Date:
01/18/2018
Subject:
Clark Kauffman/Polk County Assessor - Revised Probable Cause Report and Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Clark Kauffman, Complainant And Concerning: Polk County Assessor, Respondent |
Case Number: 17FC:0029 Revised Probable Cause Report |
COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and submits this Probable Cause report pursuant to Iowa Code section 23.10(1):
Background Information
On April 7, 2017, Clark Kauffman filed a formal complaint alleging that the Polk County Assessor (Assessor) violated Iowa Code chapter 22 by failing to release certain public records. Specifically, he alleged that the Assessor violated Iowa Code by refusing to provide a list of property owners who had requested that their property information not be accessible through a âname searchâ on the website.
On March 28, 2017, Mr. Kauffman asked to visit the Assessorâs office and look at the list of those individuals who requested this protection. The Assessor responded on March 29, 2017, stating that the requested information was withheld as confidential information pursuant to Iowa Code section 22.7(18).
The Polk County Attorneyâs Office contacted the IPIB on April 13, 2017, indicating that the Assessor was advised that the county policy is appropriate and does allow certain individuals to request that the âname searchâ feature on the website be disabled. In addition, the county attorney considers the names of the persons seeking this confidentiality to be also confidential.
The IPIB accepted this complaint on May 9, 2017. Pursuant to Iowa Code section 23.9, efforts were made to reach an informal resolution. An informal resolution was not reached. Additional review and research was conducted, and this probable cause report prepared.
Analysis
Clark Kauffman, a reporter for the Des Moines Register, on March 28, 2017, asked the Polk County Assessorâs Office for a list of the 2,166 property owners in Polk County who filed a written request with the county asking that the property ownerâs name be removed from the assessorâs website search function.
Polk County, as do other Iowa counties, has a search feature on the Assessorâs website that allows anyone to find the address of a county resident by searching a residentâs name. Iowa law does not require that each county have this search feature. Polk County, as well as a few other Iowa counties, honors requests from county residents to disable access on the website through the name feature. The property records continue to be accessible by address, at which time the property ownerâs name is disclosed.
Complete county property records are available upon request from the Assessor by an individualâs name, as required by Iowa Code chapter 22. The records are not withheld from release, but are not available for review on the county website when searching by an individualâs name.
Mr. Kauffmann requested that the Assessor create a list of all those Polk County property owners who have asked to remove property information from the website. The Assessor declined to release a list, stating that the identifying information would be confidential pursuant to Iowa Code section 22.7(18), which reads:
22.7 Confidential records.
The following public 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:
...18. Communications not required by law, rule, procedure, or contract that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them to that government body if they were available for general public examination. As used in this subsection, âpersons outside of governmentâ does not include persons or employees of persons who are communicating with respect to a consulting or contractual relationship with a government body or who are communicating with a government body with whom an arrangement for compensation exists. Notwithstanding this provision:
a. The communication is a public record to the extent that the person outside of government making that communication consents to its treatment as a public record.
b. Information contained in the communication is a public record to the extent that it can be disclosed without directly or indirectly indicating the identity of the person outside of government making it or enabling others to ascertain the identity of that person.
c. Information contained in the communication is a public record to the extent that it indicates the date, time, specific location, and immediate facts and circumstances surrounding the occurrence of a crime or other illegal act, except to the extent that its disclosure would plainly and seriously jeopardize a continuing investigation or pose a clear and present danger to the safety of any person. In any action challenging the failure of the lawful custodian to disclose any particular information of the kind enumerated in this paragraph, the burden of proof is on the lawful custodian to demonstrate that the disclosure of that information would jeopardize such an investigation or would pose such a clear and present danger.
The Assessorâs website describes the website search feature as a service offered to property owners to allow increased access and availability over that required by state law. The Assessor notes that some property owners were concerned about the search capabilities of the website and addresses this concern by stating:
However, the fresh air of public access can also create some discomfort. We've had several complaints from people who were concerned that our site was making it too easy for someone to find where they live. Also, weâve discovered that displaying appraiser comments about a property was creating problems since many comments werenât dated or couldn't be traced to a particular appraiser. "Basement leaks" with no date could be misleading, especially where the moisture problems were repaired long ago. We are deleting the comments and, going forward, will post them only if dated and coded with the appraiser's initials.
