Date:
08/19/2021
Subject:
Daniel McCleery/Milestone Area Agency on Aging - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Daniel McCleery, Complainant And Concerning: Milestones Area Agency on Aging, Respondent |
Case Number: 21FC:0051
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 June 22, 2021, Daniel McCleery filed formal complaint 21FC:0051, alleging that the Milestones Area Agency on Aging (MAAA), a government body, violated Iowa Code chapter 22.
Mr. McCleery, legal counsel for a wholesale grocer and food service provider, alleged that his client filed a public records request with the MAAA on April 16, 2021, requesting a food contract proposal submitted by another wholesale grocer and food service provider selected by MAAA to provide food service.1
On April 23, 2021, MAAA denied the record request, stating that the vendor considered the pricing information requested by Mr. McCleery’s client to be confidential proprietary information as defined by Iowa Code section 22.7(3).
On May 17, 2021, Mr. McCleery submitted a request for the same records to MAAA in an attempt to obtain the records that were previously denied. His request was denied for the same reason on June 17, 2021.
On July 1, 2021, legal counsel for MAAA responded to the complaint, stating that all records requested by Mr. McCleery were released, including the scoring sheets and answers to the questions posed.2 However, the pricing sheets submitted with the winning bid were considered a trade secret by the vendor and by the MAAA pursuant to Iowa Code section 22.7(3) and were therefore confidential.
Iowa Code section 22.7(3) defines as confidential: “3. Trade secrets which are recognized and protected as such by law.”
Iowa Code section 550.2(4) defines a trade secret:
4. “Trade secret” means information, including but not limited to a formula, pattern, compilation, program, device, method, technique, or process that is both of the following: a. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by a person able to obtain economic value from its disclosure or use. b. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. (Emphasis added.)
Pricing sheets, which are integral to the bidding process for a food contract proposal, would have “independent economic value”, and it is reasonable for a vendor to request to maintain the secrecy of that information.3
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 fulfill those requirements.
IT IS SO ORDERED: Formal complaint 21FC:0051 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 August 19, 2021. 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. The record request included any and all records considered by MAAA in determining who was the successful bidder, including, but not limited to, the selected vendor’s point sheet, pricing sheets, meeting minutes notes reflecting discussion of the bids, meeting minute notes reflecting the decision to award the bid, any correspondence related to the decision for selection of the successful bidder, as well as any records which were used, relied upon, or reviewed by MAAA.
2. In addition, MAAA provided a general description of the reason why the contract was awarded to a competing food service provider.
3. See Sysco Iowa, Inc. v. University of Iowa, 889 N.W.2d 235, a 2016 Iowa Court of Appeals decision that determined that information in bids concerning pricing have independent economic value and qualify as trade secrets. See also 18FC:0122, a formal complaint filed with the IPIB in December 2018, concerning pricing information for contracts with the Iowa Department of Human Services (DHS): “The Iowa Courts of Appeals in a 2016 decision involving a review of Iowa Code section 22.7(3), Sysco Iowa, Inc. v. University of Iowa, 889 N.W.2d 235, held that ‘information detailing, among other things, Sysco’s pricing...have independent economic value and qualify as trade secrets.’ (at 236) Although some readers might not fully understand the significance of the redacted information, anyone familiar with services pricing would.”
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of August, 2021, to:
Daniel McCleery
Mikki Schlitz, legal counsel for the Milestone Area Agency on Aging