Alysia Santo / Iowa Department of Corrections - Chapter 22
Iowa Public Information Board
In re the Matter of:
Alysia Santo, complainant
Iowa Department of Corrections
Case Number: 14FC:0075
Formal Complaint 14FC:0075, filed by Alysia Santo, concerning a potential public records violation by the Iowa Department of Corrections. Recommend dismissal as legally insufficient.
On September 9, 2014, Alysia Santo filed a complaint with the Iowa Public Information Board (IPIB). The two-part complaint alleged that the Iowa Department of Corrections (DOC) violated chapter 22 of the Iowa Code in regards to her request for “all survey of sexual violence incident forms and summary forms from the years 2004 through 2013 reported to the federal government pursuant to the Prison Rape Elimination Act.” The records requested will be used for an upcoming article for the Marshall Project. The Marshall Project is a “not-for-profit, non-partisan news organization dedicated to covering America’s criminal justice system.”
The complaint is divided into two parts. The first part of the complaint alleged that the DOC violated chapter 22 of the Iowa Code when the DOC denied the initial request for the records. The DOC argued that the records requested were confidential under the Prison Rape Elimination Act (PREA) of 2003, Iowa Code subsection 22.7(11)(a), and Iowa Code subsection 904.602(10). The IPIB only has jurisdiction over Iowa Code Chapters 21 and 22.
After the complaint was filed, the DOC, at the urging of the IPIB, worked with Ms. Santo to try to reach an informal resolution. The DOC offered the redacted records in response to the request, for a fee of $2106. After a recalculation of the costs, the DOC reduced its fee to $2020.80.
The DOC offered the records that were requested, with the redactions necessary to avoid violating the state and federal laws noted earlier. The IPIB Executive Director dismissed this part of the complaint in a letter dated October 30, 2014.
The second part of the complaint alleged that the DOC violated chapter 22 of the Iowa Code by charging excessive fees. Iowa Code Subsection 22.3 addresses fees relating to the reproduction of public records.
1. The examination and copying of public records shall be done under the supervision of the lawful custodian of the records or the custodian's authorized designee. The lawful custodian shall not require the physical presence of a person requesting or receiving a copy of a public record and shall fulfill requests for a copy of a public record received in writing, by telephone, or by electronic means. Fulfillment of a request for a copy of a public record may be contingent upon receipt of payment of expenses to be incurred in fulfilling the request and such estimated expenses shall be communicated to the requester upon receipt of the request. The lawful custodian may adopt and enforce reasonable rules regarding the examination and copying of the records and the protection of the records against damage or disorganization. The lawful custodian shall provide a suitable place for the examination and copying of the records, but if it is impracticable to do the examination and copying of the records in the office of the lawful custodian, the person desiring to examine or copy shall pay any necessary expenses of providing a place for the examination and copying.
2. All expenses of the examination and copying shall be paid by the person desiring to examine or copy. The lawful custodian may charge a reasonable fee for the services of the lawful custodian or the custodian's authorized designee in supervising the examination and copying of the records. If copy equipment is available at the office of the lawful custodian of any public records, the lawful custodian shall provide any person a reasonable number of copies of any public record in the custody of the office upon the payment of a fee. The fee for the copying service as determined by the lawful custodian shall not exceed the actual cost of providing the service. Actual costs shall include only those expenses directly attributable to supervising the examination of and making and providing copies of public records. Actual costs shall not include charges for ordinary expenses or costs such as employment benefits, depreciation, maintenance, electricity, or insurance associated with the administration of the office of the lawful custodian.
(Underlining indicates significant additions to statute in 2005.)
