HomeMy WebLinkAbout11-03-2009 Police Citizens Review BoardAGENDA
POLICE CITIZENS REVIEW BOARD
November 3, 2009 — 5:30 P.M.
LOBBY CONFERENCE ROOM
410 E. Washington Street
ITEM NO.1
CALL TO ORDER and ROLL CALL
ITEM NO. 2
CONSIDER MOTION ADOPTING CONSENT CALENDAR AS PRESENTED OR
AMENDED
• Minutes of the meeting on 10/13/09
• ICPD General Order 89-04 (Civil Rights)
• ICPD General Order 99-11 (Arrests)
• ICPD Department Memo #09-36 (June -July 09 Use of Force Review)
ITEM NO. 3
OLD BUSINESS
• Community Forum
ITEM NO. 4
NEW BUSINESS
ITEM NO. 5
PUBLIC DISCUSSION
ITEM NO. 6
BOARD INFORMATION
ITEM NO. 7
STAFF INFORMATION
ITEM NO. 8
CONSIDER MOTION TO ADJOURN TO EXECUTIVE SESSION based on Section
21.5(1)(a) of the Code of Iowa to review or discuss records which are required or
authorized by state or federal law to be kept confidential or to be kept confidential as a
condition for that government body's possession or continued receipt of federal funds,
and 22.7(11) personal information in confidential personnel records of public bodies
including but not limited to cities, boards of supervisors and school districts, and 22-7(5)
police officer investigative reports, except where disclosure is authorized elsewhere in
the Code; and 22.7(18) Communications not required by law, rule or procedure 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.
ITEM NO.9
MEETING SCHEDULE and FUTURE AGENDAS
• November 18, 2009 7:00 PM, Harvat Hall (Community Forum)
• December 8, 2009, 5:30 PM, Lobby Conference Rm
• January 12, 2010, 5:30 PM, Lobby Conference Rm
• February 9, 2010, 5:30 PM, Lobby Conference Rm
ITEM NO.10 ADJOURNMENT
MEMORANDUM
POLICE CITIZENS REVIEW BOARD
A Board of the City of Iowa City
DATE:
October 28, 2009
TO:
PCRB Members
FROM:
Kellie Tuttle
RE:
Board Packet for meeting on November 3, 2009
Enclosed please find the following documents for your review and comment at the next board meeting:
• Agenda for 11/03/09
• Minutes of the meeting on 10/13/09
• ICPD General Order 89-04 (Civil Rights)
• ICPD General Order 99-11 (Arrests)
• ICPD Department Memo #09-36 (June -July 09 Use of Force Review)
• Complaint Deadlines
• Extension requests to City Council
• Correspondence regarding Annual Pursuits Analysis
• Draft Items for Community Forum
Other resources available:
National Association for Civilian Oversight of Law Enforcement
NACOLE provides information regarding civilian oversight in law enforcement nation wide. For more
information see: www.NACOLE.org
DRAFT
POLICE CITIZENS REVIEW BOARD
MINUTES — October 13, 2009
CALL TO ORDER: Vice -Chair Donald King called the meeting to order at 5:32 p.m.
MEMBERS PRESENT: Janie Braverman, Joseph Treloar, Vershawn Young
MEMBERS ABSENT: Abigail Yoder
STAFF PRESENT: Staff Kellie Tuttle
OTHERS PRESENT: Captain Richard Wyss and Officer David Schwindt of the ICPD; Emily Busse-
UI Journalism Student; and public, Caroline Dieterle, Dean Able
RECOMMENDATIONS TO COUNCIL
None.
REPORT FROM NOMINATING COMMITTEE
King and Braverman were appointed to the nominating committee at the September
8tn meeting. King reported that the committee had met and would like to nominate
Donald King for Chair and Janie Braverman for Vice -Chair.
CONSIDER MOTION TO FIX METHOD OF VOTING
Motion by Braverman, seconded by Treloar to prescribe the method of voting by a
voice vote and use majority vote for the basis for decision. Motion carried, 4/0. Yoder
absent.
NOMINATIONS FOR OFFICE OF CHAIRPERSON
Motion by Braverman, seconded by Treloar to nominate Donald King for office of
Chairperson as selected by the nominating committee.
MOTION TO CLOSE NOMINATIONS
Motion by Braverman, seconded by Young to close nominations.
Motion carried, 4/0, Yoder absent.
BALLOT OR VOTE
Motion carried to elect Donald King for office of Chairperson, 4/0, Yoder absent.
NOMINATIONS FOR OFFICE OF VICE -CHAIRPERSON
Motion by Treloar, seconded by Young to nominate Janie Braverman for office of
Vice -Chairperson as selected by the nominating committee.
MOTION TO CLOSE NOMINATIONS
Motion by Young, seconded by Treloar to close nominations.
Motion carried, 4/0, Yoder absent.
BALLOT OR VOTE
Motion carried to elect Janie Braverman for office of Vice -Chairperson, 4/0, Yoder
absent.
CONSENT
CALENDAR Motion by Braverman and seconded by Young to adopt the consent calendar as
presented or amended.
PCRB
October 13, 2009
Page 2
• Minutes of the meeting on 09/08/09
• ICPD General Order 99-01 (Police Vehicle Pursuits)
• ICPD General Order 00-06 (Special Purpose Vehicles)
• ICPD General Order 07-02 (Detainee Processing)
• ICPD P.A.U.L.A. Report —August 2009
• ICPD Quarterly/Summary Report (Quarter 3) — IAIR/PCRB, 2009
Motion carried, 4/0, Yoder absent.
Braverman inquired what CCH stood for. Wyss responded that CCH was
Computerized Criminal History. Braverman also noted General Order 99-01 (Police
Vehicle Pursuits), section VI(E) under Reporting, that it references an annual
analysis/report of all pursuits for the past calendar year. Since the analysis is
intended to show patterns or trends that indicate training needs and/or policy
modifications and the Board's charge is to review policy, she asked if the Board had
ever received this report in the past and if this should be something that the Board is
reviewing. After discussion the Board agreed to request to receive the annual
analysis of pursuits.
OLD BUSINESS Community Forum — King reported that the Chief had some concerns regarding the
forum and the presentation portion from the ICPD with the Use of Force policy. The
concern was that the forum remains a PCRB forum and not an ICPD forum so that
when questions from the public are taken after the presentation they are directed to
the Board and not the officer. It was also confirmed by the Board that the intention is
not for the officer to have to field questions from the public that could be incident
specific. The forum topic is based on policy and questions should be regarding the
policy and not particular or hypothetical situations. It was agreed that King would call
and set up a meeting with the Chief to discuss his concerns and to confirm the
Board's intentions during the forum. The Board agreed to Wednesday, November
18th at 7pm for the forum and also requested staff check into see if it could be
broadcast live in addition to taped so it could be ran again at a later date. The Board
discussed having some handouts at the forum such as the Use of Force policy,
directions for the City website and how to get to the General Orders, and information
regarding the Citizens Police Academy. King said he would do the introduction and
complaint process presentation for the forum. Braverman volunteered to do the draft
summary of the forum as a follow up to City Council.
NEW BUSINESS Service Animal Training — At the September 8th meeting the Board agreed to request
any information available regarding Service Animal training for Iowa City police
officers. The Board received correspondence from the Police Chief stating that
while no specific "Service Animal" training has occurred the topic had been covered
in MATS training. Wyss stated that the Chief had contacted Police Legal Sciences
which is a training seminar that all officers take once a month and has requested that
they incorporate service animals into this training. He did not know how long or
where in the process it was for incorporating. Treloar asked if the Board could be
notified when the service animal training had been incorporated in to the seminar.
Wyss agreed to let them know.
Comprehensive Review of PCRB Ordinance, By -Laws, SOP's — Braverman
reaffirmed that she would like the Board go back over and review the ordinance, by-
laws, and SOP's to see if any updates, changes, or additions need to be made since
October 13, 2009
Page 3
an overall review has not been done since the Board was formed. Braverman
expressed some of her ideas to the Board and suggested having a planning meeting
in December to discuss how they would be reviewing the information. The Board
could then discuss any ideas they have and if they would have subcommittees or
review as a whole Board.
PUBLIC
DISCUSSION Schwindt clarified his understanding of one of Braverman's suggested changes.
BOARD
INFORMATION None.
STAFF
INFORMATION Tuttle handed out an updated Board phone number list and a FY2011 budget
proposal. The Board discussed the budget and what options they had to help keep
costs down. There was discussion of scanning the meeting packets to save on
printing and mailing costs, but with concern over using personal e-mail accounts.
The Board directed staff to look into the possibility and costs of having City e-mail
accounts.
EXECUTIVE
SESSION Motion by Braverman and seconded by Young to adjourn into Executive Session
based on Section 21.5(1)(a) of the Code of Iowa to review or discuss records which
are required or authorized by state or federal law to be kept confidential or to be kept
confidential as a condition for that government body's possession or continued
receipt of federal funds, and 22.7(11) personal information in confidential personnel
records of public bodies including but not limited to cities, boards of supervisors and
school districts, and 22-7(5) police officer investigative reports, except where
disclosure is authorized elsewhere in the Code; and 22.7(18) Communications not
required by law, rule or procedure 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.
Motion carried, 4/0, Yoder absent.
Open session adjourned at 6:42 P.M.
REGULAR
SESSION Returned to open session at 8:38 P.M.
Motion by Braverman, seconded by Young to set the level of review for PCRB
Complaint #09-04 to 8-8-7 (13)(1)(a), On the record with no additional investigation.
Motion carried, 4/0, Yoder absent.
Motion by Treloar, seconded by Young to set the level of review for PCRB Complaint
#09-05 to 8-8-7 (13)(1)(d), Request additional investigation by the Police Chief or City
Manager, or request police assistance in the Board's own investigation.
PCRB
October 13, 2009
Page 4
Motion carried, 4/0, Yoder absent.
Motion by Young, seconded by Treloar to request 60-day extension for PCRB
Complaint #09-03, a 45-day extension for PCRB Complaint #09-04, and a 60-day
extension for PCRB Complaint #09-05 due to timelines and scheduling.
Motion carried, 4/0, Yoder absent.
TENTATIVE MEETING SCHEDULE and FUTURE AGENDAS (subject to change)
• November 3, 2009, 5:30 PM, Lobby Conference Rm
• November 10, 2009, 5:30 PM, Lobby Conference Rm (Rescheduled to 11/3)
• November 18, 2009 7:00 PM, Harvat Hall (Community Forum)
• December 8, 2009, 5:30 PM, Lobby Conference Rm
• January 12, 2010, 5:30 PM, Lobby Conference Rm
Motion by Braverman, seconded by Treloar to move the November 10th meeting to
November 3rd.
Motion carried, 4/0, Yoder absent.
ADJOURNMENT Motion for adjournment by Young and seconded by Treloar.
Motion carried, 4/0, Yoder absent. Meeting adjourned at 8:45 P.M.
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DEPARTMENT MEMO #09-36
TO: Chief Hargadine
FROM: Captain R. D. Wyss
RE: June -July 09 Use of Force Review
DATE: 23 October, 2009
The "Use of Force Review Committee" met on October 7th1h, 2009. It was composed of Captain
Wyss, Sgt. Hurd and Sgt. Kelsay.
The review of submitted reports for June (11 incidents-16 reports) and July (6 incidents-12
reports) were completed and no policy issues were identified. Of the 17 incidents over the two
month period 24 Officers drew their sidearm or displayed a weapon (building search or felony
stop) and there were no incidents where a sidearm was used for the destruction of animals. OC
was deployed on one occasion, and a Taser was discharged on four separate occasions. Of the
17 incidents reviewed, 7 suspects and 1 Officer had sustained injuries.
All personnel continue doing a good job in their documentation and review of the reports.
Please contact me if you have any questions.
ry
.. ,
Copy: Iowa City Council. City Manager, PCRB, Watch Commanders, Review Committee
LEG-01.1
CIVIL
RIGHTS
Date of Issue General Order Number
May 5, 2000 89-04
r
Effective Date Section Code
October 16th, 2009 LEG-01
Reevaluation Date Amends / Cancels
May 2010
C.A.L. E.A. Reference
1.2.3, 1.2.5
INDEX AS:
Civil Rights
Rights, Civil
Rights, Individual
Arrests
Warrants
Search and Seizure
Use of Force
PURPOSE
The purpose of this order is to consolidate the policy of the Iowa City Police
Department on civil rights as already expressed in current Department rules,
directives, and other publications. This order will reaffirm the Department's
determination to observe, uphold, and enforce all laws pertaining to the individual
rights of each person without regard to age, race, color, creed, religion, sex,
national origin, economic status, marital status, disability, sexual orientation or
gender identity.
II. POLICY
It is the policy of the City of Iowa City and the Iowa City Police Department to ensure
that the civil rights of the citizens of Iowa City are upheld. Members of the department
shall ensure that all constitutional protections are afforded those parties with whom the
department is involved.
LEG-01.2
III. PROCEDURES
INDIVIDUAL RIGHTS
A. All persons are guaranteed protection against unlawful arrest and
unreasonable search or seizure. (see general order 00-01, Search and
Seizure)
B. Department personnel shall uphold these rights by:
1. Taking a person into custody only when there is reasonable grounds to
believe that:
a. An arrest warrant exists for the person, or
b. The person has committed or is committing a violation of th(�law."
c. The person may be a harm to themselves or others'
2. Entering a private dwelling only when he/she: c
a. Has in his/her possession a search warrant authorizing him/her to do
so, or
b. Has reason to believe that immediate entry is necessary to protect a
person within such private dwelling from death or serious injury, or
c. Can otherwise legally justify his/her action.
3. Taking from an individual only such property as he/she is legally
authorized to take, and recognizing that he/she is responsible and must
account for all such property.
C. When making an arrest or searching and seizing property, Department
personnel shall use only such force which is reasonable and necessary
and in compliance with departmental directives pertaining to the use of
force. (see general order 99-05, Use of Force)
D. At all times Department personnel shall:
1. Never exhibit any bias or prejudice against any group or individual.
2. Act, speak, and conduct themselves in such a manner as to treat all
persons with courtesy and with that respect due to every person as a
human being.
LEG-01.3
CITIZENS GUARANTEE
A. All persons of this country are guaranteed the right to seek redress of
grievances by:
1. Freedom of speech ri
2. Peaceful assembly
3. Peaceful picketing : _f
4. Distribution of handbills providing such distribution is not in cppfhct w7fth
the provisions of any City Ordinance. - _
B. The rights set out in paragraph A, above, while fundamental in our
democratic society, do not mean that everyone with opinions or beliefs to
express may do so at any public place and at any time. The constitutional
guarantee of liberty implies the existence of an organized society
maintaining public order, without which liberty itself would be lost in
excesses of anarchy. The exercise of these rights of free expression
must not:
1. Conflict with the governmental responsibility to keep public streets and
public facilities open and available for public use.
2. Include the use of inflammatory remarks related to any instance where a
clear and present danger of a riot against any person or group of persons
exists.
C. Resources of the Department will be employed to rapidly and decisively
enforce statutes and ordinances which provide for the protection of the
rights and property of all persons.
1. To the extent possible, Watch Commanders will assure that adequate
staffing is available to control and maintain order in every instance
where crowds have formed or are expected to form.
2. Police personnel in command at the scene of any assembly must be
aware of their responsibility to afford protection to both participants and
non -participants, and will deal with illegal acts promptly, decisively, and
impartially.
3. The City of Iowa City and the Iowa City Police Department expressly
prohibits any law enforcement agency operating within its jurisdiction
from using excessive force against any individuals engaged in non-
violent civil rights demonstrations.
LEG-01.4
4. The City of Iowa City and the Iowa City Police Department shall enforce
any applicable state or local laws against physically barring entrances
or exits from a facility or location that is the subject of a non-violent civil
rights demonstration within its jurisdiction.
5. The City of Iowa City and the Iowa City Police Department shall enforce
this general order within its jurisdiction and will facilitate the filing of a
complaint by any individual or group who feels that the City of Iowa City
and/or Iowa City Police Department has not complied with this policy.
ARRESTED PERSONS
A. All persons of this country, in keeping with our democratic processes, are
guaranteed certain basic constitutional safeguards. These safeguards will
not be denied any person even though he/she has committed, or is
suspected of having committed, a criminal act.
B. Department personnel will at all times be aware of a prisoner's rights and
shall:
1. Permit the prisoner to communicate with his/her attorney and/or a family
by making a reasonable number of telephone calls.
2. Expedite all necessary processing so the prisoner will be detained no
longer than necessary.
3. Never use force or coercion in seeking admissions of guilt or confessions.
4. Recognize and respect the prisoner's right to refuse to give evidence
against him/herself; however, there is no encroachment upon a prisoner'E
rights if he/she should voluntarily supply such information.
RESPONSIBILITY
Each officer shall familiarize him/herself with the laws and Department directives
pertaining to civil rights to insure his/her:
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A. Recognition of each person's civil rights and
B. Compliance with all laws and Department directives relating to civil rights.
VIOLATIONS
Violations of this policy may be the basis of disciplinary action up to and
including discharge from the Department. Egregious violations of persons' civil
rights may result in individual liability and/or criminal sanctions.
