State lawyer: Iowa Workforce Development violated public records law

Iowa Workforce Development violated the law last year when it failed to retrieve Director Beth Townsend’s text messages in response to a formal document request, the legal counsel for the Iowa Public Information Board says.

But despite that finding, IPIB Special Counsel Zachary Goodrich is recommending the panel dismiss the complaint alleging IWD’s actions violated the state’s Open Records Law. Goodrich says new policies at IWD have corrected the violation – although IWD still hasn’t turned over any of Townsend’s text messages.

Last May, after IWD declined to answer questions from the Iowa Capital Dispatch about claims Townsend made related to unemployment fraud, the news organization asked for access to Townsend’s work-related text messages over a 10-week period. At the time, the news organization also asked IWD’s legal staff to take immediate steps to preserve those records.

After hearing nothing in response, the Capital Dispatch sent IWD six additional requests asking for confirmation that some effort was being made to preserve the records. IWD never responded to those requests.

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

The Capital Dispatch asked both Townsend and the IWD attorney, David Steen, why the text messages weren’t simply pulled from the phone itself. Neither responded.

But in responding to the Capital Dispatch’s subsequent complaint to the Iowa Public Information Board, Steen argued Townsend is not the legal custodian of the work-related messages on the phone that she carries. He noted that such messages are deleted – he didn’t say why or by whom — on “a regular basis.”

In his letter to IPIB, Steen also noted that nothing in Iowa law requires a governmental agency to confirm whether it has attempted to preserve public records after a formal request for access has been received.

When the IPIB staff asked Steen why IWD hadn’t pulled the requested texts from Townsend’s phone, Steen said doing so “would involve, at best, screenshots of information we do not know to be in any way complete.”

In a newly filed “probable cause report” detailing the manner in which the IPIB staff believes IWD has violated the state’s Open Records Law, Goodrich stated, “Despite the potential for retrieving information that was incomplete, an attempt should have been made to recover text messages directly from the director’s cell phone, which is owned by the state.”

Goodrich also noted that Iowa law specifically prohibits agencies from delegating to private companies, such as Verizon, the responsibility of fulfilling public-information requests.

The IPIB staff also investigated a second complaint filed by the Capital Dispatch against IWD. In that matter, the news organization had requested all of the exhibits in an unemployment case. IWD turned over 17 pages of records and then twice assured the Capital Dispatch all of the requested documents had been turned over. The news organization objected, citing other public documents that indicated at least 65 exhibits were on file. At that point, the agency turned over an additional 380 pages of documents.

Had the Capital Dispatch reporter “not continued to question how 65 exhibits were condensed into 17 pages of records, he would not have received the 380 additional pages,” Goodrich stated in his probable cause report to the Iowa Public Information Board.

Despite finding that IWD had violated the Open Records Law, Goodrich concluded his report by recommending the board dismiss the Capital Dispatch’s complaint against IWD.

“The issues causing the violation in this complaint have been addressed by IWD,” Goodrich states in his report. Citing new written policies developed at IWD, Goodrich said, “The steps taken by IWD will ensure that similar issues do not arise again.”

However, the Capital Dispatch still doesn’t have the requested text messages, and there’s no indication that anyone at IWD, even with IPIB’s involvement, has looked for them on the director’s phone.

In 2020, the Iowa Capital Dispatch filed its first complaint with IPIB about Iowa Workforce Development, which was requiring individuals who posed a question or requested a document to submit their requests for information in writing and send them through an online portal.

Citing that policy, IWD had refused to consider a record request from the Capital Dispatch about the federally funded Iowa Center for Faith-Based and Community Services. It also refused to answer an emailed question related to IWD’s settlement of a lawsuit between the agency and the nonprofit center.

After the Capital Dispatch filed its complaint, IPIB Executive Director Margaret Johnson sent a letter to all state agencies, reminding them they are obligated to comply with Iowa law, which states that anyone can submit a request for a public record in person, in writing, by telephone or by electronic means such as text or email.

Iowa Workforce Development subsequently changed its policy.