1. 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 angela.mcbride@legis.iowa.gov

2. Citizens’ Aide/Ombudsman 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

3. Questions about the Ombudsman? Next: Public Records law Open Meetings law Enforcement

4. Public Records Law What will we cover? 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

5. The Rule: (22.2) 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.

6. 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)

7. What information is public record? (22.1) All records and information in the possession of, stored or preserved in any medium. – Electronic, paper, audio and video tapes, CD’s, diskettes, photographs…. – including e-mail

8. Exceptions (22.7) Confidential Public Records 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.

9. Examples of Confidential Records 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)

10. Library Records 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.

11. Record Requests (22.3) 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

12. Supervision and Copy Fees (22.3) 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.

13. Time to Respond (22.8) 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.

14. Good Government Policies (22.11) State Agency 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 “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.

15. Who is your Public Records Officer? (22.1) “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).

16. Public Records Law Questions? Next: Open Meetings Law Enforcement

17. Open Meetings Law (Iowa Ch. 21) What will we cover? 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)

18. The Rules: (21.1 and 21.3) “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. “ (21.3) 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)

19. To whom does it apply? (21.2) 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)

20. Is it a meeting or ministerial? (21.2) Three components of a “meeting” 1. Gathering of the majority 2. Where there is discussion, deliberation, or action or recommendations 3. 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

21. Public Notice (21.4) Notice of a meeting shall include the following: 1. Time, date, place, and tentative agenda Where should it be provided? 1. To those who have requested it. 2. 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. 3. If no principal office exists place the agenda at the building where the meeting will be held 4. Do you have a website? When should it be provided? 1. At least 24 hours in advance

22. Accessibility (21.4) 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

23. Emergency Meetings (21.4) 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.

24. Electronic Meetings (21.8) 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?

25. Minutes (21.3, 21.4, 21.8) 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) – 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

26. Meeting Decorum (21.7) 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.

27. Remember three stages of a proper closed session Before During After

28. Before Going into Closed Sessions (21.5) 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)

29. During the Closed Session (21.5) Record the meeting Keep minutes Maintain minutes and audio recording for at least one year (5 years for cities, 372.13 ) Stay on topic!

30. After the Closed Session (21.5) 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.

31. Closed Session Examples 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.

32. Who is responsible for training? 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).

33. Questions about Open Meetings and Closed Sessions? Next -- Enforcement

34. 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)

35. OML and PRL Violations Any aggrieved person, taxpayer or citizen of Iowa, County Attorney, or the Attorney General’s Office may seek judicial enforcement. 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.

36. Violations Continued… Violators shall not be assessed damages if: 1. Refused to participate. 2. Tried to stop the violation. 3. Voted against it. 4. Had good faith reasons to believe in compliance. 5. 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).

37. 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 – Informal and Formal Enforcement – Training – Advise the Legislature and Governor

38. 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

39. 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

40. OML Things to Remember 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.

41. PRL Things to Remember 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.

42. When in Doubt 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.

43. For More Information Your attorney or an attorney for the body Iowa Freedom of Information Council – Iowa Open Meetings, Open Records Handbook 14 th Edition – http://www.drake.edu/journalism/IFOICWebSite/index.html Iowa Attorney General’s Office – Monthly “Sunshine Advisories” bulletins – http://www.iowa.gov/government/ag/sunshine_advisories/index.html http://www.iowa.gov/government/ag/sunshine_advisories/index.html Citizens’ Aide/Ombudsman Office

44. Thank you Angela McBride Assistant Ombudsman 888-426-6283