Date:
12/19/2019
Subject:
Stephen Peterson/City of Windsor Heights - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Stephen Peterson, Complainant And Concerning: City of Windsor Heights, Respondent |
Case Number: 19FC:0127 Dismissal Order |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
On October 25, 2019, Stephen Peterson filed formal complaint 19FC:0127, alleging that the City of Windsor Heights violated Iowa Code chapter 22. He alleged that he made a request for public records on September 25, 2019, and has not received the requested records.
He requested the following:
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Any and all documents, correspondence, conversations, dates of agenda items and closed meeting dates and personal and city emails from all city staff and council members and mayor that discussed personnel performance and salaries and reorganization of staff from January 2018 – September 25, 2019.
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In addition, I would like a breakdown of all costs the city of Windsor Heights has been billed for and has paid to any and all attorneys, including the city attorneys, regarding the pending litigation and termination of the contract for the past city administration during January 2018 – September 25, 2019.
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In addition, provide the cost of the proposed ICAP costs to settle and all documentation associated with their proposal.
This shall include but not be limited to: emails, correspondence, reports, and documents composed, received or stored on a personal email address or city email address as it relates to conducting official government business and any city personnel.
On October 9, 2019, the City responded to his request and informed him that the city was gathering information about the costs for retrieving, reviewing, and copying the requested records.
When the records had not been provided by October 25, 2019, Mr. Stevenson filed his formal complaint.
The City attorney responded to the complaint on November 12, 2019, by providing a copy of an email sent to Mr. Stephenson on November 11, 2019. In the email, the three record requests were addressed as follows:
We have the invoices for all legal bills as well as meetings where the council and mayor discussed personnel performance and reorganization from January 2018 to September 25, 2019 prepared and ready for you to pick up. The total cost is $116.35 ($78.50 for documents and $37.85 for staff time). Fees can be delivered or mailed to the City of Windsor Heights, c/o Travis Cooke, 1145 66th Street, Suite 1, Windsor Heights, Iowa 50324.
With regard to all city emails concerning your requested information, the email search is left as global (all users). The bulleted items require subjectivity of one or more individuals “reading” every email for context. IT has been working on this search, however given the volume of employee mailboxes, it has taken a significant amount of time. Given the lack of specificity, the estimated cost for staff time, production costs and research is approximately $3,895.00. We are happy to continue processing this request, however please let us know if you would like to narrow the request in terms of time frame or email users. If you would like the City to proceed with the request as written, the City will provide the responsive documents upon receipt of payment of this amount. Fees can be mailed to the City of Windsor Heights, c/o Travis Cooke, 1145 66th Street, Suite 1, Windsor Heights, Iowa 50324.
With regard to the information requested regarding ICAP proposed settlements, any such documents are confidential as they represent work product of any attorney which are related to litigation.
On December 4, 2019, Mr. Peterson stated he disputes the need for any redactions and will not pay for the records to be reviewed or redacted.
The City indicated on October 9, 2019, that a search for the requested records would be initiated and that Mr. Peterson would be advised of the estimated costs to fulfill his record requests as provided in the City fee schedule. This was accomplished by November 11, 2019.
On November 11, 2019, Mr. Peterson was advised that a portion of the records were available for pickup at a cost of $116.35. This amount reflects the City policy of copying costs and includes one hour of staff time at $37.85 per hour. This cost does not appear unreasonable.
The cost of retrieving and reviewing the electronic mail is substantial. As a result, Mr. Peterson was given the opportunity to revise his request to narrow the time needed by staff to fulfill this record request. He has indicated that he will not pay for any review or redactions.
Documents relating to the settlement negotiations with legal counsel were withheld as confidential pursuant to Iowa Code section 22.7(4):
4. Records which represent and constitute the work product of an attorney, which are related to litigation or claim made by or against a public body.
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 City estimate do not appear to be out of the ordinary, given the number of records requested and the need to review and redact any confidential information.
Iowa Code section 22.3 governs 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. (Emphasis added.)
This section allows incorporating review costs as necessary to determine which records are public and not confidential. The fees estimated by the City 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.
On December 18, 2014, the IPIB dismissed a formal complaint, 14FC:0075, In re Alysia Santo, and on August 30, 2016, dismissed formal complaint 16FC:0047, In re Abigail Sojka, for similar reasons, deciding that:
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).
There is no evidence to indicate that the fee associated with the review by the City is not based upon the estimated amount of review time multiplied by the hourly base of the reviewer’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:0127 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 December 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 December, 2019, to:
Stephen Petersen
Erin Clanton, council for the City of Windsor Heights