Date:
12/15/2022
Subject:
Sara Wells/Bettendorf Community School District - Revised Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Sara Wells, Complainant And Concerning: Bettendorf Community School District, Respondent |
Case Number: 22FC:0094
Revised Dismissal Order
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COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Revised Dismissal Order.
Sara Wells filed formal complaint 22FC:0094 on September 16, 2022, alleging that the Bettendorf Community School District (District) violated Iowa Code chapter 22 on June 21, 2022.1
According to Ms. Wells, the missing record was a copy of a salary addendum from June 29, 2021. She included a copy of an email dated September 16, 2022, requesting the document “before the end of the day.”
On September 19, 2022, a District representative sent an email to Ms. Wells, copying the IPIB, that stated that record was not included in the previous release of records because it was a confidential document pursuant to Iowa Code section 22.7(65).
A copy of this complaint was provided to the District on September 30, 2022. Legal counsel for the District responded to the complaint on October 12, 2022.
In response to this complaint, legal counsel provided an outline of significant events concerning the salary increase given to the District superintendent in 2021 (see Exhibit 1). Legal counsel included seven attachments, including copies of relevant emails, addendums, agreements, and board meeting agendas and minutes.
The document in question, according to Ms. Wells, was a document noting the salary increase approved by the school board at the May 17, 2021, school board meeting.
According to the District legal counsel, this document was never provided to the school board, the governmental body authorized to approve the superintendent’s contract. Instead, the document was later incorporated into an addendum that was presented to the school board and presented and approved by the school board at its July 27, 2021, meeting. A copy of this addendum was provided to Ms. Wells as a public record.
Ms. Wells claimed that the document was provided to the District finance officer, who then used the figure listed for issuing salary payments to the superintendent. However, the District had already approved the salary in May 2021, so the payment increase was already authorized by the school board.
District legal counsel stated that the withheld document only included one paragraph, whereas the final document provided to the school board and the public was four paragraphs and contained additional salary and benefits terms, including the salary previously approved by the school board. That strengthens the assertion that the original email was tentative and met the requirements of Iowa Code section 22.7(65).
Iowa Code section 22.7(65) states that certain preliminary documents are confidential:
65. Tentative, preliminary, draft, speculative, or research material, prior to its completion for the purpose for which it is intended and in a form prior to the form in which it is submitted for use or used in the actual formulation, recommendation, adoption, or execution of any official policy or action by a public official authorized to make such decisions for the governmental body or government body. This subsection shall not apply to public records that are actually submitted for use or are used in the formulation, recommendation, adoption, or execution of any official policy or action of a governmental body or government body by a public official authorized to adopt or execute official policy for the governmental body or government body.
The IPIB has interpreted this code subsection several times in formal complaints and advisory opinions. The most recent advisory opinion was issued in December 2020, 20AO:0006. Pertinent language from that advisory opinion provides an analysis to use to determine if the exclusion applies:
The IPIB provided additional clarification for this subsection in an earlier advisory opinion, AO 2015-01. In that advisory opinion, the question of when a document is considered to be a draft and able to be kept confidential was posed. The IPIB provided the following criteria for determining if a document falls under the 22.7(65) exception:
- The document is tentative, preliminary, draft, speculative or research material;
- The document exists in a form prior to completion of its intended purpose;
- The document exists in a form prior to the form that is ultimately submitted for use or used in the actual formulation, recommendation, adoption or execution of any official policy or action by a public official with authority to make such decisions; and
- The document must not have been submitted to or used by a public official authorized to adopt or execute official policy.
In applying this criteria [sic], the document must truly be a draft that is not in its final form to be submitted to a public official who has authority to make decisions regarding the subject matter to which the draft applies. In addition, if the draft has been submitted to a public official authorized to adopt or execute official policy, the exception does not apply.
The IPIB tabled the previous dismissal order at the November 17, 2022, IPIB meeting and requested that IPIB staff be allowed to review the withheld document pursuant to the confidentiality protections of Iowa Code section 23.6(6).2 The document was provided to the IPIB Executive Director for review.
Upon review of the document, it was apparent that the document does meet the criteria set by the IPIB to describe a preliminary or draft version of the final salary addendum. The document was an incomplete addendum draft that was not properly signed or maintained by the approving authority.
Based upon the information provided by both parties and the review of the document by the IPIB, the document in question does qualify as a draft document. It was definitely a preliminary document, existing in a form prior to its final purpose, submitted for use in developing the final document, and not yet submitted to the group authorized to adopt the final addendum (the full school board).
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:0094 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 November 17, 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. Pursuant to Iowa Code section 23.7, the IPIB can only review complaints that are filed within 60 days of the date of alleged violation. On its face, this complaint is not within the IPIB jurisdiction. However, Ms. Wells had previously filed formal complaint 22FC:0076 on August 9, 2022, concerning a record request she filed with the District on July 20, 2022, involving the same records. Those records were released on August 10, 2022. It is likely that Ms. Wells is referencing a missing record from the August 10, 2022, record release.
2. Iowa Code section 23.6(6) states: The board shall have all of the following powers and duties: (6) Examine, as deemed necessary by the board, a record of a governmental body or a government body that is the subject matter of a complaint, including any record that is confidential by law. Confidential records provided to the board by a governmental body or a government body shall continue to maintain their confidential status. Any member or employee of the board is subject to the same policies and penalties regarding the confidentiality of the document as an employee of the governmental body or a government body.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of December, 2022, to:
Sara Wells
Wendy Meyer, legal counsel for the Bettendorf Community School Board