City governments face numerous requirements regarding public records, including how long they must be kept and when they are able to be publicly examined. City officials need to be aware of these requirements and develop plans to efficiently manage their records.
Public Records Defined
Iowa’s open records laws can be found in Chapter 22 of the Code of Iowa. Public records are defined 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, nonprofit corporation…or any branch, department, board, bureau, commission, council, or committee of any of the foregoing.” The law also includes records relating to the investment of public funds, even if they are in the custody of a private, third party.
Under such a broad definition, city officials need to remember that public records may include emails and other electronic messages, including personal emails or messages received at the city, and any other record that is not specifically deemed to be confidential.
Examination of Public Records and Fees for Copies
Every person has the right to examine and copy public records. He or she may also publish or otherwise disseminate the records or the information contained in the record. The city should never relinquish possession of official public records and is responsible for supervising the examination to protect the records from being damaged, disorganized or removed. Typically, the city is under no obligation to create a record. It is only obligated to make existing records available.
The city may not charge for the right to examine a public record but may charge the actual costs of reproduction if requested. The city may charge a fee for copying services that does not exceed the actual cost of providing the service. In addition, the city may charge a reasonable fee for the cost of supervising the records examination. If there is not a suitable space to examine the records where they are stored, the city may also require the examiner to pay any necessary expenses for providing a place for the examination.
The open records laws indicate the city is the lawful custodian of the records. The law also requires the city to delegate the responsibility for implementing its public records policy to particular officials or employees and the city must publicly identify these individuals. In some cases, the city clerk has delegated this function. In larger cities, the responsibility may be divided among several individuals, such as department heads.
An easy way to comply with the requirements is for the city to adopt a Records Management Policy that identifies who has been assigned responsibility for maintaining the records and establishes schedules for destroying records that are no longer required to be kept. Please see the Record Retention Manual for guidance on record retention policies and schedules.
As with all other government records, electronic records are subject to the provisions of Chapter 22 of the Code. All electronic records that are created, received or stored by a city are the property of the city and not the property of its employees, vendors, or customers. Employees should have no expectation of privacy when using the city’s computers and electronic equipment. Additionally, city officials that conduct city business using personal computers should be aware that any records created while doing such work are considered public records. Cities can be held liable if they keep their electronic records too long, if the records are not properly destroyed or if they are destroyed too soon.
The open records law specifically identifies certain records required to remain confidential. This confidentiality can only be broken by a court order. While too numerous to list, these records include personal information contained in personnel records, appraisal information concerning the purchase or sale of real or personal property for public purposes prior to public announcement of a project, and records that represent and constitute the work product of an attorney, which are related to litigation or claims made by or against a public body.
If the city is unsure whether to allow the examination of a record, the first step is to contact the city attorney for a written opinion. If the attorney is not immediately available, the custodian of records has the right to refuse examination. The law specifically states that a good-faith, reasonable delay by a lawful custodian in permitting the examination and copying of a government record is not a violation if the purpose of the delay is to determine the status of the record. If the city attorney determines the records are specifically identified as confidential, their examination would clearly not be in the public interest or if the examination would substantially and irreparably injure persons, the attorney may seek a court order restraining the examination.
On the other hand, knowingly violating the open records law can result in a lawsuit against the city. Penalties may include a fine of not less than $1,000 and not more than $2,500, removal from office, and a requirement that the city pay the attorney fees of the other party. The law specifically notes that “ignorance of the legal requirements of this chapter is not a defense to an enforcement proceeding.” However, city officials cannot be held liable for violations if they reasonably relied upon a decision of a court or a written opinion of the attorney general or their city attorney.
Code of Iowa 388.9A does allow a city to exempt private customer information of a city utility or enterprise that identifies a specific customer and any record of a customer account from examination and copying under Chapter 22 of the Code. However, it is important to seek the advice of a city attorney on this issue and it is recommended the city establishes a policy related to customer account records.
With the advent of various types of ways to correspond with one another, city officials need to be cognizant of what messages are considered subject to open records laws. In a world of smartphones, texting, emailing, Facebook, Twitter, and a number of other modes of communication, it is important to know the proper use of such devices and outlets. A basic rule that applies to all communication concerning city business is that if it is sent or received on city-owned or personal equipment, the message will be considered a governmental record subject to an appropriate open records request.
If a city maintains a social media page, the updates and messages included on that page are also subject to the open records law. This can add a layer of oversight that ordinarily would not exist, and cities that use these pages should ensure they are doing so properly.
Another facet of communication that has entered the fray in recent times is correspondence during a city council meeting. Many city council members now have agendas and related documents in electronic form and have either a laptop computer, tablet or mobile device in front of them at the council meeting. While it is certainly helpful to have the information readily available, the technology also makes email and other electronic communication available during the meeting. Also, many city council members now have a smartphone, which allows them to send and receive text messages and email.
Email or text messages between city council members during council meetings concerning items being discussed by the council can compromise the openness of the meeting. Moreover, if information that is not available to all council members is presented in an email or text message during the council meeting, the quality of any decision being made could be compromised and the openness of any public hearing would be diminished.
Any text message or email relating to city business or an agenda item, which is sent to or from a city council member during a city council meeting, would potentially be subject to disclosure if an appropriate public records request is made. Inappropriate comments made in an email or text concerning a particular speaker or agenda item could prove to be embarrassing to a mayor or council member if later made public due to an open records request.