Date:
06/19/2014
Subject:
Lee Rood / North Iowa Corridor Economic Develpment Corporation / Chapter 22-public records request
Opinion:
RE: Formal complaint 14FC:0039, filed by Lee Rood and concerning the North Iowa Corridor Economic Development Corporation (NICEDC). The NICEDC is not a government body as defined by Iowa Code section 22.1(1), and, therefore is not the custodian of any public records. Complaint dismissed for lack of jurisdiction.
June 11, 2014
Lee Rood
c/o The Des Moines Register
400 Locust Street BY EMAIL ONLY
Des Moines, IA 50309
Dear Ms. Rood:
On May 27, 2104, you filed a formal complaint (14FC:0039) with the Iowa Public Information Board (IPIB) alleging that the North Iowa Corridor Economic Development Corporation (NIEDC) violated Iowa Code chapter 22 by failing to provide documents you requested as public records on May 19, 2014.
When contacted the NIEDC acknowledged that your request for records was not fulfilled. The NIEDC responded:
The North Iowa Corridor Economic Development Corporation is not a city, county or other political subdivision of the State of Iowa. As a check with the Secretary of State will confirm, the North Iowa Corridor EDC is an Iowa nonprofit corporation. The North Iowa Corridor EDC has member/investors which are governmental bodies as well as private members/investors. The North Iowa Corridor EDC is an entity separate from both its public and private members. The North Iowa Corridor EDC does not receive any support from property taxes. It is not the custodian of the public or private records of any of its public or private members. This request was not directed to the City of Clear Lake, or the City of Mason City or Cerro Gordo County, but to a nonprofit corporation which is not a governmental body as defined by Iowa Code section 22.1(1). Consistent with a number of Iowa Supreme Court rulings, the mere inclusion of public officials on non-profit boards of directors did not result in that non-profit corporations becoming subject to the Iowa Open Records law (i.e. Dubuque v. Dubuque Racing Association, Ltd., 1988). As such the North Iowa Corridor Economic Development Corporation is not a governmental body subject to the open records law and the present complaint should be dismissed.
Iowa Code section 22.1(1) defines a governmental body:
The term “government body” means this state, or any county, city, township, school
corporation, political subdivision, tax-supported district, nonprofit corporation other than a fair conducting a fair event as provided in chapter 174, whose facilities or indebtedness are supported in whole or in part with property tax revenue and which is licensed to conduct pari-mutuel wagering pursuant to chapter 99D; the governing body of a drainage or levee district as provided in chapter 468, including a board as defined in section 468.3, regardless of how the district is organized; or other entity of this state, or any branch, department, board, bureau, commission, council, committee, official, or officer of any of the foregoing or any employee delegated the responsibility for implementing the requirements of this chapter.
For the NIEDC, as a nonprofit, to be considered a governmental body pursuant to the statutory definition, it would need to be a nonprofit corporation whose facilities or indebtedness are supported in whole or in part with property tax revenue and licensed to conduct pari-mutuel wagering.
In Gannon v. Board of Regents, 692 N.W.2d 31 (Iowa 2005) the Supreme Court of Iowa was asked to decide whether a government body may outsource core functions to a private corporation, making that part of its operation nongovernmental and not subject to Iowa Code Chapter 22.   The court held that the Iowa State University Foundation, a recipient of such outsourcing, was performing a government function resulting in its records being subject to disclosure.
The court found that the Foundation was plainly performing a government function under its contract with ISU, and consequently Iowa Code section 22.2(2) mandates disclosure. Section 22.2(2) provides: “A government body shall not prevent the examination or copying of a public record by contracting with a nongovernment body to perform any of its duties or functions.”   A government body may not outsource one or more of its functions to a private corporation and thereby secret its doings from the public.  
The court further stated: “This is not to say the Iowa Freedom of Information Act mandates disclosure whenever a private organization happens to perform a duty or function of a government body.   Not every private entity performing an activity that may be characterized as a government function in theory must open its doors to public scrutiny.   Cases must also be viewed in their factual context.   Here there is an elaborate contractual arrangement between the government body and a private organization, through which the private organization and the government enjoy a highly interwoven and symbiotic relationship.   The Foundation is performing a government function in both a theoretical and a factual sense.” 692 N.W.2d at 43.
In Gannon the private corporation was in essence a creation of the government body, ISU. The Foundation had no other purpose then to perform fundraising activities and services for ISU. NIEDC is a membership organization comprised of both public and private members. It is funded from several separate public and private entities. Its private members greatly outnumber its public members. Of its twenty board members positions, public entities hold only seven ex-officio positions. Clearly no public entity or even a combination of public entities has the ability to control the activities of NIEDC. These facts do not support a finding of a “highly interwoven and symbiotic relationship” such as existed in the Gannon case.
Since the NIEDC does not meet the statutory definition of a governmental body and there is no known contractual relationship that would come within the purview of Gannon, its records are not public records and Chapter 22 does not apply. The IPIB only has jurisdiction over violations of Chapters 21 and 22.
Pursuant to Iowa Administrative Code Rule 497-2.1(3), the IPIB may delegate acceptance or dismissal of a complaint to the Executive Director. The decision of the Executive Director is subject to review by the Board.
Iowa Code Section 23.8 provides two options for action by the IPIB upon receipt of a complaint, the second of which states:
“Determine that, on its face, the complaint is outside its jurisdiction, is legally insufficient, is frivolous, is without merit, involves harmless error, or relates to a specific incident that has previously been finally disposed of on its merits by the board or a court. In such a case the board shall decline to accept the complaint. If the board refuses to accept a complaint, the board shall provide the complainant with a written order explaining its reasons for the action.”
For the reasons set forth above, it is therefore ordered that this complaint is dismissed on the grounds that the complaint is outside the jurisdiction of the IPIB.
A copy of this Order is being forwarded to the Iowa Public Information Board for review at its next scheduled meeting on June 19, 2014.
Keith Luchtel
Executive Director
Cc: IPIB
NICEDC