CHAPTER 11
PUBLIC RECORDS AND FAIR INFORMATION PRACTICES
161—11.1(17A,22,216) Definitions. As used in this chapter:
“Agency” means the Iowa civil rights commission.
“Confidential record” means a record which is not available as a matter of right for examination and copying by members of the public under applicable provisions of law. Confidential records include records or information contained in records that the agency is prohibited by law from making available for examination by members of the public, and records or information contained in records that are specified as confidential by Iowa Code section 22.7, or other provision of law, but that may be disclosed upon order of a court, the lawful custodian of the record, or by another person duly authorized to release the record. Mere inclusion in a record of information declared confidential by an applicable provision of law does not necessarily make that entire record a confidential record.
“Custodian” means the executive director, or a person lawfully delegated authority by the executive director to act for the agency in implementing Iowa Code chapter 22.
“Open record” means a record other than a confidential record.
“Personally identifiable information” means information about or pertaining to an individual in a record which identifies the individual and which is contained in a record system.
“Record” means the whole or a part of a “public record” as defined in Iowa Code section 22.1.
“Record system” means any group of records under the control of the agency from which a record may be retrieved by a personal identifier such as the name of an individual, number, symbol, or other unique retriever assigned to an individual.
161—11.2(17A,22,216) Statement of policy. This chapter implements Iowa Code section 22.11 and chapter 216 by establishing agency policies and procedures for the maintenance of records. The purpose of this chapter is to facilitate public access to open records. It also seeks to facilitate sound agency determinations with respect to the handling of confidential records and the implementation of the fair information practices Act. This agency is committed to the policies set forth in Iowa Code chapter 22; agency staff shall cooperate with members of the public in implementing the provisions of that chapter.
161—11.3(17A,22,216) Requests for access to records.
	11.3(1) Location of record. A request for access to a record should be directed to the Iowa civil rights commission or the particular agency office where the record is kept. The request shall be directed to the Iowa Civil Rights Commission, Grimes State Office Building, 400 E. 14th Street, Des Moines, Iowa 50319-1004. If a request for access to a record is misdirected, agency personnel will promptly forward the request to the appropriate person within the agency.
	11.3(2) Office hours. Open records shall be made available during all customary office hours, which are 8 a.m.	to 4:30 p.m., Monday through Friday, except legal holidays.
	11.3(3) Request for access. Requests for access to open records may be made in writing or in person. The office may also accommodate telephone requests where appropriate. Requests shall identify the particular records sought by name or description in order to facilitate the location of the record. Mail or telephone requests shall include the name, address, and telephone number of the person requesting the information. A person shall not be required to give a reason for requesting an open record.
	11.3(4) Response to requests. Access to an open record shall be provided promptly upon request unless the size or nature of the request makes prompt access infeasible. If the size or nature of the request for access to an open record requires time for compliance, the custodian shall comply with the request as soon as feasible. Access to an open record may be delayed for one of the purposes authorized by Iowa Code section 22.8(4) or 22.10(4). The custodian shall promptly give notice to the requester of the reason for any delay in access to an open record and an estimate of the length of that delay and, upon request, shall promptly provide that notice to the requester in writing.
The custodian of a record may deny access to the record by members of the public only on the grounds that such a denial is warranted under Iowa Code sections 22.8(4) and 22.10(4), or that it is a confidential record, or that its disclosure is prohibited by a court order. Access by members of the public to a confidential record is limited by law and, therefore, may generally be provided only in accordance with the provisions of rule 161—11.4(17A,22,216) and other applicable provisions of law.
	11.3(5) Security of record. No person may, without permission from the custodian, search or remove any record from agency files. Examination and copying of agency records shall be supervised by the custodian or a designee of the custodian. Records shall be protected from damage and disorganization.
	11.3(6) Copying. A reasonable number of copies of an open record may be made in the agency’s office. If photocopy equipment is not available in the agency office where an open record is kept, the custodian shall permit its examination in that office and shall arrange to have copies promptly made elsewhere.
