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Iowa Senate's Management Of Its Telephone Records
Is Upheld By State Supreme Court
By:
John F. Dwyer
Secretary of the Senate
Iowa
Volume 2, Number 1 Spring 1996
© Journal of the American Society of Legislative Clerks and Secretaries
 ASLCS Home Page
Recently, the Iowa Supreme Court upheld the right of the Iowa Senate to adopt and implement a rule governing senate telephone records against a challenge that the rule ran contrary to the state's public records statute. The Court found that the rule fell within the rule making authority of the senate granted under the state constitution because it addressed an essential legislative function and is within the scope of authority legislatures have to make rules for their own operation.
Background
Like most states, Iowa has a government records access statute which declares that all documents held by the state's governmental bodies are available for public inspection upon demand, subject to certain exceptions. Iowa's act is broad and the exceptions, although numerous, are quite narrow, covering such things as personnel files, law enforcement files, and bidding documents.
On March 9, 1993, a reporter for the Des Moines (Iowa) Register newspaper sent a letter to the secretary of the Iowa Senate requesting copies of all of the senate's telephone records, specifically to include long distance call details, for the previous four years, citing the public records act. Senate leadership did not believe release of details about individual telephone calls would be in the public interest and instructed the secretary to deny that portion of the request. Over the next few months the secretary, in obedience to instructions from senate leadership, released all the summary records which contained totals of calls made by legislators and staff, showing their individual long distance charges for each month requested, but not those records identifying individual calls.
In a letter to the newspaper, the secretary explained that releasing call details would infringe on the Constitutional rights of the callers, including the right to free speech, the right to privacy, and the right to equal protection of the laws in that conversations made over local lines or in person were not subject to similar record keeping measures.
Rules for Managing Telephone Records Considered
In considering its response to this request, Senate leadership realized a formal policy on senate telephone usage and records would be desirable. The problem was to accommodate various, sometimes conflicting rights, including the right to free speech and association, the right to petition one's elected representatives, the right to be treated by the government the same as other similarly situated citizens, the right to privacy, and the right to know how government funds are being spent.
Most people regard telephone records as sensitive because they are such detailed compilations of personal conversations. The primary reason for not making long distance call records public is to encourage people to contact the legislature with their views.
A central fact of human nature is that people are more reluctant to speak in public than they are in private. People have relationships with others that might make some citizens reluctant to call the legislature about a given issue if the fact that they called would be made public. They have friends, relatives, employers, employees, teachers, wardens, spouses, and bosses. The fact is most people will not talk readily or freely in front of an audience. Everyone who has ever spoken in front of an audience has experienced the people who are reluctant to ask questions or relate information in front of the group but are anxious to do so when they can get the speaker aside.
A second reason for not making telephone records public is a matter of fundamental fairness. Making them public would provide those citizens who happen to live close to their legislator or near the state capitol, those with sufficient resources to hire a lobbyist, and those with time to travel to the statehouse greater and freer access to the government than other citizens who must use their telephones.
The reason offered by proponents of making long distance calls public is that they involve a public expense. Yet, just a little thought develops the realization that all conversations of public officials and employees involve public expense. The only reason there are records of long distance calls is because that is how the telephone companies choose to bill for them. Telephone records are not made by the state for keeping records of conversations relating to public business. They are made by telephone long distance companies to verify their charges. And that realization raised the question of the propriety of singling out long distance telephone conversations for disclosure.
Local calls, for example, also carry a public expense but are simply billed differently. One normally receives unlimited calling for a flat monthly rate. Each call carries a price, even though that price generally diminishes with the number of local calls made, although for legislators from out of town who make few local calls, the local charge may actually be higher per call than the long distance charges.
Face to face conversations also bear a price because the state pays the legislator a salary, a per diem, and a constituent allowance. There is also the overhead involved in the support staff and physical facilities provided for legislators to meet and conduct their business.
So the question arises: why should the fact that a telephone company chooses to bill for certain calls on an individual basis significantly change the degree of constitutional protection attending a given conversation? In other words, why should the citizen who lives a hundred miles from the Capitol receive less privacy protection and freedom to communicate without scrutiny than a citizen who lives across the street from the statehouse - or a lobbyist out in a Capitol hallway?
Furthermore, the whole idea becomes even more troubling because the disclosure of conversations would be quite random. For example, if a citizen calls long distance to the statehouse and is put through to a legislator directly, there is no record. If that citizen's next door neighbor calls and the legislator is busy and has to return the call, there is a record of the neighbor's call. Similarly, if the citizen contacts the legislator at home, the legislature has no record.
