Date:
09/15/2016
Subject:
Abigail Sojka / Highland Community School District - Probable Cause Report and Order
Opinion:
Before the Iowa Public Information Board
|
In re the Matter of: Abigail Sojka, complainant And concerning: Highland Community School District |
Case Number: 16FC:0047 PROBABLE CAUSE |
RE: Formal Complaint 16FC:0047, filed by Abigail Sojka against the Highland Community School District (HCSD) alleging a violation of Iowa Code Chapter 22, public records. The Iowa Public Information Board (IPIB) accepted the complaint on June 16, 2016. Staff attempted to reach an informal resolution pursuant to Iowa Code section 23.9, which was unsuccessful. Pursuant to Iowa Code section 23.10, further investigation was conducted, and this probable cause report prepared. I recommend that the IPIB enter a finding of no probable cause to file a contested case and dismiss this complaint.
Background
On May 15, 2016, Ms. Sojka filed a complaint against the Highland Community School District (HCSD). In this complaint, she questioned the validity of HCSD policy to review the records requested by HCSD support staff and by the HCSD superintendent and to charge a fee for the reviews.
In the record request at issue in this complaint, Ms. Sojka requested “all correspondence between all members of the School Board from one member to another member, including the Superintendent and all his correspondence between each board member from May, 2015 through February, 2016.”
The school superintendent responded that the cost of fulfilling the record request was estimated at $1585.00. The response stated:
The District’s technology service, Iowa Solutions, has estimated that there are approximately 3700 pages of emails. Each email has to be reviewed individually to make certain that each email or attachment does not inadvertently include information protected by Federal Law (FERPA,) State law (Chapter 22), or Attorney client privilege. That will require an initial review by Highland support staff and a final review by the Superintendent.
Here is a breakdown of the estimated costs to produce these records:
Cost for Iowa Solutions $75 per hour for 5 hours= $375
Cost for initial review by Highland support staff $10.20 per hour for 60 hours = $612
Cost for Superintendent for final review @ $59 per hour for 8 hours =$472
Paper cost $15
Copier cost $111
Total = $1585.00
(Note: During the discussions concerning the specifics of the email request, it was determined that the number of emails retrieved would be over 11,000 pages, not 3700. Therefore the estimated costs for retrieval would be $4,137.00.)
HCSD has a policy in place for record requests that does not set specific costs for retrieving and reviewing records prior to release. These costs are recoverable pursuant to Iowa law, if based upon actual costs. The costs outlined in the HCSD estimate are not out of the ordinary. Ms. Sojka has requested a large number of records. Emails requested would routinely (and perhaps exclusively) contain identifiable student records deemed confidential by the Family Educational Rights and Privacy Act (FERPA).
The IPIB accepted this complaint on June 16, 2016. Efforts to reach an informal resolution have been unsuccessful. Ms. Sojka does not agree to pay any review costs. She only agrees to the actual costs of the materials required to make copies. Counsel for HCSD stated that the review and redaction costs indicated in the estimate reflect the actual costs for the examination and copying of the requested records as allowed by Iowa Code section 22.3.
Discussion
Iowa Code section 22.3 outlines the fees allowable under Iowa Law for release of a public record. That section states:
22.3 Supervision—fees.
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.
Ms. Sojka argues that the Iowa Supreme Court, in Rathman v. Board of Directors of Davenport Community School District, 580 N.W.2d 773, 779 (Iowa 1998) supports her position when the Court held, “We conclude that allowing entities covered under chapter 22 to charge members of the public a fee to cover the cost of retrieving public records is consistent with the purpose and meaning of Iowa Code section 22.3.”
However, this case also supports incorporating review costs as necessary to determine which records are public and not confidential. The fees estimated by HCSD are specifically for the purpose of retrieving public records. An integral part of the retrieval process is determining whether the records requested are public or instead confidential under Iowa Code section 22.7, other Iowa laws, or federal laws.
As determined by the IPIB on December 18, 2014, by the IPIB dismissal report in 14FC:0075, In re Alysia Santo:
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 l
awful 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). (See IPIB website, www.ipib.iowa.gov, Rulings/Formal Complaints, page 3)
Ms. Sojka does not cite other authority to support her position. Counsel for Ms. Sojka was provided with various advisory opinions from the IPIB website and the Iowa Attorney General website that would support charging fees for retrieval of records and review to determine confidentiality or other redaction requirements.
FERPA laws restrict the release of any student record with student names or personally identifiable student information. Identifiable information could be simple, such as a student’s name, or more intricate, such as ‘sophomore male in a third period math class.’ It would require the review by a person who understands both FERPA requirements and the detailed specifics of the unique student population and school procedures at the school in question.
In addition to FERPA, Iowa Code section 22.7(1) states certain school records are confidential: “Personal information in records regarding a student, prospective student, or former student maintained, created, collected or assembled by or for a school corporation or educational institution maintaining such records.” Again, such review would require a knowledge base beyond clerical or information technology level.
There is no evidence to indicate that the fee associated with the review by the superintendent is more than the actual cost of this service. It is based upon the estimated amount of review time multiplied by the hourly base of the superintendent’s salary, minus those costs not allowable by Iowa law, such as “employment benefits, depreciation, maintenance, electricity, or insurance associated with the administration of the office of the lawful custodian.” (See Iowa Code section 22.3(2))
In addition, HCSD has “(r)easonably relied upon a decision of a court, a formal opinion of the Iowa public information board, the attorney general, or the attorney for the government body, given in writing, or as memorialized in the minutes of the meeting at which a formal oral opinion was given, or an advisory opinion of the Iowa public information board, the attorney general, or the attorney for the government body, given in writing,” a bar to imposing damages for a violation of Iowa Code chapter 22 (Iowa Code section 22.10(3)(b)(3)).
IPIB Action
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”.
Recommendation
There is insufficient evidence to support a finding of probable cause for a violation of Chapter 22. I recommend dismissal.
Respectfully submitted this 30th day of August, 2016.
Margaret E. Johnson, JD
Deputy Director
Iowa Public Information Board
Wallace Building, Third Floor
502 E. 9th Street
Des Moines, Iowa 50319
(515) 725-1783
(515) 725-1789 (fax)
Margaret.Johnson@iowa.gov
www.ipib.iowa.gov
Cc: IPIB
Abigail Sojka
David Roston, counsel for Ms. Sojka
Highland Community Schools, Christopher Armstrong, superintendent
C. Joseph Holland, counsel for Highland Community Schools