Date:
05/20/2021
Subject:
Clark Kauffman/Alcoholic Beverages Division - Dismissal Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Clark Kauffman, Complainant And Concerning: Alcoholic Beverages Division, Respondent |
Case Number: 21FC:0028 Dismissal Order |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
On April 1, 2021, Clark Kauffman filed formal complaint 21FC:0028 against the Alcoholic Beverage Division (ABD) alleging a violation of Iowa Code chapter 22. He alleged that ABD refused to provide access to “whatever Compliance Review Checklists the division had received from the Department of Inspections and Appeals since January 1 as part of the case-referral process between the two agencies.”
Mr. Kauffman alleged that he requested this access on March 24, 2021. He further alleged that the ABD responded that the ABD could not “give access to our case management system.” He then requested copies of the documents. This request was also denied, citing Iowa Code section 123.38A. The complaint states that when Mr. Kauffman asked whether there were any checklists received by the Department of Inspections and Appeals (DIA) in the last 13 months, he was told to check the ABD website for that information and then submit his public records request for a specific closed case.
As alleged in the complaint: “In steering me to the website, where none of the requested records are posted, Mr. Holmes seems to be suggesting that I assemble a list of all the cases files from the past 13 months that are shown there and then ask ABD to search all of those case files for the records I am requesting. But I have no way of ascertaining from the website which of those 90 cases do or don’t include the requested checklists. Even in those cases where a checklist might be referenced – in a final order, for example – the checklist itself is not among the documents that I can access from the website.”
Mr. Kauffman describes his complaint as having three elements:
(1) ABD is attempting to force the use of a costly and ineffective method of record retrieval that places the burden on me to magically divine the contents of ABD's own case files and then request (and possibly pay for) a time-consuming search of those files in case the records I seek are located there.
(2) ABD has refused to even acknowledge that it has the records I initially requested.
(3) ABD has simply rejected my request for the checklists, and now wants me to file a different request -- one that has me asking the agency to search through 90 or so case files -- in writing and through its online portal.
Mr. Kauffman asked the IPIB to “order ABD to comply with the Open Records Law and provide the requested documents in the most efficient, least costly manner.”
Legal counsel for the ABD (Lolani Lekkas) responded to the complaint on April 2, 2021, and noted that the ABD would be “working with Mr. Kauffman directly to clarify, specifically, what he is requesting from our agency so that we can fulfill his request for information. Mr. Kauffman was directed to the portal both as a means to track his request and to allow him the opportunity to detail what information was being requested.”
On April 7, 2021, Jake Holmes from the ABD emailed to Mr. Kauffman the names of two establishments where ABD filed a hearing complaint and attached copies of the Compliance Review Checklist for each licensee.
On April 14, 2021, ABD legal counsel filed an additional response. Ms. Lekkas noted that Iowa Code subsections 22.8(4)(c) and (d) allow a
“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:...
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.”
Ms. Lekkas provided a timeline for the records that are the subject of this complaint. She noted that the first email from Mr. Kauffman, requesting access to, but “not necessarily copies of,” these records. He was informed ABD would not provide access to the ABD case management system.
Mr. Kauffman’s modified request was received on March 26, 2021, to which the ABD noted that some of his requested records were confidential pursuant to Iowa Code section 123.38A which states:
123.38A Confidential investigative records. In order to assure a free flow of information for accomplishing the purposes of section 123.4 and section 123.9, subsection 6, all complaint information, investigation files, audit files, and inspection files, other investigation reports, and other investigative information in the possession of the division or employees acting under the authority of the administrator are privileged and confidential, and are not subject to discovery, subpoena, or other means of legal compulsion for their release before administrative or criminal charges are filed. However, investigative information in the possession of division employees may be disclosed to the licensing authorities of a city or county within this state, in another state, the District of Columbia, or territory or county in which the licensee or permittee is licensed or permitted or has applied for a license or permit. In addition, the investigative information can be shared with any law enforcement agency or other state agency that also has investigative, regulatory, or enforcement jurisdiction authorized by law. Records received by the division from other agencies which would be confidential if created by the division are considered confidential. (Emphasis added.)
Following the March 31, 2021, email from Mr. Kauffman requesting any of the checklists forms in the past three months, Mr. Holmes suggested that Mr. Kauffman use the ABD portal to submit his request. Ms. Lekkas stated that this is not required, but can be a faster way to access ABD public records.
As noted earlier, the March 31, 2021, request was fulfilled on April 7, 2021, seven calendar/five business days after receipt. Even if the release is calculated back to March 24, 2021, when access to the ABD system was requested, the appropriate records were released within 14 calendar/ten business days after the request.
Because the public records are included in the case management system that also includes records that are privileged and confidential pursuant to Iowa Code section 123.38A, the ABD is required to determine whether a specific record can be released. This is the delay that is envisioned by Iowa Code section 22.8(4)(c).
Based upon a review of the complaint and the emails establishing the timeline of events, 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 could have merit before the IPIB accepts a complaint. This complaint does not meet those requirements.
IT IS SO ORDERED: Formal complaint 21FC:0028 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 May 20, 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.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of May, 2021, to:
Clark Kauffman
Lolani Lekkas, legal counsel for the Alcoholic Beverage Division