Date:
04/15/2021
Subject:
Clark Kauffman/Iowa Department of Public Health - Acceptance Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Clark Kauffman, Complainant And Concerning: Iowa Department of Public Health, Respondent |
Case Number: 21FC:0017
Acceptance Order
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COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Acceptance Order.
On March 5, 2021, Clark Kauffman filed formal complaint 21FC:0017, alleging that the Iowa Department of Health (IDPH) violated Iowa Code chapter 22.
Mr. Kauffman alleged that he filed a request for records on December 9, 2020. He requested copies of the “most recently updated version of this report showing all 2020 nursing home outbreaks.” On December 21, 2020, he requested a status update. On December 23, 2020, the IDPH spokesperson responded that the record would not be available until the week of January 4, 2021.
On December 23, 2020, Mr. Kauffman requested a “standing request for the list as of Jan. 23, 2021”. Despite additional communications both before and after the filing of this complaint on March 5, 2021, the records were not released until March 31, 2021.
Although there may be a reasonable rationale for the delay between December 9, 2020, and January 23, 2021, due to Mr. Kauffman changing his request to a future date of January 23, 2021, it was clear by his email dated January 15, 2021, that he had renewed his request for an updated cumulative report. Referring him to the information posted on the IDPH website was not sufficient, as he requested a cumulative report, not a report of numbers from a singular date.
Iowa Code chapter 22 does not provide specific deadlines for the release of public records. The Iowa Supreme Court has stated:
“Under this interpretation, practical considerations can enter into the time required for responding to an open records request, including ‘the size or nature of the request.’ But the records must be provided promptly, unless the size or nature of the request makes that infeasible”. Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 461 (Iowa 2013).
Iowa Code section 22.10(4) offers this guidance:
4. Good-faith, reasonable delay by a lawful custodian in permitting the examination and copying of a government record is not a violation of this chapter if the purpose of the delay is any of the following:
a. To seek an injunction under this section.
b. To determine whether the lawful custodian is entitled to seek such an injunction or should seek such an injunction.
c. To determine whether the government record in question is a public record, or confidential record.
d. To determine whether a confidential record should be available for inspection and copying to the person requesting the right to do so. A reasonable delay for this purpose shall not exceed twenty calendar days and ordinarily should not exceed ten business days.
In this complaint, the delay in the release of the records, or a denial for such release, is over two months. This delay appears to exceed the code and case law requirements.
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 meets those requirements.
IT IS SO ORDERED: Formal complaint 21FC:0017 is accepted pursuant to Iowa Code section 23.8(1) and Iowa Administrative Rule 497-2.1(2)(a). Parties shall cooperate with IPIB staff to reach an informal resolution as provided in Iowa Code section 23.9.
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 April 15, 2021. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
________________________________
Margaret E. Johnson, J.D.
1. Attachment 1 outlines the dates and summarizes the communications between Mr. Kauffman and the IDPH.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of April, 2021, to:
Clark Kauffman
Iowa Department of Public Health, Heather Adams, AAG, legal counsel