The ins and outs of public record
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Wednesday, January 17, 2018
By Rick Morain
The Jefferson Herald
Six weeks ago I wrote a column about changes that could improve Iowa’s law on open meetings.
That’s Chapter 21 of the Iowa Code. Chapter 22 deals with public records, and that’s the law I want to discuss in this week’s column.
The policy of Chapter 22, as stated in Section 22.8, is “that free and open examination of public records is generally in the public interest even though such examination may cause inconvenience or embarrassment to public officials or others.”
Chapter 22 defines public records as “all records, documents, tape or other information, stored or preserved in any medium, of or belonging to this state or any county, city, township, school corporation, political subdivision ... whose facilities or indebtedness are supported in whole or in part with property tax revenue ... or tax-supported district in this state, or any branch, department, board, bureau, commission, council or committee of any of the foregoing.”
Pretty all-encompassing, right?
And the officials and staffs of most public bodies in Iowa have an admirable history of complying with Section 22 in both letter and spirit.
On the other hand, Section 22.7 lists 73 exceptions to the law, allowing specific kinds of records to be kept confidential, “unless otherwise ordered by a court, by the lawful custodian of the records or by another person duly authorized to release such information.”
Such exceptions are generally common-sense: student records, personal health records, personal library use records, fragile archaeology sites, welfare records, Social Security numbers, essential security information, etc.
That said, various exceptions are occasionally used by public officials — not locally, so far as I am aware — to evade the spirit of the public records law.
One such evasion, which seems to be growing in frequency in the state, is the demand for exorbitant charges by officials for the time and trouble of providing records to the public.
The law allows government bodies to make reasonable charges for the time it takes a public employee, including a government attorney, to search the agency’s records for the information requested by someone.
But “reasonable” is sometimes stretched to inordinate limits.
One city administrator in Iowa last year charged a TV station $1,260 in fees for 20 hours of time to retrieve the bills submitted to the city by a law firm and to review and redact portions of 134 pages of those bills.
That amount of cost is not what the public records law intended. Another method sometimes used to stymie public access to records is to slow-walk the compliance.
Section 22.8(4) of the public records law provides for a “good-faith, reasonable delay by a lawful custodian” in permitting examination of a record. The law allows up to 20 calendar days to determine whether a record should be released, but delay should usually not exceed 10 business days, the Code states.
On occasion, that grace period is abused.
Other abuses sometimes take place. For instance, a member of the public who requests a public record is not required to state his or her reason. Public officials should not ask requesters why they want a particular record. They’re entitled to it, period.
Sometimes an official will try to deny turning over a document that was created in the development of an agency policy or project, claiming that the document is simply a “draft” and therefore not a public record.
The law states that when a document is used in the formulation of policy, it is no longer just a draft. It is part of the creation of the final product, and is therefore a public record.
One more example, and it’s a thorny one, is a law officer’s body camera.
The question is whether the body camera’s recorded videotape, or stored recording, is a public record.
Section 22.7(5) makes peace officers’ investigative reports confidential. Sometimes law enforcement agencies claim that a body camera recording is part of an investigative report, and therefore can be withheld from public view.
When the Iowa public records law was drafted decades ago, body cameras were not around. There’s a case before the Iowa Public Information Board, of which I am a member, right now that seeks to find an answer to that question.
The Public Information Board recently filed a bill with the Iowa Legislature that seeks to clarity the status of public access to body camera footage. The bill provides for the creation of a study committee with membership from the media, public bodies, law enforcement groups and other stakeholders. The committee would try to achieve consensus on how to handle body camera data.
And then there’s the matter of when an investigative report could become public. Right now the law is silent on that question.
All in all, Iowa has a commendable record of public access to public records. It’s worthwhile to build on that heritage, and to point out the occasional violations of openness.
Rick Morain, retired longtime editor-publisher of the Jefferson Herald, continues to write a weekly column for the newspaper. He also serves on the Iowa Public Information. This column was originally published in the Jefferson Herald January 11, 2018. INA member newspapers are invited to consider publishing it as a guest column.