	11.3(7) Fees.
	a. 	When charged. To the extent permitted by applicable provisions of law, the payment of fees may be waived when the imposition of fees is inequitable or when a waiver is in the public interest.
	b. 	Copying and postage costs. Price schedules for published materials and for photocopies of records shall be prominently posted in agency offices. Copies of records may be made by or for members of the public on agency photocopy machines or from electronic storage systems at cost as determined and posted in agency offices by the custodian. When the mailing of copies of records is requested, the actual costs of such mailing may also be charged to the requester.
	c. 	Supervisory fee. An hourly fee may be charged for actual agency expenses in supervising the examination and copying of requested records when the supervision time required is in excess of one-half hour. The custodian shall prominently post in agency offices the hourly fees to be charged for supervision of records during examination and copying. That hourly fee shall not be in excess of the hourly wage of an agency clerical employee who ordinarily would be appropriate and suitable to perform this supervisory function.
	d. 	Search fees. If the request requires research or if the record or records cannot reasonably be readily retrieved by the office, the requester will be advised of this fact. Reasonable search fees may be charged where appropriate. In addition, all costs for retrieval and copying of information stored in electronic storage systems may be charged to the requester.
	e. 	Advance deposits.
	(1)	When the estimated total fee chargeable under this subrule exceeds $25, the custodian may require a requester to make an advance payment to cover all or a part of the estimated fee.
	(2)	When a requester has previously failed to pay a fee chargeable under this subrule, the custodian may require advance payment of the full amount of any estimated fee before the custodian processes a new request from that requester.
[ARC 8733B, IAB 5/5/10, effective 6/9/10]
161—11.4(17A,22,216) Access to confidential records. Under Iowa Code section 22.7 or other applicable provisions of law, the lawful custodian may disclose certain confidential records to one or more members of the public. Other provisions of law may authorize or require the custodian to release specified confidential records under certain circumstances or to particular persons. In requesting the custodian to permit the examination and copying of such a confidential record, the following procedures apply and are in addition to those specified for requests for access to records in rule 161—11.3(17A,22,216).
	11.4(1) Proof of identity. A person requesting access to a confidential record may be required to provide proof of identity or authority to secure access to the record.
	11.4(2) Requests. The custodian may require that a request to examine and copy a confidential record be in writing. A person requesting access to such a record may be required to sign a certified statement or affidavit enumerating the specific reasons justifying access to the confidential record and to provide any proof necessary to establish relevant facts.
	11.4(3) Notice to subject of record and opportunity to obtain injunction. After the custodian receives a request for access to a confidential record, and before the custodian releases such a record, the custodian may make reasonable efforts to notify promptly any person who is a subject of that record, is identified in that record, and whose address or telephone number is contained in that record. To the extent such a delay is practicable and in the public interest, the custodian may give the subject of such a confidential record to whom notification is transmitted a reasonable opportunity to seek an injunction under Iowa Code section 22.8, and indicate to the subject of the record the specific period of time during which disclosure will be delayed for that purpose.
	11.4(4) Request denied. When the custodian denies a request for access to a confidential record, the custodian shall promptly notify the requester. If the requester indicates to the custodian that a written notification of the denial is desired, the custodian shall promptly provide such a notification that is signed by the custodian and that includes:
	a. 	The name and title or position of the custodian responsible for the denial; and
	b. 	A citation to the provision of law vesting authority in the custodian to deny disclosure of the record and a brief statement of the reasons for the denial to this requester.
	11.4(5) Request granted. When the custodian grants a request for access to a confidential record to a particular person, the custodian shall notify that person and indicate any lawful restrictions imposed by the custodian on that person’s examination and copying of the record.
161—11.5(17A,22,216) Requests for treatment of a record as a confidential record and its withholding from examination. The custodian may treat a record as a confidential record and withhold it from examination only to the extent that the custodian is authorized by Iowa Code section 22.7, another applicable provision of law, or a court order, to refuse to disclose that record to members of the public.
	11.5(1) Persons who may request. Any person who would be aggrieved or adversely affected by disclosure of a record and who asserts that Iowa Code section 22.7, another applicable provision of law, or a court order, authorizes the custodian to treat the record as a confidential record, may request the custodian to treat that record as a confidential record and to withhold it from public inspection.
