Date:
06/21/2018
Subject:
Chad Lutcavish/City of Manly - Dismissal Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Chad Lutcavish, Complainant And Concerning: City of Manly, Respondent |
Case Number: 18FC:0035 Dismissal Order |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
On May 8, 2018, Chad Lutcavish filed this formal complaint against the City of Manly (City) alleging that the City had violated Iowa Code chapter 22 by failing to provide copies of his utility records. He provided a copy of a video he made while verbally requesting the records.
The City responded that Mr. Lutcavish requested and received copies of these records before this recent record request. Nevertheless, the City copied the requested utility records and notified Mr. Lutcavish that he could pick up the copies upon payment of retrieval and copying fees.
Mr. Lutcavish will not agree to pay for any copying costs and, therefore, he has not retrieved the records.
Iowa Code section 388.9A was amended in 2012 and specifically addresses the review and release of utility records:
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 private customer information. Except as required pursuant to chapter 476, “private customer information” includes information identifying a specific customer and any record of a customer account, including internet-based customer account information.
As addressed in an IPIB advisory opinion (13FO:0003) and as noted on the IPIB website under the menu item FAQs/chapter 22:
“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. These records are still public records subject to chapter 22. 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.”
Iowa Code section 22.3(1) does allow a government body to require “receipt of payment of expenses to be incurred in fulfilling the request” prior to fulfillment of the request. Section 22.3(2) allows the custodian to “charge a reasonable fee for the services of the lawful custodian or the custodian’s authorized designee in supervising the examination and copying of the records.” Such fees are to be based upon the “actual costs” of fulfilling the record request.
Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and could have merit before the IPIB accepts a complaint. This complaint does not meet all those requirements.
IT IS SO ORDERED: Formal complaint 18FC:0035 is dismissed as legally insufficient 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 June 21, 2018. 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, J.D.
Dated this ____ day of June, 2018.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of June, 2018, to:
Chad Lutcavish
City of Manly