Summary

The ACLU of Iowa has filed an appeal in Iowa district court on behalf of Adam Klein, the attorney for the family of Autumn Steele, who was shot and killed by a Burlington, Iowa, police officer in January 2015. 
 

Chronology

  • After the county attorney completed her investigation into the shooting, Klein sought public records from the county attorney, the Burlington Police Department, and Iowa Department of Criminal Investigation (DCI), including but not limited to the 911 call, dashcam, and bodycam audio and video recordings. 
  • The Burlington Police Department and DCI denied Klein’s requests, claiming those records were confidential peace officers’ reports under Iowa’s open records law. 
  • In May 2015, Klein filed a complaint with the Iowa Public Information Board (IPIB), asking that it determine that the records were wrongly being withheld and require the agencies to turn over documents.
  • In 2016, the IPIB made a finding in Klein’s favor that there was probable cause to believe that the Burlington Police and DCI had violated the law by withholding the records. It appointed a special prosecutor and initiated a contested case against the Burlington Police Department and DCI.
  • Finally, in October 2018, that case was successful, with the Administrative Law Judge determining the records should be released to Klein.
  • The Burlington Police Department and DCI then appealed the administrative law judge’s decision to the IPIB.
  • That appeal went back to the Iowa Public Information Board. (Its membership by then had changed since the probable cause determination). This time, with new members, the IPIB determined that Klein had no right to the records.
  • Now the ACLU and Klein are filing a petition in district court, asking the Polk County District Court to reverse the IPIB decision and require the records to be released.

What the Appeal Requests

Specifically, the ACLU and Klein are asking the district court to determine the following:
  1. That 911 calls, bodycam video, and dashcam video are not “peace officers’ investigative reports”, but rather comprise the “immediate facts and circumstances surrounding a crime or incident” and thus “shall not be kept confidential. . . except in those circumstances where disclosure would plainly and seriously jeopardize an investigation or pose a clear and present danger to the safety of an individual” per Iowa Code section 22.7(5) or would otherwise be confidential under section 22.7.
  2. That peace officers’ investigative reports are only potentially confidential so long as the investigation is ongoing under Iowa Code section 22.7(5). In this case, the investigation into the shooting was completed in February 2015, the same day Klein requested the records, when the county attorney made a formal decision not to prosecute the officer.  
  3. That even when deemed potentially confidential, peace officers’ investigative reports under Iowa Code section 22.7(5) are subject to a balancing test to weigh the public interest in disclosure against the government interest in nondisclosure.

Pending Iowa Supreme Court Action

There is a pending interlocutory appeal before the Iowa Supreme Court which may address some—but is unlikely to address all—of the issues presented in this case. See Mitchell v. City of Cedar Rapids (Supreme Court No. 18-0124).
Specifically, while the Mitchell v. City of Cedar Rapids case is likely to address the questions of whether peace officers’ investigative reports remain confidential even after an investigation is no longer ongoing and whether a balancing test applies to those records, the case is unlikely to resolve the question of whether 911 calls, bodycam video, and dashcam video are peace officers’ investigative reports in the first place.
 

Iowa Law Regarding Open Records

Iowa Code 22.7(5) provides that the following are confidential records, not open records:
 
“Peace officers’ investigative reports, privileged records or information specified in section 80G.2, and specific portions of electronic mail and telephone billing records of law enforcement agencies if that information is part of an ongoing investigation, except where disclosure is authorized elsewhere in this Code. However, the date, time, specific location, and immediate facts and circumstances surrounding a crime or incident shall not be kept confidential under this section, except in those unusual circumstances where disclosure would plainly and seriously jeopardize an investigation or pose a clear and present danger to the safety of an individual. Specific portions of electronic mail and telephone billing records may only be kept confidential under this subsection if the length of time prescribed for commencement of prosecution or the finding of an indictment or information under the statute of limitations applicable to the crime that is under investigation has not expired.”
 

Extended Quote from ACLU of Iowa Legal Director Rita Bettis Austen

“Body cameras were sold to the public in Iowa and elsewhere primarily as a means for greater public oversight of police, especially at a time when trust in law enforcement regarding racial profiling and excessive use of force was at an all-time high. 
 
“Body camera footage never clearly fell within any existing definition of a confidential record under Chapter 22. That’s why back in 2015 when they were first starting to be adopted by Iowa law enforcement, we warned that there was a risk law enforcement would try to shoehorn them into existing exceptions in Chapter 22, threatening government transparency more broadly. That’s why we supported body camera adoption, but only with thoughtful legislation that would appropriately balance the public interest in disclosure in cases like this one, when there is a police use of force or other incident in which the public’s interest in disclosure is high, versus the cases when disclosure would pose a risk to privacy.
 
“Unfortunately, that worry has now come to pass. Year after year, the legislature has failed to tackle the need for separate body camera legislation, and now, the IPIB’s recent decision improperly tells law enforcement across the state that it is okay to keep body camera footage secret. With this decision, body cameras become an unregulated tool for police surveillance of the public, with little to no public oversight of police by the public in return.
 
“The legislature should act to pass body camera legislation, and in the meantime, we need our courts to return the state of affairs around police records to a rational place in accord with the intentions of Chapter 22, which existed long before body cameras hit the scene.
 
“This case also presents the important legal issue of whether police investigative reports may remain confidential in perpetuity, long after the investigation is no longer ongoing, and without any consideration of the public interest in disclosure of the reports.” 

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