23FC:0023 and 23FC:0057: Michael Merritt/City of Newton- Consolidation and Dismissal Order

Date:
07/20/2023

Subject:
Michael Merritt/City of Newton- Consolidation and Dismissal Order

Opinion:

The Iowa Public Information Board

COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order:

Complaint 23FC:0023
On February 12, 2023, Michael Merritt filed formal complaint 23FC:0023, alleging that City of Newton violated Iowa Code chapter 22.

Mr. Merritt’s complaint lists a number of grievances, but among the list there is only one that is within the jurisdiction of the Iowa Public Information Board, so this complaint will address only the relevant claim. Mr. Merritt alleges that on December 14, 2022, he requested the city of Newton provide body cam footage produced by Officer Oldfield for incident 22-32247, body camera footage from Officer Watson for case number CFS-19016725, and body camera footage for Officer Watson on November 18, 2022, during an interaction between Officer Watson and Mr. Merritt.

The city responded to his request through their attorney, Matt Brick. Mr. Brick informed Mr. Merritt that body camera footage for incident 22-32247 and CFS-19016725 was available and would cost $20 to provide copies. He also stated that no footage existed for the November 18, 2022, incident.

To date, Mr. Merritt has not paid for the body camera footage, so it has not been provided to him.

Applicable Law
Section 22.3 allows a government body to 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.” Prepayment can be required prior to fulfilling the request or releasing the records.

Analysis
Mr. Merritt requested body camera recordings from the City of Newton. The city responded and stated that one of the records did not exist, so it could not be provided, but the other two body camera records were available and would cost $20 to copy the footage for Mr. Merritt. Mr. Merritt has not paid the $20, so the city has not provided the footage.

Nothing in Iowa Code Chapter 22 requires a city to create a record when none exist, so there is no violation in telling Mr. Merritt that no body camera footage could be provided for the November 18, 2022 incident.

Iowa Code § 22.3 allows a city to charge reasonable fees for the examination and copying of records. Rather than paying for the videos, Mr. Merritt filed a complaint with the Board. Since filing the complaint, Mr. Merritt has not paid for the requested records, so he has not received them. Under these facts, there is no violation by the city of Newton.

Conclusion
Iowa Code § 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and have merit before the IPIB accepts a complaint. Following a review of the allegations on their face, it is found that this complaint does not meet those requirements.

Mr. Merritt requested records from the city of Newton. Mr. Merritt was informed that some records did not exist and that the remaining records were available upon payment of $20. Rather than paying for and retrieving the records, Mr. Merritt filed this complaint with the Board. Complaint 23:FC0023 is without merit and should be dismissed.

Complaint 23FC:0023
On May 1, 2023, Michael Merritt filed formal complaint 23FC:0057, alleging that City of Newton violated Iowa Code chapter 22. Mr. Merritt’s complaint 23FC:0057 lists a significant number of grievances with 56 exhibits dating back into March 2022 regarding previous complaints he has had and the ability of the Newton newspaper to collect information from the city related to police incidents. There were two potential complaints among these that might fall within the jurisdiction of IPIB. These are the two issues Mr. Merritt specifically asked IPIB to review: whether he received all of the incident reports he requested and to ensure that consistent fees and access to records are provided.

No additional facts were provided to support a concern about not receiving all records requested.

In support of his concern that the city was discriminating in its responses to records requests, Mr. Merritt cited articles in the Newton newspaper.

The city responded through their attorney Matt Brick and stated that all records requested by Mr. Merritt on January 4, 2023, were paid for by Mr. Merritt and provided on March 13, 2023. The city also provided IPIB with copies of their non-discrimination policy and non-discrimination agreement with the Iowa Department of Transportation agreement for receipt of federal funds.

Mr. Merritt’s response to the city’s statements appears to be comments in regard to his disagreement with the resolution of a previous complaint that was before this Board and was dismissed as successfully resolved on January 19, 2023.1

Applicable Law
Iowa Code § 22.1(2) requires that “Every person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.” Iowa Code § 22.3(2) provides that “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.”

Together these code sections require government entities to not discriminate in the availability or access to public records, but due to the unique nature of each individual records request and the requirement to charge the actual costs of providing the records to each individual based on the specific individual request, the amounts of separate and unique records requests may not be the same for every requester.

Analysis
Mr. Merritt’s complaint was to ask IPIB to ensure he received all of the documents requested. The city affirmed that it has provided all of the records requested to Mr. Merritt.

Aside from his displeasure with the resolution of a previous IPIB complaint, Mr. Merritt has provided no further information or facts to support his concern that he has not received all the records he requested. A complaint should be based on more than a general concern or mere speculation to be actionable.

In this case, there are no facts to support Mr. Merritt’s general and unspecified concern that he is not certain whether he has received all of the records in this particular records request.

Mr. Merritt’s claim that a female was treated differently than he appears to have been previously adjudicated by IPIB.2 Regardless, the city has non-discrimination policies in place and there is no evidence aside from Mr. Merritt’s speculation that a female has been treated differently.

Conclusion
Iowa Code § 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and have merit before the IPIB accepts a complaint. Following a review of the allegations on their face, it is found that this complaint does not meet those requirements.

Mr. Merritt requested records from the city of Newton. Mr. Merritt received the records he requested. Mr. Merritt filed this complaint with the Board asking us to confirm that he has received the records. There is no evidence that he has not received the records he requested nor is there any evidence that the City of Newton has treated Mr. Merritt differently than a female because of his sex. Complaint 23:FC0057 is without merit and should be dismissed.

IT IS SO ORDERED: Formal complaints 23FC:0023 and 23FC:0057 are dismissed as they are without merit pursuant to Iowa Code § 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 July 20, 2023. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.

By the IPIB Executive Director
_________________________
Erika Eckley, J.D.

1 See 22FC:0071 Final Report and Order.

2 See 22FC:0071 Acceptance Order.