Transcript Citizens’ Aide/Ombudsman Office Public Records Law

Citizens’ Aide/Ombudsman Office
Overview of the
Public Records Law
&
Open Meetings Law
Presented to Henry County on 5/1/2012 by:
Angela McBride
Assistant Ombudsman for Public Records, Open Meetings, and Privacy
1112 East Grand Avenue
Des Moines, IA 50311
(515) 281-3592
[email protected]
Citizens’ Aide/Ombudsman
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Iowa Code chapter 2C
Jurisdiction over most state and local
government except the Legislative Branch,
Judicial Branch, and Governor
11 investigators
Access to confidential information
Ombudsman recommendations
Publication of conclusions critical of agency
or officers
Questions about the
Ombudsman?
Next:
Public Records law
Open Meetings law
Enforcement
Public Records Law
What will we cover?
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General rule of Public Records Law
Persons and agencies subject
What is a public record?
What is a confidential public record?
Responding to public record requests
Fees
Response time
Legislative changes 2011 SF 289 (enacted 2011) and SF 430
(pending)
Good government policies -- requirements and suggestions
Public Record Officers
Violations & Enforcement at the end
The Rule: (22.2)
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Every person shall have the right to examine
and copy a public record and to otherwise
disseminate the record unless otherwise
provided for by law.
Who Has to Comply? (22.1)
Definition of Government Body and Lawful Custodians:
 State
 Counties
 Cities
 Townships
 Schools
 Political subdivisions
 Non-profits conducting pari-mutual wagering if supported by
property tax
 Any board, commission, council, advisory body, committee,
official, or any officer or employee
 Iowa Association of School Boards (enacted in 2010)
What information is public record?
(22.1)
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All records and information in the possession
of, stored or preserved in any medium.
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Electronic, paper, audio and video tapes,
CD’s, diskettes, photographs….
including e-mail
Exceptions (22.7)
Confidential Public Records
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Iowa Code section provides for 65
exceptions to the rule. In addition, specific
agency records may be confidential under
other statutes.
Under 22.7 the lawful custodian has
discretion to release the record.
The lawful custodian of a record should be
able to state the statutory authority for not
releasing a record.
Examples of Confidential Records
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Student Information (see also FERPA)
Investigative Reports by law enforcement
Medical information
Autopsy
Personnel Information
Trade Secrets
Criminal Identification files
Library records which identify patrons
Security Protocols and critical asset protection
Drafts (pending, not effective until July 1, 2013)
Library Records
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13. The records of a library which, by themselves or when
examined with other public records, would reveal the identity of
the library patron checking out or requesting an item or
information from the library. The records shall be released to a
criminal or juvenile justice agency only pursuant to an
investigation of a particular person or organization suspected of
committing a known crime. The records shall be released only
upon a judicial determination that a rational connection exists
between the requested release of information and a legitimate
end and that the need for the information is cogent and
compelling.
Record Requests (22.3)
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May be made in person, over the phone, or
by electronic means
Identity is optional, unless required for
access to that particular record
May adopt and enforce reasonable rules
regarding the work and the protection of
records against damage and disorganization.
Respond promptly
Supervision and Copy Fees (22.3)
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Free peek allowed.
Physical presence not required.
Identity of the requestor is optional.
Maintain control of the record.
May recover the actual costs of retrieving,
supervising, and copying of the record.
Actual costs do not include depreciation, employee
benefits, maintenance, electricity, and insurance
May require prepayment if estimate of expenses is
provided.
Time to Respond (22.8)
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Iowa Code provides a guideline.
Most requests are routine and typically a request
should be responded to immediately.
“Good-faith, reasonable delay” allowed to:
Seek injunction against release
– Determine if confidential
– Determine if person requesting has right to examine
A good-faith reasonable delay shall not exceed twenty days
and ordinarily should not exceed ten business days.
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Good Government Policies (22.11)
State Agency
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Iowa Fair Information Act practices requires state agencies to
have policies. See your agency’s administrative rules.
Review regularly and update when necessary.
Other Political Sub-Divisions
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“Policy” not required by law.
Developing and following a good policy will provide
guidelines and possibly prevent mistrust and liability.
Developing and following a good policy will promote fairness.
At a minimum—designate someone to be knowledgeable
and respond.
Who is your Public Records Officer?
