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UI denies records request

Brian Morelli

Iowa City Press-Citizen

January 6, 2007

[Note: This material is copyright by the Press-Citizen, and is reproduced here as a matter of "fair use" for non-commercial, educational purposes only. Any other use may require the prior approval of the Iowa City Press-Citizen.]

University of Iowa officials decided Friday to reject media requests for documents produced by Nancy Kirk-patrick, John Colloton's secretary, while experts say the denial violates the spirit of open records laws.

UI, on the advice of the Iowa Attorney General, previously rejected requests made directly for documents from Colloton, director emeritus of University Hospitals. The Press-Citizen is seeking the records because of a tip that suggests the correspondence contained newsworthy information, some of which is regarding the UI presidential search.

The namesake of the John Colloton Pavilion, who was named director emeritus in 2001, was University Hospitals' director and CEO from 1971 to 1993. Colloton has been on the Wellmark Board of Directors since 1974, served as the board chairman from 1993 to 2000 and as the lead director since 2000. He maintains an office in the John Colloton Pavilion on the University Hospitals medical campus in Iowa City.

UI general counsel Marc Mills wrote in a memo, that although Colloton maintains an office on campus and uses university computers, he is not an employee with official duties and the documents are personal and are held by Colloton as a private citizen. Therefore, they are not subject to public scrutiny. He provided similar reasoning for Kirkpatrick.

"If there is no discharge of public function involved with respect to the creation of the record, it does not become a public record simply by virtue of the fact that it is processed by a university employee on university equipment," Mills wrote.

UI operations manual, Section II, Chapter 19.f, states to "avoid excessive personal use. ... Personal use of computer resources should be kept to a minimum."

Open records experts say that as the beneficiary of publicly funded space, equipment and staff, Colloton's material produced in that arena should be available for public scrutiny.

"The university's argument is illogical," said Barbara Mack, the former general counsel for the Des Moines Register and president of the Freedom of Information Council, who now is an associate journalism professor at Iowa State University.

"The real question is he an employee or is this a citizen? Is he acting in an employee-like position? Is he acting as an unpaid employee or an onsite volunteer? Then he clearly has trappings of an office with the university.

"He is not retired. He is clearly on site; he is clearly active in university life, in the university hospital. The taxpayers of the state of Iowa are furnishing him with a place to do his work, furnishing him with assistance," Mack said. "This would indicate to me he his not a member of the general public."

Further, she questions why Colloton is using public space primarily for personal use.

"If all of his e-mail is "personal" than what is he doing sitting in an office, working on a computer provided by the taxpayers of Iowa?" Mack said. "If these e-mails are personal, he should have been sending them through his home computer through his Hotmail account."

Joel Campbell, a Brigham Young University professor and chairman of the national Freedom of Information Committee, said that Iowa open records laws have nothing specific related to e-mails.

"If he is being adviser to public decision, if it has public business in there, it should be open versus if it were letter to a family or personal business. That's the way most states are handling e-mail at this point," Campbell said.

"I am surprised that the attorney general did that. In my estimation, whatever he has done on school property, anything that relates to public business should be open to public view."

Kathleen Richardson, current president of the Iowa Freedom of Information Council and Drake University assistant journalism professor, said that most attorneys advise their clients to be cautious in the information they release.

"From the Attorney General's point of view, most attorneys in a similar situation would counsel to be cautious. It behooves public agencies to be as open and forth coming as they possibly can, but most attorneys would caution clients about information they release," Richardson said.