23FC:0086 Todd Banner/Iowa State University - Revised Dismissal Order

Subject:
Todd Banner/Iowa State University - 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 August 23, 2023, Todd Banner filed formal complaint 23FC:0086, alleging that Iowa State University (ISU) violated Iowa Code chapter 22.

Background

On May 10, 2023, the complainant submitted a public records request to ISU. The request sought records related to the boundary between an ISU property and an adjoining property owned by Swamp Fox Properties. The request itself is divided into three separate sub-requests for particular records (hereafter, “Request 1,” “Request 2,” and “Request 3”). 

ISU estimated that releasing records responsive to Requests 1 and 2 would cost $1,590, based on an estimated 54 hours of labor by Ann Lelis, ISU’s “public records officer,” who is employed as a paralegal in the General Counsel’s office. The Complainant paid the fee estimate and inquired as to why Request 3 had been omitted from the estimate. On May 26, 2023, ISU provided an itemized invoice showing that the actual time spent completing the request was 49.5 hours, resulting in a total cost of $1,455. The complainant again asked why Request 3 had not been included in the invoice. On June 9, 2023, ISU stated that no responsive records existed for Request 3, which was why Request 3 had been omitted. ISU refunded the complainant the difference between the estimated and actual costs.

On August 15, 2023, ISU released the responsive records to the Complainant. Thereafter, the Complainant filed this complaint, alleging 1) that ISU did not provide all records requested; and 2) that the fees charged for the request were unreasonable. 

In response to the complaint, ISU stated all the records it had withheld were attorney-client privileged or attorney work product. ISU stated that it had released all other responsive documents. Regarding the reasonableness of the fee for the request, ISU stated that the hourly rate it had charged the Complainant was $30, whereas the public records officer’s hourly compensation is $32.60 per hour. 

At the December 21, 2023, IPIB meeting, a proposed dismissal order of the complaint was presented to the Board. After hearing the parties’ comments, the Board tabled the proposed dismissal order and directed IPIB staff to conduct further investigation. Specifically, the Board asked ISU clarify what types of files the records that were reviewed consisted of. The Board also asked ISU to explain in more detail why the records request took 49.5 hours to complete. 

ISU provided the following response to the Board’s additional questions:

1. The search terms requested by Mr. Banner resulted in the identification of  248,904 pages of records, all of which had to be reviewed at some level.      Ms. Lelis’ review of these records took 49.5 hours, meaning that she reviewed approximately 5,208 pages per hour or 84 pages per minute on average.  These numbers suggest that her review was incredibly efficient. Obviously, because much of the data on its face was not related to the issue identified by Mr. Banner, she was able to move through some material very quickly.  However, each record had to have some level of review.   Some files that hit search terms did contain videos, excel files, .pdfs and other larger data items that were not related to Mr. Banner’s request.  The amount of data was a direct result of Mr. Banner’s broad request. 
2. Mr. Banner’s request sought those documents “related” to the property boundary issue.  Had the University been required to produce all records that hit the identified search terms, Ms. Lelis’ review would have taken much longer.  While many of the records were clearly not related to the boundary dispute, they may have included student, employee, or other confidential categories of information.  Once they were deemed to not relate to the boundary dispute, they were not reviewed closely for other confidentiality issues.  If they had be subject to closer review in contemplation of production, many more hours would have been needed and charged.

Analysis
Reasonableness of fees

The Complainant alleges that the fee charged for completing his records request was unreasonable. “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 § 23.3(2). “The fee for the copying service as determined by the lawful custodian shall not exceed the actual cost of providing the service. Actual costs shall include only those reasonable expenses directly attributable to supervising the examination of and making and providing copies of public records.” Id. 

Here, ISU has a designated public records officer who handles public records requests, Ann Lelis. Ms. Lelis is compensated at a rate of $32.60 per hour. Ms. Lelis spent 49.5 hours completing the request. ISU charged the complainant $30 per hour for the time Ms. Lelis spent completing the request. No other charges were passed on to the Complainant. Therefore, the fee charged to the Complainant did not exceed the actual cost of providing the service. 

Regarding the reasonableness of the amount of time spent completing the request, 49.5 hours is not unreasonable given the nature of the request, which was wide in scope and sought information related to an ongoing property dispute between the parties. As ISU stated, the Complainant’s request “resulted in the identification of 248,904 pages of records, all of which had to be reviewed at some level.”

