State agency withholds records, says it has ‘no specific duty’ to preserve requested documents

Iowa Workforce Development says it has “no specific duty” to comply with citizens who seek access to public records and ask the agency to preserve the documents while their request is pending.

The agency is also refusing to make public a written exchange with its director, Beth Townsend, about the preservation of text messages on her phone.

IWD’s position on those issues is outlined in a letter the agency sent Thursday to the Iowa Public Information Board. The board is considering a complaint filed by the Iowa Capital Dispatch, which alleges IWD violated the law by ignoring a Feb. 22 request for documents and then ignoring three subsequent emails asking about the status of that request.

The Iowa Open Records Law guarantees Iowans the right to access public records held by government agencies, but it doesn’t cap the fees that can be charged for access and allows for unspecified “reasonable” delays in acknowledging requests and turning over documents.

The dispute between IWD and the Capital Dispatch dates back to Feb. 9, when the news organization, after collecting information from IWD about unemployment fraud, asked to speak to someone at the agency about the issue. As in the past, the agency declined to make anyone available for an interview but agreed to answer questions in writing.

In response, the Capital Dispatch asked for all of the agency’s written communications, including text messages and emails, over the previous two weeks that dealt with the news organization’s requests for information on fraud – including any messages sent to, or sent by, Townsend.

The Capital Dispatch also asked IWD to immediately take steps to preserve any relevant texts on Townsend’s phone, and to take steps to have her phone-service provider preserve the messages. The news organization asked IWD to indicate when those steps were taken.

IWD later offered to give certain, undefined records to the Capital Dispatch in return for a fee, estimated at $40 to $60. The agency said it had notified Townsend of the request for documents and stated she had searched her own phone for any relevant texts and found none. No other steps were taken to preserve the records, the agency said.

On Feb. 22, the Capital Dispatch asked IWD for “a copy of the notification to Director Townsend, along with her response.” IWD never responded to that request or asserted any claim of confidentiality. It also didn’t respond to three follow-up inquiries asking about the status of the request.

The Capital Dispatch then filed a complaint with the Iowa Public Information Board, citing the lack of response and noting that IWD appeared to have made no effort to have the phone-service provider preserve the texts.

IWD calls record requests ‘vexatious’

In response to that complaint, IWD attorney Rebecca Stonawski wrote to the board on Thursday and said the Capital Dispatch’s requests for information “are vexatious” and asserted that the news organization is “trying to convince” IPIB that the Feb. 22 request for a copy of the exchange with Townsend was a new public records request separate from the previous request for documents.

“No new FOIA request was made,” wrote Stonawski, referring to the Freedom of Information Act, which applies to federal records. “If this is a new FOIA, (the Capital Dispatch) should have stated such.”

She also argued that the exchange with Townsend is confidential attorney work product and is also subject to attorney-client privilege. In addition, she asserted IWD has “no specific duty” to comply with the demands of those who ask that records be preserved while a request for access is pending.

“A citizen may not direct a high-ranking government official about how they must communicate and preserve records,” Stonawski wrote, adding that the Capital Dispatch incorrectly presumes it has “the ability to tell Director Townsend when and how to communicate amongst her staff.”

In response, the Capital Dispatch argued to IPIB that its question to Stonawski — “Could you send me a copy of the notification to Director Townsend, along with her response?” – constituted a request for documents that required some kind of a response under Iowa law.

The news organization also stated that while it doesn’t expect Townsend to bow to its every demand, it “does expect a state agency to preserve records once they are requested.”

IWD previously violated the law 

In its response to IPIB, the Capital Dispatch also pointed out that in 2021, the board concluded there was evidence IWD had violated the law after some of Townsend’s text messages were deleted while subject to request from the Capital Dispatch.

In that case, the news organization had asked for messages on Townsend’s phone — and for their retention — after other information requests about unemployment fraud went unfulfilled by IWD.

The agency ultimately stated that it couldn’t provide the messages because Verizon Wireless, the service provider for Townsend’s state-owned cellphone, was unable to retrieve them. The Capital Dispatch argued the agency should have obtained the messages directly from Townsend’s phone, which the agency conceded it had never attempted.

It was later determined that Townsend had deleted all text messages — over an 11-week period from March to May 2021 — that were subject to the request. IPIB then voted 4-3 to dismiss the Capital Dispatch’s complaint while acknowledging there was evidence IWD had violated the Iowa Open Records Law.

Also in 2021, IWD falsely claimed to have turned over to the Capital Dispatch all of the exhibits in an unemployment case involving a Wapello County prosecutor accused of sending inappropriate text messages to a subordinate. Initially, IWD didn’t respond to requests for the records. Eventually, the agency’s attorney, David Steen, contacted the Capital Dispatch to say he couldn’t “identify anything as a request for specific records.” The Capital Dispatch restated its request for “all of the exhibits” in the Wapello County case.

On May 21, Steen sent the Capital Dispatch 17 pages of records, including the unrelated personal tax returns of a Des Moines couple. The Capital Dispatch asked Steen to confirm in writing that he’d provided all of the exhibits in the case, which Steen did.

Later, after the news organization informed Steen there were at least 65 exhibits in the case, Steen didn’t respond. Eventually, after additional inquiries, he provided almost 400 pages of previously undisclosed exhibits in the case.