Date:
04/21/2022
Subject:
Doug Weir/City of Ruthven - Dismissal Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Douglas Weir, Complainant And Concerning: City of Ruthven, Respondent |
Case Number: 22FC:0010
Dismissal Order
|
COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
On February 20, 2022, Douglas Weir filed formal complaint 22FC:0016, alleging that the City of Ruthven (City) violated Iowa Code chapter 22.
Mr. Weir alleged that on February 10, 2022, he requested “copies of all city of Ruthven employees (current and previous) including Ruthven’s city council members and mayor emails that have or discuss Doug Weir and Facebook in the email. Especially emails that reference Doug Weir not being allowed to comment on the city of Ruthven’s Facebook page.”1
Mr. Weir alleged that he received a response from the city attorney on February 17, 2022, that stated that Mr. Weir received the emails in January 2022 as part of the response to a previous record request. Legal counsel added that certain emails were withheld as work product or as attorney/client privileged communications.
A copy of the December 13, 2021, record request, as well as the answers and records provided to Mr. Weir, was included with the complaint materials. The response indicated that of the nine requests, all but three were provided. The city clerk asked Mr. Weir to pay a fee of $8.28 for an “SD card” to include copies of the recording of the December 8, 2021, city council meeting.
Legal counsel for the City responded to the complaint on February 28, 2022. Counsel noted that all responsive records have been released, except for some emails that were considered to be privileged attorney/client communications. On April 4, 2022, legal counsel provided a log of the emails between himself and the city clerk that were attorney/client privileged communications. (See attachment A).
In a previous complaint, IPIB upheld the University of Iowa’s determination that certain attorney/client privileged communications could be withheld from release in formal complaint 20 FC:0018, approved by the IPIB on May 21, 2020.2 The dismissal order stated that:
As further noted by the Office of General Counsel, the issue of attorney-client privilege stands on its own outside of Iowa Code chapter 22 and IPIB’s jurisdiction. Sources of this privilege include various sections of the Iowa Code, the Iowa Rules of Professional Conduct, and common law. The Iowa Attorney General has also issued a “Sunshine Advisory” which recognizes three types of documents exempt from public examination and copying, one of which are documents covered by attorney-client privilege.
IPIB has recognized the exemption of attorney-client privileged documents when reviewing public records requests and dismissed past complaints for this reason, citing the aforementioned sources. UI has not waived privilege; therefore, the emails in question remain confidential under attorney-client privilege.
The Iowa Attorney General issued a Sunshine Advisory that included attorney/client privileged materials as a “‘privilege’ or professional confidence recognized by the courts…”3
The IPIB also has adopted Iowa Administrative Rule 497-7.11(2)(e) which states:
7.11(2) Confidential records. The following records may be kept confidential.… e. Records which constitute attorney work product, or attorney-client communications, or which are otherwise privileged. Attorney work product is confidential under Iowa Code sections 22.7(4), 622.10 and 622.11, Iowa Rule of Civil Procedure 1.503(3), Federal Rule of Civil Procedure 26(b)(3), and case law. Attorney-client communications are confidential under Iowa Code sections 622.10 and 622.11, the rules of evidence, the Code of Professional Responsibility and case law.4
The City has not violated Iowa law by withholding communications that are attorney/client privileged.
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 the necessary requirements for acceptance.
IT IS SO ORDERED: Formal complaint 22FC:0010 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
________________________________
Margaret E. Johnson, J.D.
1. This record request was a partial repeat of a December 13, 2021, record request.
2. Roston/University of Iowa, available at https://ipib.iowa.gov/formal-complaints/20fc0018.
3. The Attorney General Advisory, dated January 1, 2004, and updated on December 1, 2014, is available at: https://www.iowaattorneygeneral.gov/about-us/sunshine-advisories/which-records-are-confidential.
4. The IPIB adopted Rule 497, chapter 7, Fair Information Practices, commonly known as the Uniform Rules on Agency Procedure relating to fair information practices.
CERTIFICATE OF MAILING
This document was sent via. U.S. Mail or by electronic mail on the ___ day of April, 2022, to:
Douglas Weir
David Stein, legal counsel for the City of Ruthven