Date:
04/21/2022
Subject:
Randy Evans/Fayette County - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Randy Evans, Complainant And Concerning: Fayette County, Respondent |
Case Number: 22FC:0007
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 February 7, 2022, Randy Evans filed formal complaint 22FC:0007, alleging that Fayette County (County) violated Iowa Code chapter 22.
Mr. Evans alleged that on February 7, 2022, copies of public records were requested from the Fayette County Engineer. He further alleged that the County responded to the record request “by arranging with a nongovernmental entity to process and fill requests for documents belonging to Fayette County and by allowing that nongovernmental entity to charge fees for retrieval of those documents that are well in excess of what would be permissible had a county employee retrieved and copied public records that belong to Fayette County.”1
Mr. Evans provided a response dated February 4, 2022, from the county engineer acknowledging a call made earlier that day inquiring on the status of his request. This response included a copy of a response made by the county engineer to BAC 3 Iowa on December 21, 2021, in response to a request received that day. The earlier response stated: “Thank you for your request. I am estimating that the cost for providing the information based upon reasonable and actual costs to be $125.00 Please forward the payment to the below address and we will process the request. If the cost is greater than the estimated cost you will be asked to pay the difference. If the actual cost is less you will be refunded the difference.”
There is no information in the documents and correspondence provided by Mr. Evans that BAC 3 Iowa responded to the county engineer. However, Mr. Evans stated on March 8, 2022, that BAC 3 Iowa did pay the initial estimate of $125.00 and is awaiting a refund for the overpayment.
According to Mr. Evans, the county engineer sent an additional email on February 7, 2022, to BAC 3 Iowa, modifying the fees to $58.50, the amount charged by the project manager for providing the requested information to the County.2
On March 2, 2022, the County attorney responded to the formal complaint. He stated that the contract executed by the County for this project was finalized on March 15, 2021. One of the terms of the contract was the cost to be charged to the County for professional services of Origin Design, the company awarded the contract. Answering the question for the County incurred professional fees that were charged to the County pursuant to the terms of the contract.
In addition, the project had not progressed to the point where an insurance document would have been provided to the County, so the information was not readily available to the County and had to be requested from Origin Design.
The County attorney noted that the County was responsible for payment of the fee of $58.50 required under the Origin Design contract, thus the actual costs incurred by the County to acquire information to answer the question was the amount requested from BAC 3 Iowa.3
Iowa Code section 22.2(2) states:
2. A government body shall not prevent the examination or copying of a public record by contracting with a nongovernment body to perform any of its duties or functions.
There is nothing that prohibits the County from contracting with a nongovernment body such as Origin Design to maintain the records concerning the contracted building project, as long as the County does not prevent access to public records. The County did not deny the request for information, but instead took proper steps to retrieve the requested information.
Iowa Code section 22.3(2) allows a government body to charge fees based upon actual costs for the retrieval, review, and release of government records: “Actual costs shall include only those expenses directly attributable to supervising the examination of and making and providing copies of public records.”
The fee of $58.50 is the actual cost incurred by the County to acquire the information requested by BAC 3 Iowa.
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. Since a responsive record did not exist at the time of the request for information, the County took appropriate steps to request information from the contractor. The costs incurred and billed to BAC 3 Iowa were the actual costs incurred by the County. This complaint does not meet the necessary requirements for acceptance.
IT IS SO ORDERED: Formal complaint 22FC:0007 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 April 21, 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. Mr. Evans filed his complaint on behalf of the Bricklayers and Allied Craftworkers Local 3 Iowa (BAC 3 Iowa), a sustaining member of the Iowa Freedom of Information Council. He provided a copy of a record request dated December 23, 2021, in which BAC 3 Iowa requested “the following information: Name of the Mason Contractor that will be performing on your project.”
2. It appears from the attachments provided by Mr. Evans in his complaint that on February 7, 2022, the county engineer provided the answer to BAC 3 Iowa’s question.
3. The County attorney noted that both the county engineer and an administrative assistant initially searched County records to determine if there was a responsive document in the County engineer’s office. Based upon the hourly wages of the two County employees involved, the County incurred another $63.20 in actual costs for the costs of the County employees’ time that was not included in the fees requested.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of April, 2022, to:
Randy Evans
W. Wayne Saur, Fayette County Attorney