Before The Iowa Public Information Board
Kevin Kilgore, Petitioner
Petition for Rulemaking
Case Number: 17MO:0017
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 fourteen separate amendments to the IPIB administrative rules:
a. 497-1.1(23): Amend rule heading to read “497-1.1(23,35C).”
Response: This IPIB rule was effective on July 1, 2013 and implements Iowa Code Chapter 23. Iowa Code chapter 35C is Iowa’s Veterans Preference law. IPIB does not have authority to adopt rules relating to Iowa Code chapter 35C.
b. 497-1.1(3): Amend to read “Board members shall be selected via the notification and application process of Iowa Code section 35C.1 and appointed by the governor for staggered four year terms.” This would amend the rule (effective July 1, 2013) by noting a veterans preference for the appointment of IPIB board members and by removing senate confirmation.
Response: The makeup of the Iowa Public Information Board is set forth in in Iowa Code 23.3. IPIB cannot alter that makeup through rulemaking.
c. 497-1.1(8): Reword the language that allows individuals to contact the “board” for informal answers to questions to instead state that the “IPIB office” can be called for guidance. This amendment would also delete a reference to declaratory orders under Rule 497, chapter 3.
Response: This rule was effective July 1, 2013. The rule provides the phone number to the IPIB office. I am unaware of any instances where individuals seeking guidance have been confused or objected to speaking with staff, rather than the board.
d. 497-1.2(1): Expand the jurisdiction of the IPIB to issue advisory opinions pertaining to any part of the Iowa Code concerning open meetings or public records. Remove the current language that states that the IPIB does not have jurisdiction over the judicial and legislative branches or over the governor and governor’s office.
Response: Iowa Code sections 23.1 and 23.12 limit IPIB jurisdiction. IPIB cannot expand its statutory jurisdiction through rulemaking.
e. 497-1.2(2): Deletes the language that restricts advisory opinions from unauthorized third persons and the language that refers to declaratory orders.
Response: This rule was effective July 1, 2013. The purpose of this rule is to ensure an individual does not seek an advisory opinion on behalf of a third party without authorization from that party. The language in the rule relating to declaratory orders derives from Iowa Code 17A.9.
f. 497-1.3(23): Amend to read “497-1.3(23, 17A).”
Response: This rule was effective July 1, 2013. While Iowa Code 17A impacts many of IPIB’s rules, IPIB’s practice is to reference the authorizing statute that applies specifically to IPIB, namely Iowa Code Chapters 21, 22, and 23.
g. 497-1.3(2): Strikes all language that allows a government official or lawful custodian to rely upon the formal advice contained in an advisory opinion.
Response: This rule was effective July 1, 2013, and modified to allow the executive to issue informal advice on routine matters, effective September 9, 2015. Iowa Code sections 21.6(3)(a)(3) and 22.10(3)(b)(3) specifically allow a government or governmental body to rely upon a formal opinion of the IPIB. Mr. Kilgore requests deletion of the administrative rule supporting these statutes.
h. 497-1.3(3): Amend to read “A board advisory opinion issued pursuant to subrule 497-1.3(2) constitutes final agency action and exhaustion of administrative remedies for the purposes of an Iowa Code section 17A.19 filing (appeal).” The proposed amendment would delete the current rule, which allows a person to request modification or reconsideration of a formal opinion within 30 days of the issuance of an advisory opinion and instead requires district court review of an agency decision pursuant to Iowa Code section 17A.19.
Response: The rule was effective July 1, 2013. The current rule allows a party to move for modification or reconsideration of an advisory opinion. This rule ensures that IPIB has the opportunity to consider the requesting party’s viewpoint fully before an advisory opinion becomes final and preserves judicial economy by resolving advisory opinion questions at the agency level, rather than in the court system.
i. 497-1.3(5): Deletes this rule in its entirety.
Response: This rule allows a person who has received a board opinion to petition for a declaratory order under IPIB rules. This rule was effective July 1, 2013. This request would violate Iowa Code 17A.9(2), which requires each agency to adopt rules relating to requests for declaratory orders. Iowa Code 23.6(3) specifically grants IPIB the authority to issue declaratory orders.
j. 497-2.1(5): Adds language that defines the dismissal of a complaint as final agency action for the purposes of judicial review under Iowa Code section 17A.19.
Response: This rule was effective July 1, 2013, and amended to allow initial review by IPIB staff, effective September 9, 2015. Neither Iowa Code 17A nor Iowa Code Chapter 23 require dismissal of a complaint to be treated as final agency action for purposes of judicial review.
k. 497-2.2: Requests a complete rewrite of the rule regarding the investigation of formal complaints to “make the investigation subsequent to an accepted complaint the factual basis for prosecution in a section 17A.10A contested case hearing.”
Response: The current version of this rule was reviewed by the IPIB and became effective October 21, 2015. Iowa Code section 17A.10A refers to contested cases in which there is no factual dispute.
l. 497-2.3: Changes the rule to require that the IPIB impose sanctions after a finding of a violation in a contested case proceeding.
Response: The current rule, effective July 1, 2013, makes imposition of sanctions permissive, not mandatory. Because the facts of a particular violation can vary widely, discretion is appropriate in determining sanctions.
m. 497-2.4: Strikes the entire rule that allows the IPIB to negotiate and approve a settlement of a contested case proceeding.
Response: This rule has been in effect since July 1, 2013, and implements the statutory requirements of Iowa Code section 23.10(3)(a).
n. 497, Chapter 3: Strikes all rules allowing the IPIB to issue declaratory orders pursuant to Iowa Code sections 23.6(3) and 17A.9.
Response: See response to i, above.
Mr. Kilgore does not request a meeting with the IPIB as allowed by Iowa Administrative Rule 497-5.1.
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:
Iowa Public Information Board
Kevin Kilgore, Petitioner
Petition for Rulemaking
Case Number: 17MO:0017
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.