Date:
08/16/2018
Subject:
Josh Scheinblum/City of Anamosa - Dismissal Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Josh Scheinblum, Complainant And Concerning: City of Anamosa, Respondent |
Case Number: 18FC:0053 Dismissal Order |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
Josh Scheinblum filed formal complaint 18FC:0053 on June 19, 2018, alleging that the City of Anamosa (City) violated Chapter 22 of the Iowa Code (public records).
Mr. Scheinblum claimed that the City failed to provide a record pursuant to a request his television station, KCRG, made on February 27, 2018. The request was made for a “screenshot” of a council member’s personal email account. The council member allegedly stated at an open meeting on February 26, 2018, that he just recently found an email sent to him in 2016 from a former city employee in his “spam” folder.
The City was sued because the police chief had forwarded numerous emails and texts that were considered sexually harassing and racially discriminatory. KCRG obtained copies of these, and described them as “forwarded sexually explicit and racist images and jokes.” The City settled a lawsuit with the complainant and later fired the police chief.
KCRG wants documentation of the council member’s statement that he just recently found the two year old email. In order to prove that this council member has a “spam” folder that retains messages for two years, KCRG wants someone to pull up the “spam” folder and take a “screenshot” of that folder.
On March 23, 2018, legal counsel for the City responded to the record request stating that the City had “no records to produce” because the City did not have access to the council member’s personal email account and the request is for a record that does not exist.
Following this response, KCRG filed a request for a public record directly with the council member, again requesting a “screenshot” of the “spam” folder of the email account. The council member did not respond to this request until June 6, 2018, at which time he stated that the communication in question was personal and “held no public subject matter therefore it is not a public record.”
Upon receipt of the complaint, the city attorney responded that KCRG was not asking for a public record. “Mr. Scheinblum is requesting (the council member) produce a snapshot of his personal e-mail spam folder to prove whether (the council member) received an e-mail from the former Chief of Police’s...personal e-mail account on a topic/subject that is not related at all to City business. In fact, Mr. Scheinblum already has the e-mail in question. What he is requesting is proof of where the document was stored not the document itself.”
The City attorney also stated that the city has no access to the council member’s personal email account.
KCRG requested that the City and/or the council member create a record (the screenshot) that does not exist. Iowa Code section 22.1 defines public records:
3. a. “Public records” includes all records, documents, tape, or other information, stored or preserved in any medium, of or belonging to this state or any county, city, township, school corporation, political subdivision, nonprofit corporation other than a fair conducting a fair event as provided in chapter 174, whose facilities or indebtedness are supported in whole or in part with property tax revenue and which is licensed to conduct pari-mutuel wagering pursuant to chapter 99D, or tax-supported district in this state, or any branch, department, board, bureau, commission, council, or committee of any of the foregoing.
Chapter 22 has not been interpreted to require the creation of a record that does not exist, except in limited situations when information from confidential records such as in sections 22.7(5) and 22.7(11) is released, or when electronic public record data is retrieved from data software and released in document form.
If KCRG has a copy of the email in question, release of the actual record has occurred. How or where the email was stored is immaterial. The creation of a “screenshot” to validate a statement made by the council member is not required by Chapter 22.
Any complaint against the City is beyond the jurisdiction of the IPIB in that it was not filed within 60 days of the denial of the record request (March 23, 2018) as required by Iowa Code section 23.7(1). The complaint against the council member is timely filed.
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 of those requirements.
IT IS SO ORDERED: Formal complaint 18FC:0053 is dismissed as beyond the jurisdiction of the IPIB and 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 August 16, 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.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of August, 2018, to:
Josh Scheinblum
Adrian Knuth, attorney for the City of Anamosa