Date:
01/19/2023
Subject:
Dakoda Sellers/City of Vinton - Acceptance Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Dakoda Sellers, Complainant And Concerning: City of Vinton, Respondent |
Case Number: 22FC:0118
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.
Dakoda Sellers filed formal complaint 22FC:0118 on November 11, 2022, alleging that the City of Vinton (City) violated Iowa Code chapter 22.
Mr. Sellers alleged that he submitted a records request to the City on October 28, 2022, requesting copies of all emails sent or received by the city administrator from October 21 through October 27, 2022.
The City responded that they were having difficulties retrieving the requested emails due to a recent email server upgrade. The City also required payment of the fees to begin retrieving the records.
The fee estimate was not provided until after the complaint was filed. The fees were quoted at $1,295.75. This was calculated at three hours of IT time to retrieve the emails, at $140.25 per hour, plus five hours of attorney review at $175 per hour.
Later, the City added that the email search would normally require only 30 minutes of IT time. However, due to the server upgrade, the IT department would need additional time to learn how to retrieve emails.
No information was provided to explain why the city attorney would need to review the emails or why such review would require five hours.
Iowa Code section 22.3, as amended effective July 1, 2022, states:
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.)
An estimate of $875.00 for five hours of review of public records does not appear to be reasonable as required by Iowa Code section 22.3. The emails are all public records. There may or may not be confidential information requiring redaction.
Iowa Code section 22.3A(2)(b) requires a government body to utilize accessible systems when storing public records electronically:
(2)(b). A government body shall not acquire any electronic data processing system for the storage, manipulation, or retrieval of public records that would impair the government body’s ability to permit the examination of a public record and the copying of a public record in either written or electronic form.
Iowa Code section 22.3A(2)(c) states that the government body is responsible for costs of separating a public record from software:
(2)(c). If a public record is only available as a part of or in combination with data processing software in order to permit the examination or copying of the public record, the government body shall bear the cost of separation of the public record from the data processing software.
The issue in this complaint is whether the estimated fees comply with the requirements of Iowa Code sections 22.3 and 22.3A. It does not seem reasonable that it would require 8 hours of employee time to release and review six days of one employee’s emails.
Based upon the information presented by the parties, it appears that the fees are not reasonable nor based upon actual costs.
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 requirements for acceptance to consider the fee issue.
IT IS SO ORDERED: Formal complaint 22FC:0118 is accepted by the IPIB pursuant to Iowa Code section 23.8(1) and Iowa Administrative Rule 497-2.1(2)(a). Parties are directed to work with IPIB staff to reach 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 January 19, 2023. 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
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of January, 2023, to:
Dakoda Sellers
Doug Herman, legal counsel for the City of Vinton