Subject:
Henrik Van Pelt/City of West Des Moines - Dismissal Order
Opinion:
The Iowa Public Information Board
In re the Matter of: Hendrik van Pelt, Complainant And Concerning: City of West Des Moines, Respondent | Case Number: 23FC:0104 Dismissal Order
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COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
Facts
Hendrik van Pelt filed formal complaint 23FC:0104 on October 25, 2023, alleging that the City of West Des Moines (“City”) violated Iowa Code chapter 22 on October 25, 2023.
Mr. van Pelt alleges the City did not provide all records that he believes should have been included in his public records request he made on October 2, 2023. In his record request, he asked the city for “a copy of the agreement between the city of West Des Moines and Flock Safety, including any addenda like the deployment plan and reinstall fee schedule.”
Mr. van Pelt believes the City provided a partial response to his request. He claims the documents provided incorporate other documents by reference. Mr. van Pelt states that the documents also show that West Des Moines would arrange any permits needed for Flock Safety to install their hardware on the agreed-upon locations, of which there is no record. He goes on to state, “In the very likely case that those locations include primary roadways, the city would have sent Right of Way Use Permit applications and related documents to Iowa DOT, per the DOT’s Utility Accommodation program.” He believes the City should have these documents and characterizes the absence of them as “an unusual lapse in record-keeping.”
In response, the City stated that it provided a response to Mr. van Pelt’s request on October 3, 2023, which included copies of the April 2023 agreement and July 2023 amendment between the City and Flock Safety. On October 4, 2023, Mr. van Pelt replied by requesting the "Reinstall Policy” and the "Deployment Plan(s),” he believed would be needed to complete the agreement. On October 5, 2023, the City responded to Mr. van Pelt and verified the records provided included all the records in the City’s possession.
The City explained to Mr. van Pelt that “the company [Flock] creates and retains the deployment plan, but it is not retained at the City.” The “Deployment plan” is a working map created and maintained by Flock. City staff reviewed a map online to approve it, but did not create the map, print it, or save the record in any other means. As for the “Reinstall Fee Schedule,” no such document was provided to the City.
The City contends that “Since the record is not retained by the City in any medium, it does not meet the definition of ‘public record’ under Iowa Code Ch. 22.”
Following the IPIB Board meeting on December 21, 2023, staff was asked to seek additional information from the City regarding questions they had about the records response. Staff contacted Ms. Grove to confirm that the City did not possess the records identified by Mr. van Pelt as the “deployment plan” and the “reinstall fee schedule.” She confirmed this was true. She also indicated that the City would not seek to acquire the documents from the third party vendor as that is not required under Iowa Code chapter 22.
Law
“‘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).
Analysis
IPIB staff reviewed the record request, email communication, and contract. Mr. van Pelt acknowledges he received a portion of the records but believes others records, including the map with the location of the “Falcon” hardware, should have been provided. If the City did not have the document, they should obtain it from Flock or recreate the information from other public works or “as-built surveys.”
The City provided Mr. van Pelt all the records in their possession. The City communicated the records they do not have are the property of the vendor and not subject to Iowa Code chapter 22.[1] The contract stated that Flock would advise the City on “deployment plan” through suggested “designated locations” that the City must approve. This aligns with the City’s statement that it merely signed on and viewed the map provided by Flock, but did not store or preserve the document. The City did not own the record, the vendor did.
Mr. van Pelt also alleges that the failure by the City to create or retain these documents from the vendor results in poor record keeping. Chapter 22, however, does not outline any retention requirements, so there is no violation for failing to create or retain a document.
Mr. van Pelt suggested that the City work to re-create the document from another source, but that is not required under Iowa Code chapter 22.
Because the City provided all requested documents within its possession, additional documents requested were the property of the Vendor rather than a public document belonging to the City, there is no violation of Iowa Code.
Conclusion
Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and could have merit before the IPIB accepts a complaint. This complaint does not meet those requirements.
IT IS SO ORDERED: Formal complaint 23FC:0104 is dismissed as legally insufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b). The City provided all records responsive to the request within its possession.
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 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
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Erika Eckley, J.D.
[1] In fact, the contract includes a web page address for the “re-install policy” that links directly to Flock’s website.