	11.5(2) Request. A request that a record be treated as a confidential record and be withheld from public inspection shall be in writing and shall be filed with the custodian. The request must set forth the legal and factual basis justifying such confidential record treatment for that record, and the name, address, and telephone number of the person authorized to respond to any inquiry or action of the custodian concerning the request. A person requesting treatment of a record as a confidential record may also be required to sign a certified statement or affidavit enumerating the specific reasons justifying the treatment of that record as a confidential record and to provide any proof necessary to establish relevant facts. Requests for treatment of a record as such a confidential record for a limited time period shall also specify the precise period of time for which that treatment is requested.
A person filing such a request shall, if possible, accompany the request with a copy of the record in question from which those portions for which such confidential record treatment has been requested have been deleted. If the original record is being submitted to the agency by the person requesting such confidential treatment at the time the request is filed, the person shall indicate conspicuously on the original record that all or portions of it are confidential.
	11.5(3) Failure to request. Failure of a person to request confidential record treatment for a record does not preclude the custodian from treating it as a confidential record. However, if a person who has submitted business information to the agency does not request that it be withheld from public inspection under Iowa Code section 22.7(3) or 22.7(6), the custodian of records containing that information may proceed as if that person has no objection to its disclosure to members of the public.
	11.5(4) Timing of decision. A decision by the custodian with respect to the disclosure of a record to members of the public may be made when a request for its treatment as a confidential record that is not available for public inspection is filed, or when the custodian receives a request for access to the record by a member of the public.
	11.5(5) Request granted or deferred. If a request for such confidential record treatment is granted, or if action on such a request is deferred, a copy of the record from which the matter in question has been deleted and a copy of the decision to grant the request or to defer action upon the request will be made available for public inspection in lieu of the original record. If the custodian subsequently receives a request for access to the original record, the custodian will make reasonable and timely efforts to notify any person who has filed a request for its treatment as a confidential record that is not available for public inspection of the pendency of that subsequent request.
	11.5(6) Request denied and opportunity to seek injunction. If a request that a record be treated as a confidential record and be withheld from public inspection is denied, the custodian shall notify the requester in writing of that determination and the reasons therefor. On application by the requester, the custodian may engage in a good faith, reasonable delay in allowing examination of the record so that the requester may seek injunctive relief under the provisions of Iowa Code section 22.8, or other applicable provision of law. However, such a record need not be withheld from public inspection for any period of time if the custodian determines that the requester had no reasonable grounds to justify the treatment of that record as a confidential record. The custodian shall notify requester in writing of the time period allowed to seek injunctive relief or the reasons for the determination that no reasonable grounds exist to justify the treatment of that record as a confidential record. The custodian may extend the period of good faith, reasonable delay in allowing examination of the record so that the requester may seek injunctive relief only if no request for examination of that record has been received, or if a court directs the custodian to treat it as a confidential record, or to the extent permitted by another applicable provision of law, or with the consent of the person requesting access.
161—11.6(17A,22,216) Procedure by which additions, dissents, or objections may be entered into certain records. Except as otherwise provided by law, a person may file a request with the custodian to review, and to have a written statement of additions, dissents, or objections entered into, a record containing personally identifiable information pertaining to that person. However, this does not authorize a person who is a subject of such a record to alter the original copy of that record or to expand the official record of any agency proceeding. Requester shall send the request to review such a record or the written statement of additions, dissents, or objections to the custodian. The request to review a written statement must be dated and signed by requester, and shall include the current address and telephone number of the requester or the requester’s representative.
161—11.7(17A,22,216) Consent to disclosure by the subject of a confidential record. To the extent permitted by any applicable provision of law, a person who is the subject of a confidential record may have a copy of the portion of that record concerning the subject disclosed to a third party. A request for such a disclosure must be in writing and must identify the particular record or records that may be disclosed, and the particular person or class of persons to whom the record may be disclosed and, where applicable, the time period during which the record may be disclosed. The person who is the subject of the record and, where applicable, the person to whom the record is to be disclosed, may be required to provide proof of identity. Additional requirements may be necessary for special classes of records. Appearance of counsel on behalf of a person who is the subject of a confidential record is deemed to constitute consent for the agency to disclose records about that person to the person’s attorney.
