Date:
10/18/2018
Subject:
David Northwick/City of Martensdale - Dismissal Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: David Northwick, Complainant And Concerning: City of Martensdale, Respondent |
Case Number: 18FC:0084 Dismissal Order |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
David Northwick filed formal complaint 18FC:0084 on September 25, 2018, alleging that the City of Martensdale (City) violated Iowa Code chapter 22.
On May 12, 2018, he requested all emails sent by the Mayor and Councilperson Robert Wetzler from January 1, 2016, through May 12, 2018, as well as a log of all phone calls between the two. He also requested a log of all meetings between these two individuals. He received the emails from the City on August 25, 2018. However, the records response did not include any emails sent by or call logs of John Ralls, who was Mayor from January 2016 through December 2017.
The City advised Mr. Northwick that it did not have access to the emails from the previous Mayor because he used his personal device and refused to provide those copies. As he is no longer Mayor, he cannot be forced to provide access to those emails, if any still exist. The City reimbursed John Ralls for the use of his cell phone while he was Mayor, but the City did not access or retain copies of his emails.
When the City requested Mr. Rall’s cooperation in providing the emails, he responded by email that he was not obligated to assist the City:
“You have received a FOIA request. I have not received one and I can not receive one as I am not a public official. Public officials are required to honor a FOIA request where citizens are not You must comply with such a request and I am free to tell you guys to go pound sand. I am under no obligation to share any information with anyone that I choose to deny access. I choose to not share information with you or the members of the fire department that you answer to….” (Emphasis in original).
The city attorney responded to the complaint and indicated that due to Mr. Rall’s lack of cooperation, the City had no records within its possession that could be released to fulfill this portion of the record request.
The IPIB provides this guidance in a frequently asked question (FAQ) on its website concerning the use of private devices to conduct public business:
This issue has been addressed in Iowa in a limited manner. Iowa Code Section 22.1 includes “all records, documents, tape or other information, stored or preserved in any medium” in the definition of public records. Subsection 22.2(2) states that a governmental body cannot prevent access to a public record by contracting with a nongovernmental body (such as a cloud storage provider). Section 22.3A addresses public records and data processing software. The cumulative effect of these statutes is that a public record does not lose its public status by being retained on a privately owned electronic device.
The Iowa Supreme Court, in a 1967, pre-email decision, addressed the idea that you must look at the contents of the document or communication to determine whether it is a public record: “It is the nature and purpose of the document, not the place where it is kept, which determines its status”, Linder v. Eckard, 152 N.W.2d 833, 835 (Iowa 1967).
To allow a governmental body to avoid public records disclosure by simply requiring that officers or employees use their privately owned electronic devices would be to completely thwart the transparency goals of Chapter 22.
The issue here is whether it was a violation of Chapter 22 for the City to not take steps to access and store any public record that may have been retained on Mr. Ralls personal device before he left his position as Mayor. The City is not denying that those emails were at one time public records, just that the City no longer has access to or possession of the records.
Chapter 22 does not address record retention. The City’s failure to retain possession of a public record is not a violation of Chapter 22.
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:0084 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 October 18, 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 October, 2018, to:
Matt Anderson
Mike Marquess, city attorney