Emails sent or received by public employees are often the subject of public records requests. There is a presumption of openness and disclosure under Iowa's Open Records Law. Records of a government body, including emails, are generally considered public records. However, there are situations in which emails may be properly excluded from disclosure. Public officials confronted with a public records request that involves employee use of email should consider the following issues.
Is the email a public record?
The first inquiry is whether the subject emails constitute "public records" within the meaning of the Iowa Open Records Law. The term "public records" is defined in the law to include "all records, documents, tape, or other information, stored or preserved in any medium, of or belonging to . . . any county, city, township, school corporation, political subdivision . . . ." Iowa Code § 22.1(3) (emphasis added).
The Iowa Supreme Court has construed the phrase "of or belonging to" in this definition to mean:
A document of the government is a document that was produced by or originated from the government. Documents belonging to the government would include those documents that originate from other sources but are held by public officers in their official capacity.
City of Dubuque v. Dubuque Racing Ass'n, Ltd., 420 N.W.2d 450, 452 (Iowa 1988). The Court explained that the "belonging to" determination turns on whether the public officers were acting in their official capacity as public servants and whether disclosure of the requested documents will facilitate public scrutiny of the conduct of public officers. The Court noted that this decision does not depend on the physical location of the requested documents, but rather "the appropriate inquiry is whether the documents are held by the [public officials] in their official capacity."
The Iowa Attorney General's Office has issued opinions addressing the meaning of the phrase "of or belonging to" a government body. One such opinion pertains to letters, called "Board Notes," sent from a school superintendent to members of the school board which contained the superintendent's observations, assumptions, comments and other information on issues confronted by the school district. The Attorney General made this observation in the opinion:
Whether the "Board Notes" that you describe in your opinion request are such official documents would depend on a factual analysis of a particular "Board Notes" letter, something which is not the suitable subject of an Attorney General's opinion. However, we note that a letter merely conveying informal observations, a draft for a speech, or background information, might be found to not constitute a "public record."
Op. Atty. Gen. (Daggett), June 3, 1992. This opinion indicates that not every document prepared by a government official automatically becomes a public record simply because that official has created it and it exists as a record in that official's files. The opinion is consistent with a prior opinion of the Iowa Attorney General's Office which states:
[W]e advise that "public records" generally does include all "documents" and "records" in the possession of the public bodies identified in [the Iowa Open Records Law]. Nevertheless, we do not believe that every writing and piece of paper in the possession of a public official necessarily constitutes a record or a document. Given the definitions of these terms, we conclude that they are intended to refer to any comprehensible writing developed and/or maintained by a public body or official as a convenient, appropriate, or customary method by which the body or official discharges a public duty.
Op. Atty. Gen. (McDonald), August 14, 1981.
The Iowa District Court for Polk County recently touched on the issue of public employee emails. In that case, the District Court ruled that the statutory definition of "public records" can include personal emails sent and received by a public employee on the computer systems of a government body. No Iowa appellate court has issued a decision regarding the public records status of a public employee's personal emails maintained on the computer systems of a government body.
However, courts in other states have issued decisions regarding the application of public records laws to employee personal email records maintained on computer systems of government bodies. In most of these cases, the courts concluded that purely personal emails maintained on the government's computer system were not a public record subject to disclosure. State ex rel. Wilson-Simmons v. Lake County Sheriff's Dep't, 693 N.E.2d 789 (Ohio 1998); State v. City of Clearwater, 863 So. 2d 149 (Fla. 2003); Denver Pub. Co. v. Bd. of County Comm'rs of County of Arapahoe, 121 P.3d 190 (Colo. 2005); Griffis v. Pinal County, 156 P.3d 418 (Ariz. 2007); Schill v. Wisconsin Rapids School Dist., 786 N.W.2d 177 (Wis. 2010); Howell Ed. Ass'n, MEA/NEA v. Howell Bd. of Ed., 789 N.W.2d 495 (Mich. App. 2010); Easton Area School Dist. v. Baxter, 35 A.3d 1259 (Pa. Cmwlth. 2012). These cases are largely dependent upon the language of the particular public records law in question.
Public officials who are handling public records requests should be aware that there may be an argument that the government body's email systems which happen to preserve copies of email messages sent and received by public employees using the system, but which are purely personal in nature and do not relate to the government body's business, might not be public records. However, because there is no Iowa appellate authority which directly addresses this issue, the costs, risks, and benefits of such an approach should be considered on a case-by-case basis.
