Date:
04/19/2018
Subject:
Kenneth Turner/City of Bloomfield - Revised Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Kenneth W. Turner, Complainant And Concerning: City of Bloomfield, Respondent |
Case Number: 17FC:0089 REVISED DISMISSAL ORDER
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COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Revised Dismissal Order:
On December 1, 2017, Kenneth W. Turner filed formal complaint 17FC:0089 against the City of Bloomfield (City). In his complaint, he alleged that the City violated Iowa Code chapter 22 by failing to allow access to a City record. He requested that the City produce the record and that the IPIB punish the violators.
On November 28, 2017, he requested information from a contract between the City and the Iowa Wind and Solar Company. He was informed the information requested was confidential, but was not provided with a statutory reference supporting this. The City then sought guidance from the city attorney.
The City was notified of this complaint on December 1, 2017. On December 4, the City filed a response through counsel. Mr. Turner was notified of this response by letter, as he does not have access to the internet or to a facsimile machine. This response was provided four business days after his request. There is no evidence that the response from the City was not timely.
The City’s response noted that the requested record is confidential under Iowa Code section 22.7(3) which reads: “Trade secrets which are recognized and protected as such by law.” The City explained that the contract contains information regarding operational details of the project, pricing information, and design -- all of which fall within the definition of trade secrets pursuant to Iowa Code chapter 550.
The Iowa Association of Municipal Utilities provided additional information concerning Iowa Code chapter 388, the code chapter that governs municipal utilities, such as the one owned and operated by the City. He noted that Iowa Code sections 388.9(2)(a) and (b) also govern any potential release of this record:
2(a). Notwithstanding section 22.2, subsection 1, public records of a city utility or combined utility system, or a city enterprise or combined city enterprise as defined in section 384.80, which shall not be examined or copied as of right, include proprietary information, records of customer names and accounts, records associated with marketing or pricing strategies, preliminary working papers, spreadsheet scenarios, and cost data, if the competitive position of the city utility, combined utility system, city enterprise, or combined city enterprise would be harmed by public disclosure not required of a potential or actual competitor, and if no public purpose would be served by such disclosure. A public record not subject to examination or copying under this subsection shall be available for public examination and copying at that point in time when public disclosure would no longer harm the competitive position of the city utility, combined utility system, city enterprise, or combined city enterprise.
b. For purposes of this subsection, “proprietary information” includes customer records that if disclosed would harm the competitive position of a customer; or information required by a noncustomer contracting party to be kept confidential pursuant to a nondisclosure agreement which relates to electric transmission planning and construction, critical energy infrastructure, an ownership interest or acquisition of an ownership interest in an electric generating facility, or other information made confidential by law or rule.
Mr. Turner filed additional information on December 14, 2017. He disputed the factual information provided by the City and stated that he was denied access to the contract, as was another individual. He stated that he did not want a copy of the contract, but wanted to read it. He also disagreed that utility laws apply to this contract. He said he did not pick up the response on December 4, 2017, as the office was closing when he was called.
On January 30, 2018, the City provided copies of the records requested to the IPIB. Four pages had redacted portions that were clearly relating to pricing strategies and/or cost data. This information is protected from disclosure by Iowa Code section 388.9(2).
The copies of the redacted records were provided to Mr. Turner. He requested that the IPIB staff review the four pages with redactions in an unredacted form. The City has declined to provide that information. However, it is clear from the surrounding text on the records that the redactions were appropriate.
There is no evidence to suggest that Iowa Code chapter 388 and section 22.7(3) do not apply in this matter.
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:0089 is dismissed as legally insufficient and without merit 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 Order on April 19, 2018. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
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Margaret E. Johnson
Dated this _____ day of April, 2018.
Cc: Kenneth Turner
John Webber, counsel for the City of Bloomfield
Tim Whipple, counsel for the Iowa Association of Municipal Attorneys