LEG-01.5
Samuel Hargadine, Chief of Police
WARNING
This directive is for departmental use only and does not apply in any criminal or civil
proceeding. The department policy should not be construed as a creation of a higher
legal standard of safety or care in an evidentiary sense with respect to third -party
claims. Violations of this directive will only form the basis for departmental
administrative sanctions.
LEG-02.1
ARRESTS
Date of Issue General Order Number
October 11, 1999 199-11
Effective Date Section Code
October 22, 2009 LEG - 02
Reevaluation Date Amends /Cancels
October 2010
Go1 `Ir tl
C��pd
�.A.L.E.A. Reference
1.1.4, 1.2.5, 1.2.6, 1.2.7, 74.1.3,
i4.3.1, 74.3.2 ,
INDEX AS:
Use of Force
Citations
Prisoner Transport
Arrests
Discretion
Domestic Abuse
:a
I. PURPOSE
The purpose of this policy is to explain the procedures to be used when a person
is arrested by members of the Iowa City Police Department.
II. POLICY
It is the policy of the Iowa City Police Department to conform with statutory and judicial
requirements pertaining to arrests. The decision to arrest will be based on the facts
surrounding the incident. Officers are to use the least restrictive, reasonable method to
accomplish their goal.
LEG-02.2
III. DEFINITIONS
Iowa Code Section 804.5 is as follows:
Arrest defined.
Arrest is the taking of a person into custody when and in the manner authorized
by law, including restraint of the person or the person's submission to custody.
IV. PROCEDURES
ARREST WITHOUT A WARRANT
Authorization to arrest is contained in section 804.7 of the Code of Iowa. A
Peace Officer is authorized to make an arrest in obedience to a warrant
delivered to the peace officer, and without a warrant under the following
conditions:
A. For a public offense committed or attempted in the peace officer's presence.
B. Where a public offense has in fact been committed, and the peace officer
has reasonable grounds for believing that the person to be arrested has
committed it.
C. Where the peace 'officer has reasonable grounds for believing that an
indictable public offense has been committed and has reasonable grounds
for believing that the person to be arrested has committed it.
D. Where the peace officer has received from the department of public safety, or
from any other peace officer of this state or any other state or the United
States an official communication by bulletin, radio, telegraph, telephone, or
otherwise, informing the peace officer that a warrant has been issued and is
being held for the arrest of the person to be arrested on a designated charge.
E. If the peace officer has reasonable grounds for believing that domestic
abuse, as defined in section 236.2, has occurred and has reasonable
grounds for believing that the person to be arrested has committed -it.
1. As required by section 236.12, subsection 2. (Domestic Abuse Assault
Provisions) a ax
TREATMENT OF PRISONERS _ t-
In making an arrest, officers will use only that amount of force ,re8sor tly `—
necessary to effect the arrest. Prisoners shall be treated with ajoAropcipte
respect. Officers shall not physically mistreat or verbally harass any; indivisual
that they have taken into custody. Medical treatment will be made avaiMle
when the arrestee is injured or complains of injury or in conformity to other
general orders.
ARREST/CITATIONS
All persons charged for simple misdemeanors should be released on a promise
to appear in court at a specified date and time, unless the officer has an
articulable reason for a physical arrest of the subject. (Juveniles shall be
handled in accordance with departmental directives pertaining to juveniles.)
Considerations for a custodial arrest instead of a cite and release are included in
section 805.1 of the Code of Iowa.
LEG-02.3
Factors to be considered by the agencies in formulating the guidelines relating to
the issuance of citations for simple misdemeanors not governed by subsection 2,
shall include but shall not be limited to all of the following: (see 805.1(3)(b) Code
of Iowa)
A. Whether a person refuses or fails to produce means for a satisfactory
identification.
B. Whether a person refuses to sign the citation.
C. Whether detention appears reasonably necessary in order to halt a
continuing offense or disturbance or to prevent harm to a person or persons.
D. Whether a person appears to be under the influence of intoxicants or drugs
and no one is available to take custody of the person and be responsible for
the person's safety.
E. Whether a person has insufficient ties to the jurisdiction to assure that the
person will appear or it reasonably appears that there is a substantial
likelihood that the person will refuse to appear in response to a citation.
F. Whether a person has previously failed to appear in response to a citation or
after release on pretrial release guidelines.
Additional factors to be considered relating to the issuance of citations or other
offenses for which citations are authorized shall include but shall not be limited to
the following concerning the person. (see 805.1(3)(c) Code of Iowa):
A. Place and length of residence.
B. Family relationships.
Y
C. References.' _ J
D. Present and past employment.
E. Criminal record.
F. Nature and circumstances of the alleged offense.
G. Other facts relevant to the likelihood of the person's response to a citation.
Even if a citation is issued, the officer may take the cited person to an
appropriate medical facility if it reasonably appears that the person needs
medical care.
All persons arrested for simple misdemeanor traffic offenses should be released
on a uniform traffic citation, scheduled to appear in court on a specified date and
time, unless the officer has an articulable reason for the physical detention
instead of a traffic citation.
INDICTABLE ARRESTS
Persons charged with a serious misdemeanor or above, shall be arrested and
transported to the Johnson County Jail, unless a supervisor approves of other
arrangements. For exceptions, refer to Appendix I. The transport of prisoners
shall comply with departmental directives pertaining to prisoner transport.
LEG-02.4
TURN IN PROCESS
When arrangements have been made for a subject to turn him/herself in at a
later date, the charging officer shall:
A. notify the Emergency Communications Operator (ECO) or Front Desk
Personnel of the date and time that the person will turn him/herself in;
B. advise the ECO or Front Desk Personnel of the location of the charge(s);
C. fill out an arrest report as completely as possible and leave it with the
charge(s).
The arresting officer will advise the subject of the charge(s) against him/her and
transport him/her to the Johnson County Jail. The arresting officer shall
complete the arrest report and check for any un-served warrants. They ,shall
also record the name of the receiving officer on the arrest report.
ARREST WITH A WARRANT {
Authority to arrest persons with a warrant is contained in Chapter -804 of4he a`t
Code of Iowa. 2i --
Section 804.6 of the Code of Iowa is as follows:
Persons authorized to make an arrest.
An arrest pursuant to a warrant shall be made only by a peace officer; in other
cases, an arrest may be made by a peace officer or by a private person as
provided in this chapter.
Section 804.7(4) of the Code of Iowa authorizes arrests by a peace officer with a
warrant. It is as follows:
Where the peace officer has received from the department of public safety, or
from any other peace officer of this state or any other state or the United States
an official communication by bulletin, radio, telegraph, telephone, or otherwise,
informing the peace officer that a warrant has been issued and is being held for
the arrest of the person to be arrested on a designated charge.
SERVICE OF ARREST WARRANTS
A. When possible, the Department will attempt to serve a warrant within thirty
(30) days of a warrant being received.
B. Prior to the service of the warrant an assessment of the risk factors as
defined in the SRT policies and procedure manual shall be made.
C. Warrants will be prioritized as follow:
1. warrants for persons known to be violent or potentially dangerous;
2. felony warrants
3. warrants for indictable offenses;
4. non-violent misdemeanor warrants.
D. The officer serving the warrant shall confirm that the warrant is still active and
the pickup limits of the warrant, prior to service of the warrant.
E. All warrants shall be served by sworn officers.
LEG-02.5
F. At least two (2) officers should be present when serving an arrest warrant.
G. Officers shall activate their In Car Recording Device when serving the
warrant.
H. Officers shall notify the ECO of the pending action and its location. As
appropriate other officers may be notified of the activity.
I. When notified by another agency that it will be serving a warrant in Iowa City,
a supervisor may send officers to assist in the serving of the warrant.
J. Upon arresting a subject on a warrant, the officer will transport the subject to
the Johnson County Jail unless otherwise specified.
K. Prior to serving a warrant outside the corporate limits of Iowa City; -the offtoer
shall
1. obtain the permission of a watch supervisor; -
2. advise the ECO of the action;
3. contact the local agency with jurisdiction and request the presence of, a
local officer during the arrest.' -'
USE OF FORCE IN MAKING AN ARREST
Section 804.8 of the Code of Iowa defines the limits of the force, which may be
used when making an arrest. In addition, members of the Iowa City Police
Department shall be guided by departmental Use of Force directives when
executing an arrest. 804.8 is as follows:
USE OF FORCE BY PEACE OFFICER MAKING AN ARREST.
A peace officer, while making a lawful arrest, is justified in the use of any force,
which the peace officer reasonably believes to be necessary to effect the arrest
or to defend any person from bodily harm while making the arrest. However, the
use of deadly force is only justified when a person cannot be captured any other
way and either:
A. The person has used or threatened to use deadly force in committing a felony
or
B. The peace officer reasonably believes the person would use deadly force
against any person unless immediately apprehended.
A peace officer making an arrest pursuant to an invalid warrant is justified in the
use of any force which the peace officer would be justified in using if the warrant
were valid, unless the peace officer knows that the warrant is invalid.
DISCRETION
The Iowa City Police Department recognizes that there are often alternatives to a
custodial arrest. Since it is impossible to anticipate every such circumstance in
which action should be taken, it shall be left to the officer at the scene to
determine the degree of intervention necessary. When making an arrest, officers
should use the least restrictive form necessary to obtain the desired objective.
A. It is unrealistic to expect officers to enforce all laws and ordinances,
regardless of the circumstances encountered. Officers must make the
LEG-02.6
decision to arrest, cite, warn, or use other alternatives, based on applicable
law, circumstances of the particular incident and directives from supervisors.
B. Members of this department shall always act in accordance with the law and
departmental rules and regulations. When discretion is employed it must be
reasonable, defensible, and used to accomplish a police purpose.
Samuel Hargadine, ief of Police
WARNING
This directive is for departmental use only and does not apply in any criminal or civil
proceeding. The department policy should not be construed as a creation of a higher
legal standard of safety or care in an evidentiary sense with respect to third -party
claims. Violations of this directive will only form the basis for departmental
administrative sanctions.
November 3, 2009 Mtg Packet
PCRB COMPLAINT DEADLINES
PCRB Complaint #09-03
Filed: 06/09/09
Chief's Report due (90days): 09/08/09
Chief's Report filed: 09/03/09
------------------------------------------------------------------------------------
PCRB Mtg #1 (Review & Assign) 09/08/09
PCRB Mtg #2 (Review Draft #1 Report) 10/13/09
PCRB Mtg #3 (Review Draft #2 Report) 11/03/09
PCRB Report due (45days): 10/19/09
PCRB 60-day Ext Request: 12/18/09
PCRB Complaint #09-04
Filed: 06/25/09
Chief's Report due (90days): 09/23/09
Chief's Report filed: 09/18/09
PCRB Mtg #1 (Review & Assign) 10/13/09
PCRB Mtg #2 (Review Draft #1 Report) 11/03/09
PCRB Report due (45days): 11/02/09
PCRB 45-day Ext Request: 12/17/09
------------------------------------------------------------------------------------
PCRB Complaint #09-05
Filed: 06/30/09
Chief's Report due (90days): 09/29/09
Chief's Report filed: 09/23/09
PCRB Mtg #1 (Review & Assign) 10/13/09
PCRB Mtg #2 (Review & Assign) 11/03/09
PCRB Mtg #3 (Review Draft Report) ??/??/09
PCRB Report due (45days): 11/09/09
PCRB 60-day Ext Request: 01/08/10
November 3, 2009 Mtg Packet
PCRB Complaint #09-06
Filed: 10/26/09
Chief's Report due (90days): 01/25/10
Chief's Report filed: ??/??/10
------------------------------------------------------------------------------------
PCRB Mtg #1 (Review & Assign) ??/??/10
PCRB Mtg #3 (Review Draft Report) ??/??/10
PCRB Report due (45days): ??/??/10
PCRB 60-day Ext Request: ??/??/10
------------------------------------------------------------------------------------
PCRB MEETING SCHEDULE
December 8, 2009
January 12, 2010
February 9, 2010
March 9, 2010
PCRB REPORT OF SUMMARY DISMISSAL TO THE CITY
COUNCIL
Complaint PCRB #09-06, filed October 26, 2009, was summarily
dismissed as required by the city Code, Section 8-8-3 E, requiring that only those
complaints which do not involve the conduct of an Iowa City sworn police officer
may be subject to summary dismissal by the board.
DATED: November 3, 2009
POLICE CITIZENS REVIEW BOARD
A Board of the City of Iowa City
410 East Washington Street
Iowa City IA 52240-1826
(319)356-5041
October 14, 2009
Mayor Regenia Bailey
410 E. Washington Street
Iowa City, IA 52240
Dear Mayor and Council Members:
At the October 13, 2009 meeting, the PCRB voted in open session to request a 60-day
extension regarding the reporting deadline for the Public Report according to the City Code for
PCRB Complaint #09-03 for the following reasons:
• Due to timelines, and scheduling
• Public Report presently due October 19, 2009
60-day Extension request — Report would be due on December 18, 2009
The Board appreciates your prompt consideration of this matter.
Sincerely,
Donald King, Chair
Police Citizens Review Board
cc: City Attorney
POLICE CITIZENS REVIEW BOARD
A Board of the City of Iowa City
410 East Washington Street
Iowa City IA 52240-1826
(319)356-5041
October 14, 2009
Mayor Regenia Bailey
410 E. Washington Street
Iowa City, IA 52240
Dear Mayor and Council Members:
At the October 13, 2009 meeting, the PCRB voted in open session to request a 45-day
extension regarding the reporting deadline for the Public Report according to the City Code for
PCRB Complaint #09-04 for the following reasons:
• Due to timelines, and scheduling
• Public Report presently due November 2, 2009
45-day Extension request — Report would be due on December 17, 2009
The Board appreciates your prompt consideration of this matter.
Sincerely,
Ki
Donald King, Chair
Police Citizens Review Board
cc: City Attorney
POLICE CITIZENS REVIEW BOARD
A Board of the City of Iowa City
410 East Washington Street
Iowa City IA 52240-1826
(319)356-5041
October 14, 2009
Mayor Regenia Bailey
410 E. Washington Street
Iowa City, IA 52240
Dear Mayor and Council Members:
At the October 13, 2009 meeting, the PCRB voted in open session to request a 60-day
extension regarding the reporting deadline for the Public Report according to the City Code for
PCRB Complaint #09-05 for the following reasons:
• Due to timelines, and scheduling
• Public Report presently due November 9, 2009
60-day Extension request — Report would be due on January 8, 2010
The Board appreciates your prompt consideration of this matter.
Sincerely,
I ,«
r7C Lam{- ��i/tc)
Donald King, Chair
Police Citizens Review Board
cc: City Attorney
POLICE CITIZENS REVIEW BOARD
A Board of the City of Iowa City
410 East Washington Street
Iowa City IA 52240-1826
(319)356-5041
October 15, 2009
Sam Hargadine, Chief of Police
Iowa City Police Department
410 East Washington Street
Iowa City, IA 52240
RE: Annual Pursuits Analysis
At its October 13, 2009 meeting the Board reviewed General Order 99-01 (Police
Vehicle Pursuits). After discussion, the Board would like to request to receive the annual
analysis of pursuits referenced in section VI(E).
Thank you for your cooperation
Sincerely,
Donald King
PCRB Chair
AGENDA
POLICE CITIZENS REVIEW BOARD
COMMUNITY FORUM
NOVEMBER 18, 200917:OOPM
EMMA J. HARVAT HALL
410 E Washington St
ITEM NO. 1 CALL TO ORDER & ROLL CALL
ITEM NO. 2 PRESENTATION BY PCRB MEMBER -
INTRODUCTION & COMPLAINT PROCESS
ITEM NO. 3 PRESENTATION BY-ICPD - USE OF FORCE POLICY
ITEM NO. 4 PUBLIC DISCUSSION WITH POLICE CITIZENS REVIEW BOARD
ITEM NO. 5 CONSIDER MOTION TO ACCEPT CORRESPONDENCE AND/OR
DOCUMENTS
ITEM NO. 6 ADJOURNMENT
The City of Iowa City
POLICE CITIZENS REVIEW BOARD
COMMUNITY FORUM
WHEN: Wednesday, November 18, 2009
TIME:
WHERE:
Topic:
7:00 PM
Emma J. Harvat Hall
410 E Washington St
Introduction of the
PCRB, Complaint
Process and the
Use of Force Policy
We invite YOU to attend a forum. Presentations will be given, followed by a public
discussion with the Police Citizens Review Board.