Is the email otherwise excepted from disclosure?
Even if employee emails qualify as "public records," they may be excepted from disclosure under the Iowa Open Records Law. The law provides that certain categories of public records "shall 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." Iowa Code § 22.7. There are many different categories of confidential records listed in the law, including:
1. "Personal information in records regarding a student, prospective student, or former student maintained, created, collected or assembled by or for a school corporation or educational institution maintaining such records...." Iowa Code § 22.7(1). Federal law, the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, also protects the confidentiality of student records.
2. "Records which represent and constitute the work product of an attorney, which are related to litigation or claim made by or against a public body." Iowa Code § 22.7(4). Other attorney-client communications may also be considered privileged to the extent that they consist of communication of legal advice.
3. "Personal information in confidential personnel records of government bodies relating to identified or identifiable individuals who are officials, officers, or employees of the government bodies." Iowa Code § 22.7(11). Just last year the Iowa Legislature amended this provision to specify that certain information relating to such individuals contained in personnel records shall, nevertheless, be considered public records. This information includes:
a. "The name and compensation of the individual including any written agreement establishing compensation or any other terms of employment excluding any information otherwise excludable from public information pursuant to this section or any other applicable provision of law...."
b. "The dates the individual was employed by the government body."
c. "The positions the individual holds or has held with the government body."
d. "The educational institutions attended by the individual, including any diplomas and degrees earned, and the names of the individual's previous employers, positions previously held, and dates of previous employment."
e. "The fact that the individual was discharged as the result of a final disciplinary action upon the exhaustion of all applicable contractual, legal, and statutory remedies."
4. "Communications not required by law, rule, procedure, or contract that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them to that government body if they were available for general public examination. . . ." Iowa Code § 22.7(18). However, under this exception:
a. "The communication is a public record to the extent that the person outside of government making that communication consents to its treatment as a public record."
b. "Information contained in the communication is a public record to the extent that it can be disclosed without directly or indirectly indicating the identity of the person outside of government making it or enabling others to ascertain the identity of that person."
c. "Information contained in the communication is a public record to the extent that it indicates the date, time, specific location, and immediate facts and circumstances surrounding the occurrence of a crime or other illegal act, except to the extent that its disclosure would plainly and seriously jeopardize a continuing investigation or pose a clear and present danger to the safety of any person...."
Public officials who are handling public records requests should be aware that there are statutory exceptions in the Iowa Open Records Law which deem certain categories of public records to be confidential and, therefore, such records are not generally subject to disclosure in response to a public records request. The application of these exceptions to employee emails should be considered on a case-by-case basis.
Is there an email retention policy which limits the scope of available records?
Iowa law provides that governmental agencies of this state "shall determine whether, and the extent to which, the governmental agency will create and retain electronic records and convert written records to electronic records." Iowa Code § 554D.119. Therefore, government bodies may establish policies regarding the retention of email records maintained on their computer systems.
In general, the precise time frame that a government body must keep emails is left to the discretion of the government body. Time frames can range from several months to several years. Public officials should be sure that whatever retention period is chosen, the time frame is reasonable and consistently followed. If a public records request is received by a government body which includes a request for employee emails, public officials are only required to disclose those email records which still exist pursuant to the email retention policy. An email retention policy, therefore, has the potential to dramatically decrease the number of emails available for response to a public records request.
Of course, a general email retention policy is subordinate to any applicable law or other policy of the government body which specifically address retention of the government body's records. Any email that contains information within the scope of those laws or policies should be treated in accordance with the requirements of those laws or policies, and not the general email retention policy. Also, when litigation is pending or reasonably anticipated, a general email retention policy is subordinate to the Iowa and Federal Rules of Civil Procedure which require that a "litigation hold" (i.e., preservation obligation) be placed on all electronically stored information, including email. Finally, a general email retention policy is subordinate to any outstanding requests for records of the government body made pursuant to the Iowa Open Records Law. As soon as a public records request is received which includes emails, the government body should immediately contact its computer systems supervisor and insure that the emails which are subject to the request are preserved, regardless of whether the records will ultimately be disclosed.
In sum, public officials confronted with a public records request that involves public employee use of email will need to (1) determine what email records may be available which are responsive to the request; (2) review each available email record individually and determine whether the email is a public record; and, if so, (3) determine whether that record is nevertheless confidential under the law. Public officials should consult with legal counsel regarding these matters and make their own decision as to the proper disclosure of records in any given case.
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