Date:
02/17/2022
Subject:
Maxwell Krivachek/City of Fort Atkinson - Consolidate & Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Maxwell Krivachek, Complainant And Concerning: City of Fort Atkinson, Respondent |
Case Numbers: 22FC:0001 and 22FC:0003
Consolidate and Dismiss Order
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COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Order to Consolidate and Dismiss.
On January 6, 2022, Maxwell Krivachek filed formal complaint 22FC:0001, alleging that the City of Fort Atkinson (City) violated Iowa Code chapter 22. On January 16, 2022, Mr. Krivachek filed formal complaint 22FC:0003, again alleging that the City violated Iowa Code chapter 22. Because both complaints allege a violation of Iowa Code chapter 22 and involve ongoing record requests, it is appropriate to consolidate the complaints.
In 22FC:0001, Mr. Krivachek alleged that the City violated public records laws by failing to have a copy of a record available for his inspection at 10 a.m. on January 6, 2022. He provided documentation that he requested the access to handwritten notes from a January 4, 2022, city council meeting in an email dated January 5, 2022. In that email, he stated that he would view the requested record the next morning at 10 a.m.
The city clerk responded to the email and indicated that she was unable to provide the notes at the date and time requested as she had the notes with her and not at the City office. She added that she had 15 days to have the minutes published under state law.1
The clerk notified Mr. Krivachek on January 10, 2022, that the requested record was available for him at the City office, five calendar and three business days after his record request.
In 22FC:0003, Mr. Krivachek alleged that the City violated public records laws by failing to provide a copy of a letter he requested. He provided a timeline to show that he requested the record originally on January 12, 2021. When the City responded to his record request on January 23, 2021, the requested letter was not provided. Since that date, he has continued to request a copy of the letter.
He further alleged that the minutes from a past city council meeting were either inaccurate and should be amended or that a violation of a City ordinance concerning record retention has been violated. He provided screenshots of emails to document his correspondence with the City regarding these issues.2
In response to both complaints, the City stated that the clerk was not able to meet the date and time Mr. Krivachek set for the release of the requested record in 22FC:0001. The record was made available as soon as possible. Since the clerk is not a fulltime employee of the City, she does take work home to do outside her hours of employment.
The City also responded that the minutes Mr. Krivachek wants amended have been reviewed and are not inaccurate, as Mr. Krivacheck claims.
Iowa Code chapter 22 does not set a specific timeframe for the retrieval and release of records. The time can vary depending upon the complexity of the request or the location of the documents. A reasonable, good faith delay does not violate the Iowa Code. In this case, a delay of three business days, considering the work schedule of the city clerk, is not unreasonable.
Iowa Code chapter 22 does not require that a record requester have open access to all public records. Iowa Code section 22.3(1) specifically states, “The examination and copying of public records shall be done under the supervision of the lawful custodian of the records or the custodian’s authorized designee.”
Iowa Code section 23.7(1) grants the IPIB authority to review alleged violations that occur within 60 days of the filing of the complaint. All alleged violations cited by Mr. Krivachek that predate this time period are beyond the jurisdiction of the IPIB.
In addition, Iowa Code chapter 22 does not establish record retention requirements. The IPIB does not have the authority to interpret and enforce City ordinances governing record retention.
Iowa Code chapter 22 does not provide guidance on the sufficiency of minutes. Iowa Code section 21.3 requires that minutes show the “date, time and place, the members present, and the action taken at each meeting,” as well as the “results of each vote taken and information sufficient to indicate the vote of each member present.”
There is no requirement that minutes include a description of the discussion that occurred during a meeting or a list of documents provided to council members.
Of all the allegations raised, only the allegation that the handwritten minutes were not released in a timely manner is within the jurisdiction of the IPIB. For the reasons previously noted, this is not a 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 these requirements.
IT IS SO ORDERED: Formal complaints 22FC:0001 and 22FC:0003 are consolidated and dismissed as legally insufficient or beyond the jurisdiction of the IPIB 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 February 17, 2022. 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, J.D.
1. Iowa Code section 349.18 established the requirements for publication of minutes.
2. Mr. Krivachek also alleged ongoing disputes he has with the City concerning the use of employee credit cards and the reward points that accumulate to the benefit of an employee when a reimbursable expenditure is made, his concerns about narratives included in minutes in 2017 through 2019, and whether the clerk should be allowed to take her handwritten notes home to work on minutes.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of February, 2022, to:
Maxwell Krivachek
City of Fort Atkinson