Subject:
Michael Merritt/Poweshiek County - Dismissal Order
Opinion:
The Iowa Public Information Board
In re the Matter of: Michael Merritt, Complainant And Concerning: Poweshiek County, Respondent | Case Number: 23FC:0132 Dismissal Order
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COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order:
On November 25, 2023, Michael Merritt filed formal complaint 23FC:0123, alleging that Poweshiek County (County) violated Iowa Code chapter 22.
Facts
Mr. Merritt alleges that the County failed to provide a required response within the time frames articulated in Iowa Code Section 22.8(4.)(d.). He alleges numerous status requests were sent to county employees on several occasions requesting status updates that evidence indicates were disregarded for weeks. Mr. Merritt provided copies of email correspondence with various County employees from the County Sheriff’s office regarding his Complaint.
In response, the County stated that Mr. Merritt made a request for an audio recording of a call to the County dispatch related to an incident he was involved in on August 4, 2023. According to the documents provided by Mr. Merritt, this request was made both over the phone and by email. The email request from Mr. Merritt was made on September 26, 2023. The civil deputy, Dawn Disney, received the request and forwarded it to the record custodian, deputy Joseph Meyer. Deputy Meyer replied to Deputy Disney on September 26, 2023, that the recording was not available.
The County’s attorney confirmed with Deputy Meyer that his response “not available” meant that the record did not exist. There is no record to provide to Mr. Merritt responsive to his request. Mr. Merritt was informed by Deputy Disney on September 27, 2023, that the record was “not available.” The documents provided by Mr. Merritt plainly show that the Poweshiek County Sheriff’s Office promptly responded to Mr. Merritt’s request.
This Complaint was filed two months after Mr. Merritt was notified the record did not exist.
Applicable Law
“Iowa Code chapter 22 is silent as to the time for response to a records request. The time to locate a record can vary considerably depending on the specificity of the request, the number of potentially responsive documents, the age of the documents, the location of the documents, and whether documents are stored electronically.
The large number of variable factors affecting response time makes it very difficult, and probably unwise, to establish any hard and fast objective standards. The statute was initially adopted almost fifty years ago. Today’s electronic records environment adds to the complexity of this issue.” 22AO:0004: Timeliness of responding to record requests.[1]
“Based on our review of section 22.8(4)(d), we believe it is not intended to impose an absolute twenty-day deadline on a government entity to find and produce requested public records, no matter how voluminous the request. Rather, it imposes an outside deadline for the government entity to determine ‘whether a confidential record should be available for inspection and copying to the person requesting the right to do so.’ We do not think we should extrapolate section 22.8(4)(d)’s twenty-day deadline to other contexts, when the legislature chose not even to include that deadline in other portions of section 22.8(4).” Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 461 (Iowa 2013).
Analysis
IPIB staff reviewed the timeline of communications provided by Mr. Merritt. Within them, there were two records requests made by Mr. Merritt. This Complaint is based on the second request made to the County, which was for the dispatch telephone audio on August 4, 2023. The first request, for body camera footage from August 4, 2023, was promptly provided to Mr. Merritt upon receipt of costs by the Grinnell Police Department and is not part of this Complaint.
After thorough review of the emails provided, it appears Mr. Merritt made his first request for the telephone recording from the County on August 8, 2023. This request, however, was buried within the text of a lengthy, single-spaced email that covered the gamut from jokes to bible verses. At the beginning of this same email, Mr. Merritt had clearly stated he was making a records request for the body camera footage from the Grinnell Police Department. Grinnell Police Department promptly responded to and provided the footage to Mr. Merritt, which, again, is not a subject of this Complaint.[2]
On August 30, 2023, Mr. Merritt made an email request to the County’s sheriff for the “audio recording for my 04 AUG 2022 [sic] phone call that led to the assistance the Grinnell, IA PD provided.”[3]
On September 26, 2023, Mr. Merritt made a request to the County’s records custodians for the August 4, 2023, audio. He made the request by phone and email. Receipt of this request was promptly acknowledged by the County.
On September 27, 2023, the County informed Mr. Merritt by email the audio recording did not exist, so it could not be provided.
On September 29, 2023, Mr. Merritt questioned the County’s response stating, “Please advise regarding the reason why a dispatch recording that was requested days after it was produced is not available.”
It is not unreasonable that the County did not find the request buried within an email sent to multiple parties on August 8, 2023. A records request should be clearly communicated, rather than hidden within a lengthy email of unrelated text and information.
A second request was made on August 30, 2023. It is not known whether this email was read by the sheriff. The sheriff had responded to previous emails he received, but there is no communication from him regarding this email, which was part of the existing email chain that contained the August 8, 2023, request.
Mr. Merritt contacted the records custodian at the end of September regarding the status of his request, which the custodian promptly acknowledged. Within a day, the County notified Mr. Merritt the record did not exist.[4] This was promptly communicated to Mr. Merritt by email.
Even if the August 30, 2023, request was received by the County, Mr. Merritt received notice that the record he requested did not exist on September 27, 2023. This response was provided one day after the request was clearly submitted to the records custodian and twenty-nine days after the request was emailed to the sheriff. Iowa Code chapter 22 does not have an absolute deadline for responding to records requests.
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.
Mr. Merritt’s complaint is that the county did not respond to his records request within the timeframe articulated in Iowa Code Section 22.8(4)(d). The Iowa Supreme Court has stated that the twenty-day period for determining whether a record is confidential is not a timeframe that is extrapolated to other contexts, so there is no violation under these facts when the initial records request was not clearly communicated to the government body and the County responded within at least twenty-nine days to the request.
According to an Iowa Attorney General Sunshine Advisory Opinion from August 2005, “Delay is never justified simply for the convenience of the governmental body, but delay will not violate the law if it is in good faith or reasonable.” In this situation, any delay caused by a failure to identify a records request buried within a lengthy email, a request that may or may not have been received, and the fact that once the request was clearly articulated to the records custodian, it was promptly acknowledged and communicated, was reasonable.
IT IS SO ORDERED: Formal complaint 23FC:0123 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 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] https://ipib.iowa.gov/timeliness-responding
[2] It is not difficult to see why the original request directed to the County was missed when it was separated by 2,200 words in an email that had clearly articulated a different request at the beginning of the same email. Best practices by IPIB state that “[i]n whatever format a records request is made, it is important to ensure that the request is made clearly and as concisely as possible. The request should clearly state that records are being sought.” 23AO:0005 available at https://ipib.iowa.gov/23ao0005-limits-electronic-records-requests
[3] The request was included in an ongoing chain of emails previously received that all had the same subject line: Ryan Eaton - Alleged and Evidence of Continued Violations of Iowa Code Section 708.7. It is not certain from this subject line that a record request was being made or that a request was being sought. It is also not certain whether the email was received.
[4] Iowa Code chapter 22 does not have a retention requirement, so it is beyond IPIB jurisdiction to determine whether the County should have the record requested.