(22.1)
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“Each government body shall delegate to particular
officials or employees of that government body the
responsibility for implementing the requirements of
this chapter and shall publicly announce the
particular officials or employees to whom
responsibility for implementing the requirements
of this chapter has been delegated.”
Iowa law (21.10) requires information to be provided
by the authority which appoints members of
governmental bodies about Chapters 21 (Open
Meetings) and 22 (Public Records).
Public Records Law Questions?
Next:
Open Meetings Law
Enforcement
Open Meetings Law (Iowa Ch. 21)
What will we cover?
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General rule of the Open Meetings Law
Persons and agencies subject to the OML
Requirements of closed and open sessions
Accessibility
Emergency meetings
Electronic Meetings
Minutes
Who is responsible for training and information
Enforcement options (pending SF 430)
The Rules: (21.1 and 21.3)
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“Meetings of governmental bodies shall be preceded
by public notice…and shall be held in open session
unless closed session is expressly permitted by law.
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Declaration of Intent—“This chapter seeks to assure,
through a requirement of open meetings…that the
basis and rationale of government decisions, as well
as those decisions themselves, are easily accessible
to the people. Ambiguity in the construction of
application of this chapter should be resolved in
favor of openness.” (21.1)
To whom does it apply? (21.2)
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Definition of Governmental Body
Multimember board, council, commission or other governing
body of this state or political subdivision expressly created by
statute, executive order, general assembly, or political
subdivision.
And, advisory bodies created by the Governor, General
Assembly, or other body formally created by statute or
executive order or political subdivision to develop and make
recommendations on policy making issues.
And, some intercollegiate athletic bodies as well as non-profits
conducting pari-mutual wagering or gaming.
And, the Iowa Association of School Boards (enacted 2010)
Is it a meeting or ministerial? (21.2)
Three components of a “meeting”
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Gathering of the majority
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Where there is discussion, deliberation, or action or
recommendations
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Regarding any matter within policy-making duties
Administrative/Ministerial Components
1. Purely ministerial or social purposes
2. No discussion “that focuses at all concretely on matters over
which they exercise judgment or discretion.” Hettinga
3. No intent to avoid the purpose of this chapter
Public Notice (21.4)
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Notice of a meeting shall include the following:
Time, date, place, and tentative agenda
Where should it be provided?
To those who have requested it.
At the principal office of the body on a bulletin board or other
prominent place which is easily accessible to the public and
clearly designated for that purpose.
If no principal office exists place the agenda at the building
where the meeting will be held
Do you have a website?
When should it be provided?
At least 24 hours in advance
Accessibility (21.4)
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Each notice should be easily accessible to
the public
Each meeting shall be:
- At a place reasonably accessible
- At a time reasonably convenient
Make accommodations for persons with
disabilities
Emergency Meetings (21.4)
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Only when 24-hour notice is impossible or
impractical.
And, you must provided as much notice as
reasonably possible.
Departure of the normal requirements, such as
emergency meetings or meetings that are not
accessible to the public should only take place when
there is good cause and the nature of the good
cause is justified in the minutes.
Electronic Meetings (21.8)
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Only when impossible or impractical.
Only when there is public access to the
conversation (unless closed session).
Must be preceded by notice.
Articulate all the reasons for an electronic
meeting in the minutes. Why was a gathering
in-person impossible or impractical?
Minutes (21.3, 21.4, 21.8)
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Time, date, place, persons present
Action taken
How each member voted
There is a historical value of documenting more information
Publishing minutes (only required by some)
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If condensed, identify them as such
Within 15 days
And, where appropriate the minutes should state:
 Why an electronic meeting was necessary
 Section used for going into closed session
 Why 24-hours notice was not possible
 Why the meeting was not accessible
Meeting Decorum (21.7)
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Anyone may record an open session.
The government body may make and enforce
reasonable rules to keep the meeting orderly and
free from interference or interruption.
Who can speak at a meeting?
 The body may allow members of the public to speak.
 Oftentimes, bodies provide 2-5 minutes for the public
to speak at the beginning of the meeting or on a
particular item.
Remember three stages of a
proper closed session
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Before
During
After
Before Going into Closed
Sessions (21.5)
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In open session you must have an affirmative vote of
2/3 of body or all members present
Shall provide specific reason in open session and in
the minutes as provided in 21.5(1)(A through L)
May hold a closed session only to the extent
necessary for one of twelve reasons.