Further, legislator A, whose constituents live in the local calling area of the statehouse, uses the telephone all day, and no record is kept. Legislator B makes three long distance calls to citizens in the district, and a record is kept of each call.
The only reason for singling out long distance calls made from the statehouse for disclosure is that the call might cost the state a little more than another conversation that the legislator has with someone else. In light of the above scenarios, that may or may not be true. And in those cases where it is true, it is not convincing.
Also, separating decisions about long distance records from the persons to whom the records relate is unworkable because each participant in a conversation controls the knowledge of it. The participants in any conversation can disclose it whenever they choose. Furthermore, with today's communication capabilities anyone can avoid public telephones. Finally, it was seen that there is a divergence of opinion on the degree of privacy which should attend telephone conversations involving public officials and employees. Therefore, the conclusion was reached that a rule governing records of telephone conversations should place power over the records in the hands of the parties to the conversations, where it naturally resides, and remove it from the administrative staff.
Alternative Approaches Weighed But Rejected
Two other proposals received some consideration but were rejected for various reasons.
One of these was to require legislators to provide their own telephone service out of their monthly expense allowance. Under this approach, legislators would manage long distance conversations just as they manage their other meetings - including the records of them.
Records would then go directly to the person who engages in the conversations. Thus, if a controversy arises over a given matter and there is interest in telephone records, everybody else's records are not automatically involved. It makes budgetary sense because the state has a fixed expense. If a given legislator exceeds the allowance, it comes out of the legislator's own pocket. All citizens share the same expense equally. The disadvantages of this arrangement are that it adds somewhat to legislators' administrative duties, and it doesn't address the question of long distance calls made by staff, many of which are made on behalf of legislators.
Another idea deemed unacceptable was to make public the call details but grant callers the opportunity to designate items for deletion pursuant to some undefined criteria. This method is suggested by a provision of the Iowa Open Records Act which exempts communications which the state government employee recipient has reasonable grounds to believe would not have been made if the sender knew it would be made public.
This approach drew heavy criticism due to a number of problems. First, there is rarely enough information available to make the required judgment. In most cases it is impossible to know how a given citizen would feel about it. Second, legislators would have to keep a detailed log of all their calls in order to remember who they called and why. Most wouldn't do it and thus would rarely be in a position to make the judgment. Third, it is too time consuming to pore through the long distance records. Busy legislators would simply not do that either. And fourth, designating certain calls for nondisclosure simply calls attention to them, suggests that the designating party has something to conceal, and thus defeats the whole purpose of the procedure. And most people wouldn't do it for that reason as well.
But the most basic reason that made this idea unacceptable is that it would create uncertainty in the mind of the public. A citizen wouldn't know whether calls to the legislature are private or not. The general impression in the mind of the public would be that you can't contact your legislator by telephone without telling the world about it. And this is precisely the opposite of the state of mind that the public should have when contemplating contacting their legislators. It
would in fact create the very chilling effect on important speech that must be avoided.
Rule Adopted
The competing interests and factors involved were eventually resolved by adoption of a rule which provides that summary records of all senate telephone expenses are open to the public, including a breakdown for each legislator and staff person, but that records revealing individual long distance call details are to be provided by the administrative staff only to the persons who made the calls. The rule leaves it up to individual members and staff to determine how to treat their records after they have received them.
Further, the rule describes what calls are appropriately made over the senate's telephones and provides oversight by granting the administrative staff the power to review the records for irregularities, and, if necessary, hire an independent auditing firm to conduct investigations.
The senate also revamped the operation of its telephone system to make monitoring calling and long distance expenses easier to do and more accurate. Personal identification numbers were assigned to each member of the senate and staff which must be used to access long distance service on senate telephones. The telephone statement which comes to the senate from the state communications division has call details divided by "pin" number and those records can be promptly reviewed by administrative staff and distributed to the persons who made the long distance calls. Callers have the duty to review their records, report inaccuracies, and reimburse the senate for any calls not authorized by the rule. Prior to the adoption of this system there was no reliable means of attributing long distance calls.
Newspaper Not Dissuaded; Litigation Commenced
All attempts by the senate to convince the Des Moines Register of the unreasonableness of its request went unappreciated, and the Register filed suit in the Iowa District Court, naming as defendants the Secretary of the Senate and the communications division supervisor of the state Department of General Services in whose department the records originated.
The senate retained outside counsel who began to research the issue. The counsel concluded that legislatures have a constitutional grant of authority which gives them the power to operate and do what is proper and necessary to carry out their constitutional functions. Further, counsel argued that constitutional grants of authority cannot be limited by statute. Based on the premise that the senate's rule fell within its right to determine its rules of proceedings under the Iowa Constitution, a motion for summary judgment was filed by the secretary of the senate.
