22FC:0123: Zachary Palmer/Iowa Department of Corrections - Probable Cause Report

Date:
06/15/2023

Subject:
Zachary Palmer/Iowa Department of Corrections - Probable Cause Report

Opinion:

The Iowa Public Information Board

COMES NOW Daniel M. Strawhun, Legal Counsel for the Iowa Public Information Board (IPIB), and respectfully submits this probable cause report for formal complaint 22FC:0123.

Background
Zach Palmer filed formal complaint 22FC:0123 on November 22, 2022, alleging that the Iowa Department of Corrections violated Iowa Code chapter 22 on November 18, 2022.

The facts are as follows: Palmer submitted an online FOIA request to the Iowa Department of Corrections. The request was for the following records:

• The Iowa Prison Industries’ top 50 customers for each year based on total purchases, from 2010 through the present. Records should indicate for each customer whether that customer was a voluntary or agency purchaser.
• The total dollar amount of annual purchases (contract and non-contract) made by the University of Iowa, Iowa State University, and University of Northern Iowa from 2000 to 2005 and from 2010 through the present.
• University of Northern Iowa’s total purchases in 2006.

IDOC responded to Palmer’s request with an estimated fee for production. IDOC estimated that Palmer’s request would require 64 hours of work to complete. IDOC charges $45 per hour for search and compilation of data, making the total estimated cost to complete the request $2,880.

Upon receiving the estimate, Palmer filed the present complaint with IPIB, disputing the reasonableness of the fee estimate under Chapter 22. On December 3, 2022, IDOC provided a response to the complaint. The response listed the requests made and provided some justification for the estimates. For example, IDOC stated that the records of purchases made by UI, ISU, and UNI—if they exist—would be physical files in long-term storage. IDOC also stated in several instances that the fee estimate included compiling the information into reports. IDOC’s response also included a copy of the internal policy that sets the hourly rate for records requests at $45 per hour. The policy did not, however, state how this rate was determined or what it was based on.

IPIB staff asked IDOC to provide more information to determine whether the hourly rate reflected the actual costs of Mr. Palmer’s request. On January 4, 2023, IDOC stated that the rate “was established by the DOC Fiscal Director averaging the hourly pay of employees that work at the DOC Central Office. Staff with many different job classifications and pay are involved with processing open records requests (from secretaries to deputy directors) and we felt averaging the
hourly pay was the most fair and equitable.”

IPIB accepted the complaint on January 19, 2023. IPIB staff attempted to mediate an informal resolution between the parties. IPIB staff sent a proposed informal resolution to the parties for review, which contained the standard terms that IPIB typically proposes to resolve complaints pertaining to the reasonableness of fees. Palmer stated that he was amenable to the proposed informal resolution, so long as IDOC complied with the terms. Brad Horn, attorney for IDOC, stated that IDOC was concerned that the terms of the informal resolution were not specific enough and that the requirement that fees reflect the actual costs of production would be potentially burdensome to the agency. IPIB staff offered to redraft the resolution terms to provide more guidance on the revised fee structure and how actual costs should be computed.

IPIB staff conferred with Margaret Johnson, who was at that time the Director of IPIB, regarding IDOC’s concerns about the specificity of the terms. Johnson instructed IPIB staff not to provide more specific terms, as she felt that doing so was tantamount to drafting the language of the revised fee policy for IDOC, and that by stating how actual costs should be computed, IPIB would be improperly usurping the role of IDOC’s legal counsel.

IPIB staff relayed this information to the parties and sent a revised informal resolution, the terms of which were substantively identical to the original proposed resolution. The terms of the proposed informal resolution were as follows:
1. IDOC acknowledges that the fees at issue were not reasonable and were not based upon actual costs.
2. IDOC shall revise its fee policy such that the fees charged for public record production reflect the reasonable, actual costs of production as required by Iowa Code Chapter 22.
3. IDOC shall send the revised fee policy to IPIB for review and guidance before implementing the revised fee policy.
4. IDOC shall implement the revised fee policy. IDOC provided a signed copy of the revised Informal Resolution on March 8, 2023. On March 13, Mr. Palmer responded, stating that he would not sign the Resolution for reasons unrelated to the substance of the proposed terms. Legal counsel for IDOC and IPIB responded to Mr. Palmer’s concerns.

