy act” requires some SSN information to be kept confidential. • State law requires some SSNs to be kept confidential. • As a general rule, SSNs which are voluntarily provided may be disclosed on open records. • Because the rules vary, seek legal advice before releasing SSN information.

37. Tape of Transcript of a 911 Call • Generally, the 911 tape or transcript is a public record, which must be disclosed upon request. • 911 tapes or transcripts may be confidential: • As a part of an ongoing criminal investigation file, or • As a communication from someone from outside of government which would not occur if made public. • Because the result will vary depending upon the circumstances, seek legal advice before releasing this information.

38. Arrest Warrants • The warrant should be considered a part of an ongoing criminal investigation file, and may be kept confidential under Code § 22.7 (4) • The lawful custodian has the discretion to release the fact that the warrant exists or the warrant itself. • HOWEVER: Information filed with the court to get an arrest warrant is confidential under Code § 804.29, and MAY NOT BE released until a peace officer has made the arrest and has made the officer's return on the warrant.

39. Four Guiding Principles • Requester not required to identify himself. • Why the requestor wants the record is irrelevant. • Public records cannot be withheld without cited legal authority. • There is always time to ask for legal advice if you don’t know whether a record can be provided. When handling public records requests

40. Resources Surfing the Web • Iowa Attorney General - outlines and Q & A: www.state.ia.us/government/ag/Sunshine_adv/ • Iowa State Association of Counties – www.iowacounties.org • Iowa Citizens’ Aide/Ombusdman’s Office – www.legis.state.ia.us/ombudsman

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

42. Questions?