15FC:0001 12/15/2016 Clark Kauffman / Black Hawk County Sheriff's Department - Probable Cause Report and Order

Date:
12/15/2016

Subject:
Clark Kauffman / Black Hawk County Sheriff's Department - Probable Cause Report and Order

Opinion:

Before the Iowa Public Information Board

SUMMARY:  Clark Kauffman filed a formal complaint against the Black Hawk County Sheriff’s Department alleging a violation of Iowa Code chapter 22.  The Iowa Public Information Board (IPIB) accepted the complaint on February 9, 2015.  Efforts by the previous IPIB Executive Director to informally resolve the complaint were unsuccessful.  Recommend that the IPIB find that probable cause does exist to believe that a violation occurred, but, as an exercise of administrative discretion, dismiss this complaint.

BACKGROUND and DISCUSSION

On January 7, 2015, Clark Kauffman filed a formal complaint with the Iowa Public Information Board (IPIB).  He alleged that the Black Hawk County Sheriff violated Chapter 22 of the Iowa Code by posting on the website that a subpoena is necessary to request a police report.  He stated the violation occurred on January 7, 2015, the same date as his complaint.  He noted that he had raised this complaint with Black Hawk County in July 2014 and was promised that the matter would be remedied.  In addition, he contacted the Sheriff’s Office by telephone and was told by Cindy Kirchoff, an employee of the Sheriff’ Department, that he would need a subpoena.

Peter Burk of the Civil Division of the Black Hawk County Attorney Office provided a written response on January 22, 2015, noting that he had met with the command staff and advised them to remove this language from the website.  This was accomplished at that time.  He further stated in his response that “the advice given to Mr. Kauffman was incorrect and the web site contained requirements for obtaining records that would not be in compliance with the open records law of the State of Iowa.”

This information was provided to Mr. Kauffman on January 22, 2015, with a request that Mr. Kauffman advise the IPIB as to whether he wished to pursue his complaint further, since the website had been changed and the county acknowledged he was correct.  He stated that the facts remain that the website was incorrect, and he would not withdraw his complaint:  “I don’t intend to take any further action.  I’ll leave it to the board to decide whether willful – and thoroughly documented – violations of the law are deserving of any action by the board itself.”

The IPIB accepted this complaint on February 19, 2015.  Pursuant to Iowa Code section 23.9, the then-Executive Director, Charlie Smithson, worked with the parties to resolve the matter informally.  The Executive Director filed an Investigative Report and Recommendations with the IPIB on August 17, 2016.  In that report it was recommended that the IPIB make a finding of probable cause, but dismiss the complaint as an exercise of administrative discretion.  He also recommended that staff ensure that the incoming Black Hawk County Attorney was aware of this requirement and that the IPIB continue to communicate this position to law enforcement agencies.

At the August 20, 2015, IPIB meeting, the Board voted to refer the case back to staff for further investigation and to report back in September 2015.  There were concerns expressed that the fees charged by the Sheriff’s Department might not be in line with Iowa Code section 22.3.  The Sheriff’s Department had noted a charge of $10.00 per report, without deference as to the ‘actual costs’ limitations of Iowa law.

Technically, a subpoena does release law enforcement reports.  As stated by Iowa Code section 22.7:  “The following records shall be kept confidential, unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information:... (5) Peace officer’s investigative reports….”  (Emphasis added)  Confidential records can be released by a subpoena issued by the Court.

While a government body can charge for a record release, Iowa Code section 22.3 requires that any such fees not exceed the actual costs associated with the record retrieval and release.

The Sheriff’s Department website now notes that the fee for records is $10.00, with the specific qualifier that “all costs shall not exceed the actual cost of providing the service”.  Rather than imposing a minimum fee, the schedule now imposes a maximum fee.  This meets the requirements of Iowa Code section 22.3.

The IPIB has consistently advised government bodies of the statutory requirement to limit fees imposed for record retrieval, supervision, or release to the actual costs involved.   This advice is provided on the IPIB website, in IPIB advisory opinions and columns, and in IPIB training.

RECOMMENDATION

The IPIB has several options upon receipt of a probable cause report.  According to Iowa Administrative Rule 497 - 2.2(4):

“Board action. Upon receipt and review of the staff investigative report and any recommendations, the board may:

a. Redirect the matter for further investigation;
b. Dismiss the matter for lack of probable cause to believe a violation has occurred;
c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or
d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding”.

In this matter, there is probable cause to believe that a violation occurred.  However, the violation has been remedied, and little would be gained by going forward with a contested case filing.  It is therefore my recommendation that the IPIB make a finding that probable cause does exist and dismiss the complaint as an exercise of administrative discretion pursuant to Iowa Administrative Rule 497 – 2.2(4)(c).

Respectfully submitted this 8th day of December, 2016.

Margaret E. Johnson, JD
Interim Executive Director

Cc:       IPIB
            Clark Kauffman
            Black Hawk County Sheriff
            Black County Attorney, c/o Peter Burk