State board asked to block agencies from destroying public records

By: - March 26, 2022 9:30 am

Iowa Workforce Development says the phone of department director Beth Townsend has been purged of all text messages. The Iowa Capital Dispatch asked Townsend last May for 11 weeks’ worth of work-related text messages. The agency says that because it has a policy of deleting text messages, there are none to disclose. (Photo illustration by Iowa Capital Dispatch, with phone screenshot, documents and Townsend’s photo courtesy of Iowa Workforce Development and the Iowa Public Information Board)

The head of the Iowa Freedom of Information Council says steps should be taken to ensure that public documents requested by the press and public aren’t then destroyed by government agencies.

Randy Evans, the council’s executive director, has written to the Iowa Public Information Board about the Iowa Capital Dispatch’s request last year for work-related text messages on the state-owned phone of Iowa Workforce Development Director Beth Townsend.

Although IWD received the request for the text messages in May 2021, agency officials said they made no attempt to look at Townsend’s phone and retrieve the records until the Iowa Public Information Board asked the agency to do so in February of this year.

By then, the phone had been purged of all text messages, IWD officials told the public information board. The board issued a finding that IWD had violated Iowa’s Open Records Law, but it then dismissed the Capital Dispatch’s complaint with no further action taken.

In his letter to the board, Evans said “the public will never know the content of the messages that may have existed on the cellphone” when the request for access was first made.

“It should concern members of the Iowa Public Information Board that when the board concluded its investigation and deliberation, there was no effective remedy for what (the Capital Dispatch) sought last year,” Evans wrote.

He wrote that what he finds “even more troubling” is that no one on the IPIB staff or the board itself seems to have “given any thought to the legal or moral obligation of parties to preserve evidence” in an open-records dispute.

“If public records and content are destroyed during the pendency of a proceeding, severe consequences should befall the lawful custodians who failed to take affirmative steps to retain and preserve the records at issue,” Evans wrote. “It dismays the Iowa FOI Council to learn that the IPIB, with capable lawyers on its board and its staff, does not issue a legal hold notice upon receiving a complaint.”

Evans recommended the board “take steps now to ensure that such an event never occurs again” by adopting, through administrative rules or procedures, a practice of issuing legal hold notices that would call on governmental agencies to preserve and retain all of the documents at issue. Such notices should be issued, he said, as soon as a complaint is filed with IPIB.

“Such legal hold notice should warn the respondents and lawful custodians about the possible consequences of the spoliation of evidence,” Evans wrote. Failure to issue such notices, he said, could lead to “embarrassing consequences and erode the public’s confidence in the Iowa Public Information Board as an effective arbiter of disputes over access to meetings and records.”

After making its request for Townsend’s text messages, the Capital Dispatch sent six written requests directly to Townsend and other IWD officials, asking them to take immediate steps to preserve the texts while the request was pending. No one from the agency responded to those requests, and an IWD attorney later explained to IPIB that there’s nothing in the law that required it to do so.

Although IWD says it doesn’t know when Townsend’s text messages were deleted, the Capital Dispatch’s request was for messages including those sent or received up to the moment the request was received by the agency on May 19.

As a result, the deletion of any messages sent or received on May 19 would have occurred after the agency had been placed on notice that those records were subject to an Open Records Law demand.

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Clark Kauffman
Clark Kauffman

Deputy Editor Clark Kauffman has worked during the past 30 years as both an investigative reporter and editorial writer at two of Iowa’s largest newspapers, the Des Moines Register and the Quad-City Times. He has won numerous state and national awards for reporting and editorial writing.