General News Release:
The Police Citizens Review Board will be holding a Community Forum on Wednesday,
November 18, 2009 at 7:00 PM in Emma J. Harvat Hall. Topics will include:
Introduction of the PCRB, Complaint Process, and a presentation of the Use of Force
Policy by the ICPD, followed by Public Discussion with the PCRB. The forum will be
broadcast live on the Interactive City Channel 5. The agenda is available at:
http://www.ic,i4ov.org/de.fault/qpps/boards/boardList.W
POLICE CITIZENS REVIEW BOARD
COMMUNITY FORUM
November 18, 2009
PLEASE SIGN IN
IF YOU WOULD LIKE TO
ADDRESS THE lPCRB
DURING PUBLIC DISCUSSION
INDIVIDUALS WILL BE CALLED IN
THAT ORDER
POLICE CITIZENS REVIEW BOARD
COMMUNITY FORUM
November 18, 2009
IF YOU WOULD LIKE TO ADDRESS THE PCRB
PLEASE PRINT YOUR NAME AND ADDRESS ON
THE ATTACHED SHEET
INDIVIDUALS WILL BE CALLED IN THAT ORDER
NAME: ADDRESS:
POLICE CITIZENS REVIEW BOARD
COMMUNITY FORUM
November 18, 2009
PLEASE PRINT YOUR NAME AND ADDRESS ON
THE ATTACHED SHEET
IF YOU HAVE NOT ALREADY SIGNED IN
NAME: ADDRESS:
Draft Agenda for December 8, 2009 policy review:
1. Overview of the Board's governing documents:
a. Ordinance — Chapter 8
b. By -Laws (last revised June 10, 2003)
C. Standard Operating (last revised March 11, 2008)
d. Mediation Packet
2. Letter from Board Counsel dated October 21, 2008, with enclosures
case law
open meetings statute (not open for review)
3. Article from Des Moines Register dated October 18, 2009
4. Look to other jurisdictions; quick Google search popped up:
Pittsburgh
Oakland
Chicago
Denver
NYC
Cleveland
Erie
Albany
San Diego
Muskegon
Orlando
Catherine Pugh
4743 Dryden Court
Iowa City, IA 52245
October 21, 2008
Dear Janie.
I wanted to follow up with you before our meeting next week and provide you with
some historical information and cases that will help to illustrate where certain policies
and procedures of the PCRB were born.
With regard to the identification of officers, you will see that this was a subject of
neqotiation with the City Council and their attorney. I am enclosinq the "Hawkeye "case
that was relied upon in drafting the current policy. You will also note that the relationship
between the PCRB and the City Council was more contentious as the Board wanted
more authority and the Council wanted to keep the Board in check. Also enclosed are
the Open Meetings and Open Records Chapters of the Iowa Code.
I am also enclosing the Colorado case which has been discussed with regard to
the Garrity rights exercised by officers. It appears that the main obstacle in the PCRB
compelling officer statements will be the Board inability to discipline the officers.
After you have had a chance to digest this information, let me know if there is
anything you would like to look at further. I look forward to seeing you next week.
Yours Truly,
ca, C6,It,-.Q
Catherine Pugh
January 25, 1999
DELIVERED BY FAX AND REGULAR MAIL
_�*1-*/__*&.1
CITY OF IOWA CITY
Douglas S. Russell, Attorney at Law
221'/z E. Washington St.
Iowa City, IA 52240
Re: PCRB
Dear Doug:
It is my understanding that at the PCRB's meeting tomorrow it will reconsider its decision to
cancel the meeting previously scheduled between you, representatives of the PCRB and
myself. This meeting was originally proposed to me as a way to discuss our concerns frankly
with the goal being to make the upcoming process "less confrontational". After the meeting was
set I, and other staff, gave considerable thought to a number of issues and I was looking
forward to the opportunity to discuss the same.
In particular, I have spent much time reflecting on the issue of identification of officers. My
concerns fall into two categories: 1) confidentiality; and 2) potential misuse of the information in
the investigative process. Confidentiality vis-a-vis the public is consistent with the privacy
protections generally afforded to employees as recognized by exceptions to the Iowa Open
Records and Open Meetings laws. My understanding is that the Board continues to believe that
identification of officers to the public is not appropriate. The Board suggests an identification
system.which would prevent identification of the officer to the public by the Board/City but allow
the Board identify as m make by number from one the allegations public). Succh'at numbering system would to the next. (Of course, the
he
complainantt can always
acceptable to me if I can resolve the second issue.
As I have told you previously, my concern regarding potential misuse of the officer's identity in
the investigative process arose principally as a result of the statements made in the. Board's
report to the City Council on complaints 98-14 and 98-16. You will recall that these were
complaints by a husband and wife stopped for a traffic violation. None of the complaints were
sustained. The husband and wife had initially claimed that the wife was shoved and threatened
but in her interview with the police investigator she denied any use of force. The Board's
findings of fact included a finding that the complainant used profanity but there was no such
finding of fact with respect to the officer's use of profanity. Nonetheless, in its comments the
Board stated: "It should be noted that this is the second incident within a six -week period that
an allegation of the use of profanity has been filed against [the officer]." The earlier complaint to
which the Board refers included an allegation of profanity, but the allegation was not sustained.
The clear implication in the Board's statement is that an accusation, in and of itself, provides
evidence of the truth of the accusation. Such an inference is inappropriate and contrary to rules
governing the proceedings of other fact finding bodies. For example, I would be surprised to see
a similar statement in the investigative summaries prepared by the Human Rights Coordinator.
Particularly given the nature of police work, one cannot assume that an unsustained allegation,
410 EAST WASHINGTON STREET - IOWA CITY. IOWA 52240-1826 - (3I9) 356-5000 . FAX (319) 356-5009
2
or even two or three, provides such evidence. (Despite the Press -Citizen's conclusion that
officers "invite" complaints against themselves).
Notwithstanding the above -noted concerns there are a number of factors that weigh in favor of
the officer's numerical identity being available to the PCRB during its deliberations. First, I can
think of no other fact finder that is blinded to the identity of one of the parties. For example,
although the names of complainants and respondents to a human rights complaint are
confidential vis-a-vis the public, the Human Rights Investigator and the Human Rights
Commission have that information. Second, the PCRB knows the name of the complainant.
Finally, additional protection is afforded the officer now that we have clarified that a criticism by
the Board, not just a sustained finding, requires a name clearing hearing.
I hope the PCRB will reconsider its decision concerning the meeting as I believe it would be
helpful to discuss the identification issue as well as others.
I look forward to hearing from you after the Board's Tuesday night meeting.
Very truly yours,
g& , 2. ', Z4
Eleanor M. Dilkes
City Attorney
cc: Steve Atkins
Marian Karr
R.J. Winkelhake
Sarah Holecek
eleanorMtAdr1-25. doc
February 25, 1999
Douglas S. Russell, Attorney at Law
Stein, Russell and Pugh, LLP
PO Box 2416
Iowa City, IA 52244
Re: Police Citizens Review Board
Dear Doug:
CITY OF IOWA CITY
HAND DELIVERED
Enclosed you :".ail! find drafts of the revisions to the PCRB's standard operating procedures and the PCRB
ordinance. I have not put the changes to the ordinance in ordinance form, but rather, have just redlined
the current ordinance as the changes are easier to address that way.
The enclosed draft of the SOP concerning summary dismissal does not include an interview of the
complainant in executive session. As I told you by phone, because at this stage there will have been no
police investigation I am concerned that there is not an exception to the open meetings law that would
allow this interview to be held in closed session. Use of Section 21.5(a) in tandem with 22.7(18)
(communications not required by law made to a government body when the government body can
reasonably believe that the communication would be discouraged if it was subject to public examination)
may be applicable in some situations but this would clearly be a case -by -case analysis. For example, if
the complainant is speaking to the press it is likely unreasonable to assume they are concerned about the
confidentiality of their statement. When we spoke, it was my understanding that you did not think the
inability to hold an interview in closed session would be a big problem given that a subcommittee of the
Board can simply interview the complainant.
With respect to the changes to the ordinance, I have taken the liberty of including a new section on time
computation which is based on Iowa Code Section 4.1, subsection 34. It seems to me that this rule will
take care of some of the more obvious time issues.
Congratulations again on your judicial appointment. Lawyers and litigants of Johnson County are lucky to
have you. As we discussed, given your experience with the Board it might be helpful for you to offer your
suggestions concerning the qualifications their counsel should possess before your departure. In addition
to identifying the substantive areas that are most important, we may want to consider requiring a
mil)irnurn amount of practice experience.
The Council has changed its March 23 meeting to March 30 so I will shoot for putting these revisions on
that agenda. I look forward to hearing from you.
V trulyr-y�ours,
Eleanor M. Dilkes
City Attorney
Enclosure
cc: Marian Karr, City Clerk
Sarah Holecek, First Assistant City Attorney
RJ Winkelhake, Police Chief
Stephen Atkins, City Manager
Eleanor\Itr\d r'2-24.doc
410 EAST WASHINGTON STREET • IOWA CITY. IOWA 5224.0-1826 •_(319) 356-5000 • FAX (319) 356-5009
v —
POLICE CITIZENS REVIEW BOARD
A Board of the City of Iowa City
410 East Washington Street
Iowa City IA 52240-1826
(319)356-5413
February 25, 1999
Mayor Ernest W. Lehman
Iowa City Civic Center
410 East Washington Street
Iowa City IA 52240
RE: Police Citizens Review Board
Dear Mayor:
You contacted me on Friday, February 12, 1999, and requested a letter of clarification
concerning the request of the Police Citizens Review Board to have officer identifying
numbers for a particular complaint before the Board deliberates on that complaint. We
understand from our joint meeting with the City Council on February 111s that the
Council agrees we should receive identifying numbers and that when we should receive
those numbers is the sole remaining issue.
The Board continues to believe that it is important that it receive the identifying numbers
of all officers involved in a PCRB complaint, and information about which previous
PCRB complaints named that officer or officers, before it deliberates on the Chief s (or
City Manager's) report.
The purpose of the information is twofold. First, it allows the Board to track the behavior
of particular officers over the entire period of the Board's existence. Second, it allows
the Board to use the information to assist in its review of the Chief's (or City Manager's)
determinations regarding the credibility of a particular officer, where appropriate and
relevant to a pending complaint. The first function may be served by giving the Board
the identifying number after the complaint has been decided upon. The second function
may be served only if the information is received before the Board deliberates on a
pending complaint.
In reviewing a report on a citizen complaint, the Board's only role is to review the
reasonableness of the determinations made by the Chief of Police (or the City Manager).
Imagine a situation in which a complainant's version of the story and the officer's version
of the story differ substantially. In reviewing the report prepared on such a complaint,
the Board must decide whether the Cuef's decision to credit one version over the other
was reasonable. In making that assessment, information about the participants --the
officer as well as the complainant — is clearly relevant. The Chief certainly knows the
officer's history; the Board must have information about the officer's prior involvement
to make a fair assessment of the Chief s (or City Manager's) review of the matter.
Mayor Ernest Lehman
Page 2
The information requested is, in itself, neutral. The fact that an officer was named in a
previous complaint will not prejudice the Board for or against the officer, and the
resolution of a prior complaint might reflect positively as well as negatively on an
officer's truthfulness. Nor is the information requested so the Board may draw the
impermissible inference that an officer complained against in a prior instance is more
likely to have committed misconduct.
The Board appreciates the airing of the Council's concerns about the proper and improper
use of the identifying number of an officer. The Board and the City Attorney are
working out guideline language for a new SOP to address the Council's concerns on this
issue.
Nonetheless, the Board strongly believes that as long as the City Council keeps the Board
in existence, it must trust the Board to operate within its standard operating procedures
with all relevant information that may properly affect its decisions.
The PCRB was conceived as a response to a community tragedy. Its still -evolving role
reflects the importance of protecting the rights of individual officers as well as the
community's need for effective police oversight. That balance is reflected in the
statutory responsibilities imposed on the PCRB by the City Council. While they confirm
the City's commitment to external accountability for the Iowa City Police Department,
they also reflect stringent limits on the Board's authority. The Board recognizes the
judicious balance incorporated in the PCRB ordinance and has, in turn, sought to be
balanced and judicious in its approach to its work.
Consistent with this approach, one of the Board's first unanimous decisions was that we
did not wish to know the idemity of officers, but would be satisfied to work with a system
of unique but anonymous identifiers of the Chief s own devising. We continue to be
willing to work with staffta resolve whatever problems arise with implementing this
system.
A board like the PCRB can never please everybody. We will be viewed, depending on
one's politics and predisposition, as essential to the function of the community or an
intrusive annoyance, as having too much power or too little, as presuming and doing too
much or showing too little effect. We are prepared to live with that, but feel the need to
stress the importance of maintaining the balance that is built into the ordinance. That
balance requires that the Board be provided with the information it needs — including the
identifying numbers of officers named in complaints — so that it may fulfill its duties
under the ordinance and make fully informed decisions.
Respectfully,
ls�
Leah Cohen, Chair
Police Citizens Review Board
March 5, 1999
Douglas S. Russell
Attorney at Law
Stein, Russell & Pugh, LLP
P.O. Box 2416
Iowa City, IA 52244
Re: Police Citizens Review Board
Dear Doug:
CITY OF IOWA CITY
I understand from your recent phone call that the proposed revisions to the Board's SOPs that
sent you under cover of February 15, 1999 are acceptable to the Board with two exceptions.
First, in light of the provisions regarding redaction of the officers' names from complaints, the
Board wishes to have written assurance that it will have access to the police officer's name for
the purpose of naming an officer in a sustained complaint pursuant to Section 8-8-7(B) of the
City Code. Enclosed you will find a further revision to the SOPs. Section V now states that the
Board may obtain the officer's name from the City Clerk for this purpose.
With respect to guidelines for release of a name in a sustained complaint, I understand that you
will read the Hawk Eve case and we can discuss it on Monday. As I told you by phone,
however, I believe that the changes to the SOPs and ordinance should be put in place now
rather than waiting for a discussion and codification of such guidelines. I suspect that this
discussion would delay and complicate the changes to the SOPs and ordinance that were
discussed and tentatively approved by Council at its recent work session.
I look forward to hearing from you on Monday.
5erely,
OD -
Eleanor M. Dilkes
City Attorney
Enclosure
cc: Marian K. Karr, City Clerk
Sarah Holecek, First Assistant City Attorney
R.J. Winkelhake, Police Chief
Steve Atkins, City Manager
e1e a nor\I tr\ru ss e15. doc
410 EAST WASHINGTON STREET • IOWA CITY, IOWA 52240-1826• (319) 356-5000 • FAX (319) 356-5009
RECEIVED MAR 9 8 1990
The HAWI{ EYE and William
Mertens, Appellees,
V.
Patrick C. JACI{SON, Appellant,
Iowa Department of Public Safety,
Intervenor —Appellant.
No. 93-666.
Supreme Court of Iowa.
Sept. 21, 1994.
Newspaper sought writ of mandamus
compelling disclosure of Division of Criminal
Investigation (DCI) report concerning allega-
tion of use of excessive force by police, and
the District Court, Des Moines County, John
C. Miller, J., granted writ. Division appeal-
ed, and the Supreme Court, Neuman, J., held
that any public harm created by disclosure of
report was far outweighed by public harm
accruing from nondisclosure.
Affirmed.
1. Mandamus a187.9(1)
Review of mandamus action by Supreme
Court is de novo, and Supreme'Court gives
weight to district court's fact -findings but is
not bound' by them. I.C.A. § 661.3.
2. Records a60
Privilege proW< cting peace officers' in-
vestigative reports .md communications made
to public officers hi official confidence is qual-
ified, and official claiming privilege must
show that public officer is being examined,
communication was made in official confi-
dence, and public interest would suffer. by
disclosure. .I.C.A. H.22.7, 622.11. .
750 Iowa 521 NORTH WESTERN REPORTER, 2d SERIES
[41 II. We have many times emphasized
the distinction between jurisdiction and au-
thority. See, e.g., State v. Mandicino, 509
N.W.2d 481, 482 (Iowa 1993). We agree that
the trial court lacked authority to proceed in
Woodbury County district court with this
special statutory remedy.
[5,61 As a general rule, contempt is un-
available to enforce a money judgment. • See
Iowa Code §' 626.1 (money judgments en-
forceable by execution; other commanded
acts are to be coerced by contempt);' Iowa
Code § 665.2 (generally setting forth con-
. tempt grounds). A special statute, involving
support orders entered -in dissolution of mar-
riage decrees, provides an exception to.this
rule. A district court has .authority to hear
and determine contempt proceedings in the
context of delinquent child support. Iowa
Code § 698.23A (1993).
[71 But this power is a special one the
legislature accorded 'only in dissolution of
marriage cases. It is not a separate cause of
action, but a remedy specifically appended in
order to enforce orders already entered. We
do not think the legislature intended for bi-
furcation of disputes concerning support,
modification, or other matters that may arise
within a dissolution' of marriage proceeding.
We are convinced the legislature intended for
these matters to be pursued only within the
original proceeding. Because the contempt
. proceeding is merely an adjunct to the .case
in Black Hawk district court, and not an
-independent action, we agree that the appro-
priate remedy is dismissal, not transfer un-
der rule of civil procedure 175. 7 ,
We agree that the Woodbury district court
lacked authority to apply the contempt power
available in Black Hawk district court..
AFFIRMED.
3. Records a60
Gw xerNUMeErtsysTEM Determination of whether public interest
o Twould suffer by disclosure of official commu-
nications for purposes of qualified privilege
covering communications requires weighing
relative merits of interests at stake. LC.A.
§§ 22.7, 622.11.
9
i;
in
7
t(
R
c,
P
6
HAWK EYE v. JACKSON Iowa .751
Cite as 521 N.W.2d 750 (Iowa 1994)
4. Records 48;=fi4 S. Records e-60
Aids to law enforcement of encouraging f di Il vil d
persons to come forward with information,
protecting secrecy of informants, and allow-
ing law enforcement officials necessary priva-
cy to discuss findings and theories constitute
only one factor to be considered by court in
determining if public interest would suffer by
disclosure of conditionally privileged commu-
nications of law enforcement officials, and
factor is not determinative; other case-spe-
cilic factors, such as nature of investigation
and whether it is completed or ongoing, may
tip balance in favor of public disclosure.
