Date:
09/16/2021
Subject:
Kay Bergren/City of Otho - Dismissal Order
Opinion:
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:0073
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 August 8, 2021, Kay Bergren filed formal complaint 21FC:0073, alleging that the City of Otho (City) violated Iowa Code chapter 22.
Ms. Bergren alleged that on July 5, 2021, she requested public records from the City, to include invoices from the city attorney to the City for the months June 2020 to July 1, 2021. She was told the fees for the retrieval, review, and release of the records were $125.00. She paid for and received the records for all months except for June 2021. She was told that an invoice for June 2021 had not been received.
She alleged that she paid for a June 2021 invoice and should now receive that record without additional charges. She also alleged that the redactions on the records were improper:
The following is what Bert Dalmer suggested I ask you about:
I’m glad they gave you a basis for the redactions. Some or all of these may be legitimate. But it does make you wonder why some things were completely unreacted while others were generously redacted. Was the attorney really sharing his “work product” or discussing sensitive privileged matters in an invoice?? If you think any of the redactions look questionable, you could ask IPIB to review them all to see if the redactions pass legal muster. At least that wouldn’t cost you anything! I half wonder whether IPIB would demand an unredacted version.1
The City responded to the complaint, noting that the fee of $125.00 was only for the invoices that had been received. The City clerk stated that fees are not charged for records that do not exist.
Legal counsel for the City added that the redactions were made pursuant to the confidentiality exceptions of Iowa Code section 22.7(4) and attorney/client privilege.
Iowa Code section 22.7(4) states that the following records are confidential:
4. Records which represent and constitute the work product of an attorney, which are related to litigation or claim made by or against a public body.
Pursuant to the protections of Iowa Code section 23.6(6), IPIB staff reviewed the redactions.2 The redactions were appropriate. The materials redacted were the work product of the City attorney and related to litigation. The subject matter of the litigation was not redacted. The redacted portions concerned legal strategy and advice provided by legal counsel.3
Since the City did not possess and did not charge Ms. Bergren for the June 2021 invoice review and redaction, there is no violation of Iowa Code section 22.3.4
As noted, the redactions were appropriate and did not violate Iowa Code section 22.7(4).
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:0073 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 September 16, 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. Bert Dalmer is a Senior Assistant Ombudsman at the Iowa Office of the Ombudsman.
2. “The board shall have all of the following powers and duties:... Examine, as deemed necessary by the board, a record of a governmental body or a government body that is the subject matter of a complaint, including any record that is confidential by law. Confidential records provided to the board by a governmental body or a government body shall continue to maintain their confidential status. Any member or employee of the board is subject to the same policies and penalties regarding the confidentiality of the document as an employee of the governmental body or a government body.”
3. The majority of the redactions were attorney work-product concerning Ms. Bergren’s previous complaints.
4. “Fulfillment of a request for a copy of a public record may be contingent upon receipt of payment of expenses to be incurred in fulfilling the request and such estimated expenses shall be communicated to the requester upon receipt of the request.”
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of September, 2021, to:
Kay Bergren
Brian Yung, attorney for the City of Otho