23FC:0087: Travis Scott/O’Brien County Conservation Board - Dismissal Order

Date:
10/19/2023

Subject:
Travis Scott/O’Brien County Conservation Board - 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 July 23, 2023, Travis Scott filed formal complaint 23FC:0087, alleging that O’Brien County Conservation Board (“OCCB”) violated Iowa Code chapter 22.

Facts

In his complaint, Mr. Travis alleged the following:

I was employed with O’Brien county conservation board for almost 2 years, 6 months after I was hired the conservation board hired the board chair’s private attorney to handle ‘HR issues’. At that time there was an employee who had filled a severance request so it made sense to hire an hr attorney. I found out much later that 2 of the conservation board members were discussing HR issues pertaining to me with this attorney and that they likely had her write up termination paperwork. They didn’t terminate me, never wrote me up out even brought complaints directly to me, only to people around me about me.

I filed an information request for communication and my own personnel information. The county wants to charge me $447 for the communication between board members, which is excessive and they have declined to give me my own personnel information. I feel it odds [sic] only right for me to know what claims they were making against me since they never brought them to me.

In response, OCCB stated that Mr. Travis made the following request for public records:

•All O’Brien County conservation related communication including emails (public and private email accounts) text message, voice recordings and written communication from January 12, 2022 to todays [sic] date 6/2/2023.

•This request includes any communication to or from the following county officials:

Tom Konz, Greg Bermakow, Dan Verrips, Dennis Vanden Hull, Nancy McDowell, Dan Friedrichsen, Rachel Becker, Katie Morgan.

•All communication that pertains in any way to Travis Scott between any of the above stated individuals, to or from Allyson Dirksen of Hiedman Law firm. This is to include any documents Ms. Dirksen has developed, any notes from phone calls, text messages, emails or any written communication from January 12, 2022 until 6/2/2023.

In responding to the request, OCCB outlined the following costs time and costs for a total cost of $447.04 for 380 emails and text messages retrieved and reviewed from the individuals during the 18-month period requested:

• 8 hours of IT Department with the first 30 minutes free ($234.47 ($31.26/hr.));
• Conservation staff- 1 hour at $33/hr.;
• county attorney intern 10 hours ($130 ($13/hr.));
• county attorney 1 hour at $49.67

Upon receiving the amount to be charged, Mr. Scott sought clarification regarding whether he would be receiving the communications to or from Ms. Dirksen of the Hiedman Law Firm in response to his request. He was told that communications between the parties and their attorney would not be disclosed as they are protected by attorney-client privilege.

In essence, Mr. Scott’s complaint involves two inquiries:

1. the reasonableness of the fees charged for the records requested; and
2. whether attorney-client records can be withheld when they are alleged to be related to his employment, but never provided or utilized during his tenure with the OCCB.

Applicable Law

In fulfilling a records request, a government entity is entitled to charge for the actual costs of fulfilling the request. “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. . . . Actual costs shall include only those reasonable expenses directly attributable to supervising the examination of and making and providing copies of public records. Actual costs shall not include charges for ordinary expenses or costs such as employment benefits, depreciation, maintenance, electricity, or insurance associated with the administration of the office of the lawful custodian.  Costs for legal services should only be utilized for the redaction or review of legally protected confidential information.” Iowa Code § 22.3(2).

“A practicing attorney . . . shall not be allowed, in giving testimony, to disclose any confidential communication properly entrusted to the person in the person’s professional capacity, and necessary and proper to enable the person to discharge the functions of the person’s office according to the usual course of practice or discipline.” Iowa Code § 622.10(1).

“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b) or required by paragraph (c) [neither of which relate to this issue]. . .” Iowa R. Prof. Resp. 32:1.6(a).[1]

Analysis

In reviewing the reasonableness of the fees charged for the records request, it is necessary to determine whether the fees are reasonable and represent the actual costs of completing the request. OCCB provided email exchanges ensuring there was clarity regarding the scope of the request from Mr. Scott. He confirmed that he was seeking 18 months of communications between eight individuals to include personal and public emails, texts, voicemails, or any other documents available. This request took some time to compile, for which IT services were utilized. There were ultimately 380 emails and text messages identified. These were reviewed initially by an intern at the county attorney’s office at $13 an hour, which is not an unreasonable rate. The county attorney charged only her time for actual redaction or review of documents identified as confidential.

The fee OCCB charged Mr. Scott for his request is in line with fees IPIB has found to be reasonable in previous complaints.[2] The fee is based on the hourly compensation rates of the employees who worked on the request. The types of employees who worked on the request and the amount of time they spent completing it are reasonable given the nature and scope of the information requested. Thus, there is no violation under Iowa Code Chapter 22, as the fee OCCB charged appears to be reasonable and based on actual costs.

In regards to whether records could be held as confidential under attorney-client privilege, it is important to determine whether the privilege existed and if so, whether there was any consent to the release of the documents. First, Mr. Scott acknowledged in his complaint that there was an attorney-client relationship between the Board members and Ms. Dirksen of the Hiedman Law Firm. He also acknowledged that the attorney-client communications, even if they related to him or his position with OCCB, were never shared with him. Because the communications were within the scope of attorney-client privilege, no communications were ever disclosed to Mr. Scott, and there is no evidence of any informed consent to disclose the communications, there is no Iowa Code Chapter 22 violation in withholding as confidential attorney-client communications even if they may have concerned Mr. Scott or his employment.

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.

The fees charged for identifying, collecting, and reviewing 18 months of communications between eight individuals associated with OCCB totaling 380 emails and text messages were based on actual costs and reasonable. Further, IPIB has consistently recognized that attorney-client privileged documents are confidential under Iowa Code Chapter 22.

IT IS SO ORDERED:  Formal complaint 23FC:0087 is dismissed as it is legally insufficient 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 October 19, 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] Attorney-client communications are confidential under Iowa Code sections 622.10, the rules of evidence, the Code of Professional Responsibility, and case law. IPIB has continuously recognized the exemption of attorney-client privileged documents when reviewing public records requests.

[2] 22FC:0024 at https://ipib.iowa.gov/22fc0024-jacob-halllinn-mar-school-district-dismissal-order ($652 in fees for related documents were approved as actual costs on 57 pages of released records); 21FC:0029 at https://ipib.iowa.gov/21fc0029-deanna-triplettcity-polk-city-dismissal-order ($635 for two years of email records approved as reasonable); 19FC:0074 at https://ipib.iowa.gov/19fc0074-abby-sojkahighland-community-school-district-dismissal-order ($697 for 20 hours of time to pull categories of records requested and to review, found not unreasonable).