Date:
04/21/2022
Subject:
Clay Gavin/Cascade City Utilities - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Clay Gavin, Complainant And Concerning: Cascade City Utilities, Respondent |
Case Number: 22FC:0027
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 April 1, 2022, Clay Gavin filed formal complaint 22FC:0027, alleging that the Cascade City Utilities (Utilities) violated Iowa Code chapter 22.
Mr. Gavin alleged that on February 8, 2022, he requested copies of five different records or series of records from the Utilities. He received copies of four of the requested records. He alleged that the Utilities unlawfully withheld this record request: “A copy of the advice, both legal and otherwise, you mentioned in the aforementioned voicemail that formed the basis of the board’s decision to revisit their previous decision on rate of reimbursement for excess generation.”
He alleged that the Utilities general manager denied the release of this record, claiming an attorney/client privilege allowed the Utilities to withhold this record.
Legal counsel for the Utilities responded to the complaint on April 6, 2022. Counsel stated that the communication in question was protected from release by the attorney/client privilege.
Counsel also noted that the IPIB has previously held that the IPIB’s jurisdiction is limited to violations of Iowa Code chapters 21 and 22.1 He added that the IPIB has upheld the attorney/client privilege in other matters.
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 Utilities have 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:0027 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. See Iowa Code section 23.1: 23.1 Citation and purpose. This chapter may be cited as the “Iowa Public Information Board Act”. The purpose of this chapter is to provide an alternative means by which to secure compliance with and enforcement of the requirements of chapters 21 and 22 through the provision by the Iowa public information board to all interested parties of an efficient, informal, and cost-effective process for resolving disputes.
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:
Clay Gavin
Timothy Whipple, legal counsel for the Cascade Municipal Utilities