Date:
04/21/2022
Subject:
Michael Merritt/City of Ames - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Michael Merritt, Complainant And Concerning: City of Ames, Respondent |
Case Number: 22FC:0020
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 March 9, 2022, Michael Merritt filed formal complaint 22FC:0020, alleging that the City of Ames (City) violated Iowa Code chapter 22.
Mr. Merritt alleged that on November 29, 2021, he mailed a request for records to the Ames city clerk. He provided a copy of a follow-up status request he sent on February 14, 2022.
On March 9, 2022, Mr. Merritt received a letter from the city attorney. In this letter the city attorney advised that he was working on the request and that there had been some confusion as to whether the clerk or the attorney was retrieving the records. In addition, the City was encountering difficulties in determining what records were requested in light of the technical information included with the record request.
Between March 23 and April 1, 2022, Mr. Merritt, the city attorney, and IPIB staff exchanged emails concerning the fees requested by the City, letters received by Mr. Merritt from the City police department providing the information required by Iowa Code section 22.7(5), acknowledgement from the city attorney that the initial delay was the fault of the City, and a statement from Mr. Merritt that he did not want the information required by Iowa Code section 22.7(5), but wanted to view the actual officer reports.
Mr. Merritt requested these records:
1. City of Ames “Information System End-User interaction with the following uniform resource locators (URL)” between November 15–29, 2020. Twenty URLs were listed.
2. “The existence of any of the following uniform resource locators (URL) or their subdomains within the City of Ames information systems network usage logs.” Forty-eight URLs were listed, including music and video streaming services.
3. “The existence of any of the following uniform resource locators (URL) or their subdomains within the City of Ames information systems network usage logs that are not associated with City of Ames user accounts.” Among the 16 URLs listed were file sharing services like Dropbox and Google Drive.
4. “End-User information within City of Ames information systems logs showing previous access to uniform resource locators (URL) or their sub-domains'' of the URLs Mr. Merritt previously listed in items 1–3, including his personal blog, music and video streaming services, and file-sharing services.
5. Emails mentioning domains listed in item 1.
6. Emails mentioning Michael Merritt, Matthew Merritt, and Sara Merritt between November 15–29, 2021.
7. Emails mentioning Ames police incidents #20-005016, #20-005368, and #20-005052.
8. Police reports made by Matthew Merritt or Sara Merritt regarding the complainant.
9. Audio of a phone call to a specific Ames police officer regarding incident #20-005368.
10. An explanation of the purpose of visiting any of the listed URLs from Mr. Merritt’s blog, video and audio streaming services, and file-sharing services, in light of the Ames Police Department Service Manual.1
In response to the complaint, the City’s legal counsel responded that the City does not keep logs of URLs visited by City employees or through the use of the City’s public wi-fi system. Therefore, there were no responsive records for items 1 - 4.2 Since these records do not exist, there is no explanation to be provided (item 10).
In response to requests numbered 5, 6, and 7, legal counsel responded that those records could be provided and that Mr. Merritt was quoted a fee of $168.21 to conduct the search, copy to a thumb drive, and mail to him. As of April 12, 2022, this fee had not been received. Once the fee is received, the City will conduct a search for these records.
As to record requests 8 and 9, the City’s legal counsel stated that these records are confidential peace officers investigative reports. Mr. Merritt was provided with the date, time, specific location, and immediate facts and circumstances as required by Iowa Code section 22.7(5). Mr. Merritt acknowledged receipt of this information in a March 31, 2022, email correspondence.3
Iowa Code section 22.7(5) provides that certain law enforcement records are confidential:
5. Peace officers’ investigative reports, privileged records or information specified in section 80G.2, and specific portions of electronic mail and telephone billing records of law enforcement agencies if that information is part of an ongoing investigation, except where disclosure is authorized elsewhere in this Code. However, the date, time, specific location, and immediate facts and circumstances surrounding a crime or incident shall not be kept confidential under this section, except in those unusual circumstances where disclosure would plainly and seriously jeopardize an investigation or pose a clear and present danger to the safety of an individual. Specific portions of electronic mail and telephone billing records may only be kept confidential under this subsection if the length of time prescribed for commencement of prosecution or the finding of an indictment or information under the statute of limitations applicable to the crime that is under investigation has not expired.
As noted by the City’s legal counsel and confirmed by Mr. Merritt, he was provided with the information required to be released pursuant to this code section. Other records (5-7) will be provided upon payment of the requested fee, allowable under Iowa Code section 22.3(1).4 There are no records responsive to the rest of his request (1-4, 10).
The City acknowledged there was an unnecessary delay in its initial response. Some of that delay resulted from not understanding what was requested. To avoid this situation in the future, the City should review its record request procedure and determine whether this situation could have been avoided by establishing a record request protocol. Contacting Mr. Merritt and engaging in a conversation about his record request might have avoided the necessity of filing a complaint.5
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:0020 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. The manual states that members shall use information technology in a professional manner. The manual allows only incidental personal use of internet resources, but allows access to unrestricted websites (websites not requiring an account, email, or password) for legitimate investigative purposes.
2. Legal counsel advised that the City established a program to track URLs and create a log in January 2022. Future requests for similar records can now be retrieved.
3. Legal counsel also stated that the original request was acknowledged in December 2021. On December 21, 2021, the city clerk acknowledged receipt of his letter and advised that it would take longer than 10 days to retrieve, review, and release the requested records. Mr. Merritt does not acknowledge receipt of this letter.
4. Fulfillment of a request for a copy of a public record may be contingent upon receipt of payment of expenses to be incurred in fulfilling the request and such estimated expenses shall be communicated to the requester upon receipt of the request.
5. Initially, the City and Mr. Merritt only corresponded by U.S. Mail. This contributed to the delay.
CERTIFICATE OF MAILING
This document was sent via. U.S. Mail or by electronic mail on the ___ day of April, 2022, to:
Michael Merritt
Mark Lambert, legal counsel for the City of Ames