IWD: Agency director isn’t the ‘custodian’ of her own text messages

Iowa Workforce Development Director Beth Townsend’s isn’t the custodian of her own work-related text messages and cannot be relied upon to retain and make those records public, an agency lawyer says.

The agency’s position poses a threat to public access to government information, said Iowa Freedom of Information Council Executive Director Randy Evans. If IWD refuses to have anyone pull the records directly from Townsend’s phone, he said, the agency’s response to requests for such  records will never be complete.

On May 19, after IWD declined to answer questions from the Iowa Capital Dispatch about unemployment fraud in Iowa, the news organization asked for access to Townsend’s work-related text messages over a 10-week period.

In June, an IWD lawyer told the Capital Dispatch the agency attempted to locate the text messages not by looking at Townsend’s phone, but by requesting copies from her phone-service carrier, Verizon. The company reportedly told IWD that its copies of any relevant text messages would have already been purged in accordance with corporate policies.

Townsend and the IWD attorney, David Steen, never responded when asked by the Capital Dispatch why the text messages weren’t simply pulled from Townsend’s phone.

But in responding to the Capital Dispatch’s subsequent complaint to the Iowa Public Information Board, IWD General Counsel David Steen argued that Townsend can’t be considered the legal custodian of her own work-related text messages, noting that such messages are deleted on “a regular basis.”

For that reason, he said, IWD turns to Verizon – a private company that isn’t subject to the Open Records Law – as the only reliable repository of those state records.

“Director Beth Townsend is not the custodian of records, and it would not be reasonable for any agency to assume that accurate records can be reproduced by simply accessing the physical cellular telephone,” Steen told IPIB. “Text messages are deleted from cellular telephones on a regular basis, and the only source of complete data would come from the service provider.”

Steen’s letter to IPIB gives no indication as to whether Iowa Workforce Development made any attempt to ask Townsend whether she had, in fact, deleted the requested records from her phone once it was determined that Verizon didn’t maintain copies of them.

“Verizon is not the lawful custodian of the text messages on Beth Townsend’s cellphone,” Evans said. “The agency is. And Iowa Workforce Development is obligated to download those from the agency director’s phone and make those that are not confidential available to the Capital Dispatch. This is no different from Iowa Workforce Development’s obligation to make available copies of certain U.S. mail correspondence that lands on Ms. Townsend’s desk.”

Evans said IWD cannot shed its legal responsibility to turn over documents “simply by saying it is the agency’s ‘practice’ to ask Verizon to provide these. The state Open Records Law trumps the policies or practices of any government agency, and compliance with this law cannot be shifted to a corporate vendor.”

He added he appreciates IWD’s concern that due to deletions any attempt to pull the records from Townsend’s phone might result in an incomplete response to a records request. “That is true,” he said. “But one thing is 100% certain: If the agency refuses to have government technology specialists try to retrieve the messages from her phone, then the agency’s compliance with the public records law will always be incomplete.

As part of its complaint to IPIB, the Capital Dispatch noted that it had made at least five separate requests of Steen, asking him to “take immediate steps to preserve all of the requested records” and to confirm that he had done so. Steen never responded to those messages.

In his letter to IPIB, Steen said Iowa law doesn’t require a governmental agency to confirm whether it has attempted to preserve public records once a request for access to the documents is filed.

“IWD finds no requirement in the law that IWD provide such information to the requester,” Steen told IPIB. He added that IWD has “no ability to preserve records that have been purged” by Verizon, which is a private company with its own set of policies on records retention.

In his letter to IPIB, Steen also explained the agency opted not to answer the questions that led up to the records request after concluding that doing so would not be in the public’s best interests.

The Capital Dispatch reporter, he said “has repeatedly published blog posts” – an apparent reference to Capital Dispatch news stories – “mischaracterizing the actions and motives of IWD.”

Editor’s note: Iowa Capital Dispatch strives for accuracy in reporting. Iowa Workforce Development has not cited any specific complaints about errors in stories or asked for corrections.

Steen added that while IWD zealously follows the law with regard to public information requests, answering the reporter’s questions “has not been productive.”

The Iowa Public Information Board has yet to weigh in on the Capital Dispatch’s complaint.