Date:
02/21/2019
Subject:
Al Winters/North Iowa Regional Economic and Port Authority - Dismissal Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Al Winters, Complainant And Concerning: North Iowa Regional Economic and Port Authority, Respondent |
Case Number: 18FC:0117 Dismissal Order |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
Al Winters filed complaint 18FC:0117 with the IPIB on December 10, 2018. He alleged that the North Iowa Regional Economic and Port Authority (Authority) violated Iowa Code chapter 22 on October 12, 2018.
He stated in his complaint that he requested a copy of the “Engineering Services Design Report” that was sent by a private company to two members of the Authority in an email on or about September 2, 2018. He did not receive a copy of the report prior to the filing of his complaint. At some point, he was informed that the Report was in draft form and had not been provided to the Authority.
In response, Mr. Winters stated that he knows that two members of the Authority had received a preliminary copy, and, therefore, the ‘draft’ exception of Iowa Code section 22.7(65) would not apply.
Four counties are members of the Authority: Worth, Cerro Gordo, Mitchell, and Winnebago. The Authority’s membership consists of a supervisor from each county, plus four other members, for a total of eight members. The Authority is organized under Iowa Code chapter 28J and is a government body as defined in Iowa Code section 22.1(1).
Iowa Code section 22.7(65) provides that these records are confidential:
65. Tentative, preliminary, draft, speculative, or research material, prior to its completion for the purpose for which it is intended and in a form prior to the form in which it is submitted for use or used in the actual formulation, recommendation, adoption, or execution of any official policy or action by a public official authorized to make such decisions for the governmental body or government body. This subsection shall not apply to public records that are actually submitted for use or are used in the formulation, recommendation, adoption, or execution of any official policy or action of a governmental body or government body by a public official authorized to adopt or execute official policy for the governmental body or government body.
The IPIB has interpreted this section as follows in an advisory opinion, IPIB AO 2015-01:
IPIB establishes the following criteria to determine if a document falls within this exception:
1. The document is tentative, preliminary, draft, speculative or research material;
2. The document exists in a form prior to completion of its intended purpose;
3. The document exists in a form prior to the form that is ultimately submitted for use or used in the actual formulation, recommendation, adoption or execution of any official policy or action by a public official with authority to make such decisions; and
4. The document must not have been submitted to or used by a public official authorized to adopt or execute official policy.
In applying this criteria, the document must truly be a draft that is not in its final form to be submitted to a public official who has authority to make decisions regarding the subject matter to which the draft applies. In addition, if the draft has been submitted to a public official authorized to adopt or execute official policy, the exception does not apply.
Two members of the Authority had access to the preliminary Report prior to the date it was submitted in a final form to the Authority. These two members are not authorized to adopt or execute official policy. It requires the approval of a majority of the members of the Authority.
Prior to submission to the Authority, any rendition of the Report would have been preliminary and in an incomplete format. The final Report was submitted to the Authority on January 24, 2019, for review. Copies of the Report were made available to the general public at that time.
Based upon an analysis of the facts in this complaint in comparison with the criteria articulated in the IPIB advisory opinion, the preliminary document was properly considered to be confidential pursuant to Iowa Code section 22.7(65).
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 those requirements.
IT IS SO ORDERED: Formal complaint 18FC:0117 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 February 21, 2019. 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 February, 2019, to:
Al Winters
North Iowa Regional Economic and Port Authority, Mike Moeller, legal counsel