I.C.A. §§ 22.7, 622.11.
5. Records «65
Finding that public interest would 'not
suffer by disclosure of Division of Criminal
Investigation (DCI) report concerning allega-
tion of use of excessive force by police officer
was supported by evidence that only two
witnesses to investigation expressed concern
about giving statements, and witnesses' re-
luctance stemmed solely from uncertainty
about upcoming civil litigation and not from
fear of retaliation, no confidential informants
were used in investigation, newspaper's in-
quiry into incident arose only alter official
investigation had ceased, no showing was
made that report contained hearsay, rumor,
or libelous comment, and report contained no
subjective theories, conclusions, or recom-
mendations. I.C.A. §§ 22.7, 622.11.
6. Records e-64
Allegations of leniency or cover-up with
respect to disciplining of those sworn to en-
force the law are matters of great public
concern in determining potential harm to
public interest to be suffered by disclosure of
conditionally privileged statements made by
public officers. I.C.A. §§ 22.7, 622.11.
7. Records ea64
Existence of alternate means of -access
to essentially same information is factor to be
weighed in determining whether disclosure of
conditionally privileged communications of
public officials is warranted. I.C.A. §§ 22.7,
622.11.
Release o con tlona y pn ege com-
munication by public officer does not depend
on status of party seeking release. I.C.A.
§§ 22.7, 622.11.
9. Records e-52, 60
Newspaper has same right of access as
any' member of general public, and it' is in
that representative capacity that newspaper's
interest in disclosure of conditionally privi-
leged communications by'public officials must
be evaluated. I.C.A. §§ 22.7, 622.11.
Bonnie J.'Campbell, Atty. Gen:, and Jef-
frey D. Farrell, Asst.-Atty. Gen., for appel-
]ants:
Gene R. 'Krekel'and H."Craig Millerof
Hirsch, Adams, Krekel, Putnam & Cahill,
Burlington, for I appellees.
Susan M. Boe and Michael A. Giudicessi of
Faegre & Benson, Des Moines, for amicus
curiae Iowa Freedom of Information Council.
Considered by McGIVERIN, C.J., and
HARRIS, LAVORATO, NEUMAN, and
TERNUS, JJ.
NEUMAN, Justice.
This appeal concerns "a county attorney's
refusal to produce an Iowa Division of Crimi-
nal 'Investigation file for inspection by. a
newspaper. After weighing the interests of
the public on the issue, the district .court
ordered the official.to turn over the file. We
affirm.
In the spring of 1991, Steve Sands, a re-
porter for the Burlington newspaper, The
Htxwk Eye, wrote a series of articles aimed at
local reaction to the highly publicized beating
of Rodney King by Los Angeles police offi-
cers. As a part of the series, Sands inter-
viewed local law enforcement officials about
whether allegations of excessive force had
ever been lodged = against a member of the
Burlington police department. During one
of these interviews, Sands learned of a possi-
ble civil suit against police officer Michael
Swore. Sands approached police chief Wen-
dell Patton . for his comment regarding the
suit. Patton, previously unaware of the alle-
I
752 Iowa 521 NORTH WESTERN REPORTER, 2d SERIES
gations, viewed the charges as serious and
immediately requested an independent inves-
tigation by the Iowa Division : of Criminal
Investigation (DCI). Patton sought to deter-
mine whether Swore had engaged in criminal
conduct or had violated departmental rules
and regulations.
DCI special agent Wade Kisner took on
the assignment. Because the allegations re-
lated to an incident that occurred nearly two
years earlier, Kisner's report consisted en-
tirely of notes taken in.connection with wit-
ness interviews. It did not include his per-
sonal impressions or conclusions regarding
whether any official action. should be taken
against Swore.
The report was forwarded to both Patton
and county attorney Patrick Jackson. Based
solely on the report, Patton concluded that
Swore had breached no. departmental rules
or regulations. Jackson agreed and further
determined that insufficient evidence existed
,to warrant prosecution for assault.'
After these decisions were made, William
Mertens, publisher of The Hawk Eye, re-
quested. a copy of the DCI report from Jack-
son. Jackson refused to produce . it.• , The
newspaper then sought a i
c1gs r ,ad
able. The Iowa Department of Public Safety
intervened on Jackson's behalf.
Prior to hearing on the writ, the civil suit
i against Swore and the City of Burlington
went to trial. Most of the witnesses at trial
I� were the .same persons interviewed"by Kis-
Is ner for the DCI report. Sands reported
� daily on the evidence and testimony present
ed. During the trial, a second allegation of
brutality by Swore surfaced.... The Hawk Eye
j` investigated and reported on this allegation
as well; a separate suit on the matter even-
; I' tually .settled without trial. As to the initial
�! claim, the jury ultimately. returned a verdict
for damages against Swore and the city.
At the subsequent hearing on the Aofft-fw
a.. _ �iylreuzarr���
0,�s�'O tL+Ndt n��c"��flu9°1�151'J�
wpw4ee Swore with the
jury's arguably contrary ' findings against;"''`
him. .Without disclosure of the facts upon
which the officials made their decision, the
newspaper argued, the potential for a' cover-
up existed.. Jackson resisted on the ground
that neither this DCI report, nor any other,
warranted release in the public interest. His
argument rested on a number of DCI con-
cerns.: assuring informant confidentiality, en-
couraging future cooperation with the DCI,
protecting persons from speculative or poten-
tially libelous revelations, and preventing a
landslide of disclosure requests by the media.
-The district court found that the DCI re-
port was protected by a qualified privilege.
It concluded, however, that any harin to the
public interest caused by the report's disclo-
sure was substantially outweighed by the
public interest in disclosure. Subject to the
deletion of certain criminal history data, the
court ordered. Jackson to make the report
available to the newspaper. This appeal fol-
lowed.
[1) I.. Because mandamus is an equitable
action, our review on appeal is de novo.
Iowa, Code § 661.3 (1993); Nowhit v. S'curr,
331 N.W.2d 394, 396 (Iowa 1983). We give
weight to the district court's fact -findings but
are.not bound by them. Id
II. Jackson and the Department of Public
Safety rest their case for nondisclosure on
Iowa Code sections 22.7 and 622.11. Section
22.7 states in pertinent part:
d 11 t%131i r061, :1
b?��a.���irlas�da�fgf.he
ree�xdsaeh�r;;ptatu�duly� au�r�
razed-c4@MWff#W&ft9ormatiom
ggW&#
p���ualar��aa� ��iaxa+tnmara.a�n�fy}��(}]�s
wbexeAnmd&x@o*. However, the date,
time, specific location, and immediate facts
and circumstances surrounding a crime or
incident shall not be kept confidential un-
der this section, except in those unusual
circumstances where disclosure would
plainly and seriously jeopardize an investi-
gation or pose a clear and present danger
to. the safety.of an individual.
(Emphasis added.) Section 622.11 reads:
. A public officer cannot be examined as
to communications niade to the public offr-
v
the
er-
md
.er,
His
on-
en -
CI,
en -
;a
lia.
re-
ge.
the.
:lo-
the
the
the i
ort
rol-
ble
vo. t'
ive
iut a.
)lie
on
ion
be j
,ed
.he
10-
ts,
se-
.te,
cts
or
m-
ual
Ad '.
,,er, ,
as
Ffl-
HAWK EYE v. JACKSON Iowa 753
Cite as 521 N.W.2d 750 (Iowa 1994)
cer in official confidence, when the public Jackson's blanket claim of privilege. Appel-
interests- would suffer by the disclosure. lants' reasons for protecting the confidentiali-
[2] In State ex reL Shanahan v. Iowa
District Court, 356 N.W.2d 523, 628 (Iowa
1984), we observed that these two statutory
provisions express essentially the same legis-
lative purpose with respect to DCI files:
suranae�,ttos:,ali Fprn'sa11ao��-�wbom�::la��n-
forcement:.�a�l�; reel.�:;,thnl�.�a�i�ial�eon€>d
dentialik�y���dg��laekrv4nye��atiozla>3d�
may�pt�t�#�t�tm�p�iblie�cc�ess;:�e�of4ieselFs�'
reps of whaiath havnmsard:� M The
privilege cloaking these communications,
however, is qualified, not absolute. Id. at
527. An official claiming the privilege must
satisfy a three-part test: (1J1ff9M#MMMv
alined; (2) the�c+tmmunicatiom
was na le .officia6vanfldemot and (3) tlfLv
p���e��euldtsn��1b��elt�sl�.
hi at 627; accord Shannon v. Hansen, 469
N.W.2d 412, 414 (Iowa 1991).
[31 Only the third part of the test con-
cerns us here. Determining where the line
falls between public harm and public good
requires weighing; the relative merits of the
interests at stake. We have long recognized
that confidentiality encourages persons to
come forward with information, whether sub-
stantiated or not, that might he used to solve
crimes and deter criminal activity. Shana=
han, 356 N.W.2d at 529. Secrecy is especial-
ly vit ul where reports are based on confiden-
tial informants, persons indispensable to suc-
cessful police work but who frequently fear
intimidation and reprisal. kt at 529-30.
Furthermore, nondisclosure permits law en-
forcement officials the necessary privacy to
discuss findings and theories about eases un-
der investigation. Id, at 529.
[4] We have also held, however, that
these important aids to effective law enforce-
ment comprise only one factor to be consid-
ered by the court and are "not determinative
j as to the 'public interest' test" Shannon,
469 N.W.2d at 415. Other case -specific fac-
tors, such as the nature of the investigation
and whether it is completed or ongoing, may
tip the balance in favor of public disclosure.
See id.
[51 III. Turning to the record before us,
1ve are convinced the court wisely rejected
ty of the DCI report, while not msubstantual,
do not justify nondisclosure under the unique
facts of this case.
First, the compelling reasons ordinarily
underlying the need for witness confidentiali-
ty are absent. - Only Swore and one other
witness expressed any concern about giving a
statement. In each case the reluctance
stemmed solely from uncertainty about their
upcoming roles in the civil litigation, not con-
cern over intimidation or retaliation. Both
ultimately'testified publicly in the civil trial,
• as did ten persons out of the total of fourteen
interviewed by Kisner. No confidential in-
formants were used in the investigation.
Second, the record reflects that the news -
paper's inquiry arose only after official inves-
tigation into the Swore incident had ceased.
Kisner reported that he closed the DCI file
following the decision not to prosecute.
Jackson expressed his belief that any recon-
sideration of his decision would be barred by
the applicable statute of limitations for as-
sault: - He was unaware of any pending fed-
eral charges arising out of the same incident.
Thus any claim that an on -going investigation
might be hindered by disclosure of the report
is unsubstantiated.,
Third, the appellants made no showing
that the DCI report contained hearsay, ru-
mor, or libelous comment. Because the focus
of the investigation rested solely on Swore,
no legitimate concerns exist over named but
innocent suspects.: Kisner's report contained
no subjective theories, conclusions, or recom-
mendations, thus minimizing the need . for
secrecy present in most investigations.
The district court properly weighed the
foregoing facts against the newspaper's proof
that the public interest would be harmed by
'denial of access to the DCI file. See Shana-
han, 356 N.W.2d at 530. The record reveals
that community:; interest and concern over
allegations of police-brutaHty, already piqued
by the events in Los Angeles, was height-
ened by the suit against Swore. This inter-
est grew upon the filing of a second civil suit
against him. Mertens testified that, once the
jury reached a verdict in apparent conflict
a
a
;lFI;
I
154 Iowa 521 NORTH WESTERN REPORTER, 2d SERIES
with city officials' decisions, the newspaper
received many more letters to the editor
expressing concern over both incidents.
[6) There can be little doubt that allega-
tions of leniency or cover-up with respect to
the disciplining of those sworn to enforce the
law are matters of great public. concern.
This fact is underscored by Patton and Jack-
son's own testimony regarding theimmediate
action taken upon hearing Swore was ac-
cused of using excessive force.
[7] Appellants nevertheless claim that
the newspaper's need for disclosure is slight
because the same information could have
been gained from trial testimony or the
newspaper's own private interviews. It is
true that existence of an alternate means of
access to essentially the same information -is
a factor to be weighed in determining wheth-
er disclosure is warranted. Id at 531. But
motivating the newspaper's claim is its con-
cern that the information' contained in the
DCI report may not be similar to that re-
vealed at trial or secured by reporters out-
side the courtroom. That suspicion is only
strengthened by the jury's -verdict." So long
as it is barred from seeing the report, the
newspaper is effectively prevented from as-
sessing the reasonableness of the official ac-
tion. Like the district court, we believe that
neither the trial testimony nor independent
witness interviews would , shed light on that
assessment.
[8,91 Finally, we reject appellants' con-
tention that the newspapers' interest in the
report is lower —and thus less compelling
than the interest of the plaintiff in Shana-
han, a litigant seeking discovery relevant to
his civil lawsuit. Release of the report does
not depend on the. status of the party seeking
it.. Northeast Council on Substance Abuse,
Inc.. v. Iowa Dept of Public Health, 513
N.W.2d 757, 761 (Iowa 1994). The newspa-
per has the same right of access as any
member of the general public.. See Head v.
Colloton, 331 N.W.2d 870, 874 (Iowa 1983).
It is in that representative capacity that its
interest in disclosure must be evaluated.
In summary, our de novo review of, this
record leads us to the same conclusion
reached by the district court. Under the
unique facts of this case, any public harm
created by the disclosure of the DCI investi-
gatory report is far outweighed by the public
harm accruing from its nondisclosure. The
district court's order compelling disclosure is
therefore affirmed.
AFFIRMED.
• w
O
KEY NUMBER SYSTEM
In
the Interest of C.T., A Minor,
C.T., Appellant.
No. 94-138.
Supreme Court of Iowa.
Sept. 21, 1994.
Juvenile was adjudicated in the District
Court, Scott County, Gary 1). McKemick,
District Associate Judge, as delinquent after
being found to have committed acts of tam-
pering with witness and criminal gang partic-
ipation, and he appealed. The Supreme
Court, Ternus, J., held that: (1) determina-
tion in prior adjudication that organization
was criminal street gang could not be used to
establish that fact in adjudication of juvenile
who was not party to or in privity with party
to earlier proceeding, but (2) evidence sup-
ported findings that juvenile had committed
acts of delivery of controlled substance and
criminal gang participation.
Affirmed.
1. Assault and Battery e-53
One form of assault is gohlg armed with
intent to commit felony. LC.r1. § 708.8.
2. Judgment e-707
State could not use determination made
in prior adjudication that organization wag
"criminal street gang" within meaning of
statute in later adjudication of juvenile nnem-
ber of organization -for criminal gang partic-
ipation where juvenile was not party to prior
rage 1 014
FindLaw"�
I �Pd a la:r;hr. I Ind ansu:rers
FindLaw> State Res_ources> Colorado> Prim_arv_Materials> Colorado Court Opinions
CO ORADO(701.TRTClFAPPFATR
September 3. 1998
No. 97rA 1662
City and County of Denver, a Municipal corporation and PublicSafety Review Commission, a Commission of the City and
County ofDenver_
Plaintiffs -Angel lees.
Jerome Powell and Scott Blatniik.
Defendants -Appellants.
Anneal from the District Court of the City and Countv of Denver
Honorable J. Stephen Phillips, Judge
No, 97CV1065
Division IT :nTD(7- FNT RFVFRgED
Opinion by JUDGE NEY
Criswell and Briggs, JJ., concur
Daniel E. Muse, Citv Attorney, Stan M. Sharoff, City Attomev.Denver. Colorado for Plaintiffs -Appellees
Hamilton and Faatz, P.C., Gregory W. Smith, Michael E. Gurley,Cynthia Treadwell-Miller, Bruno, Bruno & Colin, P.C.,
David J.Bruno, Christina M. Habas, Janice H. Hollenbeck, Denver,Colorado. for Defendants-Apn_ ellants and Amicus Curiae
NationalAssociation of Police Organizations and Amicus Curiae FraternalOrder of Police
Stephen R. McSnadden. Washington. D.C.. for Amicus CuriaeNational Association of Police Organizations
Defendants, Denver police officers Jerome Powell and ScottBlatnik, appeal the trial court's declaratory judgment
holdingthat the Denver Public Safety Review Commission (PSRC) can compeldefendants' statements relating to complaints
of use of excessiveforce filed against them by citizens. We reverse.
Citizens filed complaints with the Denver Police Department(department) against defendants in 1995. Defendant Powell
wasaccused of wrongfully hitting and pushing into a wall a man beinganested for drunk driving_ , and defendant Blatnik was
accused ofwrongfully fatally shooting a man while responding to a call forpolice assistance.
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rage /- of 4+
The department conducted investigations into both complaintsthrough its internal affairs division. Consistent
withdepartment policy, the department also conducted a policeshootinR investigation of defendant Blatnik, which included
thevideotaping of witness and officer statements just hours afterthe shooting. Based on its internal investigations,
thedepartment declined to take any administrative disciplinarvaction against either defendant.