161—11.8(17A,22,216) Notice to suppliers of information. When the agency requests a person to supply information about that person, the agency shall notify the person of the use that will be made of the information, which persons outside the agency might routinely be provided this information, which parts of the requested information are required and which are optional, and the consequences of a failure to provide the information requested. This notice may be given in these rules, on the written form used to collect the information, on a separate fact sheet or letter, in brochures, in formal agreements, in contracts, in handbooks, in manuals, verbally, or by other appropriate means. Notice need not be given in connection with discovery requests in litigation or administrative proceedings, subpoenas, investigations of possible violations of law, or similar demands for information.
161—11.9(17A,22,216) Disclosures without the consent of the subject.
	11.9(1) Open records are routinely disclosed without the consent of the subject.
	11.9(2) To the extent allowed by law, disclosure of confidential records may occur without the consent of the subject. Following are instances where disclosure, if lawful, may generally occur without notice to the subject:
	a. 	For a routine use as defined in rule 161—11.10(17A,22,216) or in any notice for a particular record system.
	b. 	To a recipient who has provided the agency with advance written assurance that the record will be used solely as a statistical research or reporting record; provided that the record is transferred in a form that does not identify the subject.
	c. 	To another government agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if any authorized representative of such government agency or instrumentality has submitted a written request to the agency specifying the record desired and the law enforcement activity for which the record is sought.
	d. 	To an individual pursuant to a showing of compelling circumstances affecting the health or safety of any individual if a notice of the disclosure is transmitted to the last-known address of the subject.
	e. 	To the legislative services agency under Iowa Code section 2A.3.
	f. 	To the citizens’ aide/ombudsman under Iowa Code section 2C.9.
	g. 	Disclosures in the course of employee disciplinary proceedings.
	h. 	In response to a court order or subpoena.
161—11.10(17A,22,216) Routine use.
	11.10(1) Defined. “Routine use” means the disclosure of a record without the consent of the subject or subjects for a purpose which is compatible with the purpose for which the record was collected. It includes disclosures required to be made by statute other than the public records law, Iowa Code chapter 22.
	11.10(2) To the extent allowed by law, the following uses may be considered routine uses of all agency records:
	a. 	Disclosure to those officers, employees, and agents of the agency who have a need for the record in the performance of their duties. The custodian of the record may upon request of any officer or employee, or on the custodian’s initiative, determine what constitutes legitimate need to use confidential records.
	b. 	Disclosure of information indicating an apparent violation of the law to appropriate law enforcement authorities for investigation and possible criminal prosecution, civil court action, or regulatory order.
	c. 	Disclosure to the agency or officer which this office is advising or representing in the matter in question or to the department of inspections and appeals for matters in which it is performing services or functions on behalf of the agency.
	d. 	Transfers of information within the agency, to other state agencies, or to local units of government as appropriate to administer the program for which the information is collected.
	e. 	Information released to staff of federal and state entities for audit purposes or for purposes of determining whether the agency is operating a program lawfully.
	f. 	Any disclosure specifically authorized by the statute under which the record was collected or maintained.
161—11.11(17A,22,216) Consensual disclosure of confidential records.
	11.11(1) Consent to disclosure by a subject individual. The subject may consent in writing to agency disclosure of confidential records as provided in rule 161—11.7(17A,22,216).
	11.11(2) Complaints to public officials. A letter from a subject of a confidential record to a public official which seeks the official’s intervention on behalf of the subject in a matter that involves the agency may to the extent permitted by law be treated as an authorization to release sufficient information about the subject to the official to resolve the matter.
161—11.12(17A,22,216) Availability of records.
	11.12(1) General. Agency records are open for public inspection and copying unless otherwise provided by rule or law. The office also has possession of records which may be open records but which are copies of materials from another agency, which have been filed in judicial or administrative proceedings, or which are available in the state law library. This office will often refer persons to the originating agency, the clerk of the appropriate court, or the law library for those records. This is consistent with the functions of those entities, ensures that the requester get a clean official copy of the record, and protects the integrity of attorney files against unintended disclosures of confidential information.
