Date:
09/19/2019
Subject:
Abby Sojka/Highland Community School District - Dismissal Order
Opinion:
Before the Iowa Public Information Board
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In re the Matter of: Abby Sojka, complainant And concerning: Highland Community School District |
Case Number: 19FC:0074
Dismissal Order
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COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
On June 24, 2019, Abby Sojka filed this formal complaint, alleging that the Highland Community School District (HCSD) violated Iowa Code chapter 22 by quoting fees in excess of the amounts allowed by Iowa Code prior to retrieving, reviewing, and releasing the public records she requested.
Ms. Sojka provided an email dated June 3, 2019, in which she requested that HCSD allow her to review certain credit card statements and receipts from August 2015 to May 2018, all bank statements used by HCSD during that same period of time, the comprehensive list of all assets of HCSD, all internal audit reports from 2016 to 2018, all contracts from August 2015 to May 2018, documentation of the process for monitoring grants, and certain financial and policy manuals used by HCSD.
She also provided an email from a school official dated June 6, 2019, in which the HCSD superintendent said that the records requested may total “several hundred or thousands of pages.” He requested prepayment of $697.20 as the estimated costs of retrieving and reviewing the records, calculated by multiplying the base rate of pay for the HCSD school manager at $34.86 per hour by 20 hours estimated to fulfill her request.
Additional emails indicated that the parties continued to communicate about this estimate prior to the filing of the complaint. Ms. Sojka questioned whether there was a need to review the records prior to her viewing of such and whether HCSD should be requiring payment of any fees. Counsel for HCSD replied that the review is necessary to ensure that no confidential information is inadvertently released and that the volume of records requested results in the 20 hours calculation.
Ms. Sojka also raised a concern that HCSD could improperly redact portions of the records. However, there is no evidence at this time that any records have been or will be improperly redacted. She also provided email correspondence concerning other record requests that are not part of this complaint.
Counsel for HCSD provided a listing of the various charges applied to each of the 12 record categories in this complaint, as well as offered other ways to access some of the manuals and policies without charge. Responding to the credit card statement requests was estimated to take nine hours, the bank statements eight hours, the contracts three hours, and the asset management file records one hour. There was no charge for the policies. The costs to provide the audits was not calculated as more information was needed to determine which audits she was requesting. Copy costs would be in addition to the retrieval fees.
Costs for retrieving and reviewing records prior to release are recoverable pursuant to Iowa law, if based upon actual costs (see Iowa Code 22.3) The costs outlined in the HCSD estimate are not out of the ordinary. Ms. Sojka has requested a large number of records.
Iowa Code section 22.3 outlines the fees allowable under Iowa Law for release of a public record. That section states:
22.3 Supervision—fees.
1. The examination and copying of public records shall be done under the supervision of the lawful custodian of the records or the custodian’s authorized designee. The lawful custodian shall not require the physical presence of a person requesting or receiving a copy of a public record and shall fulfill requests for a copy of a public record received in writing, by telephone, or by electronic means. Fulfillment of a request for a copy of a public record may be contingent upon receipt of payment of expenses to be incurred in fulfilling the request and such estimated expenses shall be communicated to the requester upon receipt of the request. The lawful custodian may adopt and enforce reasonable rules regarding the examination and copying of the records and the protection of the records against damage or disorganization. The lawful custodian shall provide a suitable place for the examination and copying of the records, but if it is impracticable to do the examination and copying of the records in the office of the lawful custodian, the person desiring to examine or copy shall pay any necessary expenses of providing a place for the examination and copying.
2. All expenses of the examination and copying shall be paid by the person desiring to examine or copy. The lawful custodian may 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. If copy equipment is available at the office of the lawful custodian of any public records, the lawful custodian shall provide any person a reasonable number of copies of any public record in the custody of the office upon the payment of a fee. The fee for the copying service as determined by the lawful custodian shall not exceed the actual cost of providing the service. Actual costs shall include only those expenses directly attributable to supervising the examination of and making and providing copies of public records. Actual costs shall not include charges for ordinary expenses or costs such as employment benefits, depreciation, maintenance, electricity, or insurance associated with the administration of the office of the lawful custodian.
However, this section allows incorporating review costs as necessary to determine which records are public and not confidential. The fees estimated by HCSD are specifically for the purpose of retrieving public records. An integral part of the retrieval process is determining whether the records requested are public or instead confidential under Iowa Code section 22.7, other Iowa laws, or federal laws.
As determined by the IPIB on December 18, 2014, in the dismissal report for 14FC:0075, In re Alysia Santo and in a probable cause report dated August 30, 2016, for 16FC:0047, In re Abigail Sojka:
Pre-dating the current version of Iowa Code section 22.3, the Iowa Supreme Court in Rathmann vs. Board of Directors of the Davenport Community School District, 580 N.W.2d 773 (Iowa 1998), addressed a similar issue. This court opinion influenced the current version of section 22.3. It also articulated the legal approach that can be expected to apply to future issues on these points. The court in Rathmann stated the following:
“Reading the statute as a whole, we conclude that the provisions of section 22.3 generally contemplate reimbursement to a lawful custodian of public records for costs incurred in retrieving public records. We find the phrase “all expenses of such work” to be especially significant and indicative of the legislature's intent that a lawful custodian has the authority to charge a fee to cover the costs of retrieving public records. Thus, access to public records does not necessarily mean “free” access. We recognize that permitting entities covered under chapter 22 to charge members of the public a fee to cover the cost of retrieving public records does, to some extent, limit public access to public records. While the legislature did not intend for chapter 22 to be a revenue measure, at the same time it did not intend for a lawful custodian to bear the burden of paying for all expenses associated with a public records request.” Rathmann v. Bd. of Directors of Davenport Cmty. Sch. Dist., 580 N.W.2d 773, 778-79 (Iowa 1998). (See IPIB website, www.ipib.iowa.gov, Rulings/Formal Complaints).
There is no evidence to indicate that the fee associated with the review by the business manager is not based upon the estimated amount of review time multiplied by the hourly base of the manager’s salary. Costs not allowable by Iowa law, such as “employment benefits, depreciation, maintenance, electricity, or insurance associated with the administration of the office of the lawful custodian” are not included in the estimate. (See Iowa Code section 22.3(2)).
As noted above citing Iowa Code section 22.3(1) “Fulfillment of a request for a copy of a public record may be contingent upon receipt of payment of expenses to be incurred in fulfilling the request and such estimated expenses shall be communicated to the requester upon receipt of the 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 those requirements.
IT IS SO ORDERED: Formal complaint 19FC:0074 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 September 19, 2019. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
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Margaret E. Johnson, J.D.
CERTIFICATE OF MAILING
This document was sent by electronic mail or First Class mail on the ___ day of September, 2019, to:
Abby Sojka
C. Joseph Holland, counsel for Highland Community School District