In response, the Des Moines Register argued primarily that policies governing legislative telephone records do not rise to the level of Constitutionally protected legislative procedures, and that they are merely administrative details which are not essential to legislative operations and fulfillment of Constitutional duties.
The newspaper also made efforts to enlist public support for its position through articles and editorials on the issue. Reporters interviewed current and former legislators who voiced disagreement with the senate's position and provided some of their own long distance records. And the newspaper publicized payments made to the senate finance office by senators and staff for long distance calls which did not conform to the newly adopted senate long distance calling policy. These were all minor in nature, however, and none of the stories generated significant public interest. Legislators also found little interest in the subject among their constituents.
The District Court agreed with the senate's position, finding that the policy did constitute a rule of proceeding of a co-equal branch of government and thus constituted a political question which the court could not decide. The court granted the secretary's motion for summary judgment.
Supreme Court Affirms
The Des Moines Register appealed to the Iowa Supreme Court, and on January 17, 1996, the court issued its opinion affirming the District Court. The Supreme Court stated that the question raises a political issue because of a "textually demonstrable constitutional commitment of the issue to a coordinate political department." In this regard the court cited the Iowa Constitution, Article III, section 9 which provides that "Each house shall sit upon is own adjournments, keep a journal of its proceedings, and publish same; determine its rules of proceedings..."
In deciding that a legislative policy governing telephone records constituted a rule of proceeding the court said:
In order to perform the constitutionally-granted power and duty to enact laws, the Iowa Senate has provided a means by which individuals can communicate their thoughts with senators at public expense. Part of the procedure of the senate as a whole is to communicate on matters of legislation with the public. The phone conversations at the heart of the controversy before us constitute actions taken by the senate as it proceeds in the exercise of its power, in the transaction of its business, and in the performance of duties conferred on it by the constitution.
The court cited with approval other cases along similar lines, i.e., a case which held that a newspaper in New Jersey did not have a right to the call details contained in local officials' telephone records (North Jersey Newspaper Co. v. Freeholders, 584 A.2d 275 [N.J. Super. Ct. App. Div. 1990]); a case which held that a newspaper in Virginia did not have a right to call detail records of the Virginia Governor's office, (Taylor v. Worrell Enterprises, Inc., 409 S.E.2d 136 [Va. 1991]); and two cases in which courts found that state open meeting laws could not be enforced against the legislature (Moffit v. Willis, 459 So.2d 1018 [Fla. 1989]; Abood v. League of Women Voters, 743 P. 2d 333 [Alaska 1982]).
The court further explained that the
Iowa Senate has determined that a wholesale disclosure of its itemized call detail telephone records would be harmful to the public and to the senate's ability to carry out its responsibilities. Implicit in the senate's decision is a citizen's right to contact a legislator in person, by mail, or by telephone without any fear or suspicion that doing so would subject the citizen to inquiries from the press or anyone else regarding the nature of the conversation. Apart from the inconvenience or possible harassment generated, a citizen subjected to inquiry about contacting a senator, may, on refusing to discuss the content, find negative inferences are drawn from that fact alone.
The weighing of these factors is indigenous to the political process and is distinctly within the province of the senate. As elected representatives involved with the political process, senators are conditioned to decide political questions. A senatorial policy governing these actions therefore clearly constitutes a "rule of proceeding."
This decision is a useful reminder that legislatures cannot bind themselves by passing statutes if those statutes contain "rules of proceedings" governing essential legislative functions. Thus, statutes setting forth matters such as legislative organization, pay, expenses, administrative operations, committee makeup, and the like are most likely directory in nature and legislatures may deviate from those statutes as they see fit in performing their constitutional duties. It should be noted further that legislatures are also free to deviate from their adopted rules from time to time, and their actions remain unassailable so long as they abide by the explicit requirements of their constitutions.
The process the Iowa Senate went through, although a serious distraction at times, as well as expensive, has had a positive side. It has resulted in more effective and useful telephone management, better control over the telephone and communications budgeting process, and a better understanding among senators, senate leadership, and the legislative staff of legislative rule making, statutes affecting the legislature, and their limitations.
For more information about ASLCS, write or call:
Sally Kittredge
National Conference of State Legislatures
1560 Broadway, Suite 700
Denver, CO 80202
Phone: 303/364-7700
FAX: 303/863-8003
E-mail: sally.kittredge@ncsl.org
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