Date:
06/17/2021
Subject:
Kay Bergren/City of Otho - Final Report & Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Kay Bergren, Complainant And Concerning: City of Otho, Respondent |
Case Number: 21FC:0003
Final Order
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Comes before the Iowa Public Information Board (IPIB) this 17th day of June, 2021, to review the compliance with the terms of an informal resolution.
The IPIB accepted the complaint against the City of Otho on February 18, 2021. Pursuant to Iowa Code section 23.9, the parties negotiated and reached a proposed Informal Resolution. The IPIB approved the informal resolution on April 15, 2021.
The terms of the informal resolution have been completed.
Upon showing proof of compliance, the IPIB agreed to dismiss this complaint as resolved..
IT IS THEREFORE ORDERED that this matter is dismissed as successfully resolved through informal resolution.
SO ORDERED this 17th day of June, 2021.
_______________________________
IPIB Chair
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of June, 2021, to:
Kay Bergren
Brian Yung, attorney for the City of Otho
Before The Iowa Public Information Board
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In re the Matter of: Kay Bergren, Complainant And Concerning: City of Otho, Respondent |
Case Number: 21FC:0003
Final Report
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COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and respectfully submits this Final Report:
On January 7, 2021, Kay Bergren filed formal complaint 21FC:0003, alleging that the City of Otho violated Iowa Code chapter 22.
The IPIB accepted the complaint on February 18, 2021, and approved the informal resolution on April 15, 2021. The parties completed the terms of the informal resolution as described in the attached report by Brett Toresdahl, IPIB deputy director.
Upon showing proof of compliance, the IPIB agreed to dismiss this complaint as successfully resolved.
It is recommended that the IPIB dismiss this complaint as successfully completed.
Respectfully submitted,
________________________________
Margaret E. Johnson, J.D.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of June, 2021, to:
Kay Bergren
Brian Yung, attorney for the City of Otho
Kay Bergren, Complainant
And
City of Otho, Respondent
Case Number: 21FC:0003
Informal Resolution Final Report
On January 7, 2021, Kay Bergren filed formal complaint 21FC:0003, alleging that the City of Otho (City) violated Iowa Code chapter 22.
Ms. Bergren alleged that she requested public records from the City mayor on December 8, 2020. She alleged that she did not receive the requested records. Instead, she was told to request records pursuant to the city policy. She further alleged that she was denied a copy of the City ordinances and was told she could review them at City Hall “once city hall opens back up.”
In response to her request for a copy of an audit, Ms. Bergren alleged she was told that she could find a copy of the audit on the state auditor’s website.
Subsequent to her record request, on December 22, 2020, the City adopted a records policy that requires payment for City records. Ms. Bergren alleged that the new policy imposes fees of $10.00 per quarter hour of clerk time plus $0.35 per page for public records. She noted that the first hour of clerk time is free. She alleged she was told that this policy would be imposed even though her record request pre-dated the adoption of the record policy.
In response to the formal complaint, the Mayor stated that the audit was on the state website. He also confirmed that Ms. Bergren would be required to pay the fees outlined in the policy adopted after her record request and that she would need to wait to access the ordinance book until city hall reopens.
A review of the City website shows that in January 2021, the council packet was posted and available on the website. As of February 10, 2021, the council packet for the February 9, 2021, meeting was not available on the website. City ordinances are not available and must be accessed at City Hall during regular business hours. Normal business hours are posted on the website as Monday - Thursday from 8 a.m. to 3 p.m. and Friday from 8 a.m. to 2 p.m.
The fee policy for public record requests is not posted to the website. At the IPIB’s request, a copy of the fee policy was provided for review. Fees for record retrieval are listed as $30.00 per hour for the first hour, $10.00 per each additional quarter-hour, and $0.30 per page. The Policy requires a record requester to “put his or her request in writing using the City of Otho’s Public Records Form.” This requirement does not comply with Iowa Code section 22.4. It is uncertain whether the policy is in compliance with other sections of Iowa Code chapter 22.
It appears that the City would benefit from IPIB assistance to ensure complete compliance with Iowa Code chapter 22.
The Iowa Public Information Board (IPIB) accepted the formal complaint on February 18, 2021, as to the violation of Iowa Code section 22 and specifically 22.3 & 22.4, violation of the requirements for examination of records, procedures, and fees.
Pursuant to Iowa Code 23.9, the parties negotiated and reached an informal resolution.
The parties agree to the following terms:
- The Council will acknowledge during an open meeting that the requirements for requesting records, examination of public records, fees charged for records did not comply with Iowa Code chapter 22 and this acknowledgement be recorded in the minutes of said meeting.
- The Council will work with the city attorney to revise the public records policy that was adopted on December 22, 2020 to bring it into compliance with Iowa Code chapter 22 and a copy of the revised policy will be provided to the IPIB.
- The Mayor and Clerk will develop a plan in accordance with COVID-19 protocols to accommodate individuals who would like to make a records request or review public records while the city hall is closed. A copy of the plan will be provided to the IPIB.
- The city will provide Ms. Bergren with the public records that she requested on December 8, 2020 prior to the adopted policy. The city had stated it provided the records by email but she did not receive them so those records will be re-sent to the IPIB for distribution to Ms. Bergren.
- The Council shall conduct training during an open meeting for all council members and city clerk on Iowa Code chapters 21 and 22 (Sunshine Laws). The Council may utilize the powerpoint training available on the IPIB website. The Council shall work with the city attorney or the Iowa League of Cities to provide the training to the council and clerk.
- The Council shall approve this resolution during an open meeting and include the full text in the minutes of said meeting. Said minutes shall be provided to the IPIB.
The terms of this informal resolution will be completed within 60 days of acceptance by all parties. Upon showing proof of compliance, the IPIB shall dismiss this complaint as successfully resolved.
The Otho City Council approved the informal resolution on March 9, 2021 at their meeting.
Ms. Bergren approved the informal resolution on March 1, 2021.
The IPIB approved the informal resolution on April 15, 2021.
Summary of the terms:
The City of Otho acknowledged a violation of Iowa Code chapter 22. It approved the informal resolution at its March 9, 2021, Council meeting and included the full text in its minutes. A copy of the minutes has been provided to the IPIB. The Council revised the city’s public record policy on March 9, 2021, in accordance with Iowa Code chapter 22. A copy of this policy has been provided to the IPIB. The city established a plan to accommodate individuals who would like to make a records request or review public records while the city hall is closed. A copy of the plan has been provided to the IPIB. On April 19, 2021, the Board members participated in training led by the Iowa League of Cities. The minutes of this meeting were provided to the IPIB.
The records requested by Ms. Bergren on December 8, 2020 have been provided to her on March 18, 2021. The December 8, 2020 request was also seeking information and answers to questions from Ms. Bergren. On May 21, 2021, the city provided documents reflective of the information requested. As part of the complaint, it was stated that the city had attempted to respond to Ms. Bergren’s records request by email but she said that she did not receive the emails. On May 28, 2021 the city provided copies of all emails between the city of Otho and Ms. Bergren during the month of December 2021. On June 1, 2021, the city provided verification that they did not have any documents reflective of two items that Ms. Bergren had also asked for.
The proof of compliance has been provided. Therefore, the IPIB should dismiss this complaint as successfully resolved.
By the IPIB Deputy Director
_________________________________
Brett J. Toresdahl