16FC:0073 03/16/2017 Erich Riesenberg / City of Des Moines - Probable Cause Order

Date:
03/16/2017

Subject:
Erich Riesenberg / City of Des Moines - Probable Cause Order

Opinion:

The Iowa Public Information Board

This Matter came before the Iowa Public Information Board (IPIB) this 16th day of March, 2017, to consider the probable cause report filed on March 3, 2017.  Based upon the decision of the Board the following findings and orders are entered:

1. On August 9, 2016, Erich Riesenberg filed this complaint with the IPIB, alleging a violation of Chapter 22 of the Iowa Code by the City of Des Moines (City).Specifically, Mr. Riesenberg alleged that the City violated Chapter 22 by failing to provide copies of public records he requested on July 24 and 25, 2016.

2. On August 19, 2016, the City informed Mr. Riesenberg that there were no records responsive to one of his requests.On August 31, 2016, following additional information from Mr. Riesenberg, the City found an email responsive to his request and so notified Mr. Riesenberg.

3. On September 26, 2016, the City provided a response to the complaint.Some of the requests had been fulfilled.According to the City, one was awaiting pre-payment of one-half of the expenses as it required substantial research and review work.

4. The IPIB accepted this complaint on December 15, 2016. Efforts to reach an informal resolution pursuant to Iowa Code section 23.9 were unsuccessful.

5. The City was asked by IPIB staff to go through all record requests and deposit payments received since July 2016 and audit the status of all requests.In doing so, the City determined that a payment received from Mr. Riesenberg on September 21, 2016, was the deposit required for the disputed records.The records were compiled, and Mr. Riesenberg was notified that the records were available on February 6, 2017.He paid the balance due, and the records were mailed to him on February 14, 2017.

6. 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, or
        e. Direct administrative resolution of the matter under subrule 2.1(6) without making a determination as to whether a violation occurred.
   7.  There is no relevant factual dispute concerning the actions alleged in the complaint.Public records were not timely released as required by Iowa 
         law.  Probable cause, as defined in the previous paragraph, does
         exist to believe a violation of Iowa Code chapter 22 has occurred.
   8.  IPIB has jurisdiction over Iowa public records law as codified under Chapter 22, including the determination of whether any asserted affirmative
        defense is valid.The burden is on the respondent to establish the validity of an affirmative defense.
   9.  The IPIB finds that probable cause exists to believe a violation has occurred.
  10. The City delayed the release of the records from September 21, 2016, to February 6, 2017.Although it was difficult to keep track of the various
         record requests and payment receipts, the City could have organized the record requests, payments, and releases in such a way as to avoid
         the delay.However, Mr. Riesenberg has received the records, which is what he listed as his term for resolution of the complaint.There is nothing
         to be gained by proceeding further with a contested case.

IT IS THEREFORE ORDERED:

There is no relevant factual dispute concerning the actions alleged in the complaint.  Public records were not released in a timely manner. Probable cause, as defined in the previous paragraph, does exist to believe a violation of Iowa Code chapter 22 has occurred.

However, the records have now been released. Therefore, the IPIB determines that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismisses the matter, pursuant to Iowa Administrative Rule 497 – 22.4(c).

 SO ORDERED this 16th day of March, 2017.

_(signed)_____________________________________
IPIB chair

Cc:       IPIB
            Eric Riesenberg
            Doug Philiph, counsel for the City of Des Moines