Date:
11/18/2021
Subject:
Clint Fichter/City of Avoca - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Clinton Fichter, Complainant And Concerning: City of Avoca, Respondent |
Case Number: 21FC:0094
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:
Clinton Fichter filed formal complaint 21FC:0094 on September 24, 2021, alleging that the City of Avoca (City) violated Iowa Code chapter 22 on September 24, 2021.
Mr. Fichter alleged that in mid-July his legal assistant called the City clerk to request copies of certain meeting minutes and other documents. He alleged that his assistant was told that the records would not be provided. He further alleged that he contacted the City clerk on August 5, 2021, to request “simple financial documents readily available through the City’s accounting software.” He alleged that on August 26, 2021, he advised legal counsel for the City that the requested records had not been released. He alleged that he has yet to receive the records.
On October 1, 2021, Mr. Fichter advised IPIB staff that he would provide “email documentation of our request and an affidavit from my assistant on the blanket denial of our right to public info.” Mr. Fichter then forwarded an email dated August 5, 2021, in which he (Mr. Fichter) requested the June 2021 treasurer report, expense report, and revenue report “in printed hard copy.”1
A response was filed by the City administrator on October 5, 2021. The response indicated that the information requested by the legal assistant in mid-July was for copies of minutes. He added that according to the City clerk “she had received a call from a Rich Price requesting the information that not would [sic] normally be submitted to the Public, therefore, he would have to apply through the regular channels.”
The City Administrator noted that the previous City administrator had resigned on May 28, 2021, and that he, as the new City administrator, had been employed starting on August 1, 2021. During June and July 2021, there was no City administrator.2
The City administrator also stated that a lawsuit was filed by Mr. Fichter against the City and certain City personnel and officers on July 12, 2021. Therefore, all correspondence from Mr. Fichter had been directed to legal counsel.3
During staff review of this complaint, contact was made with the City attorney and with the attorney representing the City in the court actions to determine whether the records requested in August 2021 by Mr. Fichter would be released. As a result of this inquiry, the records were released on November 8, 2021. Future record requests separate from discovery requests in the court actions will be coordinated by the City administrator and the City attorney.
Because of the confusion between the legal actions and other record requests, there was a delay in the release of the 56 pages of financial records Mr. Fichter requested on August 5, 2021, and provided documentation of on October 1, 2021. The records have now been released.
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 meet those requirements.
IT IS SO ORDERED: Formal complaint 21FC:0081 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 November 18, 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. An affidavit to establish the actual date of the “mid-July” record request has not been received. It appears that the first alleged violation did not occur within 60 days prior to the filing of this complaint as required by Iowa Code section 23.7(1). The IPIB would not have jurisdiction over the first allegation.
2. Reference was made to an agreement made between Mr. Fichter and the City pursuant to an informal resolution entered into by the parties in 21FC:0005, approved by the parties in March 2021, which included the term: “The City agrees to waive future fees for information requests from the Petitioner when the requests are submitted and delivered electronically.” The City indicated that it believed that this provision applied to requests made electronically by the Journal Herald and not for requests made individually by Mr. Fichter. Therefore, a fee was required to be paid by Mr. Fichter for his or his legal associate’s record request.
3. Case Number EQCCV121778, District Court for Pottawattamie County, filed July 12, 2021. Removed to United States District Court, Southern District of Iowa, Western Division, on August 18, 2021 (case number 1:21-CV-00022). Amended petition filed by Mr. Fichter on October 25, 2021, in district court case.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of November, 2021, to:
Clinton Fichter
City of Avoca city administrator and city attorney