23FC:0072: Don Benedict/City of Sidney- Acceptance Order

Date:
08/17/2023

Subject:
Don Benedict/City of Sidney- Acceptance Order

Opinion:

The Iowa Public Information Board

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

On July 11, 2023, Don Benedict filed formal complaint 23FC:0072, alleging that City of Sidney (City) violated Iowa Code chapter 22.

Facts
Mr. Benedict alleges that on June 15, 2023, he sent a public information request to the City requesting all City email communications concerning an incident on May 22nd. In response to the request, the City provided email logs on June 16, 2023. After reviewing the logs, Mr. Benedict sent a new public information request on June 16, 2023, for all City email communications between:

• Ken Brown and Riley Christie
• Ken Brown and RC tree service
• Ken Brown and Fichter law firm

On June 16th, Ken Brown indicating he would not comply with the public records request. Mr. Brown is the Mayor of the City. Due to Mr. Brown's unwillingness to turn over the public records, the City Council voted at the July 10, 2023, council meeting for the City to access the City’s email archives and release the information to the city attorney for review in response to the records request. Mr. Benedict further alleges he was told by the city attorney that Mr. Brown is threatening litigation if the City proceeds with responding to the public records request without his cooperation. Mr. Benedict alleges that Mr. Brown has indicated he will not cooperate in complying with the request without an order from the Iowa Public Information Board.

In responding to this Complaint, the City provided emails and other documents between Mr. Brown, the city attorney, and the former city attorney, Clint Fichter, regarding the records request. The emails from Mr. Brown state that he refuses to provide his city emails because he is conducting an “official investigation” of the city and forcing him to provide his city emails between him and the former city attorney would violate his privacy interests. He also argued that as Mayor, his emails are confidential and pulling his emails from the city server would be a violation of his fourth amendment rights.

The City’s response to the Complaint is essentially that the City wants to comply with the records request. The City provided its Computer, Cellphones, E-mail and Internet Usage policy for the City that states that all company-related work records and electronic information is the property of the City and the City reserves the right to examine, monitor, and regulate e-mail and other documents. The policy applies to the Mayor and all employees and Council members.

Applicable Law
The “‘Lawful custodian’ means the government body currently in physical possession of the public record. The custodian of a public record in the physical possession of persons outside a government body is the government body owning that record.” Iowa Code § 22.1(2).

“‘Public records” includes all records, documents, tape, or other information, stored or preserved in any medium, of or belonging to this state or any county, city, township, school corporation, political subdivision.” Iowa Code § 22.1(3)(a).

Iowa Code § 22.2(1) requires that “[e]very 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.”

“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.” Iowa Code § 22.3.

Analysis
The request was clearly for public records. The request was for official City emails between the Mayor of the City and other individuals. The City is the lawful custodian of the records and has a duty to comply with a request for the records under Iowa Code § 22.2(1), according to the policy provided and Iowa Code § 22.1(2). The City, as custodian of the records, should pull the email records responsive to the request.

This Complaint seems to have been filed to address the conflict between the City’s stated desire to comply with its requirements as custodian of the public records of the City’s emails and the Mayor’s refusal to comply and his threat to take legal action against the City if it takes actions to comply with its obligation. The Mayor has stated that releasing the records would violate his privacy rights and/or his Fourth Amendment rights against unreasonable seizures. He has provided no other reasons for the wholesale exemption for the release of his official email records. Under Iowa Code § 22.7, some public records can remain confidential. There are seventy-five exceptions to the required records’ disclosure. However, there are no exceptions that exist merely for the Mayor of a City to withhold his City-related emails. The City has stated that the records will be reviewed by the City’s attorney prior to release, so if there are documents that should retain their confidentiality under Iowa Code § 22.7, the Mayor and the attorney can work together to address those specific records.

The City has stated that it will comply with the records request upon guidance received from IPIB, but it is recommended that this Complaint be accepted to ensure that IPIB retains oversight to ensure the records request is completed.

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 meets those requirements.

The City has stated that it will comply with its legal requirements to provide the records request. As custodian of the records, the City has the ability to comply. Any delay in providing the records was necessary to ensure the City had the appropriate authority to release the records and is ultimately harmless error, but it this Complaint should be accepted to ensure the request is completed and to provide any additional remedial measures as may be appropriate.

Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and have merit before the IPIB accepts a complaint.  These complaints meet those requirements.

IT IS SO ORDERED:  Formal complaint 23FC:0072 is accepted as legally sufficient pursuant to Iowa Code section 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 August 17, 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.