Before The Iowa Public Information Board
In re the Matter of:
MARI RADTKE, Complainant And Concerning: CITY OF PAULLINA, Respondent | Case No. 22FC:0069
Probable Cause Report |
|---|
COMES NOW, Daniel M. Strawhun, Legal Counsel for the Iowa Public Information Board (IPIB), and respectfully submits this probable cause report for formal complaint 22FC:0069.
Background
On July 21, 2022, Mari Radtke filed formal complaint 22FC:0069 against the City of Paullina (“City”) alleging a violation of Iowa Code chapter 22. She alleged that the City failed to provide a record she requested.
On June 15, 2022, Ms. Radtke submitted an envelope containing her written request to the Paullina deputy clerk, Whitney Engelke. Ms. Radtke requested copies of “text, telephone, email, written, in person when documents were exchanged and social media exchanges including but not limited to Facebook DM” [sic] from May 9, 2022 through June 10, 2022. Ms. Radtke’s request was directed toward the following persons: Brenda Ebel Kruse (mayor of Paullina), the five members of the Paullina City Council, Whitney Engelke (deputy city clerk), and Sandy Fritz (former deputy city clerk). The topic of the request was “[a]ny business regarding the City of Paullina in which the topic will come before the entire council.” Ms. Radtke also requested identification of “all elected and appointed officials present in person or via electronic means at 315 E Groesbeck on Thursday, May 12, at approximately 6:30 p.m.”
The City failed to respond to the request, leading Ms. Radtke to file her complaint with IPIB.
IPIB accepted this complaint on November 17, 2022. Pursuant to section 23.9, IPIB staff began efforts to reach an informal resolution between the parties. However, the City was unresponsive, which resulted in a probable cause report being presented to the Board on March 3, 2023.
Shortly before the March 3 IPIB meeting at which the probable cause report was presented, the City began releasing the requested records. The City has since released all of the records responsive to the request that were still in its possession. Certain records requested were not released because they had reportedly been deleted—namely, the text messages. Because of the long delay between the date the request was made and the date that the City began releasing the records, it was initially unclear whether the records had been deleted before or after the City officials/employees involved were aware of the request. Had the records been deleted after, such action would have amounted to a refusal to comply with the request—a clear violation of chapter 22.
In order to address this issue, IPIB staff requested that all individuals who failed to release records because they had been deleted answer a series of questions in the form of an affidavit. Those affidavits are attached to this report as Exhibits A through D.
Once the records were released and the affidavits explaining the timing of the deletion of the records that were not released were submitted, IPIB staff proposed that the parties agree to informally resolve the complaint. Because the records had at this point either been released or deleted, IPIB staff suggested that the informal resolution require the City to complete training on the proper way to process, respond to, and handle public records requests.
In response to this proposal, the City indicated that new council members would be elected at the beginning of November and suggested that the training include them as well. IPIB staff contacted the League of Cities and arranged for training sessions to be scheduled for all individuals that were involved with this complaint, as well as the new council members once they are elected. The Complainant, Ms. Radtke, stated that the City has already completed training as a result of a different complaint she filed, and she stated definitively that she would not agree to informally resolve the complaint through training.
On November 20, 2023, the League of Cities conducted the training session with the City. The meeting minutes reflecting this are attached as Exhibit E.
Legal Analysis
Whereas a “good-faith, reasonable delay by a lawful custodian in permitting the examination and copying of a government record” is permitted in certain circumstances, Iowa Code § 22.8(4), “an implied or ‘silent’ refusal—can be shown through an unreasonable delay in producing records.” Belin v. Reynolds, 989 N.W.2d 166, 174 (Iowa 2023).
Here, the City never attributed the delay to any of the circumstances contained in section 22.8(4). The City began producing the records around 8 months after the request was made. The length of this delay and the absence of any mitigating circumstances from section 22.8(4) suggest that the delay was an unreasonable refusal to produce the records—a violation of chapter 22. However, the City did eventually produce the records, as well as affidavits accounting for the deletion of any records it did not produce. Additionally, the City participated in training on the proper procedure for responding to public records requests.
Under Iowa Code section 23.9, once the Board accepts a complaint, IPIB is required to work with the parties to attempt to resolve the complaint informally. This process of informal resolution was initially short-circuited by the City’s unresponsiveness, resulting in the March 3 probable cause report. Once the City became responsive and cooperative, the Complainant, by that time understandably frustrated, then refused to agree to informally resolve the complaint. At this point in time, the City has done everything it can to resolve the issues complained of.
IPIB Action
The Board may take the following actions upon receipt of a probable cause report:
- Redirect the matter for further investigation;
- Dismiss the matter for lack of probable cause to believe a violation has occurred;
- Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or
- Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding.
Iowa Admin. Code r. 497-2.2(4).
Recommendation
Based upon investigation of the complaint, I recommend that the Board determine probable cause exists to believe that the City of Paullina violated Iowa Code chapter 22 through unreasonable delay in producing the records.
However, I would recommend that the complaint be dismissed as a matter of administrative discretion, as the City at this point has done everything it can to remediate the alleged violation.
Respectfully submitted on December, 21 2023.
Daniel M. Strawhun Legal Counsel,
Iowa Public Information Board
CERTIFICATE OF MAILING
This document was sent by electronic mail on December 13, 2023, to: Mari Radtke
Tisha Halverson, City Attorney for Paullina, Iowa.