Date:
02/21/2019
Subject:
Kurt Kruse/City of Madrid - Dismissal Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Kurt Kruse, Complainant And Concerning: City of Madrid, Respondent |
Case Number: 18FC:0121 Dismissal Order |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
Kurt Kruse filed complaint 18FC:0121 with the IPIB December 17, 2018. He alleged that the City of Madrid (City) violated Iowa Code chapter 22 by not providing the public records he requested.
Mr. Kruse provided a copy of a record request he filed with the City on November 23, 2018. In that request he asked for copies of manuals, policies, videos, annual reports, records of arrests made, and an audio recording of a city council meeting.
The City responded to the IPIB through its attorney on January 11, 2019. He reported that the number of records requested, the holidays, and the staffing at City Hall created a delay in responding to the record request. Some records requested, such as the policies and annual reports, did not exist. The available records were released to Mr. Kruse on January 10, 2019.
Some of the requested records (traffic accident and arrest reports) are not in the custody of the City, but instead maintained by Boone County. Mr. Kruse was told he could request those records from the lawful custodian. The City is working with Boone County to get copies of the records, but has not been able to accomplish this yet.
The videos requested were initially requested in August 2018. Mr. Kruse was informed at that time that the videos were considered confidential under Iowa Code section 22.7(5). This part of the formal complaint is not timely filed with the IPIB pursuant to Iowa Code section 23.7(1) and therefore cannot be accepted.
As noted most recently in formal complaint 18FC:0093 (Ralls/City of Martensdale), records should be released in a timely manner, but not necessarily within a certain time frame:
“The Iowa Supreme Court has recognized that the complexity of a record release could create delays in responding to a record request:
“‘Based on our review of section 22.8(4)(d), we believe it is not intended to impose an absolute twenty-day deadline on a government entity to find and produce requested public records, no matter how voluminous the request. Rather, it imposes an outside deadline for the government entity to determine ‘whether a confidential record should be available for inspection and copying to the person requesting the right to do so.’ We do not think we should extrapolate section 22.8(4)(d)’s twenty-day deadline to other contexts, when the legislature chose not even to include that deadline in other portions of section 22.8(4).’ Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 461 (Iowa 2013).
“According to an Iowa Attorney General Sunshine Advisory Opinion from August 2005, ‘Delay is never justified simply for the convenience of the governmental body, but delay will not violate the law if it is in good faith or reasonable.’
“The Court in Horsfield also lists several considerations for determining if a delay is reasonable:
“‘Under this interpretation, practical considerations can enter into the time required for responding to an open records request, including “the size or nature of the request.” But the records must be provided promptly, unless the size or nature of the request makes that infeasible’ Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 461 (Iowa 2013).”
As noted in another recent complaint (18FC:0120, Rood/Woodward Police Department), communicating with a record requestor may prevent misunderstandings that then lead to the filing of a formal complaint. It is recommended that the lawful custodian keep the requestor advised of any potential delays.
Based upon the factual circumstances of this complaint, there does not appear to be sufficient evidence to accept the complaint.
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:0121 is dismissed as being legally insufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b). However, the City, and other lawful custodians, should communicate issues such as difficulties in retrieving records. Had that occurred in this situation, a formal complaint could have been avoided.
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:
Kurt Kruse
John Flynn, attorney for the City of Madrid