The Denver District Attorney's Office also reviewed bothincidents and declined to institute criminal charges
againstdefendants. In the case of defendant Blatnik, the DistrictAttornev's Office issued a decision letter stating_ that his
useof deadly force was statutorily justified and no criminalprosecution would be undertaken against him.
The complaining citizens requested that the PSRC, acitizens' group created by city ordinance to review conduct ofpolice
officers upon request, examine defendants' use of force todetermine whether it was Justified. The PSRC subpoenaed
theofficers to appear for questioning.
On January 7, 1997, both defendants appeared before thePSRC. Defendant Blatnik asserted his Fifth Amendment
privilegeagainst self-incrimination and declined to answer any questions. Defendant Powell answered some general
questions, but alsoasserted his Fifth Amendment privilege and declined to answer anyquestions relating to the excessive
fore( -
On January 26, 1997, plaintiffs sought a declaratoryjudgment and injunctive relief ordering defendants to testifybefore the
PSRC. Defendant Powell responded and filed a motionto dismiss for failure to state a claim, and defendant Blatnikanswered
and asserted a counterclaim indemnifvinR him forattornev fees and costs.
Plaintiffs opposed defendant Powell's motion to dismiss, andfiled a motion for summary judgment against defendant
Blatnik. Defendant Blatnik sought summary iudgment on plaintiffs' claimsand his counterclaim.
On August 8, 1997, the trial court granted the plaintiffs'motions and issued its declaratory judgment holding thatdefendants
could not refuse to answer questions before the PSRCon the basis of their Fifth Amendment privilege. The trial
courtcertified the declaratory iudament for appeal pursuant toC.R.C.P. 54(b).
Defendants assert that the trial court erred in finding thatthey could be compelled to answer the PSRC's questions over
theassertion of their Fifth Amendment privilege not to incriminatethemselves. We agree.
Because the issues on appeal are questions of law, we willreview them de novo . See People v. Sapp, 934 P.2d 1367
(Colo. 1997).
The Fifth Amendment protects an individual not only againstbeing involuntarily called as a witness against him or herself
ina criminal prosecution, but also grants a person the orivilegenot to answer official questions in any other proceeding,
civilor criminal, formal or informal, where the answers might tend tobe self -incriminatory in future criminal proceedings.
Lefkowitzv. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973).
The Fifth Amendment privilege is not self-executing. If anindividual confronted with questions reasonably expected toelicit
incriminating answers chooses to respond voluntarilywithout asserting the Fifth Amendment privilege, the responsesmay be
used against such person in a subsequent criminalproceeding. Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136,79
L.Ed.2d 409 (1984).
A public employee who is compelled to provide incriminatingstatements by threat of termination for not testifying has
notvoluntarily waived the privilege against self-incrimination. Therefore, the compelled statements cannot be used against
theindividual in subsequent criminal proceedings. Garrity v. Newdersey, , 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562
(1967).
Statements are compelled by threat of discharge ofemployment when: (1) an individual subjectively believes that heor she
will be terminated from employment for asserting the FifthAmendment privilege. and (2) that belief is obiectivelvreasonable
under the circumstances. People v. Sapp. supra .
For a belief to be objectively reasonable, it must stem fromsome significant coercive action on the part of the state, suchas a
statute, policy, rule, or ordinance requiring the individualto respond to questioning or face termination. The coerciveaction
of the state must surpass the general obligation imposedon a witness to give truthful testimony. People v. Sapp., supra .
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1 - ,- J Vl -T
Here, defendants refused to answer the PSRC's questions,asserting their Fifth Amendment privilege not to
incriminatethemselves. They argue that the PSRC cannot compel them totestify in contravention of their privilege against
self-incrimination because the PSRC is not their employer and cannotthreaten them with penalties of discharge or sanctions;
the PSRChas no power to grant them immunity from prosecution; the PSRC'ssubpoena does not rise to the level of coercive
state action; andthe hearing before the PSRC is not an administrative disciplinaryhearing because the PSRC is without
power to impose anydiscipline.
Therefore, defendants argue that their responses to thePSRC's questions would not be considered as compelled, but wouldbe
considered as voluntary and, thus, would constitute a waiverof their Fifth Amendment privilege such that those
responsescould be used against them in subsequent criminal actions.
A
Defendants' first argue that the PSRC cannot compelstatements from defendants because it is not their employer, ithas no
authority to discipline them for asserting their FifthAmendment privilege, and any statements they give would bevoluntary
and constitute a waiver of their Fifth Amendmentriahts. We agree.
Statements are compelled by threat of discharge ofemployment when an individual believes that he or she will beterminated
for asserting a Fifth Amendment privilege and thatbelief is objectively reasonable under the circumstances. For alaw
enforcement officer's belief that he or she may be dischargedto be considered objectively reasonable, it must be supported
bysome demonstrable action of the state. Ordinary iob vressures,such as the subjective belief that discipline or discharge
forinsubordination is possible, are insufficient to support anobjectively reasonable expectation of discharge. People v. Sapp ,
supra.
Public employers may compel statements from their employeeswhen they are narrowly related to the performance of
theirduties, do not compel a waiver of their Fifth Amendmentprivilege, and are not used against the employee in
latercriminal proceedings. Gardner v. Broderick, 392 U.S. 273, 88S.Ct. 1913, 20 L.Ed.2d 1082 (1968).
The PSRC is not defendants' employer. It is a body composedof seven residents of the City and County of Denver appointed
bythe mayor to make recommendations for changes in policy andprocedure after review of citizen complaints. Denver
RevisedMunicipal Code §2-248.
When a citizen files a complaint with the PSRC, it isempowered to review and investigate that complaint. DenverRevised
Municipal Code §42-248(2) and 2-248(3). If the PSRCfinds the complaint to be unfounded, exonerated, or notsustained, it
can make recommendations to the chief of police anddirector of corrections regarding the policies and procedures ofthe
police department and the outcome of the complaint. DenverRevised Municipal Code §2-250(k).
However, if the PSRC makes a finding that a citizencomplaint is sustained, it may only recommend policy or
procedurechanges. It is specifically excluded from the disciplineprocess: " [Tjhe fPSRCI shall not provide
recommendationsregarding the discipline or penalties imposed on that specificcomplaint to the police department or the
sheriffs department." Denver Revised Municipal Code §2-250(k). The authority todischarge, discipline, or impose sanctions
on police officers isreserved for the chief of police, director of corrections, andmanager of safety. Denver Revised Municipal
Code §2-251.
Plaintiffs rely on Pirozzi v. New York, 950 F. Supp. 90(S.D.N.Y. 1996), aff'd , 117 F.3d 722 (2d. Cir. 1997), to supporttheir
assertions that a police citizen review board not only hasthe authority to compel statements from police officers, but alsoto
provide transcripts of that testimony to a district attomeywithout violating the officers' Fifth Amendment privilege.
However, the PSRC's lack of involvement in disciplinaryproceedings distinguishes this situation from Pirozzi becausethere
the New York police citizen review board is an integralpart of the discipline process and officers are compelled byspecific
police department regulations to give a statement tothat review board under threat of termination.
Here, defendants properly do not have a subjective beliefthat they could be discharged for not testifying before the
PSRC,and there is no objective reason, in the form of coercive stateaction, to imply that they could be discharged for
nottestifying.
Because the PSRC is not defendants' employer and cannotcompel them to testify, we agree with defendants that
anystatements they might make would be voluntary and would,therefore, effect a waiver of their Fifth Amendment rights
suchthat their statements could be used against them in a subsequentcriminal proceeding.B.
Defendants also argue that the PSRC cannot compel theirstatements because it does not have the authority to grant useand
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derivative immunitv. We avree.
An individual may be compelled to testify as to matters thatmay tend to be self -incriminatory when use and derivative
useimmunitv has been conferred upon the statements made. Withimmunity. the individual's compelled statements cannot be
used inanv criminal prosecution. Kastigar v. United States. 406 U.S.441.92 S.Ct. 1653.32 L.Ed.2d 212 (1972).
The PSRC does not have authority to grant immunity of any kind to thewitnesses who testify before it. See Denver Revised
MunicipalCode §2-240, et seq. Rather, §13-90-118. C.R.S. 1997. givesauthority for use and derivative use immunity in
specificinstances: where the proceedings are before or ancillary to acourt or grand jury; the immunity is requested by a
districtattomev. attornev general, or special prosecutor: and theimmunity is ordered by a district court.
Here, the proceedings are before a citizen group; no immunity has beenrequested by a district attorney, attorney general, or
specialprosecutor: and the court has not ordered immunity fordefendants' statements.
Although the Civil Service Commission, which is theauthority charged with all personnel matters involving policeofficers,
may Grant immunity under the Denver Charter forstatements made to the department during internal investieations.no
similar provision exists for the PSRC. See Denver CityCharter §C5.78-1.78-2.
We therefore conclude that, because the PSRC cannot grant useand derivative use immunity to defendants, the PSRC cannot
compelthem to make statements when they assert their Fifth Amendmentprivilege.
C.
The PSRC asserts that its subpoena power in and of itself is sufficientto compel statements from defendants. We disagree.
The general obligation to appear and answer questions truthfullypursuant to PSRC's subpoena does not convert otherwise
voluntarvstatements into compelled statements. Minnesota v. Murphy. 465U.S. 420, 104 S.Ct. 1136. 79 L.Ed.2d 409
0984): People v. Sapp, supra .
Although the PSRC is authorized to issue subpoenas and enforce themthrough a county court proceeding for contempt, this
authoritvdoes not translate into an ability to coerce a compelledstatement. See People v. Razatos , 699 P.2d 970 (Colo.1985)
(county court may punish a witness for contempt only if thewitness exhibits a contumacious failure to comply with an
orderof the court, and a valid exercise of the privilege of self-incrimination does not rise to the level of contempt).
DenverCity Charter §C6.12: Denver Revised Municipal Code §2-243:
We therefore conclude that in any appearance before the PSRC, defendantsare entitled to assert their Fifth Amendment
privilege anddecline to answer questions submitted to them where their answersmight tend to incriminate them.
The declaratory iudQment is reversed.
JUDGE CRISWELL and JUDGE BRIGGS concur.
These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the
Colorado Appellate Rules. Changes to or modifications of these opinions resulting from any action taken by the Court of
Appeals or the Supreme Court are not incorporated_here.
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397 OFFICIAL MEETINGS OPEN TO PUBLIC (OPEN MEETINGS), §21.3
SUBTITLE 9
RESTRAINTS ON GOVERNMENT
CHAPTER 21
OFFICIAL MEETINGS OPEN TO PUBLIC
(OPEN MEETINGS)
21.1 Intent — declaration of policy. 21.7 Rules of conduct at meetings.
21.2 Definitions. 21.8 Electronic meetings.
21.3 Meetings of governmental bodies. 21.9 Employment conditions discussed.
21.4 Public notice. 21.10 Information to be provided.
21.5 Closed session. 21.11 Applicability to nonprofit corporations.
21.6 Enforcement.
21.1 Intent — declaration of policy.
This chapter seeks to assure, through a require-
ment of open meetings of governmental bodies,
that the basis and rationale of governmental deci-
sions, as well as those decisions themselves, are
easily accessible to the people. Ambiguity in the
construction or application of this chapter should
be resolved in favor of openness.
(C79, 81, §28A.11
C85, §21.1
21.2 Definitions.
As used in this chapter:
1. "Governmental body" means:
a. A board, council, commission or other gov-
erning body expressly created by the statutes of
this state or by executive order.
b. A board, council, commission, or other gov-
erning body of a political subdivision or tax -sup-
ported district in this state.
c. A multimembered body formally and direct-
ly created by one or more boards, councils, commis-
sions, or other governing bodies subject to para-
67aphs °a" and `b" of this subsection.
d. Those multimembered bodies to which the
state board of regents or a president of a university
has delegated the responsibility for the manage-
ment and control of the intercollegiate athletic pro-
grams at the state universities.
e. An advisory board, advisory commission, or
task force created by the governor or the general
assembly to develop and make recommendations
on public policy issues.
f A nonprofit corporation other than a county
or district fair or agricultural society, whose facili-
tics or indebtedness are supported in whole or in
part with property tax revenue and which is li-
censed to conduct pari-mutuel wagering pursuant
to chapter 99D or a nonprofit corporation which is a
successor to the nonprofit corporation which built
the facility.
g. A nonprofit corporation licensed to conduct
gambling games pursuant to chapter 99F.
h. An advisory board, advisory commission,
advisory committee, task force, or other body
created by statute or executive order of this state or
created by an executive order of a political subdivi-
sion of this state to develop and make recommen-
dations on public policy issues.
2. "Meeting" means a gathering in person or by
electronic means, formal or informal, of a majority
of the members of a governmental body where
there is deliberation or action upon any matter
within the scope of the governmental body's policy -
making duties. Meetings shall not include a gath-
ering of members of a governmental body for purely
ministerial or social purposes when there is no dis-
cussion of policy or no intent to avoid the purposes
of this chapter.
3. "Open session" means a meeting to which all
members of the public have access.
[C71, 73, 75, 77, §28A.1; C79, 81, §28A.21
C85, §21.2
89 Acts, ch 73, § 1; 90 Acts, ch 1175, §1; 90 Acts, ch
1271, §701; 91 Acts, ch 258, §26; 93 Acts, ch 25, §1
' 21.3 Meetings of governmental bodies.
Meetings of governmental bodies shall be pre-
ceded by public notice as provided in section 21.4
and shall be held in open session unless closed ses-
sions are expressly permitted by law. Except as pro-
vided in section 21.5, all actions and discussions at
meetings of governmental bodies, whether formal
or informal, shall be conducted and executed in
open session. ; •
Each governmental body shall keep minutes of
all its meetings showing the date, time and place,
the members present, and the action taken at each
meeting. The minutes shall show the results of
II
j! §21.3, OFFICIAL MEETINGS OPEN TO PUBLIC (OPEN MEETINGS)
each vote taken and information er rsufficient
s nt 1Thetvot eof
cac the vote of each present hall be made public at the
each member p public records
open session. The minutes shall be p
open to public inspection. §28A.31
i [C71, 73, 75, 77, §28A.1, 28A.5; C79, 81,
C85, §21.3
1 93 Acts, ch 25, §2
398
21.5 Closed session. hold a closed ses-
sion A governmental body may
only by affirmative public vote of either two-
thirds of the members of the body o orll
of the body
mem-
bers present at the meeting. A go
may hold a closed sesry ion only to the extent a closed
for any of the followings
session is necessary ea
21.4 Public notice. except township
1. A governmental body, P
trustees, shall give notice of the tune, date, and
place of each meeting, and its tentative agenda, in a
manner reasonably calculated to apprise the public
of that information. Reasonable notice , shall in-
clude advising the news media who have filed a re-
quest for notice with the governmental body and
posting the notice on a bulletin board or other
prominent place which is easily accessibler to the
purpose at
public and clearly designated for that p p
the principal office of the body holding the meeting,
or if no such office exists, at the building in which
the meeting is to be held. wire-
. 2. Notice conforming with all of the require-
ments of subsection 1 of this section shall be given
at least twenty-four hours prior to the commence-
ment of any meeting of a governmental body unless
for good cause such notice is impossible or imprac-
tical, in which case as much notice as is reasonably
all be held
possible shall be given. Each meeting
at a place reasonably accessible to the public, and
at a time reasonably convenient to the public, un-
less for good cause such a place or time is impossi-
ble or impractical. Special access to the meeting
may be granted to persons with disabilities.
When it is necessary to hold a meeting on less
than twenty-four hours' notice, or at a place that is
not reasonably accessible to the public, or at a time
that is not reasonably convenient to the public, the
nature of the good cause justifying that departure
from the normal requirements shall be stated in
the minutes.tuted subunit parent
3. A formally consticondu t a meeting without
governmental body may
notice as required by this section during a lawful
meeting of the parent. governmental body, a recess
in that meeting, or mmediately following that
meeting, if the meeting of the subunit is publicly
announced at the parent meeting and the subject of
the meeting reasonably coincides the subjects
discussed or acted upon by parent.
tal body.. If another section of the Code requires
manner of giving specific notice of a m
hear-
ing, or an intent to take action by a governmental
body, compliance with that section shall constitute
compliance with the notice requirements of this
section. 28A.4]
[C71, 73, 75, 77, 79, 81 , §
C85, §21.4
96 Acts, ch 1129, §113
sons: records whichare re-
a. To review or discuss
be
ate
quired or authorized by r
kept confidential or to be kept co
or
`
body's Possession
dition for that governmental body
continued receipt of federal funds.
To discuss application for letters patent.
b.
To discuss strategy with counsel in matters
is
y
C.
that are presently in litigation or where litigation
likely
imminent where its disclosure would o
-
or disadvantage the position of the gov,
ff
prejudice
ernmental body in that litigation.
of a licensing ex-
.
d. To discuss the contents
to initiate licensee disciplin-
animation or whether
ary investigations or proceedings if the governmen-
or examining board.
1
tal body is a licensing
To discuss whether to conduct a hearing or to
e.
conduct hearings to suspend or expel a student, un-
is requested by the student or a,
less an open session
of the student if the student is a
guardian
parent or gu
minor.
f. To discuss the decision to be rendered in a
according to the provi-
contested case conducted
sions of chapter 17A.
