19FC:0111 Aleksey Gurtovoy/City of Iowa City - Revised Dismissal Order

Date:
11/21/2019

Subject:
Aleksey Gurtovoy/City of Iowa City - Revised Dismissal Order

Opinion:

The Iowa Public Information Board

COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Revised Dismissal Order.

On September 24, 2019, Aleksey Gurtovoy filed formal complaint 19FC:0111, alleging that the City of Iowa City (City) violated Iowa Code chapter 22.

Mr. Gurtovoy filed a request for public records on September 3, 2019.  He requested copies of nine categories of records, including any communications between the City and City officials and the business “Ring, Inc.” or any of its employees or officers.  He also requested a record search for any other City records concerning “Ring, Inc.,” including any policies concerning storage, retention, or release of video collected by this business.

On September 13, 2019, an assistant city attorney responded to Mr. Gurtovoy.  The response stated that the City charges a fee of $0.15 per page. Since his request included around 400 pages of emails, he was advised the record fee would be around $60.00.  

His complaint included an email response to his question whether this cost was for paper or electronic copies.  The city attorney indicated that the City prints the emails, reviews each email for confidential records, and then scans and emails the record copies.  When questioned further, she added that these emails were not “readily accessible” electronic records pursuant to Iowa Code section 22.3A because of the need to review each email string for attorney-client privileged information or other information “that was confidential and needed to be redacted.”

Mr. Gurtovoy alleged that this practice violated Iowa Code chapter 22 as printing, reviewing, and then scanning the records creates a PDF that deletes the origin server/IP address of the original email, the encryption information of the email, the thread index, and whether the email was sent as a reply to a previous email, resulting in a withholding of “metadata” that he claimed is part of the requested records and “is crucial for confirming the source and authenticity of emails, reliably organizing emails into threads, and verifying the completeness of the released records archive.”  He suggested that the City utilize a program that would allow for review and redaction of City electronic records without printing hard copies and sending PDF versions.

In addition, at least one released record was printed at too large a scale and portions of the perimeter were not copied.  The document was a copy of an announcement that the Iowa City Police Department has joined the “Neighbors by Ring” program.

Mr.Gurtovoy requested that the IPIB require the City to cease the current method of releasing electronic records and acquire the necessary technology to send these records in the format he prefers.

On September 27, 2019, the assistant City attorney responded to his complaint.  Her response noted that the City responded to his request in a timely manner with the release of 432 pages of scanned documents.  Nothing needed redaction. Only attorney/client communications were withheld. Therefore, she argued that the complaint is legally insufficient, as no records were improperly withheld.

She also stated that Mr. Gurtovoy’s request that the IPIB require that the City acquire different electronic software is beyond the jurisdiction of the IPIB’s authority under Iowa Code chapter 23.

Mr. Gurtovoy replied that he believes that the IPIB does have the jurisdiction to order the City to “terminate this practice if the board determines that the City is indeed violating chapter 22.”  He did not indicate that any records from the City were improperly withheld.

The IPIB has not determined, by declaratory order, contested case, or advisory opinion, that it has jurisdiction to require a government body to use a specific software or process when reviewing and releasing public records.  Iowa Code section 23.6 outlines the thirteen specific powers and duties provided to the IPIB by the legislature. The authority to impose “any other appropriate remedies” in Iowa Code section 23.6(8) is granted only when the IPIB has prosecuted a contested case and found a violation of Iowa Code chapter 21 or 22.  

Iowa Administrative Code chapter 497 outlines the requirements that the IPIB must follow in order to pursue a declaratory order, advisory opinion, or contested case.  The IPIB does not have the authority to issue a directive absent one of these procedures.

Iowa Code chapter 22 does not specifically address or require that a record release include encryption data on electronic records.  The encryption data could be seen as confidential pursuant to Iowa Code section 22.7(18), if it is reasonable to believe that the public would not utilize electronic communication if by doing so others could access their encryption data and utilize that without authority.

Subsequent to the discussion at the IPIB meeting on October 17, 2019, both parties provided additional statements to the IPIB.  The Iowa Freedom of Information Council also filed a statement. Copies of those statements were distributed to IPIB board members and parties and were also available to the public.

In those statements, both parties agreed that in this factual situation, the requested records did not contain any confidential information.  Redaction or ‘scrubbing’ was not required. The City agreed to release these records as requested by Mr. Gurtovoy in an electronic format, deleting any attachments containing a Word document.

Either party, or any other person, can request that the IPIB issue a declaratory order on the legal issue as provided by Iowa Code section 23.6(3) and Iowa Administrative Rules 497-3.1, et seq. 

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:0111 is dismissed and referred to the Rules Committee for further study and recommendation with the agreement of both parties. 

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 reviewed this Order on November 21,  2019.  Pursuant to IPIB rule 497-2.1(4), the parties have been notified in writing of its decision.

By the IPIB Executive Director

_________________________________

Margaret E. Johnson, J.D.

1 Ring, Inc. is a commercial business that sells and installs security systems in private homes.  Online advertising includes a “Neighbors App” that creates “real-time crime and safety alerts from your neighbors” as a benefit of using the product.
 

CERTIFICATE OF MAILING

This document was sent by electronic mail or First Class mail on the ___ day of November, 2019, to:

Alexsey Gurtovoy

Susan Dulek, assistant city attorney for the City of Iowa City