	11.12(2) Confidential records. The following records may be withheld from public inspection. Records are listed by category, according to the legal basis for withholding them from public inspection.
	a. 	Tax records made available to the agency. (Iowa Code sections 422.72,422.20)
	b. 	Records which are exempt from disclosure under Iowa Code section 22.7.
	c. 	Minutes of closed meetings of a government body. (Iowa Code section 21.5(4))
	d. 	Identifying details in final orders, decisions and opinions to the extent required to prevent a clearly unwarranted invasion of personal privacy or trade secrets under Iowa Code section 17A.3 (1)“d.”
	e. 	Those portions of agency staff manuals, instructions or other statements issued which set forth criteria or guidelines to be used by agency staff in auditing, in making investigations, or in the selection or handling of cases, such as operational tactics or allowable tolerances or criteria for the defense, prosecution or settlement of cases, when disclosure of these statements would:
	(1)	Enable law violators to avoid detection;
	(2)	Facilitate disregard of requirements imposed by law; or
	(3)	Give a clearly improper advantage to persons who are in an adverse position to the agency. (Iowa Code sections 17A.2, 17A.3, 216.15)
	f. 	Records which constitute attorney work product, attorney-client communications, or which are otherwise privileged. Attorney work product is confidential under Iowa Code sections 22.7(4), 622.10, 622.11, Iowa R.C.P. 122(c), Fed.	R.Civ.P. 26(b)(3), and case law. Attorney-client communications are confidential under Iowa Code sections 622.10 and 622.11, the rules of evidence, the Code of Professional Responsibility, and case law.
	g. 	Records collected or generated by Iowa civil rights commission staff or commissioners relating to any step in the civil rights complaint process which contain personally identifiable information.
	h. 	Any other records made confidential by law. (Iowa Code section 216.15)
	11.12(3) Authority to release confidential records. The agency may have discretion to disclose some confidential records which are exempt from disclosure under Iowa Code section 22.7 or other law. Any person may request permission to inspect these records withheld from inspection under a statute which authorizes limited or discretionary disclosure as provided in rule 161—11.4(17A,22,216). If the agency initially determines that it will release such records, the agency may, where appropriate, notify interested persons and withhold the records from inspection as provided in subrule 11.4(3).
161—11.13(17A,22,216) Personally identifiable information. This rule describes the nature and extent of personally identifiable information which is collected, maintained, and retrieved by the agency by personal identifier in record systems as defined in rule 161—11.1(17A,22,216). Unless otherwise stated, the authority for this office to maintain the record is provided by Iowa Code chapter 216, the statutes governing the subject matter of the record, and the enabling statutes of the agency client, where applicable. The record systems maintained by the agency shall include but are not limited to the following:
	11.13(1) Investigatory files. These files or records contain information collected or generated by Iowa civil rights commission staff or commissioners relating to any step in the complaint process beginning with the consideration or contemplation of filing a complaint up to the issuance of a notice of public hearing. Most of these records are paper files. However, some case management records and other records are in computer form. Those files are commonly indexed by the name of the opposing party. Some files are indexed by subject matter, witness, agency or other category.
	11.13(2) Litigation files. These files or records contain information regarding litigation or anticipated litigation, which includes judicial and administrative proceedings. The records include pleadings, briefs, depositions, discovery material, docket sheets, documents, general correspondence, attorney-client correspondence, attorneys’ notes, memoranda, research materials, witness information, investigation materials, information compiled under the direction of the attorney, and case management records. Most of these records are paper files. However, some case management records and other records are in computer form. The files are generally maintained by division and are commonly indexed by the name of the opposing party. Some files are indexed by subject matter, witness, agency, or other category. The files contain materials which are confidential as attorney work product and attorney-client communications. Some materials are confidential under other applicable provisions of law or because of a court order. Persons wishing copies of pleadings and other documents filed in litigation should obtain these from the clerk of the appropriate court which maintains the official copy.
	11.13(3) Records. State of Iowa files are a subpart of the complaint file system and contain general information on an individual or business including correspondence, investigative information, agency subpoenas, demands for information and responses. Work product information contained in the state of Iowa file is considered confidential. The records are subject to the same confidentiality provisions as are complaint files.
	11.13(4) Personnel files. The Iowa civil rights commission and individual divisions maintain files containing information about employees and applicants for positions with the agency. The files contain payroll records, biographical information, medical information relating to disability, performance reviews and evaluations, disciplinary information, information required for tax withholding, information concerning employee benefits, affirmative action reports, and other information concerning the employer-employee relationship. Some of this information is confidential under Iowa Code section 22.7(11).
