22FC:0122 Nathan Kelderman/Sioux County Sheriff's Office - Acceptance Order

Date:
12/16/2022

Subject:
Nathan Kelderman/Sioux County Sheriff's Office - Acceptance Order

Opinion:

The Iowa Public Information Board

COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Acceptance Order.

Nathan Kelderman filed formal complaint 22FC:0122 on November 19, 2022, alleging that the Sioux County Sheriff’s Office (Sheriff) violated Iowa Code chapter 22.

Mr. Kelderman alleged that he requested investigative records from an incident reported on March 20, 2021.  He alleged that he received communication from the Sheriff that each investigative report would incur a $10.00 fee, plus $40.00 for the time spent collecting the records.

In addition, he alleged that he used to work for the Sheriff and knows that the fees charged are not based upon actual costs, as required by Iowa Code chapter 22.

The Sheriff responded to the complaint on November 30, 2022.  The Sheriff stated that his office has a fee schedule available online (Exhibit 1).  In addition to the fees noted on the website, the Sheriff also charges $25.00 per hour for staff to retrieve the records.  He stated that he would “waive the $25 fee” if Mr. Kellerman still wanted the materials he requested. 1

Mr. Kelderman replied to the Sheriff’s email on December 1, 2022.  He stated that he was not requesting incident reports, but copies of supplemental reports, each of which are typically one to eight pages long.  A flat fee would not be based upon actual, reasonable costs.

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.)

The fee schedule on the Sheriff’s website is not based upon actual costs.  Instead, it is a flat fee schedule for various records and services the Sheriff provides.  By accepting this complaint, the IPIB can provide assistance with adopting a better fee policy.

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:0122 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 December 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

________________________________

Margaret E. Johnson

1.  Included with the response was a recording of a phone conversation between IPIB and Sheriff staff.  During that conversation the Sheriff staff was specifically told that the fees must be ‘reasonable’ and ‘based upon the actual costs’ of retrieving the records.  His staff was told to include a breakdown of the actual costs in the response.  This was not provided.

CERTIFICATE OF MAILING

This document was sent by electronic mail on the ___ day of December,  2022, to:

Nathan Kelderman

Sioux County Sheriff’s Office