Date:
08/19/2021
Subject:
Clark Kauffman/Iowa Department of Public Health - Probable Cause Report &Order
Opinion:
Before 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
Revised Probable Cause Report
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COMES NOW Zachary S. Goodrich, Legal Counsel for the Iowa Public Information Board (IPIB), and submits this Revised Probable Cause Report.
Background
On March 5, 2021, Clark Kauffman (Complainant) filed formal complaint 21FC:0017 alleging that the Iowa Department of Public Health (IDPH) violated Iowa Code chapter 22.
Complainant 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 [of COVID-19]”. 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, Complainant submitted a “standing request for the list as of January 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.
The IPIB accepted 21FC:0017 on April 15, 2021.
Pursuant to Iowa Code section 23.9, the parties negotiated, but were unable to reach an informal resolution.
The IPIB tabled this matter at its July 15, 2021, meeting to allow the parties to submit additional responses. The additional response (see Attachment A) reiterates what was found in the investigation and what has already been summarized below.
Investigation
Formal complaint 21FC:0017 alleged a violation of Iowa Code chapter 22 caused by excessive delay in releasing the requested records.
Counsel for IDPH stated that the delay was caused in part by confusion resulting from Complainant’s December 23, 2020, email with an additional request/modification and by a change in the data reporting system that delayed access to the information needed to create a responsive record for the Complainant.
Counsel also stated that IDPH has been dealing with “overwhelming demands on staff time and a significant increase in the volume of public records requests.” Counsel further stated that “IDPH will be reviewing their process and policies, and will be adding in steps to ensure better communication with requestors in the event there is delay or denial of requests.”
Analysis
Iowa Code chapter 22 does not provide specific deadlines for the release of public records. Iowa Code section 22.8(4) offers limited 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.
e. Actions for injunctions under this section may be brought by the lawful custodian of a government record, or by another government body or person who would be aggrieved or adversely affected by the examination or copying of such a record.
f. The rights and remedies provided by this section are in addition to any rights and remedies provided by section 17A.19.
The Iowa Supreme Court has elaborated on this issue and, while not providing a specific deadline, the Court does offer additional guidance:
“… 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.”[1]
Although there may be reasonable rationale for the delay between December 9, 2020, and January 23, 2021, due to Complainant 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.
In this matter, the delay in releasing records is over two months. The size or nature of the request did not justify a delay of over two months and, therefore, violates Iowa Code chapter 22.
Conclusion
Upon further investigation, there appears to be a violation of Iowa Code chapter 22 as alleged in formal complaint 21FC:0017. However, the issue causing the violation in this complaint is being addressed by an informal resolution in a similar case.[2]
The informal resolution for that complaint consists of terms that require the IDPH to revise their public records request policy to ensure prompt responses and ample communication with requestors. The terms also require that the IPIB review and approve the revised policy in order for that complaint is dismissed.
IPIB Action
The IPIB has several options upon receipt of a probable cause report. According to Iowa Administrative Rule 497 - 2.2(4):
“Upon receipt and review of the staff investigative report and any recommendations, the board may:
- Redirect the matter for further investigation;
- Dismiss the matter for lack of probable cause to believe a violation has occurred;
- Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or
- Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding”.
Recommendation
For the aforementioned reasons, I recommend that the IPIB determine that probable cause exists to believe the IDPH violated Iowa Code chapter 22 as alleged in formal complaint 21FC:0017.
I also recommend that formal complaint 21FC:0017 be dismissed as an exercise of administrative discretion pursuant to Iowa Administrative Code rule 497-2.2(4)(c), as corrective and preventative measures are being implemented by the IDPH.
Respectfully submitted this 19th day of August, 2021, by:
________________________________
Zachary S. Goodrich
Legal Counsel
CERTIFICATE OF MAILING
This document was sent by electronic mail on this _____ day of August, 2021, to:
Clark Kauffman, Complainant
Heather Adams, counsel for IDPH
[1] Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 461 (Iowa 2013).
[2] See IPIB formal complaint 20FC:0016, Rachel Bruns/Iowa Department of Public Health.