23FC:0080: Ken Brown/City of Sidney- Dismissal Order

Date:
08/17/2023

Subject:
Ken Brown/City of Sidney- 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 August 3, 2023, Ken Brown filed formal complaint 23FC:0080, alleging that City of Sidney (City) violated Iowa Code chapter 22.

Facts
Mr. Brown alleges that he made a public records request in his official capacity as Mayor for the following:

• All records of communications between Council member Don Benedict and members of the City staff and City Council regarding any subject related to City matters or the Mayor since Jan. 1, 2022. These requests include all emails, text messages, and other written communication.
• All records of communications between employees Brenda Benedict or Elease Cowles and members of the City staff and City Council regarding any subject related to City matters or the Mayor since Jan. 1, 2022. These requests include all emails, text messages, and other written communication.
• Copies of all employee records, confidential or not, including disciplinary records, possessed by the City related to Brenda Benedict, Michael Benedict, or Elease Cowles. All confidential records will be kept in the Mayor's office in City Hall
• Copies of all meeting minutes, meeting recordings, and other documentation at which any matter related to Mayor Ken Brown, Brenda Benedict, Michael Benedict, or Elease Cowles were discussed since January 1, 2019.

Mr. Brown alleges that his request to the City is in his capacity as Mayor to oversee the City as part of an investigation he is conducting and that the Clerk is to provide him with any document he needs in the discharge of his duty as Mayor.

In responding, the City states that there has been no official investigation shared with anyone on the City Council and that Mr. Brown’s request is for public records. He made an “Official Public Information Request” on June 22, 2023, with a deadline to have the records by June 30, 2023, for all emails and recording from January 2019 to the current date for the following:

1. Clerks to the council;
2. Council to the Clerks;
3. Council to and from each other;
4. Clerks to the City Attorney;
5. Council to the City Attorney;
6. All recordings of the council meeting from January 2019 to the current date including all closed sessions.

The City provided Mr. Brown with a timeline for when the public records request could be gathered and provided him with an estimate for the cost of the records.

Mr. Brown made another “Official Information Request” on June 30, 2023, which is the request included in this Complaint. He stated the documents should be provided by July 21, 2023. The City asked for clarification whether it was an additional request. The City provided Mr. Brown with a timeline for when the public records request could be gathered and provided him with an estimate for the cost of the records.

In response, Mr. Brown cited city ordinance chapter 15 regarding the powers and duties of the mayor as the “Chief Executive Officer” and Ordinance 18.08 paragraph 4 that states the City clerk “is to furnish upon request to any municipal office a copy of any record, paper, or public document under the Clerk’s control when it may be necessary to such officer in the discharge of the officer’ duty.”

On July 21, Mr. Brown sent an email to the clerk stating that a complaint has been filed with the state and the information he asked for is part of an investigation and that the clerk has violated city and state ordinances “that are write-up offenses.”

The City argues that the records requested are extensive and that Mr. Brown is citing an independent “official investigation” as a way to obtain the public records without paying the costs related to compiling the records.  Mr. Brown has not paid the quoted estimated cost of the compilation of records.

Applicable Law
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.”

“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.” Iowa Code § 22.3(2).

Analysis
It is unclear whether Mr. Brown is seeking access to records required for him to perform his position as Mayor and Chief Executive Officer of the City or if he is seeking access to public records. Mr. Brown has filed this Complaint with the Iowa Public Information Board. IPIB’s jurisdiction is over issues involving Iowa Code Chapter 22, so it will be evaluated under the requirements of Chapter 22.

If Mr. Brown’s “Official Information Requests” on June 22 and June 30 were public records requests under chapter 22, the City did promptly respond to the requests, provided a timeline for when the records could be collected, and provided an estimate of the cost of compiling the records.

Under Iowa Code § 22.3(1) allows for the “fulfillment of a request for a copy of a public record [to be] be contingent upon receipt of payment of reasonable expenses.” Mr. Brown has not paid the estimated costs of his requests for years’ worth of records.

Whether Mr. Brown’s records request is related to an “official investigation” as “Chief Executive Officer” of the City and should be provided upon his request to the Clerk, is beyond the scope of the Iowa Public Information Board’s jurisdiction to determine. Nothing in Iowa Code Chapter 22 provides for defining “Official Information Requests” by a Mayor independently investigating the City.

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.

In regards to whether this Complaint falls within the jurisdiction of IPIB, if the Complaint is regarding a public records request, the City has responded in a prompt fashion, has provided a reasonable estimate as to when the records could be available, and has provided an estimate of the costs to provide the documents. Mr. Brown has not paid the requested fees, so as to whether there is a violation of Iowa Code Chapter 22, there is no evidence presented.

If the records request is not a request within Chapter 22 and should be provided to Mr. Brown as part of his independent “official investigation” against the City, that is outside the jurisdiction of IPIB. In either event, Complaint 23FC:0080 should be dismissed.

IT IS SO ORDERED:  Formal complaint 23FC:0080, should be dismissed as legally insufficient and/or not within IPIB’s jurisdiction 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 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.