17DO:0001 - 08/17/2017 - Driesen and Erhman - Denial of Declaratory Order

Topics:

Declaratory Orders

17DO:0001

Date:  08/17/2017 Subject:  Driesen and Erhman - Denial of Declaratory Order Ruling: 

THE IOWA PUBLIC INFORMATION BOARD

 

 

Upon the Petition of:                                 )                       17DO:0001

                                                                         )

Jay Driesen and Raymond Erhman,                 )                           ORDER

Petitioners                                                   )

                                                                         )              

 

                                                       

At a duly noticed hearing on July 20, 2017, at 1:30 p.m., or as soon thereafter as available, the Iowa Public Information Board (IPIB) considered, pursuant to IAC 497-3.8, the Petition for Declaratory Order filed by the Petitioners, Jay Driesen and Raymond Erhman.  All nine members of the IPIB were present, either in person or electronically.  The Petitioners appeared by telephone.


The IPIB heard statements from Petitioner Jay Driesen and from Shayne Mayer, Lyon County Attorney.  Upon review of the statements and of the Petition, the IPIB issues the following Findings and Order:

FINDINGS:

  1. The Petition was properly filed on June 19, 2017, and served by the Petitioners pursuant to IAC rules 497-3.1 and 497-3.6.  
  2. Notice of today’s hearing was properly filed pursuant to IAC 497-3.2 and 497-3.6.
  3. No Petitions for Intervention were filed.
  4. The IPIB has jurisdiction of this matter pursuant to Iowa Code Chapters 22 and 23.   
  5. Petitioners requested that the IPIB issue a declaratory order pursuant to Iowa Code section 23.6(3) and Iowa Administrative Code 497-3, ordering that certain records held confidential by the Lyon County Sheriff and County Attorney be released.  The records requested include any communications between Amy Stoner, a deputy and employee of the Lyon County Sheriff, and Sheri McLerran, an employee with the Iowa Department on Aging.
  6. The IPIB, through its executive director, took action upon the Petition as directed in IAC 497-3.8, as required by Iowa Code section 17A.19(5) by setting today’s hearing.
  7. Petitioners and all interested parties were provided the opportunity to present a statement to the IPIB.
  8. A request for an advisory opinion (17AO:0005), pursuant to Iowa Code section 23.6(3) and IAC rules 497-1.2 and 1.3, was filed by Shayne Mayer, Lyon County Attorney, on June 6, 2017.  Said request seeks guidance as to the confidentiality of the same records at issue with the Petition for Declaratory Order.
  9. Iowa Code section 22.8(4)(c) allows the lawful custodian of a record to seek a determination of whether a requested record is a public record or a confidential record.
  10. Filing 17AO:0005 is properly before the IPIB, and, upon resolution, would resolve the issue raised by the Petition for Declaratory Order.
  11. The IPIB is currently prosecuting a contested case regarding records withheld by claiming confidentiality under Iowa Code section 22.7(5), peace officer investigative reports.  Resolution of this case could be dispositive of the issue posed by the Petition for Declaratory Order.
  12. IAC 497-3.9(1)(e) states that the IPIB β€œmay refuse to issue a declaratory order on some or all questions raised for the following reasons: … (e) The questions presented by the petition would more properly be resolved in a different type of proceeding or by another body with jurisdiction over the matter.”
  13. The issue raised by the Petition for Declaratory Order is more properly resolved by a Request for an Advisory Opinion or by the filing of a Formal Complaint with the IPIB.

 

IT IS THEREFORE ORDERED:

 

The the Iowa Public Information Board refuses to issue the declaratory order requested by the petitioners Jay Driesen and Raymond Erhman.


The Petition for Declaratory Order is dismissed.

BY DIRECTION AND VOTE OF THE BOARD    


Mary Ungs-Sogaard, Chair
E. J. Giovannetti
Keith Luchtel
Monica McHugh
Frederick Morain
William Peard
Julie Pottorff
Suzan Stewart
Renee Twedt

Issued:  _________________________