Date:
10/19/2017
Subject:
Roger Hanson/City of Duncombe - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Roger Hanson, Complainant And Concerning: City of Duncombe, Respondent |
Case Number: 17FC:0062
DISMISSAL ORDER
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COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order:
On August 28, 2017, Roger Hanson filed complaint number 17FC:0062, alleging that the City of Duncombe (City) violated Iowa Code chapters 21 and 22.
Specifically, he alleged that the City violated Iowa Code chapter 22 by failing to disclose records described as “receipts given to citizens for water and sewer and (his) personal water and sewer bills for (the) previous 5 years.” He also alleged that the City met in a closed session.
As to the public record violation, Mr. Hanson stated that sometime in 2015 someone paid a disputed late fee on his utility bill. He has been requesting a record indicating who paid his late fee since then. The City has responded that the payment was made anonymously, and the city has no record.
In addition, the City cites Iowa Code section 388.9A as the statute that governs release of utility records. The IPIB adopted this position by a formal opinion issued on November 14, 2013 (13FO:0003). That opinion states, in part:
This board’s jurisdiction is limited to interpretation and application of Code chapters 21 and 22. The question presented requires us to consider the relationship between Code sections 22.2 and 388.9A.
While we have no authority to render a binding interpretation of section 388.9A, we do have an obligation to address the application of section 22.2 to the records which are the subject of section 388.9A.
Section 388.9A does not provide that any records within its purview are no longer public records. The records affected by section 388.9A are limited to private customer records under the definition stated within the section. We conclude that those records are still public records subject to chapter 22. We believe that section 388.9A does, however, hold in abeyance application of the provisions of chapter 22 to private customer records which would otherwise be subject to inspection and copying. As to those records, the section 22.2 right to examine and copy is suspended at the discretion of the utility. In other words, section 388.9A is a grant of discretion to utilities concerning the release of specified information that otherwise would be subject to release as a matter of right under section 22.2.
Mr. Hanson alleged that the violation of Iowa Code chapter 21 occurred on Wednesday, June 10, 2015. He provided a copy of the agenda and minutes for that meeting. He claims that during that meeting the City decided to waive his late fee, which was not on the agenda or in the minutes. The City responded that this action was not on the agenda and that there was no vote.
The City also stated that Mr. Hanson has received copies of all of his utility records, except for older records that are no longer kept in the format he is requesting. The City switched computer programs about three years ago, and some older records are no longer available.
Mr. Hanson provided copies of audio recordings he made while visiting the City Clerk’s office in June and July of 2017. Neither recording established any violation of Chapter 21 or 22.
Both complaints are legally insufficient. In addition, the allegation of an open meeting violation in June of 2015 is beyond the 60 day jurisdictional limitation of Iowa Code section 23.7(1).
Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and have merit before the IPIB accepts a complaint. This complaint does not fulfill those requirements.
IT IS SO ORDERED: Formal complaint 17FC:0062 is dismissed as legally insufficient and beyond the jurisdiction of the IPIB pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b).
Pursuant to Iowa Administrative Rule 497-2.1(3), the IPIB may “delegate acceptance or dismissal of a complaint to the executive director, subject to review by the board.” The IPIB will review this Preliminary Order on October 19, 2017. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
_________________________________
Margaret E. Johnson
Dated this _____ day of _______, 2017.
Cc: Roger Hanson
City of Duncombe, attn. Lynda Wunder