Date:
12/17/2020
Subject:
Iowalive/Iowa State University - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Iowalive, Complainant And Concerning: Iowa State University, Respondent |
Case Number: 20FC:0122
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 November 20, 2020, Iowalive filed formal complaint 20FC:0122, alleging that Iowa State University (ISU) violated Iowa Code chapter 22 by refusing to release public records.
On October 7, 2020, Iowalive sent a record request to Michael Norton, ISU legal counsel:
REQUESTS FOR RECORDS
1. Please provide the record showing the organization in charge of, or involved with, recording any use of, or consideration or evaluation of, the Immune System Booster, if not the Athletic Department.
2. Please provide the record of any evaluation of the Immune System Booster--including all results and conclusions decided.
3. Please provide the record of any decision to not consider evaluation or use of the Immune System Booster--emailed to ISU and others on 5-22-20 as follows.
Upon receipt of the formal complaint, Mr. Norton responded on behalf of ISU. He noted that his office “had inadvertently failed to respond to the request at issue. We have since responded that the university has no documents responsive to this request and apologized for our delay in responding.”
Iowalive challenged this response on November 23, 2020. They noted that the response time was “certainly insufficient time to perform a ‘reasonable search’.” In addition, Iowalive stated that ISU was certainly in possession of a number of email communications to and from Iowalive that should be included in any response.
On November 23, 2020, Mr. Norton again responded, noting that the search had been conducted earlier and only the release had been delayed. He offered to provide copies of all of the Iowalive emails if those were now requested.
Following this response, Iowalive sent an email on November 24, 2020, questioning whether ISU was in fact using an Immune System booster protocol, based upon the lack of positive COVID-19 tests in the athletic department compared to other Big 12 football programs. Iowalive included documents supporting the use of an immune system protocol first proposed to various government and non-government organizations on April 24, 2020.
Records are defined by Iowa Code section 22.1(3) to include “records, documents, tape, or other information, stored or preserved in any medium, of or belonging to this state or any county, city, township, school corporation, political subdivision,....” If there are no responsive records to produce, there is no violation of Iowa Code chapter 22.
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. This complaint does not meet those requirements.
In addition, the records request of ISU on October 7, 2020, and subject of this complaint, are a continuation of the records requested of the ISU Athletic Department in formal complaint 20FC:0084.
As noted in Iowa Code section 23.8(2), a complaint can also be dismissed when it “relates to a specific incident that has previously been finally disposed of on its merits by the board or a court.”
IT IS SO ORDERED: Formal complaint 20FC:0122 is dismissed as legally insufficient and as having been previously disposed of by the IPIB 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 17, 2020. 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
1. A previous complaint, 20FC:0084 was dismissed on October 15, 2020. In part that complaint requested similar records from the ISU Athletic Department.
2. These emails were not part of the original record request.
3. The product being promoted, Immune Health Basics, claims to boost immunity or prevent disease if used as directed by wearing a capsule touching bare skin near the heart for at least 18 hours per day. In the prior complaint, the ISU Athletic Department responded, in part: “there would be no way for the University to know whether the supplement actually had a ‘boosting’ effect on an athlete’s system….there are no public records available for production.”
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of December, 2020, to:
Iowalive
Michael Norton, legal counsel for ISU