22FC:0071 Michael Merritt/City of Newton - Final Report and Order

Date:
01/19/2023

Subject:
Michael Merritt/City of Newton - Final Report and Order

Opinion:

 

The Iowa Public Information Board

In re the Matter of: Michael Merritt, Complainant And Concerning: City of Newton,  Respondent

Case Number: 22FC:0071                                                                        Final Order

 

This matter comes before the Iowa Public Information Board (IPIB) this 19th day of January, 2023, to consider the Final Report concerning completion of the Informal Resolution.

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.  

The Iowa Public Information Board accepted this complaint on September 15, 2022.  Pursuant to Iowa Code section 23.9, the parties negotiated an informal resolution. 

Matt Brick, legal counsel for the City, signed the resolution on October 12, 2022, on behalf of the City.  Mr. Merritt signed the informal resolution on October 13, 2022.  The IPIB approved the informal resolution on October 20, 2022.

Both parties cooperated with the fulfillment of the terms of the informal resolution.  A Fee Review was distributed to the parties by the IPIB Executive Director on December 28, 2022.  Both parties agreed to the analysis presented in the Fee Review.

On January 12, 2023, Mr. Merritt stated that he would pay the modified fee proposed by the City for the release of the records.  The terms of the informal resolution have been completed. 

Upon providing proof of compliance, the IPIB agreed to dismiss this complaint.

Therefore, pursuant to the terms of the Informal Resolution, this complaint is dismissed as successfully resolved.

_______________________________

IPIB Chair

  

CERTIFICATE OF SERVICE 

This document was sent by electronic mail on the _______ day of January, 2023, to:

Michael Merritt

Matt Brick, legal counsel for the City of Newton

 

 

 

Before The Iowa Public Information Board

In re the Matter of: Michael Merritt, Complainant And Concerning: City of Newton,  Respondent

Case Number: 22FC:0071                                                                        Final Report

 

COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and submits this Final Report:

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) alleged possible violations of Iowa Code chapter 22.  The remainder of the allegations were beyond the jurisdiction of the IPIB.

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 decreased from $10.00 to $5.00.  The report provided to a female, as alleged by Mr. Merritt, was under the new 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.

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. 

The changed language to Iowa Code section 22.3, effective July 1, 2022, allows a record requester to challenge the reasonableness of a custodian’s expenses.  Although Mr. Merritt had 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.

The Iowa Public Information Board accepted this complaint on September 15, 2022.  Pursuant to Iowa Code section 23.9, the parties negotiated an informal resolution and agreed to the following terms:

1.  The City will provide an accounting for the fees quoted for both record requests within 15 days of approval of the informal resolution.

2.  The City will suggest possible search terms that could lower the fees within 15 days of approval of the informal resolution.

3.  Mr. Merritt, upon receipt of items (1) and (2), will indicate within seven days whether he is in agreement with a modification of search terms or will provide any acceptable search term modifications.

4.  If the parties are unable to reach an agreement within 20 days of completion of items(1), (2), and (3), IPIB staff will review the parties' position and will determine whether the proposed fees are reasonable.  

5.  Parties will be notified of this determination and will have 10 days to agree or disagree to such determination.  If there is no agreement, the informal resolution will be deemed to have been unsuccessful, and the IPIB will proceed with a probable cause report pursuant to Iowa Code section 23.10.

6.  The City will provide a copy of its fee policy or draft a policy if none exists.  Such a policy will be subject to approval by the IPIB. 

Matt Brick, legal counsel for the City, signed the resolution on October 12, 2022, on behalf of the City.  Mr. Merritt signed the informal resolution on October 13, 2022.  The IPIB approved the informal resolution on October 20, 2022.

Both parties cooperated with the fulfillment of the terms of the informal resolution.  A Fee Review was distributed to the parties by the IPIB Executive Director on December 28, 2022 (exhibit 1).  Both parties agreed to the analysis presented in the Fee Review.

On January 12, 2023, Mr. Merritt stated that he would pay the modified fee proposed by the City for the release of the records.  The terms of the informal resolution have been completed.  It is recommended that the IPIB dismiss this complaint as successfully resolved.  

By the IPIB Executive Director:

 

___________________________

Margaret E. Johnson

 

CERTIFICATE OF SERVICE

 

This document was sent by electronic mail on the _______ day of January, 2023, to:

Michael Merritt

Matt Brick, legal counsel for the City of Newton