Date:
10/17/2019
Subject:
Ottis Hale, III and Jamie Simpson/City of Essex - Consolidation and Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matters of: Ottis Hale, III and Jaime Simpson, Complainants And Concerning: City of Essex, Respondent |
Case Numbers 19FC:0107, 19FC:0109, 19FC:0110
Order to Consolidate and Dismiss |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Order to Consolidate and Dismiss:
Ottis Hale, III and Jaime Simpson filed complaints alleging that the City of Essex (City) violated Iowa Code chapters 21 and 22 as follows:
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Jaime Simpson filed formal complaint 19FC:0107 on September 17, 2019. She alleged that the City violated Iowa Code chapter 21 on September 11, 2019, by conducting a city council meeting in a location that did not allow for more than 16 people to be seated. The City Hall has a larger room in the same building that would allow for greater attendance.
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Ottis Hale, III filed formal complaint 19FC:0109 on September 20, 2019. He also alleged that the City violated Iowa Code chapter 21 on September 11, 2019, by using a room too small for all the people wishing to attend. Mr. Hale was not present at this meeting. In addition, he alleged the City violated Iowa Code chapter 22 by charging for public records he requested and allowing other record requesters to receive records at no cost.
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Jaime Simpson filed formal complaint 19FC:0110 on September 20, 2019. In this complaint, she alleged a violation of Iowa Code chapter 22 when the City charged her for records and allowed others to obtain records at no cost.
The three complaints allege identical violations against the same respondent and on the same dates. Therefore, it is appropriate to consolidate the three complaints.
Open Meeting Violation
The City conducted a regular city council meeting on September 11, 2019, at City Hall. The City Hall has a regular room used for council meetings. The building also has a larger room that can be used for meetings when a larger audience is anticipated.
On this date, the meeting was held in the smaller room. At one point, there were five people standing to wait for a seat, with only two seats available. The five people waiting elected to stand in the doorway and wait until more seats were available. After the fire department representatives spoke about their agenda issue and left the meeting, the five people were able to find a seat.
Public Record Violation
Mr. Hale requested records from the City on September 12, 2019, and received a response stating that there would be a fee assessed to be paid prior to the release of the records. He requested records concerning attorney fees for over four years; fees paid for law enforcement; bank statements; fire and rescue records, policies, and training information; and communications between city officials on certain issues. He alleged that his request for additional information concerning the fees was not answered until after he filed his complaint. He also alleged that at least two other individuals had requested and received public records without charge.
Ms. Simpson alleged that she was charged a rate of $0.15 per page on September 17, 2019, for a three page record and on September 20, 2019, for a five page record. She also reported that she was aware that others were not charged for records.
City Response
On September 24, 2019, legal counsel for the City responded to all three complaints. He noted that the cost for Mr. Hales’ records totalled $66.00, based upon the city clerk’s hourly wage of $16.50, with four hours needed to retrieve the records requested. He added that he thought the complainants’ record requests were combined, not individual, resulting in the charges to Ms. Simpson.
Legal counsel also added that he was unaware that the City employees were not consistently collecting the fees for record requests. He contacted the City clerk and instructed that all future public record requests must be charged according to City policy.
Concerning the September 11, 2019, meeting, counsel stated that it is not unusual for people to attend a meeting for a brief time and then leave. Normally, there is adequate seating available. On this date, the period of time when Ms. Simpson and her husband stood was brief, approximately five minutes. No one was denied access to the City council meeting.
Counsel noted that the smaller room is preferred for meetings as it has better acoustics, making it easier to see and hear the meeting. When it is apparent that there will be too many people to use the smaller room, the council will adjourn and reconvene in the other room.
Analysis
Iowa Code section 21.4(1)(b) requires that a meeting of a governmental body “be held at a place reasonably accessible to the public and at a time reasonably convenient to the public, unless for good cause such a place or time is impossible or impracticable.” It would appear that in this factual situation, the location was “reasonably accessible” as the complainants were able to find seating within a short time of arrival and were able to see and hear the meeting while standing.
Iowa Code section 22.3 allows a lawful custodian to charge fees, based upon actual costs, for the retrieval, review, and fulfillment of public record requests. It is not required that a custodian collect these fees. Some government bodies have policies that waive fees for routine or easily fulfilled record requests.
However, if a government body has a policy in place regarding the imposition and collection of fees, such a policy should be uniformly applied, even if the Iowa Code does not require that. Failure to do this is discriminatory and unprofessional.
Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and have merit before the IPIB accepts a complaint. These complaints do not fulfill those requirements.
IT IS SO ORDERED: Formal complaints 19FC:0107, 19FC:0109, and 19FC:0110 are consolidated and 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 17, 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 on the ___ day of October, 2019, to:
Jaime Simpson
Ottis Hale, III
City of Essex, Mahlon Sorenson, city attorney
1. Three of those unable to find a seat are running for election to the City government. Concern was expressed by both complainants that current City officials are treating the challengers unfairly because of the upcoming contested election.
2. The records requested by Ottis Hale, III on September 12, 2019, were provided to Mr. Hale between September 24, 2019, and September 27, 2019. He has acknowledged receipt of these records. The City needed time to collect and copy all the records requested. Twelve to fifteen calendar days is not untimely in this case.