23FC:0126 Traci Stillwell/Hampton Public Library - Revised Acceptance Order

The Iowa Public Information Board

COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Acceptance Order.

Facts

Traci Stillwell filed formal complaint 23FC:0126 on November 19, 2023, alleging the Hampton Public Library ("Library") violated Iowa Code chapter 22 on November 14, 2023.

Ms. Stillwell alleges she submitted a public records request on October 22, 2023, to the Library and received an estimate for fees that were not reasonable or actual estimates.

Ms. Stillwell records request included the following, “I would like copies of all correspondence, both written and digital including any and all social media platforms, emails, and text messaging between you and the members of the Hampton City Council, City Manager, Iowa Library Association, The American Library Association, members of press i.e.: news outlets, newspapers, radio, correspondence with directors of other public libraries, present and past Board of Trustees including the board president, employees of the Hampton Public Library, The Hampton Iowa City Attorney, and with any individual who has challenged a book in Hampton Public Library from January 1, 2023 to present day.”

Ms. Stillwell alleges she received a reply from the Library on October 26, 2023 which included an initial estimate of the fees, but with the possibility of additional, open-ended fees. She believes the open-ended fees are to deter her from moving forward with the request. Ms. Stillwell responded to the library following a conversation with the Iowa Public Information Board on November 3, 2023. A letter was sent to the custodian of the records the same day asking for further explanation of the fees. She received no correspondence in reply from the custodian.

Ms. Kim Manning, Librarian for the Library provided a response. Ms. Manning provided the following estimated fees to Ms. Stillwell. Upon review of the request, the IT firm estimated the work would take approximately four hours at a rate of $75.00 per hour ($300 total). She stated that Ms. Stillwell did not object to this expense. Ms. Manning also provided an estimate of $300 per hour for the review of the requested records by the Library’s local counsel.  She also added that depending on the amount and content of the records retrieved, the library may hire different counsel. Ms. Manning states that she is unable to provide additional estimates of fees until the materials are retrieved, how much of it needs to be reviewed by counsel, and how much time it will take.

In a response to the Library, Ms. Stillwell questions the estimate of an IT professional needing four hours to retrieve these records. She also believes reasonable fees should not include attorney fees to verify compliance for the release of requested records.  She disagrees that the request would include any confidential information. She also states that a total fee must be agreed upon prior to the records retrieval process.

IPIB staff attempted to work with the parties to put together a reasonable estimate for the records request. Ms. Manning was asked to work with her IT people to determine the number of records used in determining the initial estimate of four hours. Based on this number the Library’s counsel, Ms. Rosenberg was asked to determine an estimate for the time and fees to review and redact the records.

During the course of these conversations, it was discovered that the Library had only 30 days of emails available on Ms. Manning’s computer and no one has been able to locate where Library emails are hosted and stored. Apparently, the emails are set to automatically delete after 30 days. The Library does not have access to the server and are unclear as to who is hosting the server.

At this juncture, after several meetings with the parties, the matter has not been resolved and more questions have been raised regarding the Library’s emails and response to a records request. Ms. Manning has retired from the Library and attempts to resolve these questions and obtain updates and information from the Library have been fruitless. At this time it is unclear if the requested records exist or if they can be recovered.

Law

“[F]ulfillment of a request for a copy of a public record may be contingent upon receipt of payment of reasonable expenses… In the event expenses are necessary, such expenses shall be reasonable and communicated to the requester upon receipt of the request. A person may contest the reasonableness of the custodian's expenses as provided for in this chapter.” Iowa Code §22.3(1). 

 “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. 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).

Analysis
Under Chapter 22, a government body, in responding to a records request, must provide an estimate of the reasonable costs and may require payment of the fee prior to retrieving the record. A “reasonable” cost for a public records request is determinative on the facts and circumstances of retrieving and copying the record. Fees are not meant to be a revenue stream. “Reasonable” fees for retrieving a public record are meant to only offset the cost of retrieving, reviewing, and copying the record.

Ms. Stillwell’s request included an extensive number of emails and communications over a period of ten months that would need to be reviewed by the Library to respond to the request. In response to the request, the Library sought an estimate from the IT services regarding the amount of time necessary to search for the records. The IT services estimated the search would take four hours of their time. There is no evidence that this estimate is unreasonable. If the search takes less time than estimated, the cost of the records request would be based on the actual time it took. At this stage, it is not unreasonable to rely on an estimate from the experts who will be conducting the search. 

It is not unreasonable that the records requested by Ms. Stillwell may contain information that could be confidential or require redaction. Iowa Code limits the costs for legal services that can be charged to an individual who requests public records. “A lawful custodian may only charge for the time an attorney spends redacting or reviewing legally protected confidential information. Consequently, a lawful custodian should not charge for an attorney’s preliminary review of records to determine whether the records contain confidential information.” 23AO:0002: Costs for Legal Services. The Library is able to bill for the legal review, but only as related to the review of documents identified as potentially confidential.

In working with the parties to address the fee issue, the Library has now disclosed they are not sure the records exist and are unclear as to where the server is located that may be storing these records. The Library discovered that only 30 days of emails were kept on Ms. Manning’s computer while working with IPIB to address this matter. Despite efforts, there have been no updates or information provided answering where the records are or whether the request can be fulfilled. Good-faith, reasonable delay in responding to a public records request is not a violation of chapter 22, but unreasonable delay can constitute a violation. Belin v. Reynolds, 989 N.W.2d 166, 174–75 (Iowa 2023).

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 meets those requirements. 

IT IS SO ORDERED:  Formal complaint 23FC:00126 is accepted as legally sufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b).  

IPIB has tried to work with the Library to provide a reasonable estimate of the actual costs of production of documents. These efforts have failed and the Library has not provided any further information regarding the availability of records or their intention to fulfill the records request.

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 April 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.