Pre-dating the current version of Iowa Code section 22.3, the Iowa Supreme Court in Rathmann vs. Board of Directors of the Davenport Community School District, 580 N.W.2d 773 (Iowa 1998), addressed a similar issue. This court opinion influenced the current version of section 22.3. It also articulated the legal approach that can be expected to apply to future issues on these points. The court in Rathmann stated the following:
“Reading the statute as a whole, we conclude that the provisions of section 22.3 generally contemplate reimbursement to a lawful custodian of public records for costs incurred in retrieving public records. We find the phrase “all expenses of such work” to be especially significant and indicative of the legislature's intent that a lawful custodian has the authority to charge a fee to cover the costs of retrieving public records. Thus, access to public records does not necessarily mean “free” access. We recognize that permitting entities covered under chapter 22 to charge members of the public a fee to cover the cost of retrieving public records does, to some extent, limit public access to public records. While the legislature did not intend for chapter 22 to be a revenue measure, at the same time it did not intend for a lawful custodian to bear the burden of paying for all expenses associated with a public records request.” Rathmann v. Bd. of Directors of Davenport Cmty. Sch. Dist., 580 N.W.2d 773, 778-79 (Iowa 1998).
The DOC’s revised calculation of costs for the requested records is $2020.80. The DOC reviewed and redacted 2672 pages from 324 cases that met the request. Copying costs are $0.15 per page; a total of $400.80 for 2672 pages. Each case takes 20 minutes to review, make necessary redactions and copy. The DOC charged an actual cost fee of $15 an hour for the employee time required to provide the services, resulting in a search fee of $1620.
In the October 30, 2014, letter, the IPIB Executive Director determined that it was not unreasonable for the DOC to charge $2080.80 as the cost incurred to fulfill the request and dismissed the second part of the complaint, pursuant to Iowa Administrative Code Rule 497-2.1(3), which delegates acceptance or dismissal of complaints to the Executive Director.
At the November 20, 2104, IPIB meeting, the Board withdrew the dismissal order and returned the complaint to IPIB staff for further review and investigation. Subsequent to that meeting, both the complainant and respondent were contacted and asked to provide additional information.
Ms. Santos responded that the records were requested from the state rather than from the federal government because “the federal government is exempt under PREA from providing them.” As to the allegation that other states were more accommodating, she responded:
“32 (sic) states have provided these documents, so far, with absolutely no redaction. I expect most of the other states to eventually have a similar response. Most of the over 30 states that fulfilled the request scanned and sent the documents to me over email. Some put the records on a CD and mailed it to me that way. A couple states sent them in the mail in paper format. Most of the over 30 states that provided the records did so entirely for free, yet about a half dozen charged me less than $50. The state of California, meanwhile, (which charged $50) redacted just the date of the incident from the documents, which I was fine with, because it left intact the rest of the information within the document (like the facility’s name). To be clear, I strongly prefer unredacted documents, but I suggest Iowa’s DOC consider a similar route to California if there is such concern over releasing the documents completely unredacted. In most of the other 20 states, my request is still pending. Tennessee and Montana have denied my request, but they have a blanket policy that only residents of the state can make records requests. There are a handful of states that tried to charge an exorbitant cost, such as Michigan, which took second place to Iowa with a cost estimate of $700.”
Michael Savala, counsel for the DOC, noted in his response that Ms. Santos did receive, without charge, the documents required to be prepared and filed with the federal government under PREA. The underlying documents, however, would violate the confidentiality protection that the PREA legislation provides to victims and to offenders. He outlined the history of the PREA legislation and the federal rationale for establishing this confidentiality in a letter dated December 5, 2014 (attached).
Mr. Savala also explained the procedure necessary to redact the identifying information from each four to five page report:
“In terms of the staff time of 20 minutes per individualized incident to process the request, the DOC followed their policy, which charges $15.00/hr for staff time and $0.15 cents per page copy fee to the public. The staff time consisted of administrative staff searching for the record, reviewing the record, using white-out tape for redaction, making a copy of the redacted report (since the white-out tape can be removed), having the redacted reports reviewed by our DOC PREA coordinator to ensure accuracy, and processing the material for mailing. This information is extremely sensitive and confidential in the prison environment and goes to the core of the Iowa DOC statutory and legal duty to keep inmates in our custody safe and the 20 minute processing time for each case was quite reasonable.”
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 recommended that the IPIB dismiss this complaint as legally insufficient.
A copy of this Report is being forwarded to the Iowa Public Information Board for review at its next scheduled meeting on December 18, 2014.
Respectfully Submitted this 8th day of December,
Margaret E. Johnson, JD
Michael Savala, DOC
Fred Scaletta, DOC