In order to address the concerns of those who do not want us to make it that easy for someone to find where they live, we have decided to disable the name search capability for an individual upon written request. These requests will be considered confidential. The names of the owners will remain on the property record but simply will not appear in an attempt to search the files by name. Those who wish to avail themselves of this option are reminded that there are several private search services that can be utilized to locate individuals. Also the request should be made for a specific parcel and, if the parcel changes by virtue of a consolidation of two parcels or division of an existing parcel, a new request must be submitted. The requests must be signed and made in writing.
Mr. Kauffmann provided a copy of a Des Moines Register article written in 2000 about the âname searchâ capability of the Assessor website. This article showcased the ability for property owners to request removal from the âname searchâ feature on the website.
The Polk County Attorneyâs office also provided additional information:
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There is not a specific form that a property owner fills out to request removal from the name search feature on the website.
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Written requests are not saved.
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There is not an actual list of the people who have requested to be removed from the name search feature; however, the Assessor could search and create such a list.
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The name, address, and other property information is available as a public record at the Assessorâs office. This public record can be requested by telephone, in writing, or by visiting the Assessorâs office.
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The website feature offered by the Assessor is not required by Iowa Code chapter 22.
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The Assessor does not inquire about nor require that a property owner provide a reason for requesting removal from the name search feature.
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The county attorneyâs office is statutorily obligated to represent the Assessorâs office, however, Iowa Code section 441.17(4) requires that the Assessor âobey and execute all orders, directions, and instructions of the director of revenue.â As a result, the county attorney does not have the authority to direct the actions of the Assessor.
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Funding for the office of the Assessor and the appointment of the Assessor is determined by the Conference Board, an independent political subdivision, pursuant to Iowa Code section 441.6.
The IPIB interprets applicability of Iowa Code section 22.7(18) in this manner in a âFrequently Asked Question (FAQ)â on its website:
To summarize, a communication to a government body can be kept confidential under 22.7(18) only if all of the following exist:
(1) The communication is not required by law, rule, procedure, or contract.
(2) It is from identified persons outside of government.
(3) The government body could reasonably believe those persons would be discouraged from communicating with government if the information was made public.
Previous IPIB review of Iowa Code section 22.7(18) has focused on the issues of whether job applications are confidential (yes) and whether the names of volunteers at a public hospital are confidential (no).
The Assessor has not provided any background information about whether the persons requesting removal from the search feature on the website meet the criteria noted above. In particular, it is unlikely that the release of the information would deter individuals from requesting the service. Those names would still not be searchable on the website, and the protection provided would still exist.
At this time, it appears that there is probable cause to believe that the failure to release the requested records is a violation of Iowa Code chapter 22.
IPIB Action
The IPIB has several options upon receipt of a probable cause report. According to Iowa Administrative Rule 497 - 2.2(4):
âBoard 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;
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.â
Recommendation
There is sufficient evidence to support a finding of probable cause for a violation of Chapter 22. I recommend that the IPIB either enter a finding of probable cause and determine whether to dismiss the complaint as an exercise of administrative discretion (rule 497-2.2(4)(c)), enter a finding of probable cause and direct filing of a contested case proceeding (rule 497-2.2(4)(d)), or direct certain resolution of the matter without making a determination as to whether a violation occurred (rule 497-2.2(4)(e)).
Respectfully submitted this ___ day of _______, 2018.
___________________________________
Margaret E. Johnson, JD
Executive Director
Iowa Public Information Board
Wallace Building, Third Floor
502 E. 9th Street
Des Moines, Iowa 50319
(515) 725-1783
(515) 725-1789 (fax)
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ____ day of _________, 201_, to:
Clark Kauffman
David Hibbard, counsel for the Polk County Assessor