Date:
11/20/2014
Subject:
Christine Kirkwood / City of Riverside - Chapter 22
Opinion:
Formal Complaint 14FC:0084 filed by Christine Kirkwood, concerning a complaint against the City of Riverside. Complaint dismissed as legally insufficient and without merit.
October 23, 2014
Christine Kirkwood
PO Box 197
Schnoebelen Street By Email Only
Riverside, IA 52327
Dear Ms. Kirkwood:
On October 9, 2014, you filed a formal complaint with the Iowa Public Information Board (IPIB) alleging that the City of Riverside (City) violated Iowa Code Chapter 22 by refusing to provide copies of records you requested. Although you are a city council member, you also have the right to request public records as a private citizen. The IPIB has jurisdiction over violations of Iowa Code Chapter 22, the open records law, but not over other statues that govern your prerogatives as a council member. Your complaint can only be evaluated as it pertains to rights afforded you by Chapter 22 as a private citizen and not as a council member. Questions concerning your access to information based upon your status as a council member cannot be addressed.
You indicated that you requested a color version of the City’s zoning map on October 6, 2014, and received that on October 8, 2014. This response by the City does not constitute a violation of Iowa Code Chapter 22.
The remainder of your complaint is based upon a records request you initiated on September 15, 2014. You requested:
1. An “updated accounting of all pay advances, when granted, amount, when paid back” for fiscal years 2013/2014 and 2012/2013.
2. “Listing of checks and amounts for all payroll salary paid to employees – every month to be provided with the bank statements, July 2014 through June 2015”
3. “Check number and amounts of water deposits returned every month with bank statements July 2014 through June 2015.”
During subsequent email communication, you amended your record request to:
1. “Access to review all bills, paid and unpaid before they come before the council for approval.”
2. “Copies of the bills that have expenditures I have questions about.”
3. “Access to review the bank statement, reconciliations, and uncleared checks report every month.”
4. “Copies of the pay stubs.”
As a public official, you may be eligible to review materials that are not available to the general public. You may also receive copies of materials related to your office without charge. However, when you request a public record as a citizen, the provisions of Iowa Code Chapter 22, including the payment of the expense of fulfilling the request, apply to you as they would to any citizen.
The City has stated that bills addressed in paragraph one of your amended request are available to you as a citizen. You are entitled to them and the city is entitled to recover its costs, if any, of making them available for examination and copying. Since they are likely in the immediate possession of the custodian of those records, there should be no charge for merely examining them. If copies are desired, you should expect to be charged as would any citizen.
Paragraphs two, three and four of your amended request are prospective in nature. They seek records expected to exist at some time in the future. Potential prospective violations of Iowa Code Chapter 22 cannot be addressed by the IPIB. Iowa Codes subsection 23.7(1) only allows the IPIB to investigate complaints filed “within sixty days from the time the alleged violation occurred….” To have jurisdiction, the alleged violation must have occurred. Your prospective complaints are untimely for IPIB review. To the extent “Copies of the pay stubs” (paragraph 4) addresses existing pay stubs, the following analysis and comments apply.
Pay stubs generally, are considered confidential employee personnel records pursuant to section 22.7(11). There is no universal form of pay stub of which we are aware. We assume there may be pay stubs that do not contain any information confidential under section 22.7(11). For our purposes that assumption is of little relevance. Section 22.7(11) is unusual in that it addresses “information” as opposed to focusing on the record containing the information.
Iowa Code subsection 22.7(11) states:
11. a. Personal information in confidential personnel records of government bodies relating to identified or identifiable individuals who are officials, officers, or employees of the government bodies. However, the following information relating to such individuals contained in personnel records shall be public records:
(1) The name and compensation of the individual including any written agreement establishing compensation or any other terms of employment excluding any information otherwise excludable from public information pursuant to this section or any other applicable provision of law. For purposes of this paragraph, “compensation” means payment of, or agreement to pay, any money, thing of value, or financial benefit conferred in return for labor or services rendered by an official, officer, or employee plus the value of benefits conferred including but not limited to casualty, disability, life, or health insurance, other health or wellness benefits, vacation, holiday, and sick leave, severance payments, retirement benefits, and deferred compensation.
(2) The dates the individual was employed by the government body.
(3) The positions the individual holds or has held with the government body.
(4) The educational institutions attended by the individual, including any diplomas and degrees earned, and the names of the individual’s previous employers, positions previously held, and dates of previous employment.
(5) The fact that the individual was discharged as the result of a final disciplinary action upon the exhaustion of all applicable contractual, legal, and statutory remedies. (Emphasis added.)
While the paystub in this matter is a confidential personnel record, the information noted above – compensation agreements and benefit information, dates employed, position held, education, previous employment, disciplinary action resulting in discharge – is public information. As a citizen, you are entitled to this information, but not to a copy of an employee pay stub or other record containing it. The City has stated you will be given the public information to which you are entitled from the personnel records regardless of where it appears in those records. By asking only for pay stub information you may be actually limiting the information available to you if the city were to strictly interpret your request.
Pursuant to Iowa Administrative Code Rule 497-2.1(3), the IPIB has delegated 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 the complaint is dismissed on the grounds that the alleged violation of chapter 21 is legally insufficient and without merit.
A copy of this Order is being forwarded to the Iowa Public Information Board for review at its next scheduled meeting on November 20, 2014.
Sincerely,
Keith Luchtel
Executive Director
Cc: IPIB
City of Riverside, Rusty Rogerson, City Manager
William Sueppel, attorney for City of Riverside