23FC:0067: Michael Larson/City of Cedar Rapids- Dismissal Order

Date:
07/20/2023

Subject:
Michael Larson/City of Cedar Rapids- 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:

Facts
On June 20, 2023, Michael Larson filed formal complaint 23FC:0067, alleging that the City of Cedar Rapids violated Iowa Code chapter 22.

Mr. Larson alleges that he has submitted two public records requests to the city of Cedar Rapids (City) for any human resources or library documents pertaining to a June 2, 2022, incident at the city’s public library that resulted in his dismissal from employment with the City.

He alleges he submitted his first request on March 29, 2023, but it was not fulfilled until May 3, 2023, after he sent a follow-up email checking on the status of the request. He found “obvious and blatant omissions,” which required him to submit a second records request on May 12, 2023, specifying the documents missing and restating the original request for any and all documentation related to the library incident. He sent a reminder on May 30, 2023, after which he received a phone call that his documents were available to be picked up that day.

His complaint focuses on some “obvious omissions” some communications among management about the incident between June 2 and June 6, 2022, as well as an updated illness/injury form referred to in an email. He also alleged that the investigatory notes are run off the page so they are partially illegible, and “in all likelihood there is missing documentation one could only guess at.”

The City’s response, he alleges, “has been careless at best and obstructionist at worst.”

In response, the City states that Mr. Larson’s request was promptly acknowledged, and an email was sent to Mr. Larson on April 6, 2023, informing him that his request would be ready by April 11, 2023. Mr. Larson did not respond to the email. After Mr. Larson’s email on April 25, 2023, the HR director called Mr. Larson directly on May 3, 2023, and he picked up the records.

In response to Mr. Larson’s request for records, the City did a search “regarding any emails sent about Michael Larson between any Library and City staff between June 2, 2022,
through yesterday [March 29, 2022].” A search was conducted through Microsoft 365’s Compliance Center for the term “Michael Larson” for the dates June 2, 2022 – March 29,
2023. The emails were reviewed for any confidential information and a packet of 274 pages was provided to Mr. Larson.1

Mr. Larson’s second records request was more specific in the documentation he was seeking.2 The City searched for these records and provided an additional 102 pages of records to Mr. Larson, some of which were documents already provided to him. The second request was provided within eleven days of his request.

The City denied that it did not intentionally or in bad faith withhold any information or documents from Mr. Larson. The records he sought in the second request were inadvertently and unintentionally omitted in the first response, were not responsive based on the parameters of the request, or simply do not exist.

Applicable Law
“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 § 22.2 “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.” Iowa Code § 22.3.

Chapter 22 is silent as to the time for response to a records request. The time to locate a record can vary considerably depending on the specificity of the request, the number of potentially responsive documents, the age of the documents, the location of the documents, and whether documents are stored electronically. The large number of variable factors affecting response time makes it very difficult, and probably unwise, to establish any hard and fast objective standards.

According to an Iowa Attorney General Sunshine Advisory Opinion from August 2005, “Delay is never justified simply for the convenience of the governmental body, but delay will not violate the law if it is in good faith or reasonable.” “[P]ractical considerations can enter into the time required for responding to an open records request, including ‘the size or nature of the request.’

But the records must be provided promptly, unless the size or nature of the request makes that infeasible” Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 461 (Iowa 2013).

Analysis
Mr. Larson made a public records request on March 29, 2023. The City responded to the request promptly and notified Mr. Larson his documents would be available by April 11, 2023. This would have been only thirteen days from his request. Mr. Larson apparently did not receive the email, so he did not respond, but he did receive a phone call and was able to pick up records responsive to his first request on May 3, 2023. This was twenty-two days later. The additional delay was not for the convenience of the governmental body, but was instead due to communication errors. The time between request and receipt with the communication difficulties was not an unreasonable amount of time.

The City also promptly searched for documents responsive to Mr. Larson’s request and provided 274 pages to him. After reviewing these documents, Mr. Larson made a more specific request for documents on May 12, 2023, which the city promptly searched for and provided to Mr. Larson within eighteen days of his request.

In addition to the timeframes, Mr. Larson’s complaint seems to be a speculative concern that the City has withheld documents he requested. [The City has confirmed that it has done a thorough search based on Mr. Larson’s requests and has provided all appropriate documents to him.]

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. Larson requested records from the City. The City has provided the records. Any delay in delivering the records was based on a lack of receipt or response to an email. The City has complied with its requirements under Chapter 22. Complaint 23:FC0067 is without merit and should be dismissed.

IT IS SO ORDERED: Formal complaint 23FC:0067 is dismissed as it is 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 The packet included, but was not limited to: emails between City HR Department employees and the Occupational Health Coordinator (“OHC”); a physician’s report to the employer dated 7/8/22; emails from Mr. Larson to Mr. Simonson explaining the incident; an email from CRPD Lieutenant Jeremy Paulsen to Mr. Simonson regarding the call for service report on 6/2/22; injury report from the OHC; Ms. Schmidt’s email to all staff informing them Mr. Larson was no longer employed at the library, as well as a response from a staff member regarding the termination; email from Mary Beth McGuire, Programming Specialist and Union Representative for Communications Workers of America, Local 7101, requesting investigative material; and emails regarding the grievance process.

2 Specifically, he sought the following: 1. Communication among staff/management of the Library through Microsoft Teams. 2. Call for service report attached to email from CRPD Lieutenant Jeremy Paulsen. 3. Original employee/witness statements from Rebecca Vernon, Penny Frischkorn, and MJ Eyzaguirre. Statements from Curtis Kraetsch, Wes Shirley, and Jacob Kohl. Emails forwarding these statements to HR. 4. Ms. Ernst’s original notes from interviews with employees/witnesses. 5. Emails from Mr. Simonson to employees/witnesses informing them of a meeting regarding the incident. 6. Mr. Simonson’s email to all staff on June 2, 2022. 7. Ms. Ernst’s reply email to Mr. Simonson’s email dated June 17, 2022, asking her opinion of his addendum to the Injury/Illness report, the email forwarding this to the OHC, and the updated Injury/Illness report. 8. Work status report from June 9, 2022, and several other medical reports. 9. Mr. Simonson’s email from July 12, 2022, titled “RE: Incident from 6/2.” 10. Heather Meyer-Boothby’s email to Mr. Simonson on November 8, and attached document.