161—11.14(17A,22,216) Other groups of records. This rule describes groups of records maintained by the agency other than record systems as defined in rule 161—11.1(17A,22,216). The records listed may contain information about individuals. Unless otherwise designated, the authority for this office to maintain the record is provided by Iowa Code chapter 216, the statutes governing the subject matter of the record. Those privileges may render some or all of the following information confidential whether or not asserted in the description of the record. All records are stored both on paper and in automated data processing systems unless otherwise noted.
	11.14(1) Administrative records. This includes documents concerning budget, property inventory, purchasing, yearly reports, office policies for employees, time sheets, printing and supply requisitions.
	11.14(2) Publications. The office receives a number of books, periodicals, newsletters, government documents, etc. These materials would generally be open to the public but may be protected by copyright law. Most publications of general interest are available in the state law library.
	11.14(3) Office publications. This office issues a variety of materials including press releases, statistical reports, Iowa civil rights commission case reports and annual reports.
	11.14(4) Rule-making records. Official documents executed during the promulgation of agency rules and public comments are available for public inspection.
	11.14(5) Office manuals. Information in office manuals such as the investigator handbook are available for public inspection.
	11.14(6) All other records. Records are open if not exempted from disclosure by law.
161—11.15(17A,22,216) Data processing systems. The data processing systems used by the agency compare personally identifiable information in one record system with personally identifiable information in another record system.
161—11.16(17A,22,216) Applicability. This chapter does not:
	1.	Require the agency to index or retrieve records which contain information about individuals by that person’s name or other personal identifier.
	2.	Make available to the general public records which would otherwise not be available under the public records law, Iowa Code chapter 22.
	3.	Govern the maintenance or disclosure of, notification of or access to, records in the possession of the agency which are governed by the regulations of another agency.
	4.	Apply to grantees, including local governments or subdivisions thereof, administering state-funded programs, unless otherwise provided by law or agreement.
	5.	Make available records compiled in reasonable anticipation of court litigation or formal administrative proceedings. The availability of such records to the general public or to any subject individual or party to such litigation or proceedings shall be governed by applicable constitutional principles, statutes, rules of discovery, evidentiary privileges, and applicable regulations.
	6.	Make available to the general public records which would otherwise not be available under Iowa Code section 216.15(4).
161—11.17(17A,22,216) Access to file information. The disclosure of information whether a change has been filed or not, or revealing the contents of any file is prohibited except in the following circumstances:
	11.17(1) If a final decision per 161—subrule 2.1(10) has been reached, a party or a party’s attorney may, upon showing that a petition appealing the commission action has been filed, have access to the commission’s case file on that complaint.
	11.17(2) If a case has been approved for public hearing and the notice of hearing has been issued, any party or party’s attorney may have access to file information through prehearing discovery measures provided in 161—4.6(216). In addition, file information may be sought pursuant to Iowa Code subsection 17A.13(2).
	11.17(3) If a decision rendered by the commission in a contested case has been appealed, any party or party’s attorney may, upon showing that the decision has been appealed, have access to the commission’s case file on that complaint.
The fact that copies of documents related or gathered during an investigation of a complaint are introduced as evidence during the course of a contested case proceeding does not affect the confidential status of all other documents within the file which are not introduced as evidence.
	11.17(4) If the commission has issued a right-to-sue letter per 161—subrule 3.10(3), a party or party’s attorney may have access to the commission’s case file on that complaint.
	11.17(5) Only upon written notification, from an attorney or a party, that the attorney represents that party may the attorney then obtain access to the commission case file on the same terms as that party.
[Filed emergency 5/13/88—published 6/1/88, effective 7/1/88]
[Filed 12/22/89, Notice 6/14/89—published 1/10/90, effective 2/14/90]
[Filed 1/29/93, Notice 11/25/92—published 2/17/93, effective 3/24/931]
[Filed ARC 8733B (Notice ARC 8560B, IAB 3/10/10), IAB 5/5/10, effective 6/9/10]
1	Effective date of 161—11.17(2), 11.17(4) and 11.17(5) delayed 70 days by the Administrative Rules Review Committee at its meeting held March 9, 1993; delayed until adjournment of the 1994 Session of the General Assembly by this Committee May 11, 1993.