23FC:0033: Clark Kauffman/Iowa Workforce Development - Revised Dismissal Order

Date:
05/18/2023

Subject:
Clark Kauffman/Iowa Workforce Development - Revised 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:

On March 9, 2023, Clark Kauffman filed formal complaint 23FC:0033, alleging that Iowa Workforce Development (IWD) violated Iowa Code chapter 22.

Mr. Kauffman’s allegation arises from a series of emails between Mr. Kaufmann and individuals at IWD beginning on January 23, 2023. The original inquiry from Mr. Kauffman related to assistance in understanding two charts published by IWD related to an IWD report. This resulted in a lengthy exchange of emails in which Mr. Kauffman made a formal records request on February 9, 2023, for “access to all of the agency’s written communications, including text messages and emails, sent or received since January 23, 2023, that pertains to either (1) my requests for information on unemployment fraud and the annual report, and (2) the agency’s proposed response to those requests.” He also requested that the disclosure include the IWD director’s texts and that IWD preserve all of the texts on the IWD director’s phone.

On February 17, 2023, IWD responded to the request and provided a cost estimate of between $40 and $60 for the records. In response, Mr. Kauffman requested to know what steps were taken by IWD to preserve the records requested. On February 22, 2023, IWD provided a response to Mr. Kauffman in which IWD stated that it followed the procedures in the State Records Manual, that the IWD Director did a search on her phone on February 9, 2023, and confirmed “she had no such texts.” IWD also referenced a letter previously provided to Mr. Kauffman dated March 4, 2022,[1] that stated IWD does not conduct substantive business matters by text message.

In this situation, IWD responded within eight days to Mr. Kauffman’s record request. At that time, IWD provided an estimate for the cost of the records and appears ready and willing to provide the requested documents to Mr. Kauffman.

Upon review by the IPIB, Mr. Kauffman clarified that his Complaint was related to his February 22, 2023, request for “a copy of the notification to Director Townsend, along with her response.” The IPIB sought additional information regarding this matter.

In regards to this specific request, an email from the IWD attorney to Mr. Kauffman on March 9, 2023, prior to the Complaint being filed restated that the records request would cost $40-$60 and that it “would be fully inclusive of your requests.” In responding to the review of the February 22 request, IWD stated that there was also an email between the IWD attorney and the director, but the contents of the email are confidential under Iowa Code § 22.7(4) and attorney-client privilege.[2]

IWD also reiterated that “[i]n providing the original cost estimate, IWD respectfully notes that it does have an earlier email notification to Director Townsend regarding this matter. This would have been released and was included in the FOIA estimate. If Mr. Kauffman had chosen to pay the $40-$60 fee, he would have immediately known that Director Townsend had been alerted to his FOIA request.”

Mr. Kauffman has stated that he is not raising any objection regarding the fee for the records. His concern is that IWD is not preserving records in response to his request.  Mr. Kauffman, however, has still not made any payment or tried to collect the records he requested, which IWD has stated includes the notification regarding his request for records upon which his Complaint is based. Any failure to acquire the records is caused by Mr. Kauffman’s inaction rather than a violation by the IWD.

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 is without merit and does not meet those requirements.

IT IS SO ORDERED:  Formal complaint 23FC:0033 is dismissed as without merit pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b). IWD responded to all requests for documents. The documents were available to Mr. Kauffman upon payment of $40-$60. The records available are inclusive of the requests that have been made, including notice to the IWD Director.

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 May 18, 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] The March 4, 2022, letter is attached to this Order.

[2] IPIB has recognized the confidentiality of attorney client communications in numerous Orders.