17MO:0016
Date: Thursday, June 22, 2017 Subject: Kilgore Petition for Rulemaking Opinion:Before The Iowa Public Information Board
|
In re: Kevin Kilgore, Petitioner Petition for Rulemaking |
Case Number: 17MO:0016
REPORT |
COMES NOW, Margaret E. Johnson, Interim Executive Director for the Iowa Public Information Board (IPIB), and submits the following report recommending denial of the above-referenced petition for rulemaking filed by Petitioner Kevin Kilgore on May 11, 2017.
Iowa Code 17A.7 allows any interested person to petition an agency requesting the adoption, amendment, or repeal of a rule, and requires each agency to prescribe by rule the form for petitions and the procedure for their consideration. Iowa Code 17A.7(1). Iowa Administrative Rule 497-5.4 outlines the procedure for IPIB review of a petition for rulemaking:
5.4(2) Within 60 days after the filing of the petition, or within any longer period agreed to by the petitioner, the board must, in writing, deny the petition, and notify petitioner of its action and the specific grounds for the denial, or grant the petition and notify petitioner that it has instituted rule-making proceedings on the subject of the petition. Petitioner shall be deemed notified of the denial or grant of the petition on the date when the board mails or delivers the required notification to petitioner.
Mr. Kilgore’s petition requests six rulemaking changes to Iowa Administrative Rules 497. Each request is summarized below, along with a response.
a. 497-2.1(1): An amendment that would require complaints to be submitted through the IPIB website. The proposed amendment would also delete any reference to chapter 10 of Rule 497, approved by the IPIB and effective February 22, 2017.
Response: IPIB currently allows, but does not require, complaints to be submitted through its website. Requiring complaints to be submitted through the website could limit access to the complaint process for Iowans who do not have computer or internet access. Regarding the second part of the proposed change, Chapter 10 of Rule 497 provides the procedure to be followed for any complaint arising from a district court injunctive relief transfer under Iowa Code section 23.5(3). The IPIB can accept Iowa Code section 22.8 injunctive relief transfers from district court pursuant to Iowa Code section 23.5(3). The IPIB needs rules to implement this process. Mr. Kilgore is requesting the entire rule implementing this process be deleted.
b. 497-2.1(6): The proposed amendment would repeal this section in its entirety.
Response: This rule became effective February 22, 2017. The rule allows the IPIB to resolve formal complaints by directing a resolution administratively and directing specific action. Such an order is considered final agency action for purposes of judicial review. Mr. Kilgore also offers rule changes that would impact the ability of the IPIB to meet the duties to review, investigate, resolve, and/or prosecute formal complaints. Deleting references to informal resolution of complaints would negatively impact the duties outlined in section 23.6(4) and contradict the statutory requirements of Iowa Code section 23.9.
c. 497-2.2(4): Repeals subsections (c) and (e) that permit the IPIB to resolve a complaint administratively and informally by exercising administrative discretion pursuant to Iowa Code section 23.9. Subsection (c) was effective July 1, 2013; subsection (e) was effective February 22, 2017.
Response. See response to part b above.
d. 497-5.1(2): Repeal or amend the language that states the IPIB “may deny a petition (for rulemaking) because it does not substantially conform to the required form.” This rule was effective July 1, 2013.
Response: Iowa Code 17A.7(1) requires every state agency to “prescribe by rule the form for [rulemaking] petitions and the procedure for their submission, consideration, and disposition.” Iowa Administrative Code 497-5.1 is IPIB’s rule implementing this requirement. Iowa Code 17A.7(1) clearly contemplates that a state agency will prescribe the form for rulemaking petitions, and consistent with that requirement, IPIB has reserved the right to deny a petition if it does not comply with IPIB’s prescribed format. This ensures consistency and efficient processing of rulemaking requests.
e. 497-5.4(1): This amendment would delete the current requirement that the IPIB submit a copy of any petition for rulemaking to the administrative rules coordinator within 14 days after filing. It also removes the language that permits a petitioner to request an informal meeting to discuss the petition and restricts the IPIB’s ability to request additional information or argument from the petitioner. This rule was effective July 1, 2013.
Response: These provisions are designed to ensure broad public participation in IPIB’s rulemaking process and provide a mechanism for IPIB staff to gather information from the requester to facilitate a timely response. Repealing these requirements could result in a less transparent process and impede the flow of communication.
f. 497-chapter 10: This amendment repeals this chapter in its entirety. This chapter, entitled “Injunctive Request Procedure”, was effective February 22, 2017.
Response: See response to part a above.
Mr. Kilgore does not request a meeting with the IPIB as allowed by Iowa Administrative Rule 497-5.1.
RECOMMENDATION
I cannot support any of the proposed rule-making modifications and repeals. Most violate the statutory powers, duties, and authority of the IPIB. The remaining few offer nothing of merit.
I recommend that the IPIB deny this petition and notify the petitioner of this action and the specific grounds for the denial, pursuant to Iowa Administrative Rule 497-5.4(2).
Respectfully Submitted this _______ day of June, 2017.
_________________________________
Margaret E. Johnson, J.D.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of ______, 2017, to:
IPIB
Kevin Kilgore
Iowa Public Information Board
|
In re: Kevin Kilgore, Petitioner Petition for Rulemaking |
Case Number: 17MO:0017
ORDER |
This matter comes before the Iowa Public Information Board (IPIB) this 22nd day of June, 2017, to consider the Report filed on June 16, 2017.
Upon review of the Report and its findings and recommendations, the IPIB finds the proposed rule-making modifications and repeals would violate the statutory powers, duties, and authority of the IPIB or are without merit.
Therefore, the IPIB approves and adopts the findings and recommendations of the Report and orders that this Petition for Rulemaking is DENIED.
So ordered this 22nd day of June, 2017.
_____________________________________
IPIB Chair
Cc: IPIB
Kevin Kilgore