To avoid disclosure of specific law enforce-
inves-
g.
ment matters, such as current or proposed
auditing techniques or
1
tigations, inspection or
schedules, which if disclosed would enable law vio-
f
lators to avoid detection.
h. To avoid disclosure of specific law enforce-
ment matters, such as tolerances or cri.
or settlement of
�
1[
teria for the selection, prosecutionallowable
cases, which if disclosed would facilitate disregard
of requirements imposed by law.
the professional competencyf
1`
i. To evaluate
an individual whose appointment, hiring, p or
when nec-
mance or discharge is being considered
needless and irreparable injury
essary to prevent
individual's reputation and that individual
to that
requests a closed session.
the purchase of particular real es-
j. To discuss
where premature disclosure could be rea-
tate only
sonably expected to increase the price the govern-
to for that property.
i
mental body would have pay
of a
the tapon
shall be availabling
The minutes and e
closed under this paragraph1
dis-
j
public examination when the transaction
cussed is completed.
The vote of each member on the question of
i
2.
holding the closed session and the reason for hold-
session by reference to a specific ex
ing the closed
emption under this section shall be announced
entered in the min
;
publicly at the open session and
utes. A governmental body shall not discuss any
which does not di-
business during a closed session
399 OFFICIAL MEETINGS OPEN TO PUBLIC (OPEN MEETINGS), §21.6
rectly relate to the specific reason announced as
justification for the closed session.
3. Final action by any governmental body on
any matter shall be taken in an open session unless
some other provision of the Code expressly permits
such actions to be taken in closed session.
4. A governmental body shall keep detailed
minutes of all discussion, persons present, and ac-
tion occurring at a closed session, and shall also
tape record all of the closed session. The detailed
minutes and tape recording of a closed session shall
be sealed and shall not be public records open to
public inspection. However, upon order of the court
in an action to enforce this chapter, the detailed
minutes and tape recording shall be unsealed and
examined by the court in camera. The court shall
then determine what part, if any, of the minutes
should be disclosed to the party seeking enforce-
ment of this chapter for use in that enforcement
proceeding. In determining whether any portion of
the minutes or recording shall be disclosed to such
a party for this purpose, the court shall weigh the
prejudicial effects to the public interest of the dis-
closure of any portion of the minutes or recording in
question, against its probative value as evidence in
an enforcement proceeding. After such a deter-
mination, the court may permit inspection and use
of all or portions of the detailed minutes and tape
recording by the party seelcing enforcement of this
chapter. A governmental body shall keep the de-
tailed minutes and tape recording of any closed ses-
sion for a period of at least one year from the date of
that meeting.
5. Nothing in this section requires a govern-
mental body to hold a closed session to discuss or
act upon any matter.
[C71, 73, 75, 77, §28A.3; C79, 81, §28A.51
C85, §21.5
21.6 Enforcement.
1. The remedies provided by this section
against state governmental bodies shall be in addi-
tion to those provided by section 17A.19. Any ag-
grieved person, taxpayer to, or citizen of, the state
of Iowa, or the attorney general or county attorney,
may seek judicial enforcement of the requirements
of this chapter. Suits to enforce this chapter shall be
brought in the district court for the county in which
j the governmental body has its principal place of
business.
2. Once a party seekingjudicial enforcement of
this chapter demonstrates to the court that the
body in question is subject to the requirements of
!' this chapter and has held a closed session, the bur-
den of going forward shall be on the body and its
members to demonstrate compliance with the re-
0 quirements of this chapter.
1 3. Upon a finding by a preponderance of the ev-
idence that a governmental body has. violated any
provision of this chapter, a court:
a. Shall assess each member of the governmen-
tal body who participated in its violation damages
in the amount of not more than five hundred dol-
lars nor less than one hundred dollars. These dam-
ages shall be paid by the court imposing it to the
state of Iowa, if the body in question is a state gov-
ernmental body, or to the local government in-
volved if the body in question is a local governmen-
tal body. A member of a governmental body found
to have violated this chapter shall not be assessed
such damages if that member proves that the mem-
ber did any of the following:
(1) Voted against the closed session.
(2) Had good reason to believe and in good faith
believed facts which, if true, would have indicated
compliance with all the requirements of this chap-
ter.
(3) Reasonably relied upon a decision of a court
or a formal opinion of the attorney general or the
attorney for the governmental body.
b. Shall order the payment of all costs and rea-
sonable attorneys fees to any party successfully es-
tablishing a violation of this chapter. The costs and
fees shall be paid by those members of the govern-
mental body who are assessed damages under
paragraph "a" of this subsection. If no such mem-
bers exist because they have a lawful defense un-
der that paragraph to the imposition of such dam-
ages, the costs and fees shall be paid to the
successful party from the budget of the offending
governmental body or its parent.
c. Shall void any action taken in violation of
this chapter, if the suit for enforcement of this chap-
ter is brought within six months of the violation
and the court finds under the facts of the particular
case that the public interest in the enforcement of
chapter outweighs the public in -
the policy of this
terest in sustaining the validity of the action taken
in the closed session. This paragraph shall not ap
ply to an action taken regarding the issuance of
bonds or other evidence of indebtedness of a gov-
ernmental body if a public hearing, election or pub-
lic sale has been held regarding the bonds or evi-
dence of indebtedness.
d.' Shall issue an order removing a member of a
governmental body from office if that member has
engaged in two prior violations of this chapter for
which damages were assessed against the member
during the member's term.
e. May issue a mandatory injunction punish-
able by civil contempt ordering the members of the
offending governmental body to refrain for one year
from any future violations of this chapter.
4. Ignorance of the legal requirements of this
chapter shall be no defense to an enforcement pro-
ceeding brought under this section. A governmen-
tal body which is in doubt about the legality of clos-
ing a particular meeting is authorized to bring suit
at the expense of that governmental body in the
district court of the county of the governmental
body's principal place of business to ascertain the
§21.6, OFFICIAL MEETINGS OPEN TO PUBLIC (OPEN MEETINGS) 400 1 401
propriety of any such action, or seek a formal opin-
ion of the attorney general or an attorney for the
governmental body.
[C71, 73, 75, 77, §28A.7, 28A.8; C79, 81, §28A.6]
C85, §21.6
21.7 Rules of conduct at meetings.
The public may use cameras or recording devices
at any open session. Nothing in this chapter shall
prevent a governmental body from making and en-
forcing reasonable rules for the conduct of its meet-
ings to assure those meetings are orderly, and free
from interference or interruption by spectators.
[C79, 81, §28A.71
C85, §21.7
21.8 Electronic meetings.
1. A governmental body may conduct a meet
-
1. by electronic means only in circumstances
where such a meeting in person is impossible or im-
practical and only if the governmental body com-
plies with all of the following:
a. .The governmental body provides public ac-
cess to the conversation of the meeting to the extent
reasonably possible.
b. The governmental body complies with sec-
tion 21.4. For the purpose of this paragraph, the
place of the meeting is the place from which the
communication originates or where public access is
provided to the conversation. .
c. Minutes are kept of the meeting.
The minutes shall include a statement explain-
ing why a meeting in person was impossible or im-
practical
2. A meeting conducted in compliance with this
section shall not be considered in violation of this
chapter.
3. A meeting by electronic means may be con=
ducted without complying with paragraph "a" of
subsection 1 if conducted in. accordance with all of
the requirements for a closed session contained in
section 21.5.
[C79, 81, §28A.81
C85, §21.8
21.9 Employment conditions discussed.
A meeting of a governmental body to discuss
strategy in matters relating to employment condi-
tions of employees of the governmental body who
are not covered by a collective bargaining agree-
ment under chapter 20 is exempt from this chapter.
For the purpose of this section, "employment condi-
tions" mean areas included in the scope of negoti-
ations listed in section 20.9.
[81 Acts, ch 30, §11
C83, §28A.9
C85, §21.9
21.10 Information to be provided.
The authority which appoints members of gov-
ernmental bodies shall provide the members with
information about this chapter and chapter 22. The
appropriate commissioner of elections shall pro-
vide that information to members of elected gov-
ernmental bodies.
89 Acts, ch 73, §2
21.11 Applicability to nonprofit corpora-
tions.
This chapter applies to nonprofit corporations
which are defined as governmental bodies subject
to section 21.2, subsection 1, paragraph "F", only
when the meetings conducted by the nonprofit cor-
porations relate to the conduct of pari-mutuel rac-
ing and wagering pursuant to chapter 99D.
90 Acts, ch 1175, §2
CHAPTER 22
EXAMINATION OF PUBLIC RECORDS
(OPEN RECORDS)
22.8
Injunction to restrain examination.
22.1
Definitions.
records —exceptions.
22.9
Denial of federal funds — rules.
22.2,
Right to examine public
22.10
Civil enforcement.
22.3
Supervision.
22.11
Fair information practices.
22.3A
Access to data processing software.
22.12
political subdivisions.
22.4
Hours when available.
Enforcement of rights.
22.13
Settlements — governmental bodies.
funds investment records in custody of
22.5
22.6
Penalty.
22.14
Public
third parties.
22.7
Confidential records.
22.1 Definitions. tion, political subdivision, tax -supported district,
1. The term government body" means this nonprofit corporation other than a county or dis-
state, or any county, city, township, school corpora- trict fair or agricultural society, whose facilities or
indebtedne
with propeu
conduct pai
99D, or oth-
partment,
committee,
or any eml
implementi
2. The 1
ernment bo
the public r
in the physi
ernment bot
record. The
public fiend:
sponsible fo
body shall c
ployees of th
for impleme
and shall pu
or employee
menting the
delegated. "i
automated d
the data pro(
the agent of
unit which h
solely for sto
3. As us(
eludes all re(
mation, stor(
belonging to
ship, school c
profit corpor
fair or agrict
debtedness a
property tax
duct pari-mt
99D, or tax-s
branch, depa
council, or co
`Public rec(
to the investr
limited to im
ing orders, or
the public boc
fiduciary or o
[C71, 73, 7!
84 Acts, ch
C85, §22.1
90 Acts, ch
Acts, ch 1156
22.2 Ri gl
exceptions.
1. Every r-
and copy a pt
wise dissemin
contained in a
vided for by ]r
§21.6, OFFICIAL MEETINGS OPEN TO PUBLIC (OPEN MEETINGS)
propriety of any such action, or seek a formal opin-
ion of the attorney general or an attorney for the
governmental body.
[C71, 73, 75, 77, §28A.7, 28A.8; C79, 81, §28A.61
C85, §21.6
21.7 Rules of conduct at meetings.
The public may use cameras or recording devices
at any open session. Nothing in this chapter shall
prevent a governmental body from making and en-
forcing reasonable rules for the conduct of its meet-
ings to assure those meetings are orderly, and free
from interference or interruption by spectators.
[C79, 81, §28A.71
C85, §21.7
21.8 Electronic meetings.
1. A governmental body may conduct a meet-
ing by electronic means only in circumstances
where such a meeting in person is impossible or im-
practical and only if the governmental body com-
plies with all of the following:
. a. , The governmental body provides public ac-
cess to the conversation of the meeting to the extent
reasonably possible.
b.' The governmental body complies with sec-
tion 21.4. For the purpose of this paragraph, the
place of the meeting is the place from which the
communication originates or where public access is
provided to the conversation.
c. Minutes are kept of the meeting.
The minutes shall include a statement explain-
ing why a meeting in person was impossible or im-
practical.
2.' A meeting conducted in compliance with this
section shall not be considered in violation of this
chapter.
3.- 'A meeting by electronic means may be con-
ducted without complying with paragraph "a" of
i
400
subsection 1 if conducted in accordance with all of
the requirements for a closed session contained in
section 21.5.
[C79, 81, §28A.81
C85, §21.8
21.9 Employment conditions discussed.
A meeting of a governmental body to discuss
strategy in matters relating to employment condi-
tions of employees of the governmental body who
are not covered by a collective bargaining agree-
ment under chapter 20 is exempt from this chapter.
For the purpose of this section, "employment condi-
tions" mean areas included in the scope of negoti-
ations listed in section 20.9.
[81 Acts, ch 30, §11
C83, §28A.9
C85, §21.9
21.10 Information to be provided.
The authority which appoints members of gov-
ernmental bodies shall provide the members with
information about this chapter and chapter 22. The
appropriate commissioner of elections shall pro-
vide that information to members of elected gov
ernmental bodies.
89 Acts, ch 73, §2
21.11 Applicability to nonprofit corpora-
tions.
This chapter applies to nonprofit corporations
which are defined as governmental bodies subject
to section 21.2, subsection 1, paragraph ` f ", only
when the meetings conducted by the nonprofit cor-
porations relate to the conduct of pari-mutuel rac-
ing and wagering pursuant to chapter 99D.
90 Acts, ch 1175, §2
CHAPTER 22
EXAMINATION OF PUBLIC RECORDS
(OPEN RECORDS)
22.8
Injunction to restrain examination.
22.1
Definitions.
Right to examine public records — exceptions.
22.90
DenCivil l of federal— rules.
22.2 ,
enforcement.
22.3
22.3A
Supervision.
Access to data processing software.
22.11
rair information practices.
22.4Hours
when available.
22.12
22,13
Political subdivisions.
Settlements — governmental bodies.
22.5
Enforcement of rights.
22,14
Public funds investment records in custody of
22.6
Penalty.
third parties.
22.7
Confidential records.
tion, political subdivision, tax -supported district,
22.1 Definitions.
ns this nonprofit corporation other than a county or dis
1. The term "government body" meafir. ;1
state, or any county, city, township, school corpora- trict fair or agricultural society, whose facilities or
00
401
EXAMINATION OF PUBLIC RECORDS (OPEN RECORDS), §22.3
of
indebtedness are supported in whole or in part
and which is licensed to
in
with property tax revenue
conduct pari-mutuel wagering pursuant to chapter
this state, or any branch, de-
99D, or other entity of
partment, board, bureau, commission,• council,
committee, official or officer, of any of the foregoing
or any employee delegated the responsibility for
I•
implementing the requirements of this chapter.
The term "lawful custodian" means the gov-
uss
idi-
2.
ernment body currently in physical possession of
of a public record
vho
ree-
the public record. The custodian
in the physical possession of persons outside a gov-
)ter.
ernment body is the government body owning that
to the investment of
'idi-
;oti-
record. The records relating
funds are the property of the public body re
public
sponsible for the public funds. Each government
body shall delegate to particular officials or em-
body the responsibility
ployees of that government
for implementing the requirements of this chapter
and shall publicly announce the particular officials
responsibility for imple-
I or employees to whom
menting the requirements of this chapter has been
gov-
with
delegated. "Lawful custodian" does not mean an
unit of a public body if
The
automated data processing
unit holds the records solely as
pro-
;f the data processing
the agent of another public body, nor does it mean a
gov-
;;
unit which holds the records of other public bodies
solely for storage.
3. As used in this chapter, `public records" in-
cludes all records, documents, tape, or other infor-
iora-
niation, stored or preserved in any medium, of or
county, city, town-
tions
belonging to this state or any
ship, school corporation, political subdivision, non -
ibject
only
' profit corporation other than a county or district
A fair or agricultural society, whose facilities or in-
.t cor-
1 rac-
debtedness are supported in whole or in part with
:�.> and which is licensed to con-
property tax revenue
duct pari-mutuel wagering pursuant to chapter
99D, or tax -supported district in this state, or any
sf board, bureau, commission,
branch, department,
'
j council, or committee of any of the foregoing.
" "Public records" also includes all records relating
to the investment of public funds including but not
instructions, trad-
. limited to investment policies,
whether in the custody o
ing orders, or contracts,
I the public body responsible for the public funds or a
`E' fiduciary or other third party.
[C71, 73, 75, 77, 79, 81, §68A.11
84 Acts, ch 1145, §1; 84 Acts, ch 1185, §1
C85, §22.1
90 Acts, ch 1271, §702; 91 Acts, ch 258, §27; 92
Acts, ch 1156, §6, 7
Ay of
(ly>
�.: ine public records -
22.2 Right to exam
' exceptions.
Every person shall have the right to examine
and copy a public record and to publish or other-
iistrict, �' wise disseminate a public record or the information
or dis- " contained in a public record. Unless otherwise pro -
or or vided for by law, the right to examine a public rec-
ord shall include the right to examine a public rec-
ord without charge while the public record is in the
physical possession of the custodian of the public
record. The right to copy a public record shall in-
clude the right to make photographs or photo-
graphic copies while the public record is in the pos-
session of the custodian of the public record. All
rights under this section are in addition to the right
to obtain a certified copy of a public record under
section 622.46.
2. A government body shall not prevent the ex-
amination or copying of a public record by contract-
ing with a nongovernment body to perform any of
its duties or functions.
3. • However, notwithstanding subsections 1
and 2, a government body is not required to permit
access to or use of the following: ,
a. A geographic computer database by any per-
son except upon terms and conditions acceptable to
the governing body. The governing body shall es-
tablish reasonable rates and procedures for the re-
trieval of specified records, which are not confiden-
tial records, stored in the data base upon the
request of any person. ,
b. Data processing software developed by the
government body, as provided in section 22.3A.
