Date:
03/17/2022
Subject:
Tad McDowell/Mills County Assessor - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Tad McDowell, Complainant And Concerning: Mills County Assessor and Auditor, Respondent |
Case Number: 22FC:0006
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:
Tad McDowell filed formal complaint 22FC:0006 on February 11, 2022, alleging that the Mills County Assessor (Assessor) and Auditor (Auditorr) violated Iowa Code chapter 22.
Mr. McDowell alleged that on January 28, 2022, he requested copies of “invoices and/or county records regarding payments made to Brett Ryan or the Watson & Ryan Law Firm in 2021 and 2022….” He also alleged that he requested a copy of the 2021 “sales ratio study”. He alleged that both requests were denied.1
He. further alleged that the records of payments made for legal services to the specific attorney or law firm should not be considered attorney work product pursuant to Iowa Code 22.7(4) as the litigation in district court has been resolved.
On February 21, 2022, legal counsel for the Assessor filed a response to the complaint. In his response, he referred to district court litigation that resulted in a court order determining that Mr. McDowell must request certain public records as discovery through the court litigation.2
Legal counsel noted that although the district court case was resolved, there is litigation continuing as Mr. McDowell has an appeal pending before the Iowa Property Assessment Appeal Board (PAAB). Mr. McDowell argued that the PAAB appeal is not litigation as required to enact Iowa Code section 22.7(4).
Iowa Code section 22.2(1) states: “Every person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.” Chapter 22 does not restrict this right to only those individuals who are not engaged in litigation with a lawful custodian.
Certain attorney work product records are considered confidential under Iowa Code section 22.7(4):
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.
An appeal filed against the Mills County Board of Review to the PAAB would appear to be a claim filed against Mills County, as envisioned by this code section.
However, it is not necessary to determine if the assessor’s public records concerning payment of costs to legal counsel fall within this confidentiality protection. Granted, there could be some information in the invoices submitted by legal counsel or the law firm to the Assessor, but the warrants paid for legal fees should not contain that information. Any confidential information contained in the warrant could be redacted, leaving the amount paid and the date of payment.
On March 9, 2022, Mr. McDowell reminded IPIB staff that his record request, and the subsequent complaint, was directed to both the Assessor and the Auditor. As of that date, the Auditor, or the County Attorney, had not responded to the complaint.
A copy of a proposed acceptance order was provided to the Mills County Attorney for comment on the legal analysis concerning release of the public records. The Mills County Attorney noted concurrence with the legal analysis provided, requested a copy of the original record request, and subsequently released the requested records.3
The requested records have now been released. Mr. McDowell indicated that the Assessor should be considered separately since that office would not release the records. However, he addressed his record request to both offices jointly and filed his complaint and alleged a violation by both offices jointly.
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. With the release of records by Mills County, this complaint does not meet those requirements.
IT IS SO ORDERED: Formal complaint 22FC:0006 is dismissed 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 March 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
1. Since the date of the filing of his complaint, Mr. McDowell has received the sales ratio study and has withdrawn that portion of his complaint.
2. The Mills County District Court entered an order in response to the Mills County Board of Review’s Motion for Order Directing Plaintiff to Observe Discovery and Ethics Rules. The Order stated, in part, that any “request for information that is relevant and relates to the issues on appeal shall be directed to counsel representing the Defendant as discovery request.” The Court also ruled: “This Order does not prohibit the Plaintiff from making lawful public records request in accordance with Iowa Code Chapter 22 that would otherwise not violate this Court’s Order.” (See Mills County District Court (EQCV027232), filed on June 16, 2021, and dismissed on January 28, 2022.)
3. Mr. McDowell alleged that the Auditor informed him that she had been advised by the Mills County Attorney that the records requested were confidential. The county attorney told IPIB staff that the records were public records.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of March, 2022, to:
Tad McDowell
Brett Ryan, legal counsel for the Mills County Assessor
Naeda Elliott, Mills County Attorney