On March 29, Mr. Palmer asked for more time to respond further, as he was preparing for finals.

On May 24, Mr. Palmer responded, stating, among other things, “I still don’t find the informal resolution in compliance with the Iowa Open Records Law” and “I ask the board to escalate this matter to the courts and allow a judge to decide if the DOC is in compliance under Iowa code chapter 22.” He further stated that he would not sign an informal resolution until the DOC’s policies were in full compliance with the law.1

On June 2, 2023, IDOC provided documentation that it had updated its fee policy to remove the $45-per-hour search fee that gave rise to this complaint. IDOC’s current policy states that for requests that take more than 30 minutes to complete, requesters will be charged for the amount of time it takes to complete the request at the hourly rate of the employee who actually completes it.

A copy of the updated policy is attached to this report as Exhibit A.

Legal Analysis
Iowa Code section 22.3 governs fees for production of public records. Under that section, “[t]he lawful custodian may charge a reasonable fee for . . . supervising the examination and copying of the records, and “[a]ll reasonable expenses of the examination and copying shall be paid by the person desiring to examine or copy.” Iowa Code § 22.3(2). IPIB issued the following guidance regarding the reasonableness of expenses charged for a records request:

A “reasonable” cost for a public records request is determinative on the facts and circumstances of retrieving and copying the record. Fees are not meant to be a revenue stream. “Reasonable” fees for retrieving a public record are meant only to offset the cost of retrieving, reviewing, and copying the record. Reasonable Fees for Producing Records Requests, 22 Iowa Pub. Info. Bd. Op. 0003 (citing Rathmann v. Bd. of Directors of Davenport Cmty. Sch. Dist., 580 N.W.2d 773, 778–79 (Iowa 1998)).

Section 22.3 also states that the costs for copying a record shall be the “actual costs.” Actual costs are “only those reasonable expenses directly attributable to supervising the examination of and making and providing copies of public records.” Iowa Code § 22.3. Actual costs do not include overhead costs of the government body, such as employment benefits, maintenance, or electricity.

IDOC stated that the $45-per-hour rate that IDOC charges for records requests was determined by averaging the salary of every person who may conceivably become involved in processing a records request, including highly compensated employees within the agency, such as directors.

By determining the fee in this way, IDOC was charging every requester for the potential involvement of directors and other highly compensated employees, regardless of whether the specific request that was made actually requires the involvement of any of those employees. This method of computing fees for requests meets neither the reasonableness requirement (because the fee is not determined on the “specific facts and circumstances” of the request), nor the actual costs requirement (because the fee does not reflect the actual costs incurred).

Therefore, probable cause exists to believe a violation of Chapter 22 occurred. However, IDOC signed the informal resolution and implemented a new fee policy. The new fee policy no longer charges requesters $45 per hour; instead, the charges for time spent completing requests are to be based on the hourly wage of the employee who actually completes the request.

IPIB Action
The Board may take one of the following actions upon receipt of a probable cause report:
a. Redirect the matter for further investigation;
b. Dismiss the matter for lack of probable cause to believe a violation has occurred;
c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or
d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding”.

Recommendation
Mr. Palmer refused to agree to informally resolve the complaint. IDOC signed the informal resolution and remedied the issue complained of by revising its fee policy. I therefore recommend that IPIB determine that probable cause exists to believe a violation occurred, but that, as an exercise of administrative discretion, it dismiss the matter.

Respectfully submitted June 15, 2023.
Daniel M. Strawhun
Attorney
Iowa Public Information Board

1 IBIP legal counsel had previously explained to Mr. Palmer that compliance review was a term of the Informal Resolution and would be performed as part of the process if he were to agree to informally resolve the complaint by signing the Resolution.