Nomenclature is important: “Closed session” v.
“Exempt Session” (limited to 21.9 and 20)
During the Closed Session (21.5)
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Record the meeting
Keep minutes
Maintain minutes and audio recording for at
least one year (5 years for cities, 372.13 )
Stay on topic!
After the Closed Session (21.5)
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Final action shall be done in open session unless some other
provision of the Code expressly permits such actions.
Final action does not include negotiation strategy by
government body and attorney.
Public does not get access to the minutes or recording
Persons who would otherwise have access to the closed
session get access to minutes and recording even though they
were not present.
Citizens’ Aide/Ombudsman may review for administrative
investigation.
Court may review and permit public access.
Closed Session Examples
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A. To discuss records otherwise confidential by law
C. to discuss strategy with counsel regarding litigation or
where litigation in imminent.
I. to evaluate the professional competency, when the
individual requests the closed session, and to prevent
needless and irreparable injury to that individuals
reputation.
J. To discuss the purchase or sale of particular real
estate where premature disclosure would increase
purchase price.
Who is responsible for training?
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Iowa law (21.10) requires information to be
provided by the authority which appoints
members of governmental bodies about
Chapters 21 (Open Meetings) and 22 (Public
Records).
Questions about Open Meetings
and Closed Sessions?
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Next -- Enforcement
Enforcement Options
Current
 Attorney General or County Attorney
 Private attorney in District Court
 Ombudsman
Effective July 1, 2013
 All of the above
 Iowa Public Information Board (pending SF 430)
OML and PRL Violations
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Any aggrieved person, taxpayer or citizen of Iowa, County Attorney,
or the Attorney General’s Office may seek judicial enforcement.
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If a violation is found, the court shall:
--Order compliance or refrain from future violations.
--Assess the members damages of $100-$500, if proven to be
“knowingly” then damages can range from $1000-$2500.
--Order payment of all costs and reasonable attorney fees in trial
and appellate courts.
--Order removal from office for the third violation with damages.
--Void any action taken, if suit brought within six months.
Violations Continued…
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Violators shall not be assessed damages if:
Refused to participate.
Tried to stop the violation.
Voted against it.
Had good faith reasons to believe in compliance.
Relied upon a court decision or the written opinion
of the attorney general or the attorney for the body.
This should be memorialized in the minutes or be
put in writing. Or, a formal opinion of the IPIB
(pending SF 430).
Iowa Public Information Board (23)
SF 430 effective dates
 Board appointed Sept 2012 (rule writing)
 Hiring an Executive Director July 1, 2013
 Laws effective July 1, 2013
New chapter 23
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Informal and Formal Enforcement
Training
Advise the Legislature and Governor
IPIB continued…
Informal assistance
 Mediation and settlement
If both parties are not satisfied
 May formally investigate
 Access to confidential information
 May issue subpoenas
 If probable cause, shall enter into a
contested case proceedings
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IPIB continued…
Remedies
 Issue orders with the force of law
 Require compliance
 Impose civil penalties consistent with 21.6
and 21.10
 Impose other remedies calculated to declare,
terminate, or remediate any violation
OML Things to Remember
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Establish policies to ensure compliance.
Provide 24 hour notice with a complete
agenda, take minutes, and allow public
access.
In open session state the specific exemption
for closed session.
PRL Things to Remember
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Read and know your agency’s policy.
Fees should not exceed the actual costs for
retrieval, supervision, and copying.
Respond as promptly as possible.
Generally do not to exceed 10 business
days.
When in Doubt
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Contact your supervisor
Contact the agency’s attorney
Contact the Attorney General’s Office
Contact the Citizens’ Aide/Ombudsman’s
Office
Ignorance is not a defense.
For More Information
Your attorney or an attorney for the body
Iowa Freedom of Information Council
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Iowa Open Meetings, Open Records Handbook 14th Edition
http://www.drake.edu/journalism/IFOICWebSite/index.html
Iowa Attorney General’s Office
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Monthly “Sunshine Advisories” bulletins
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http://www.iowa.gov/government/ag/sunshine_advisories/index.html
Citizens’ Aide/Ombudsman Office
Thank you
Angela McBride
Assistant Ombudsman
888-426-6283