Date:
11/17/2022
Subject:
Robert Colwell/Iowa Dept. of Health and Human Services - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Robert Colwell, Complainant And Concerning: Iowa Department of Health and Human Services, Respondent |
Case Number: 22FC:0095
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.
Robert Colwell filed formal complaint 22FC:0095 on September 16, 2022, alleging that the Iowa Department of Health and Human Services (DHHS) violated Iowa Code chapter 22 on July 27, 2022.
Dr. Colwell alleged that he made a request for public records to DHHS on July 27, 2022.1 He stated he received a response that the employee he emailed was out of office, so he forwarded the request to another DHHS employee. He alleged that he was told he would be notified when his records were ready, but that he has not received any communications.
When the second employee did not provide the records, Dr. Colwell alleged that he tried to again contact the first employee by telephone and email, but received no response.
IPIB staff notified DHHS of the formal complaint on September 30, 2022. On October 10, 2022, DHHS provided a response to the complaint. The response was from the second employee contacted by Dr. Colwell.
The response indicated that the delay occurred because of an oversight resulting from employees being out of the office and that the records, as well as an apology, were sent on October 10, 2022 (see Exhibit 1). The response indicates that DHHS is now reviewing its procedures concerning timeliness of record requests.
Dr. Colwell did not respond to an October 18, 2022, email from IPIB staff requesting acknowledgement of his receipt of the records and whether all records requested were received.
Iowa Code chapter 22 does not provide a specific timeframe to respond to a public records request. The Iowa Supreme Court has not provided a specific timeframe for fulfillment of a record request. The IPIB website provides an analysis of statutory guidance and case law:
Chapter 22 is silent as to the time for response to a records request. The time to locate a record can vary considerably depending on the specificity of the request, the number of potentially responsive documents, the age of the documents, the location of the documents, and whether documents are stored electronically. The large number of variable factors affecting response time makes it very difficult, and probably unwise, to establish any hard and fast objective standards. The statute was adopted more than forty years ago. Today’s electronic records environment adds to the complexity of this issue.
The only specific response time standard established by the statute addresses a good-faith reasonable delay incurred in order to determine whether a confidential document should be released. Iowa Code subsection 22.8(4)(d) states that a reasonable good-faith delay is not a violation of Chapter 22 if the purpose of the delay is:
“d. To determine whether a confidential record should be available for inspection and copying to the person requesting the right to do so. A reasonable delay for this purpose shall not exceed twenty calendar days and ordinarily should not exceed ten business days.”
While the Code states a delay under Iowa Code subsection 22.8(4)(d) shall not exceed twenty calendar days, the Iowa Supreme Court does not view this as an absolute deadline:
“Based on our review of section 22.8(4)(d), we believe it is not intended to impose an absolute twenty-day deadline on a government entity to find and produce requested public records, no matter how voluminous the request. Rather, it imposes an outside deadline for the government entity to determine ‘whether a confidential record should be available for inspection and copying to the person requesting the right to do so.’ We do not think we should extrapolate section 22.8(4)(d)’s twenty-day deadline to other contexts, when the legislature chose not even to include that deadline in other portions of section 22.8(4).” Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 461 (Iowa 2013).
According to an Iowa Attorney General Sunshine Advisory Opinion from August 2005, “Delay is never justified simply for the convenience of the governmental body, but delay will not violate the law if it is in good faith or reasonable.”
The Court in Horsfield also lists several considerations for determining if a delay is reasonable:
“Under this interpretation, practical considerations can enter into the time required for responding to an open records request, including “the size or nature of the request.” But the records must be provided promptly, unless the size or nature of the request makes that infeasible” Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 461 (Iowa 2013).
Without additional information, it is difficult to determine whether the delay was ‘reasonable’. It appears, based upon the information provided by DHHS, that at least part of the delay was due to employees being out of office and was not intentional. The records have been released.
In his initial complaint, Dr. Colwell asked the IPIB to assist with the fulfillment of his record request. That was accomplished.
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 those requirements.
IT IS SO ORDERED: Formal complaint 22FC:0095 is dismissed as harmless error 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. Dr. Colwell did not provide a copy of his request or any information about the complexity of his request.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of November, 2022, to:
Robert Colwell
Alex Carfrae and Matt Highland, Iowa Department of Health and Human Services