[C71, 73, 75, 77, 79, 81, §68A.21
84 Acts, ch 1185, §2
C85, §22.2
89 Acts, ch 189, §1; 96 Acts, ch 1099, §14; 98 Acts,
ch 1224, §17
Subsection 1 amended
22.3 Supervision.
Such examination and copying shall be done un-
der the supervision of the lawful custodian of the
records or the custodian's authorized deputy. The
lawful custodian may adopt and enforce reasonable
rules regarding such work and the protection of the
records against damage or disorganization. The
lawful custodian shall provide a suitable place for
such work, but if it is impracticable to do such work
in the office of the lawful custodian, the person de-
siring to examine or copy shall pay any necessary
expenses of providing a place for such work. All ex=
penses of such work shall be paid by the person de-
siring to examine or copy. The lawful custodian
may charge a reasonable fee for the services of the
lawful custodian or the custodian's authorized dep-
uty in supervising the records during such work. If
copy equipment is available at the office of the law-
ful custodian of any public records, the lawful cus-
todian shall provide any person a reasonable num-
ber of copies of any public record in the custody of
the office upon the payment of a fee. The fee for the
copying service as determined by the lawful custo-
dian shall not exceed the cost of providing the ser-
vice. ;
[C71, 73, 75, 77, 79, 81, §68A.31
C85, §22.3 .
402
§22.3A, EXAMINATION Or PUBLIC RECORDS (OPEN RECORDS)
f se aration of
22.3A Access to data processing software the
1, As used in this section:
a. Access" means the instruction of, commu- ��
av
nication with, storage of data in, or retrieval of data ab
From a computer.
. b. ; "Computer" means an, electronic device s
and memory a
which performs logical, arithmetical, s
functions by manipulations of electronic or m og c
netic impulses, and includes
udommunpcation : facut ilities ties P
essing, storage, computer in t
which are connected or related to the comp ara
cluding a computer network. As used in this p d
graph, "computer" includes any central processing s
unit, front-end processing unit, miniprocesso lent i
microprocessor, and related peripheral equip
such as data storage devices, document scanners,
data entry terminal controllers, actedata networks. al
equipment and systems for comp
C. "Computer network" means a set of related,
remotely connected devices and communication te s withcapa-
cilities including two or more co hPm through com
bility to transmit data among
munication facilities.
d. "Data" means a representation of informa-
tion, knowledge, facts, concepts, or instructions
that has been prepared or is being prepared in a
formalized manner and has been processed, or is
intended to be processed, in a computer. Data may
be stored in any form, including but not limited
compact
printout, magnetic storage media, disk,
disc, punched card, or as memory of a computer.
e. "Data processing software" means an
dered set of instructions or statements that,.w to
executed by a computer, causes the comp
process data, and includes any program or set of
programs, procedures, or routines used to employ
and control capabilities of computer hardware. As
used in this paragraph "data processing software"
includes but is not limited to an operating system,
compiler, assembler, utility, library resource, main-
tenance routine, application, or computer network-
ing program. may provide, restrict, or
2,.. A government bodymay ing software devel-
prohibit access to data p , ' ardless of wheth-
oped by the government body, g
er the data processing software is separated or
combined with a public record. A government body
shall establish policies and procedures to provide
access to public records which are combined with
d shall
its data processing software. A public
not be withheld from the public because it is com-
bined with data processing software. A govern-
ment body shall not acquire any electronic data
processing system for the storage, manipulation, or
retrieval of public records that would impair the
government body's ability to permit the examina-
tion of a public record and the copying of a public
record in either written orublic record from electronic form. datit a
necessary to separate a P permit the ex
processing software
of the public in order to record, the gov
amination or copYi g
mment body shall bear the cost °ata rocessing Soft -
public e public record from bbe record shall be made j
are. The electronic p
ailable in a format useable with commonly avail-
rocessing or data base management
le data p person receiving
ftware. The cost chargeable to a p processing
public record separated from data p
oftware under this subsection sliall n°t be in ex -
ter unless the
ess of the charge
vin g thepublicer rrecord requests that
erson receiving processed. A govern -
he public record be specially Pent rates and proce-
mentbody may establish payment processing
ures required to provide access to data p roceng
oftware, regardless of whether the data p
ss-
ng software is separated from or combined
brirniay be with
a
public record. Proceeds fromas defined in section
sidered repayment receipts,
8.2. The payment amount shall be calculated as fol-
lows: processing software is
a. If access to the data p purpose of ac-
provided to a person solely for the
cessing a public record, the amount shall be not
more than that required to recover direct publica-
tion costs, including but not limited to editing, com-
pilation, and media production costs, incurred by
the government body in developing the data processing
essing software, and preparing the oc-
data
software for transfer to the person. The amount
shall be in addition to any other fee required to be
paid under this- chapter for the examination and
copying of a public record. If a person requests the
reproduction of a public record stored in an elec-
tronic format that
ilindoes
reproduce require
the£p public rec�
editing, or compiling roduced public
ord, the charge for providing the rep
record shall not exceed the reasonable public costo f repro-
ducing and transmitting . The
government body shall, if requested, provide
ocu-
mentation which explains and justifies the amount
any
charged. This paragraph shall not apply
to publication for which a price has been established
pursuant to another section, including section
7A•22' processing software is
b. If access to the data other than pro-
vided to a person for a purpose be n pro-
vided in paragraph "a", the amount may
lished according to the discretion of the govern-
ment body, and may be based upon competitive
market considerations as determined by the gov-
ernment body. anted and may ap-
e. A government body is granted
ply for and receive any legal protection necessary to
secure a right to or an interest in data processing
software developed by the government body, in-
cluding but not limited to federal copyright, patent,
and trademark protections, and any trade secret
protection available under chapter 550. The gov
ernment body may enter into agreements for the
a sale or distribution of its data processing oftwars.
including marketing and licensing agreement
The government body may impose conditions upon
40
402t ` ! 403
» .
'ion of ;
soft- F
made
avail- '
ement
:eiving i
.essing + £
in cx-
,ss the
s that
pvern-
proco-
:essing
rocess-
with a
be con -
section
I as fol-
vare is
of ac-
be not
ublica-'
g, com- i
•red by `,
a proc-
�essing
[mount
.d to be
on and
!sts the
in clec-
tatting,
,lie rec-
I public t
f repro-
.d. Tli6
e docu-
nnount
to any
blished
section i
ware is
an pro,
estab-
govern
petitivo
he gov-
nay ap-
ssary to
icessing
ody, in -
patent,
secret
'he gov-
for the
>ftware,
ements,
ns upon
EXAMINATION OF PUBLIC RECORDS (OPEN RECORDS), §22.7
the use of the data processing software that is
otherwise consistent with state and federal law.
96 Acts, ch 1099, §15; 98 Acts, ch 1224, §18
subsection 2, paragraph a amended .
22.4 Hours when available.
The rights of persons under this chapter may be
exercised at any time during the customary office
hours of the lawful custodian of the records. How-
ever, if the lawful custodian does not have custom-
ary office hours of at least thirty hours per week,
such right may be exercised at any time from nine
o'clock a.m. to noon and from one o'clock p.m. to
four o'clock p.m. Monday through Friday, excluding
legal holidays, unless the person exercising such
right and the lawful custodian agree on a different
time.
[C71, 73, 75, 77, 79, 81, §68A.41
84 Acts, ch 1185, §3
C85, §22.4
22.5 Enforcement of rights.
The provisions of this chapter and all rights of
persons under this chapter. may be enforced by
mandamus or injunction, whether or not any other
remedy is also available. In the alternative, rights
under this chapter also may be enforced by an ac-
tion for judicial review according.to the provisions
of the Iowa administrative procedure Act, if the
records involved are records of an "agency" as de-
fined in that Act.
W71, 73, 75, 77, 79, 81, §68A.51
84 Acts, ch 1185, §4
C85, §22.5
n
1 ' 22.6 Penalty. '
It shall be unlawful for any person to deny or re-
fuse any citizen of Iowa any right under this chap-
ter, or to cause any such right to be denied or re-
fused. Any person knowingly violating or
attempting to violate any provision of this chapter
L . where no other penalty is provided shall be guilty of
a simple misdemeanor. -
�` I [C71, 73, 75, 77, 79, 81, §68A.61
4 C85, §22.6 �..,
22.7 Confidential records:
The following public records shall be kept confi-
dential, unless otherwise ordered by a court, by the
lawful custodian of the records, or by another per-
son duly authorized to release such information:
+ 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. - -
2., Hospital records, medical records, and pro-
fessional counselor records of the condition, diag-
nosis, care, or treatment of a patient or former pa-
tient or a counselee or former counselee, including
outpatient. However,. confidential communications
between a crime victim and the victim's counselor
are not subject to disclosure except as provided in
section 915.20A. However, the Iowa department of
public health shall adopt rules which provide for
the sharing of information among agencies and
providers concerning the maternal and child
health program including but not limited to the
statewide child immunization information system,
while maintaining an individual's confidentiality.
3. Trade secrets which are recognized and pro-
tected as such by law.
4. 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.
5. Peace officers' investigative reports, except
where disclosure is authorized elsewhere in this
Code. However, the date, time, specific location,
and immediate facts and circumstances surround-
ing a crime or incident shall not be kept confiden-
tial under this section, except in those unusual cir-
cumstances where disclosure would plainly and
seriously jeopardize an investigation or pose a clear,
and present danger to the safety of an individual.
6. Reports to governmental agencies which, if
released, would give advantage to competitors and
serve no public purpose.
7. Appraisals or appraisal information ,con-
cerning the purchase of real or personal property
for public purposes, prior to public announcement
of a project.
8. Iowa department of economic' development
information on an industrial prospect with which
the department is currently negotiating.
9. * Criminal identification files of law enforce-
ment agencies. However, records of current and
prior arrests and criminal history data shall be
public records. .
10." '"Personal information in confidential per-
sonnel records of the military division of the de-
partment of public defense of the state.
11. Personal information in confidential per-
sonnel records of public bodies including but not
limited to cities, boards of supervisors and school
districts. ' "
12. • Financial statements submitted to the de-
partment of agriculture and land stewardship pur-
suant to chapter 203 or chapter 203C, by or on be-
half of a licensed grain dealer or, warehouse
operator or by an applicant for a grain dealer li=
cerise or warehouse license.
13.. The records of a library which, by them-
selves 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 organiza-
tion suspected of committing a known crime. The
records shall be released only upon a judicial deter-
mination that a rational connection exists between
the requested release of information and a legiti-
mate end and that the need for the information is
cogent and compelling.:
1
§22.7, EXAMINATION OF PUBLIC RECORDS (OPEN RECORDS)
14. The material of a library, museum or ar-
chive which has been contributed by a private per-
son to the extent of any limitation that is a condi-
tion of the contribution.
15. Information concerning the procedures to
be used to control disturbances at adult correction-
al institutions. Such information shall also be ex-
empt from public inspection under section 17A.3.
As used in this subsection disturbance means a riot
or a condition that can reasonably be expected to
cause a riot.
16. Information in a report to the Iowa depart-
ment of public health, to a local board of health, or
to a local health department, which identifies a
person infected with a reportable disease.
17. Records of identity of owners of public
bonds or obligations maintained as provided in sec-
tion 76.10 or by the issuer of the publiebonds or ob-
ligations. However, the issuer of the public bonds or
obligations and a state or federal agency shall have
the right of access to the records.
18. Communications not required bylaw, rule,
or procedure that are made to a government body
or to any of its employees by identified persons out-
side of government, to the extent that the govern-
ment body receiving those communications from
such persons outside of government could reason-
ably believe that those persons would be discour-
aged from making them to that government body if
they were available for general public examination.
Notwithstanding this provision:
a. The communication is a public record to the
extent that the person outside of government mak-
ing that communication consents to its treatment
as a public record.
b. Information contained in the communica-
tion 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 iden-
tity of that person.
c. Information contained in the communica-
tion is a public record to the extent that it indicates
the date, time, specific location, and immediate
facts and circumstances surrounding the occur-
rence of a crime or other illegal act, except to the ex-
tent that its disclosure would plainly and seriously
jeopardize a continuing investigation or pose a
clear and present danger to the safety of any per-
son. In any action challenging the failure of the
lawful custodian to disclose any particular infor-
mation of the kind enumerated in this paragraph,
the burden of proof is on the lawful custodian to
demonstrate that the disclosure of that informa-
tion would jeopardize such an investigation or
would pose such a clear and present danger.
19. Examinations, including but not limited to
cognitive and psychological examinations for law
enforcement officer candidates administered by or
on behalf of a governmental body, to the extent that
their disclosure could reasonably be believed by the
404
custodian to interfere with the accomplishment of
the objectives for which they are administered.
20. Information concerning the nature and
location of any archaeological resource or site if, in
the opinion of the state archaeologist, disclosure of
the information will result in unreasonable risk of
damage to or loss of the resource or site where the
resource is located. This subsection shall not be
construed to interfere with the responsibilities of
the federal government or the state historical pres-
ervation officer pertaining to access, disclosure,
and use of archaeological site records.
21. Information concerning the nature and
location of any ecologically sensitive resource or
site if, in the opinion of the director of the depart-
ment of natural resources after consultation with
the state ecologist, disclosure of the information
will result in unreasonable risk of damage to or loss
of the resource or site where the resource is located.
This subsection shall not be construed to interfere
with the responsibilities of the federal government
or the director of the department of natural re-
sources and the state ecologist pertaining to access,
disclosure, and use of the ecologically sensitive site
records.
22. Reports or recommendations of the Iowa
insurance guaranty association filed or made pur
suant to section 51513.10, subsection 1, paragraph
1
"a", subparagraph (2).
23. Information or reports collected or sub-
mitted pursuant to section 508C.12, subsections 3
and 5, and section 508C.13, subsection 2, except to
the extent that release is permitted under those
sections.
24. Records of purchases of alcoholic liquor
from the alcoholic beverages division of the depart-
ment of commerce which would reveal purchases
made by an individual class "E" liquor control li-
censee. However, the records may be revealed for
law enforcement purposes or for the collection of
payments due the division pursuant to section
123.24.
25. Financial information, which if released
would give advantage to competitors and serve no
public purpose, relating to commercial operations
conducted or intended to be conducted by a person
submitting records containing the information In
the department of agriculture and land steward•
ship for the purpose of obtaining assistance in busi-
ness planning.
26. Applications, investigation reports, and ,?
case records of persons applying for county general
assistance pursuant to section 252.25. i
27. Marketing and advertising budget and ;
strategy of a nonprofit corporation which is subject
to this chapter. However, this exemption does not I
apply to salaries or benefits of employees who art
employed by the nonprofit corporation to handle
the marketing and advertising responsibilities.
28. The information contained in records of the
centralized employee registry created in chapter 1
404
If
shment of 1
istered.
ature and
)r site if, in
I
isclosure of
able risk of
y,a
where the
, I
hall not be
,sibilities of
;
torical pres-
disclosure,
;qt,
nature and
resource or
the depart-
tltation with
information
.age to or loss
fce is located.
d to interfere
1 government
,f natural re -
ling to access,
sensitive site
s of the Iowa
. or made pur-
1, paragraph
lected or sub-
, subsections 3
ion 2, except to
;d under those
alcoholic liquor
n of the depart -
:veal purchases
quor control li-
be revealed for
,he collection of
uant to section
Lich if released I
ors and serve no
;rcial operations
cted by a person
e information to '
A land steward-
isistance in busi-
on reports, and
,Ir county general
,2.25.
;ing budget and
a which is subject
emption does not
.nployees who are
oration to handle
esponsibilities. i
�d in records of the
reated in chapter
405
EXAMINATION OF PUBLIC RECORDS (OPEN RECORDS), §22.8
252G, except to the extent that disclosure is autho-
rized pursuant to chapter 252G.
29. Records and information obtained or held
by independent special counsel during the course of
an investigation conducted pursuant to section
6813.34. Information that is disclosed to a legisla-
tive ethics committee subsequent to a determina-
tion of probable cause by independent special coun-
sel and made pursuant to section 6813.31 is not a
confidential record unless otherwise provided by
law.
30. Information contained in a declaration of
paternity completed and filed with the state regis-
trar of vital statistics pursuant to section 144.12A,
except to the extent that the information may be
provided to persons in accordance with section
144.12A.
31. Memoranda, work products, and case files
of a mediator and all other confidential commu-
nications in the possession of a mediator, as pro-
vided in chapters 86 and 216. Information in these
confidential communications is subject to disclo-
sure only as provided in sections 86.44 and
216.15B, notwithstanding any other contrary pro-
vision of this chapter. '
32. Social security numbers of the owners of
unclaimed property reported to the treasurer of
state pursuant to section 556.11, subsection 2, in-
cluded on claim forms filed with the treasurer of
state pursuant to section 556.19, included in out-
dated warrant reports received by the treasurer of
state.pursuant to section 25.2, or stored in record
systems maintained by the treasurer of state for
purposes of administering chapter 556, or social se-
curity numbers of payees included on state war-
rants included in records systems maintained by
the department of revenue and finance for the pur-
pose of documenting and tracking outdated war-
rants pursuant to section 25.2.
33. Data processing software, as defined in
!i section 22.3A, which is developed by a government
r body.