The fee charged for completion of the request did not exceed the actual cost, and the amount of time spent completing the request was reasonable given the scope of the request and the nature of the information sought. Therefore, the Complainant’s allegation that the fee was unreasonable lacks merit. 

Records withheld

The Complainant alleges that ISU did not release all the records responsive to his request. In support of this allegation, the Complainant provided emails between his attorney and ISU’s legal counsel, Paula DeAngelo, which the Complainant contends ISU should have released to him pursuant to his public records request, but did not. In the emails in question, Ms. DeAngelo sent a proposed settlement agreement to the Complainant’s attorney. 

ISU has stated that all records that were withheld privileged attorney-client communications or attorney work product confidential under Iowa Code § 22.7(4). 

“Iowa's attorney–client privilege is codified at Iowa Code section 622.10 (2018). ‘Any confidential communication between an attorney and the attorney's client is absolutely privileged from disclosure against the will of the client.’ The privilege is ‘of ancient origin’ and ‘is premised on a recognition of the inherent right of every person to consult with legal counsel and secure the benefit of his advice free from any fear of disclosure.’” Konchar v. Pins, 989 N.W.2d 150, 159 (Iowa 2023) (citations omitted). “[T]he [Open Records] Act does not affect other specific statutory privileges recognized by the legislature, such as the attorney-client privilege.” Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 463 (Iowa 2013).

Iowa Code section 22.7(4) exempts from disclosure “records which represent and constitute the work product of an attorney, which are related to litigation or claim made by or against a public body.”

The attorney-client privilege does not apply to the emails that the Complainant provided because those emails were not communications between attorney and client. However, section 22.7(4) does apply to the emails, as they contain attorney work product in the form of a proposed settlement agreement drafted by ISU’s attorney and the mental impressions and opinions of ISU’s attorney regarding said agreement. 

The Complainant argues that section 22.7(4) does not apply to any of the records withheld, including the emails referenced above, because of the absence of litigation or a claim to which they could be related. The Complainant's argument is unpersuasive. The subject line of the emails is “Swamp Fox/ISU - Fence Boundary Issue.” The Complainant’s attorney states in the initial terms sent to ISU (to which ISU responded with its own proposed terms) that “Swamp Fox is prepared to take further legal action, including but not limited to mediation or litigation.” Thus, the subsequent emails from ISU’s attorney were clearly related to a legal claim and litigation.[1] 

In its response to the complaint, ISU stated that the Complainant is currently in a property dispute with ISU over the fence boundary of the parties’ adjoining properties. It is therefore unsurprising that many of the records sought through this public records request concerning these adjoining properties are confidential—either as attorney-client privileged communications between ISU and its attorneys, or as attorney work product related to the boundary dispute. 

Conclusion

The Complainant alleged that the fee ISU charged for the records request was unreasonable. The fee did not exceed the actual cost of the service provided: the hourly rate charged was less than the hourly rate of the employee who completed the work. Furthermore, the amount of time ISU spent completing the request, 49.5 hours, was reasonable given the scope of the request and the nature of the records sought. Therefore, the Complainant’s allegation that the fee was unreasonable lacks merit.

The Complainant also alleged that ISU did not release all the records it was required to release. ISU claims all records that it withheld were exempt from disclosure either as attorney-client privileged communications or as attorney work product. The Complainant provided emails that he contends should have been released, but were not. Upon examination of the emails, it appears that they are confidential attorney work product under section 22.7(4). The Complainant’s request concerns information related to an ongoing boundary dispute between the parties. It is unsurprising that much of the information sought would consist of privileged attorney-client communications and attorney work product. For these reasons, the allegation that ISU improperly withheld records also lacks merit.

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

IT IS SO ORDERED:  Formal complaint 23FC:0060 is dismissed 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), IPIB may “delegate acceptance or dismissal of a complaint to the executive director, subject to review by the board.”  IPIB will review this Order on January 18, 2024.  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] In interpreting whether a document is prepared in anticipation of litigation in the context of disputes over discoverability of attorney work product under Iowa R. Civ. P. 1.503(3), the Iowa Supreme Court has stated, “If a document or tangible thing may fairly be said to have been prepared or obtained because litigation is foreseeable or ongoing, it constitutes work product; litigation need not be the primary reason for creating or obtaining the materials.” Iowa Ins. Inst. v. Core Group of Iowa Ass'n for J., 867 N.W.2d 58, 70 (Iowa 2015).