Advisory Opinion 24AO:0016
DATE: February 20, 2025
SUBJECT: Is a contracted city attorney the appropriate custodian of a records request?
Jack Hatanpa
Brick Gentry, P.C.
6701 Westown Parkway, Ste 100
West Des Moines, IA 50266
Dear Mr. Hatanpa,
We are writing in response to your request dated December 18, 2024, seeking an advisory opinion from the Iowa Public Information Board (IPIB) pursuant to Iowa Code chapter 23 and Iowa Administrative Code rule 497-1.3. This advisory opinion offers clarification on whether a city is obligated to treat a request made to a contracted city attorney as a valid records request where the attorney is not the designated lawful custodian and the request is made in a manner inconsistent with city policy.
“Any person may request a board advisory opinion construing or applying Iowa Code chapters 21, 22, and 23. An authorized agent may seek an opinion on behalf of any person. The board will not issue an opinion to an unauthorized third party. The board may on its own motion issue opinions without receiving a formal request.” We note at the outset that IPIB’s jurisdiction is limited to the application of Iowa Code chapters 21, 22, and 23, and rules in Iowa Administrative Code chapter 497. Advice in a Board opinion, if followed, constitutes a defense to a subsequent complaint based on the same facts and circumstances.
FACTS PRESENTED:
The City of Newton’s city clerk is the designated lawful custodian for Iowa Code chapter 22. The City provides an online “Public Records Request Form,” and City policy asks that online requests be made through this form.
On April 24, 2024, the Newton city attorney received an email asking several questions, which ended with a request for records. The City provided a prompt response to the questions in the email, but it did not provide the requested documents. The requester did not follow up on the email until two months later, when they complained the City had refused to release records in response to the request. The City subsequently provided responsive records.
The City seeks guidance on a government body’s obligations when responding to a request which is not sent to the designated lawful custodian.
QUESTION POSED:
Under Iowa Code § 22.4, a person may make a records request “[i]n writing, by telephone, or through electronic means,” but “[t]he lawful custodian of the records shall post information for making such requests.” Does an email request sent to the city attorney, who is not the lawful custodian for the government body constitute a records request under Chapter 22?
OPINION:
Chapter 22 defines the term “lawful custodian” as follows:
“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 the government body is the government body owning that record. The records relating to the investment of public funds are the property of the public body responsible for the public funds. Each government body shall delegate to particular officials or employees of that government body the responsibility for implementing the requirements of [Chapter 22] and shall publicly announce the particular officials or employees to whom responsibility for implementing the requirements of this chapter has been delegated.
Iowa Code § 22.1(2).
Throughout Chapter 22, the legislature discusses the rights of individuals to access public records in terms of the duties of the lawful custodian for those records. Iowa Code § 22.3(1) states that the “examination and copying of public records shall be done under the supervision of the lawful custodian.” Iowa Code § 22.4(1) provides that requesters may exercise their rights “[i]n person, at any time during the customary office hours of the lawful custodian of the records,” while Iowa Code § 22.4(2) further provides that requesters may exercise their rights under Iowa’s open records law “[i]n writing, by telephone, or by electronic means,” and that “[t]he lawful custodian of the records shall post information for making such requests in a manner reasonably calculated to apprise the public of that information.”
Read together with the final sentence of Iowa Code § 22.1(2), which requires a government body to “delegate to particular officials or employees of that government body the responsibility for implementing the requirements of [Chapter 22],” the legislature’s clear intent is that valid requests must be made to the proper lawful custodian for the records sought, and appropriate venue for records requests within a government body is the official(s) or employee(s) who are identified to the public for this purpose.
A lawful custodian’s discretion over the process for submitting requests is limited by the Code in some respects. For instance, Iowa Code § 22.4(2) requires multiple avenues for submitting records requests, including in-person, written, telephonic, and electronic. However, where Iowa Code § 22.1(2) requires a government body to publicly “designate particular officials or employees” to be responsible for handling Chapter 22 requests, IPIB reads this requirement to limit the government body’s responsibility for requests submitted to an improper recipient. As one Attorney General Sunshine Advisory put it, “[i]t is not possible for every employee to be familiar with every public record maintained by a public office, especially in today’s complex world of large, multi-divisional government offices, electronic records, and confidential record requirements.”[1]
Therefore, where a government body has provided information about how and where to submit a request, a requestor has the responsibility to submit the request through the designated channels. Best practice for the purposes of transparency and responsiveness would still be for non-designee officials or employees to redirect the requestor to the appropriate lawful custodian or instruct them on how to submit a proper request. Nevertheless, where a city has appropriately designated an individual as the lawful custodian to receive and respond to public records requests, it would not an unreasonable delay if the city failed to respond to a request improperly sent to individuals outside the government or unconnected to the records. See, e.g., 24FC:0116, Timothy-John; Miller/City of Waterloo Police Department (“[w]hile there was a delay between the original records requests made directly to police officers and the IPIB communications to the publicly-designated records custodian identified by the Department for receiving such requests, the delay between submission of the original requests and when the requests were submitted the appropriate individual is not unreasonable”).
This is particularly true where outside legal counsel is concerned. With regards to legal fees, Iowa Code § 22.3(2) states that “[c]osts for legal services should only be utilized for the redaction or review of legally protected confidential information.” While a city may consult with its attorney in responding to a records request and shift the cost of legal fees to the requestor when used to review responsive records for confidentiality, the Code clearly does not contemplate the contracted attorney would be the appropriate contact in a typical records request outside an explicit designation as the lawful custodian by the government body for such purposes. Therefore, although attorneys may have other professional or ethical obligations external to Chapter 22 which could require them to redirect a requester to the proper channel, Chapter 22 does not impose such a requirement when another official or employee has been designated to receive and respond to public records requests.
[1] Public Records Contact Persons: Helping Iowans with Access to Public Records, Iowa Att’y Gen., https://www.iowaattorneygeneral.gov/about-us/sunshine-advisories/public-records-contact-persons-helping-iowans-with-access-to-public-records (last updated Dec. 1, 2014).
BY DIRECTION AND VOTE OF THE BOARD:
Joan Corbin
E.J. Giovannetti
Barry Lindahl
Catherine Lucas
Luke Martz
Joel McCrea
Monica McHugh
Jackie Schmillen
SUBMITTED BY:
Alexander Lee
Agency Counsel
Iowa Public Information Board
ISSUED ON:
February 20, 2025
Pursuant to Iowa Administrative Rule 497-1.3(3), a person who has received a board opinion may, within 30 days after the issuance of the opinion, request modification or reconsideration of the opinion. A request for modification or reconsideration shall be deemed denied unless the board acts upon the request within 60 days of receipt of the request. The IPIB may take up modification or reconsideration of an advisory opinion on its own motion within 30 days after the issuance of an opinion.
Pursuant to Iowa Administrative Rule 497-1.3(5), a person who has received a board opinion or advice may petition for a declaratory order pursuant to Iowa Code section 17A.9. The IPIB may refuse to issue a declaratory order to a person who has previously received a board opinion on the same question, unless the requestor demonstrates a significant change in circumstances from those in the board opinion.