34. A record required under the Iowa financial
. transaction reporting Act listed in section 529.2,
�.( subsection 9.
zF 35. Records of the Iowa department of public
A
health pertaining to participants in the gambling
i treatment program except as otherwise provided in
j this chapter.
36. Records of a law enforcement agency or the
i state department of transportation regarding the
ad issuance of a driver's license under section
321.189A.
37. Mediation documents as defined in section
{ 679C.1, except written mediation agreements that
resulted from a mediation which are signed on be-
half of a governing body. However, confidentiality
of mediation documents resulting from mediation
conducted pursuant to chapter 216 shall be gov-
. erned by chapter 216..
[C71, 73, 75, 77, 79, 81, §68A.7; 81 Acts, ch 36, §1,
ch 37, §1, ch 38, §1, ch 62, §41
83 Acts, ch 90, §9; 84 Acts, ch 1014, § 1; 84 Acts, ch
1185, §5, 6
C85, §22.7
85 Acts, ch•134, §16; 85 Acts, ch 175, §1; 85 Acts,
ch 208, §1" 86 Acts, ch 1184, §1; 86 Acts, ch 1228, §1;
87 Acts, ch 223, §20; 88 Acts, ch 1010, §1; 88 Acts, ch
1256, §1; 89 Acts, ch 194, §1; 89 Acts, ch 304, §102;
89 Acts, ch 311, §22; 90 Acts, ch 1017, §1; 90 Acts,
1271, §703; 92 Acts, ch 1212, §3; 93 Acts, ch 79, §2
93 Acts, ch 163, §27; 94 Acts, ch 1023, §76; 94 Acts,
ch 1064, §1; 94 Acts, ch 1092, §1; 94 Acts, ch 1174,
§1; 95 Acts, ch 100, §1, 95 Acts, ch 129, §1; 95 Acts,
ch 191, §1; 96 Acts, ch 1037, §1; 96 Acts, ch 1099,
§16; 96 Acts, ch 1133, §38-1 96 Acts, ch 1150, §1; 96
Acts, ch 1212, §10; 97 Acts, ch 92, §1; 97 Acts, ch
159, §1; 98 Acts, ch 1062, §8, 9; 98 Acts, ch 1073, §9;
98 Acts, ch 1090, §59, 84 ,
1998 amendment to subsection 2 by 98 Acts, ch 1090, §59, is effective Jan-
uary 1, 1999; 98 Acts, ch 1090, §84
Terminology change applied
Subsection 2 amended
Subsection 20 stricken and former subsections 21-37 renumbered as 20_
36
NEW subsection 37
22.8 IWunction to restrain examination.
1. The district court may grant an injunction
restraining the examination, including copying, of
a specific public record or a narrowly drawn class of
public records. Ahearing shall be held on a request
for injunction upon reasonable notice as deter-
mined by the court to persons requesting access to
the record which is the subject of the request for in-
junction. It shall be the duty of the lawful custodian
and any other person seeking an injunction to en-
sure compliance with the notice requirement. Such
an injunction may be issued only if the petition sup-
ported by affidavit shows and if the court finds both
of the following:
a. That the examination would clearly not be in
the public interest.
b. That the examination would substantially
and irreparably injure any person or persons.
2. An injunction shall be subject to the rules of
civil procedure except that the court in its discre-
tion may.waive bond.
3. Inactions brought under this section the dis-
trict court shall take into account the policy of this
chapter that free and open examination of public
records is generally in the public interest even
though such examination may cause inconve-
nience or embarrassment to public officials or oth-
ers. A court may issue an injunction restraining ex-
amination of a public record or a narrowly drawn
class of such records, only if the person seeking the
injunction demonstrates by clear and convincing
evidence that this section authorizes its issuance.
An injunction restraining the examination of a nar-
rowly drawn class of public records may be issued
only if such an injunction would be justified under
§22.8, EXAMINATION OF PUBLIC RECORDS (OPEN RECORDS)
406 I 407
this section for every member within the class of
records involved if each of those members were con-
sidered separately.
4. Good -faith, reasonable delay by a lawful cus-
todian in permitting the examination and copying
of a government record is not a violation of this
chapter if the purpose of the delay is any of the fol-
lowing: .. , • : : .
a. To seek an injunction under this section. '
b. To determine whether the lawful custodian
is entitled to seek such an injunction or should seek
such an injunction.
C. To determine whether the government rec-
ord in question is a public record,. or confidential
record.
• .d. To determine whether a confidential record
should be available for inspection and copying to
the person requesting the right to do so. A reason-
able delay for this purpose shall not exceed twenty
calendar days and ordinarily should not exceed ten
business days.
e. Actions for injunctions under this section
may be brought by the lawful custodian of a govern-
ment record, or by another government body or
person who would be aggrieved or adversely af-
fected by the examination or copying of such a rec-
ord.
f. The rights and remedies provided by this sec-
tion are in addition to any rights and remedies pro-
vided by section 17A.19.
[C71, 73, 75, 77, 79, 81, §68A.81
84 Acts, ch 1185, §7
C85, §22.8
22.9 Denial of federal funds = rules.
If it is determined that any provision of this
chapter would cause the denial of funds, services or
essential information from the United States gov-
ernment . which would otherwise definitely be
available to an agency of this state, such provision
shall be suspended as to such agency, but only to
the extent necessary to prevent denial of such
funds, services, or essential information.
An agency within the meaning of section 17A.2,
subsection 1 shall adopt as a rule, in each situation
where this section is believed applicable, its deter-
mination identifying those particular provisions of
this chapter that must be -waived in the circum-
stances to prevent the denial of federal funds, ser-
vices, or information.
[C71, 73, 75, 77, 79, 81, §68A.91 "
84 Acts, ch 1185, §8 "
C85, §22.9
22.10 Civil enforcement.
1. The rights and remedies provided by this
section are in addition to any rights and remedies
provided by section 17A.19. Any aggrieved person,
any taxpayer to or citizen of the state of Iowa, or the
attorney general or any county attorney, may seek
judicial enforcement of the requirements of this
chapter in an action brought against the lawful
custodian and any other persons who would be ap-
propriate defendants under the circumstances.
Suits to enforce this chapter shall be brought in the
district court for the county in which the lawful cus-
todian has its principal place, of business.
2. Once a party seeking judicial enforcement of
this chapter demonstrates to the court that the de-
fendant is subject to the requirements of this chap-
ter, that the records in question are government
records, and that the defendant refused to make
those government records available for examina-
tion and copying by the plaintiff, the burden of go-
ing forward shall be on the defendant to demon-
strate compliance, with the requirements of this
chapter.
3. Upon a finding by a preponderance of the ev-
idence that a lawful custodian has violated any pro-
vision of this chapter, a court:
a. Shall issue an injunction punishable by civil
contempt ordering the offending lawful custodian
and other appropriate persons to comply with the
requirements of this chapter in the case before it
and, if appropriate, may order the lawful custodian
and other appropriate persons to refrain for one
year from any future violations of this chapter.
b. Shall assess the persons who participated in
its violation damages in the amount of not more
than five hundred dollars nor less than one
hundred dollars. These damages shall be paid by
the court imposing them to the state of Iowa if the
body in question is a state government body, or to
the local government involved if the body in ques-
tion is a local government body. A person found to
have violated this chapter shall not be assessed
such damages if that person proves that the person
either voted against the action violating this chap-
ter, refused to participate in the action violating
this chapter, or engaged in reasonable efforts under
the circumstances to resist or prevent the action in
violation of this chapter; had good reason to believe
and in good faith believed facts which, if true,
would have indicated compliance with the require-
ments of this chapter; or reasonably relied upon a
decision of a court or an opinion of the attorney gen-
eral or the attorney for the government body.
c. Shall order the payment of all costs and rea-
sonable attorneys fees, including appellate attor-
neys fees, to any plaintiff successfully establishing
a violation of this chapter in the action brought un-
der this section. The costs and fees shall be paid by
the particular persons who were assessed damages
under paragraph `b" of this subsection. If no such
persons exist because they have a lawful defense
under that paragraph to the imposition of such
damages, the costs and fees shall be paid to the suc-
cessful plaintiff from the budget of the offending
government body or. its parent.
d. Shall issue an order removing a person from
office if that person has engaged in two prior viola-
tions of this chapter for which damages were as.
sessed against the person during the person's term.
4. Ign
chapter is
ing brougi
or its desi;
ing the ex:
the exami
is authori
governmei
of the laA
ness, or to
or the attv
tain the le-
5. Judi
not precluf
22.6 or an
84 Acts,
22.11 1
This sect
oration Pro
to require
agencies ai
review and
1. Each
shall adopt
a. The
identifiable
the legal at
mation, ant
b. A deF
lic records,
which are I
tial records
dentiality of
cate whetl-
identifiable
c. The p
access to pu
d. The 1:
view a gove
have additic
that record i
ute.
e. The pi
fidential rec
leased to a r.
f The p
notify persoi
the agency o;
mation, whit
routinely be
of the infor
i which are op
t to provide th
g. Wheel -
collates, or f
identifiable i
personally id
ord system.
• 2. A state
identifiable i
• �f
i7
106
i
ap-
ces. '
the
cus- 1'
it of }
t
de- !i
aap-
nent
lake
,ina-
f go-
non -
this
e ev-
pro-
civil
)dian
h the
)re it
)dian
r one ;
ar.
:ed in
more
one
tid by
if the
or to
ques-
md to
;essed
Jerson
chap-
lating
it
under
Lion in
relieve �I
' true,
:quire-
_ipon a
;y gen-
. ;
id re'a-
attor-
lishing
;ht un=
?aid by
images a!
to such j
defense
A such "1
;he suc- ;1
fending
on from
)r viola- ; ?l
sere as. !4
L's term.., i
i
i
407 EXAMINATION OF PUBLIC RECORDS (OPEN RECORDS), §22.14
4. Ignorance of the legal requirements of this
chapter is not a defense to an enforcement proceed-
ing brought under this section. A lawful custodian
or its designee in doubt about the legality of allow-
ing the examination or copying or refusing to allow
the examination or copying of a government record
is authorized to bring suit at the expense of that
government body in the district court of the county
of the lawful custodian's principal place of busi-
ness, or to seek an opinion of the attorney general
or the attorney for the lawful custodian, to ascer-
tain the legality of any such action. '
5. Judicial enforcement under this section does
not preclude a criminal prosecution under section
22.6 or any other applicable criminal provision.
84 Acts, ch 1185, §9
22.11 Fair information practices. .i .: , .
This section may be cited as the `Iowa Fair Infor-
mation Practices Act". It is the intent of this section
to require that the information policies of state
agencies are clearly defined and subject to public
review and comment.
1. Each state agency as defined in chapter 17A
shall adopt rules which provide the following:
a. The nature and extent of the personally
identifiable information collected by the agency,
the legal authority for the collection of that infor-
mation, and a description of the means of storage.
b. A description of which of its records are pub-
lic records, which are confidential records, and
(. which are partially public and partially confiden-
tial records and the legal authority for the confi-
dentiality of the records. The description shall indi-
cate whether the records contain personally
identifiable information.
c. The procedure for providing the public with
access to public records. , . ` '
d. The procedures for allowing a person to re-
view a government record about that personand
have additions, dissents, or objections entered in
that record unless the review is prohibited by stat-
N ute. i..
a e. The procedures by which the subject of a con-
fidential record may have a copy of that record re-
leased to a named third party.
t F The procedures by which the agency shall
notify persons supplying information requested by
the agency of the use that will be made of the infor-
mation, which persons outside of the agency might
o routinely be provided this information, which parts
t.
1, of the information requested are required and
which are optional and the consequences of failing
1 to provide the information requested. ! •
g. Whether a data processing system matches,
collates, or permits the comparison of personally
identifiable information in one record system with
personally identifiable information in another rec-
ord system. .,
M. J , 2. A state agency shall not use any personally
'I identifiable information after July 1, 1988, unless
it is in a record system described by the rules re-
quired by this section.
84 Acts, ch 1185, § 10
22.12 Political subdivisions.
Apolitical subdivision or public body which is not
a state agency as defined in chapter 17A is not re-
quired to adopt policies to implement section 22.11.
However, if a public body chooses to adopt policies
to implement section 22.11 the policies must be
adopted by the elected governing body of the politi-
'cal subdivision of which the public body is a part.
The elected governing body must give reasonable.
notice, make the proposed policy available for pub-
lic inspection and allow full opportunity for the
public to comment before adopting the policy. If the
public body is established pursuant to an agree-
ment under chapter 28E, the policy must be
adopted by a majority of the public agencies party
to the agreement. These policies shall be kept in
the office of the county auditor if adopted by the
board of supervisors, the city clerk if adopted by a
city, and the chief administrative officer of the pub-
lic body if adopted by some other elected governing
body.
84 Acts, ch 1185, § 11
22.13 Settlements — governmental bod-
ies.
A written summary of the terms of settlement,
including amounts of payments made to or through
a claimant, or other disposition of any claim. for
damages made against a governmental body or
against an employee, officer, or agent of a govern-
mental body, by an insurer pursuant to a contract
of liability insurance issued to the governmental
body, shall be filed with the governmental body and
shall be a public record.
91 Acts, ch 96, §1
22.14 Public funds investment records in
custody of third parties. ' •
1. The records of investment transactions
made by or on behalf of a public body are public rec-
ords and are the property of the public body wheth-
er in the custody of the public body or in the custody
of a fiduciary or other third party. ,
2.:. If such records of public investment transac-
tions are in the custody of a fiduciary or other third
party, the public body shall obtain from the fidu-
ciary or other third party records requested pur-
suant to section 22.2.
3. If a fiduciary or other third party with custo-
dy of public investment transactions records fails
to produce public records within a reasonable peri-
od of time as requested by the public body, the pub-
lic body shall make no new investments with or
through the fiduciary or other third party and shall
not renew existing investments upon their maturi-
ty with or through the fiduciary or other third
party. The fiduciary or other third party shall be li-
able for the penalties imposed under section 22.6
due to the acts or omissions of the fiduciary or other
on¢urrbat� Woo
tex I ocTo.BER
State Edition I Des, Moines Sunday Register
"1 believe if the public trusts cis to
investi-Migate murder1�1s; the mostfimmoral
crime; `they shouldbe able to trust.us
to hold ourselves accountable."
c-k—Judy BradshayV;.Des Moines PO,ice chief
l i..4..t p. SF.%
BO.t,�RDIJ Each bomplant coritams a
series; (oflallegiahonstaboiut
FROWPAGE 16 impropei&ct��ty t y 4ffij
cers, ranging fr6rA verbal
Neves .police iface fstron abuse°to, improper! elJf
internal )lkand a , e*ternal force. The bo rd� finds the
scrutiny and`a civilianain, -.re' allegations contin,the
view.iboard would;stnpvithe complaint either sustaiged
or hot, sustained`
defiartmeritjstka►lanagers of � ,�,mF�,i, ; k
�In he mne cases IIl�e'
autlionty =whei�tgo�ernmg ,A , ,,, .s„nr,. �-
officers , ti t}, :o oar m008
'I- believeaif thevpublie 1 - o, n, o lyone of;31 alr
trusts i us--ttotinvestigate legations� sushtai The
boards eed that an orficer
murders, the�airnost .%im tee.,
moral&cnme they should "showe$poo�" �udgmeA,
be4able.to.tru�t us to h61d by bacng ,up a patrol car
ourselves .Aaccountable," while a wloman was Stan .
BraishaW�-said: rj f iri near its open door
large'
Ben S
g
se
•::��� qua
make. I
officers?.'
The "con
review cri
newlyqr
as- •"crit
to ..bu oii
our poffici
mo_re,sur
hat civilia
ttle,beyon
a decade;�lafer, hgwever,
€1?i,g°
the cityls�c�ommunity rely-
ice re--
tionscommission told>the
rs tend
other
news a ;er, .tj don:t -think
P p
�f
If of :,SA,
we; have.,r,_eachedthe full
t°
potential ofahe boar§d" ,<<,
Tg
A similar ;board in Eu-
in b6s
gene;; Orei;..i. recentl de
, is an
bated whether -to close, its
profile
meeting ;to: the public so it
:hm of
could.; review complaints
issym-
from: the, public more.,ef-
ireate a
fectively
said
The civilian review board
for the
. — , - 1
Ben Stone, couris.el..,f, or the
lilt UjVjjl4lljC;VICW uvaiu
inBostlon.,,-!M4s5x",,revieWed
Jowd:C�vj .Aaberties non.
dust -19-,,eageg fti� its-' 4T
"I tat to_I
of existence, .the {.,,86ston
' police tactics ' rO', ut
i
Herald reportedip, 2008.
'there is a
h.
However, it; -urged the c it-Y's
need for , ian e
I I— L I I
to,,.ievi w five
pplicexhief.. _ , e
i
but it's ftot'.golng,,p hL.q pe,
cases Ahat-..alleged police
until there, 1�sa tr`agedy
. , i ` "
impropriety.!
I I 1�1 .,
4 '' " its
rei'd&dl
low' a4 -city c R, its
1997
shot,
ing E
att6iije�. call
a y 7to - eyiewj"
gra,�,, ju qL n
.j,
g
is a Hart. of ctv cod2 fie;
.nj
in
a