The Iowa Public Information Board
In re the Matter of: Clint Fichter, Complainant And Concerning: Iowa Ethics and Campaign Disclosure Board, Respondent |
Case Number: 23FC:0106
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
Clint Fichter filed formal complaint 23FC:0106 on November 3, 2023, alleging that the Iowa Ethics and Campaign Disclosure Board violated Iowa Code § 22.7(18) on November 3, 2023.
Mr. Fichter alleges the Iowa Ethics and Campaign Disclosure Board (IECDB) denied his public records request for a complaint that was filed against him. The position of the IECDB is that complaints are exempt pursuant to Iowa Code §22.7(18).[1]
The IECDB replied to Mr. Fichter that a copy of the complaint is not available pursuant to Iowa Code §22.7(18). Mr. Fichter alleges the IECDB improperly denied his request for the complaint filed against him.
Zach Goodrich, Executive Director for the IECDB provided a response to the complaint on behalf of the Board. He stated that on November 3, 2023, his agency received a telephone call from a member of the public regarding a newspaper advertisement placed by Mr. Fichter promoting his candidacy for the Avoca City Council. After the caller described the newspaper advertisement to him, it appeared to be a violation of a campaign disclosure law, and Mr. Goodrich requested the caller email to IECDB a copy of the advertisement. The email only contained a copy of the advertisement.
A copy of the advertisement was provided to Mr. Fichter by email when IECDB informed him of the violation and the remedy set forth in the Iowa Administrative Code. After this contact, Mr. Fichter filed a public records request on November 3, 2023 by emailing "I'd also like a copy of the complaint." The ICEDB responded to Mr. Fichter by saying the complaint, was not available pursuant to Iowa Code section 22.7(18).
According to Mr. Goodrich, the communications regarding the potential violation to the ICEDB office were not required, were made by a member of the public, and ICEDB reasonably believed the individual would be discouraged from making those communications if their identity were released. ICEDB provided all non-identifiable documents related to the request to Mr. Fichter. This was the campaign advertisement provided to ICEDB. The only public document withheld was the name and email address of the individual that contact ICEDB.
Subsequent communications from Mr. Fichter to the agency have reinforced Mr. Goodrich’s reasonable belief that the individual who reported this violation would not want their personal information to be disclosed to him. Immediately following the agency's outreach to bring his campaign into compliance, Mr. Fichter sent multiple communications which served no purpose other than to intimidate, harass, and attempt to deter our agency from enforcing the laws he broke.[2]
Mr. Goodrich suggests, “It appears Mr. Fichter filed this complaint with the IPIB (1) to retaliate against our agency in our efforts to enforce the laws in Iowa Code chapter 68A, and (2) to obtain the name and contact information of the individual who reported his illegal conduct in an attempt to retaliate against them as well. [3]
Law
Iowa Code §22.7(18) allows for the following documents to be withheld as confidential: “Communications not required by law, rule, procedure, or contract that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them to that government body if they were available for general public examination. …. Notwithstanding this provision:
a. The communication is a public record to the extent that the person outside of government making that communication consents to its treatment as a public record.
b. Information contained in the communication is a public record to the extent that it can be disclosed without directly or indirectly indicating the identity of the person outside of government making it or enabling others to ascertain the identity of that person.
c. Information contained in the communication is a public record to the extent that it indicates the date, time, specific location, and immediate facts and circumstances surrounding the occurrence of a crime or other illegal act….”
Analysis
IPIB staff reviewed the record request, email communications between Mr. Fichter and IECDB.
Mr. Fichter asserts that the IECDB response and denial is a plain violation of the law. According to Mr. Fichter, “The administrative rule, 351.9, for the IECDB requires a written complaint on a form provided by the agency under the penalty of perjury. Hence any complaint made to the board is a communication required by law, rule, or procedure. This requirement means that any complaint received by the agency is in fact a public record. The language of the statute is plain and 22.7(18) only applies to "communications NOT required by law, rule, procedure, or contract." Additionally, information contained in the communication is a public record to the extent that it indicates the date, time, specific location, and immediate facts and circumstances surrounding the occurrence of a crime or other illegal act, except to the extent that its disclosure would plainly and seriously jeopardize a continuing investigation or pose a clear and present danger to the safety of any person. The communication received by the IECDB is clearly related to a crime or illegal act and is a public record.”
IECDB stated that the communication was merely an informal complaint made by a phone call to the office with a follow-up email with a copy of the newspaper advertisement. No formal complaint was filed. IECDB will take an informal complaint as a way to help bring campaigns into compliance through efficient informal action.[4]
Mr. Fichter received a copy of the campaign advertisement. Mr. Fichter’s complaint is that IECDB withheld the name and email address of the individual who brought the advertisement to IECDB’s attention. The determination regarding whether the personally identifiable information should be withheld because of a fear that it would discourage others from providing information in the future is to be made by IECDB.[5]
It is reasonable to consider that the member of the public who alerted the IECDB to a possible violation would not want their identity revealed. Mr. Fichter’s aggressive communications to IECDB following contact regarding his advertisement demonstrates IECDB’s reasonable calculation. Mr. Fichter was provided with a redacted email that protected the identity while supplying the evidence regarding the campaign violation.
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:0106 is dismissed as legally insufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b). IECDB redacted personally identifiable information from a public records request pursuant to Iowa Code 22.7(18). A review of the facts and circumstances establishes that the redacted information was not improperly withheld.
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 December 21, 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.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the December 13, 2023, to:
Clint Fichter
Zach Goodrich, Executive Director, Iowa Ethics and Campaign Disclosure Board
[1] Mr. Fichter argues that “this provision is extremely vague and I am aware of at least one instance in which IPIB has not allowed this theory to protect a complaint.” He goes on to explain, “Specifically, earlier this year, IPIB found the City of Sidney to be in violation of Chapter 22 when the Mayor of that City failed to provide emails related to a complaint about an employee to be exempt under that section.” [Mr. Fichter mischaracterizes the Acceptance, which was that the Mayor refused to turn over any of his emails even to the city attorney to determine whether any records were confidential. Refusal to provide any records and deletion of the records is a violation.]
[2] Transcript of voicemail left by Clint Fichter to the Iowa Ethics and Campaign Disclosure Board on November 3, 2023 12:20 p.m.: "Hey Zach this is Clint Fichter. I got your message. I'm real disappointed that apparently, people can complain about your stupid rules and you don't even have to tell me anything. And I want you to know that I am going to push you as far as I possibly can. You and your stupid little state agency with your b--ch f---ing bureaucrat job, you are part of the administrative state, you are scum, and I am tired of this government doing these things to the people. I am going to fight you every way I can. Have a great day."
[3] Clint Fichter, November 3, 2023, “I would just as soon fight this ridiculous rule in court. I'm not going to do anything.”
[4] IECDB states it has statutory authority to investigate without a formal complaint being filed if there is reason to believe a law has been broken.
[5] “It is the legislative goal to permit public agencies to keep confidential a broad category of useful incoming communications which might not be forthcoming if subject to public disclosure.” City of Sioux City v. Greater Sioux City Press Club, 421 N.W.2d 895, 898 (Iowa 1988).