Date:
09/15/2022
Subject:
Michael Merritt/City of Newton - Acceptance Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Michael Merritt, Complainant And Concerning: City of Newton, Respondent |
Case Number: 22FC:0071
Acceptance Order
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COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Acceptance Order.
Michael Merritt filed formal complaint 22FC:0071 on July 20, 2022, alleging that the City of Newton (City) violated Iowa Code chapter 22 on June 23, 2022. Mr. Merritt alleged the following violations:
1) City violated Iowa Code chapter 22 by having outside counsel respond to his record request instead of city staff.
2) City discriminated on the basis of gender against Mr. Merritt.
3) City failed to properly investigate a matter in 2019 concerning a restraining order, Mr. Merritt’s ex-wife, and the “concealed transfer of children to live in Ames, IA.”
4) Additional concealment of children occurred during appearances before the San Diego East County Superior Court in 2019.
5) The Newton Police Department has failed to execute “consistent law enforcement” when Mr. Merritt has reported harassment to them.
6) The Newton Police Department took no action in November 2021 after Mr. Merritt reported evidence of identity theft.
7) Mr. Merritt’s ex-wife executed a “multi-year conspiracy” in Iowa, California, and Montana while using his information to obtain health care benefits.
8) Mr. Merritt’s ex-wife continues to conceal the youngest child, who is a minor.
9) On July 15, 2022, the City conditioned release of requested records on payment of “over $10,000.”
10) In June 2022, the Newton Police Department provided an incident report to a female for $5.00, and in July 2022 charged Mr. Merritt $10.00 for an incident report.
11) Mr. Merritt accused City staff of “surveillance of free speech published by a citizen they know is investigating them” because he tracked his website traffic to the City computers.
Of all the allegations listed, only numbers (9) and (10) allege possible violations of Iowa Code chapter 22. The remainder of the allegations are beyond the jurisdiction of the IPIB.1
Legal counsel for the City responded to the complaint on August 5, 2022. As to allegation (10), counsel explained that the City revised its fee schedule effective July 1, 2022. Under the new fee schedule, the expense to provide the incident report increased to $10.00. The report provided to a female, as alleged by Mr. Merritt, was under the previous fee schedule.
As to allegation (9), legal counsel responded that the records requested are voluminous and consist of “copies of nearly every City email sent from January 1, 2021, to June 24, 2022.” Counsel added that Mr. Merritt has not provided additional search terms to narrow the scope of his record request in order to lower the estimated costs.
Mr. Merritt replied to the City’s response on August 5, 2022, disputing that the City can charge fees for the retrieval, review, and release of records: “You have expressed that the City of Newton, IA is owed a form of financial compensation for the records I have requested. I am in the position to provide the City of Newton, IA nothing. The City of Newton, IA can either provide the records I have requested it is required to release in accordance with the laws of our state… or if you prefer we can ascertain in court which party is owed money in this case.”
Iowa Code section 22.3 allows a government body to charge fees for the retrieval, review, and release of public records. It also allows a government body to collect such fees prior to fulfilling a request for public records. This code section was amended, effective July 1, 2022, to state:
22.3 Supervision — fees.
1. The examination and copying of public records shall be done under the supervision of the lawful custodian of the records or the custodian’s authorized designee. The lawful custodian shall not require the physical presence of a person requesting or receiving a copy of a public record and shall fulfill requests for a copy of a public record received in writing, by telephone, or by electronic means. Although fulfillment of a request for a copy of a public record may be contingent upon receipt of payment of reasonable expenses, the lawful custodian shall make every reasonable effort to provide the public record requested at no cost other than copying costs for a record which takes less than thirty minutes to produce. In the event expenses are necessary, such expenses shall be reasonable and communicated to the requester upon receipt of the request. A person may contest the reasonableness of the custodian's expenses as provided for in this chapter. The lawful custodian may adopt and enforce reasonable rules regarding the examination and copying of the records and the protection of the records against damage or disorganization. The lawful custodian shall provide a suitable place for the examination and copying of the records, but if it is impracticable to do the examination and copying of the records in the office of the lawful custodian, the person desiring to examine or copy shall pay any necessary expenses of providing a place for the examination and copying.
2. All reasonable expenses of the examination and copying shall be paid by the person desiring to examine or copy. The lawful custodian may charge a reasonable fee for the services of the lawful custodian or the custodian’s authorized designee in supervising the examination and copying of the records. If copy equipment is available at the office of the lawful custodian of any public records, the lawful custodian shall provide any person a reasonable number of copies of any public record in the custody of the office upon the payment of a fee. The fee for the copying service as determined by the lawful custodian shall not exceed the actual cost of providing the service. Actual costs shall include only those reasonable expenses directly attributable to supervising the examination of and making and providing copies of public records. Actual costs shall not include charges for ordinary expenses or costs such as employment benefits, depreciation, maintenance, electricity, or insurance associated with the administration of the office of the lawful custodian. Costs for legal services should only be utilized for the redaction or review of legally protected confidential information. However, a county recorder shall not charge a fee for the examination and copying of public records necessary to complete and file claims for benefits with the Iowa department of veterans affairs or the United States department of veterans affairs. (Emphasis added.)
The changed language to Iowa Code section 22.3 allows a record requestor to challenge the reasonableness of a custodian’s expenses. Although Mr. Merritt has not engaged in communication with the City to determine whether the quoted expenses are reasonable, the code modifications permit a challenge to the reasonableness of fees.
Acceptance of this complaint will allow the IPIB to seek further information concerning the reasonableness of the fees for both allegations (9) and (10) and coordinate a resolution of the fee dispute.
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 meets the necessary requirements for acceptance as to allegations (9) and (10) concerning the reasonableness of the fees.
IT IS SO ORDERED: Formal complaint 22FC:0071 is accepted only as to reasonableness of fees pursuant to Iowa Code section 23.8(1) and Iowa Administrative Rule 497-2.1(2)(a). Parties are directed to cooperate with IPIB staff to facilitate an informal resolution pursuant to Iowa Code section 23.9.
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 September 15, 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
1. See Iowa Code section 23.1: 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.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of September, 2022, to:
Michael Merritt
Matt Brick, legal counsel for the City of Newton