Date:
07/18/2024
Subject:
Tirzah Wedewer/City of Manchester - Dismissal Order
Opinion:
The Iowa Public Information Board
In re the Matter of: Tirzah Wedewer, Complainant
City of Manchester, Respondent | Case Number: 24FC:0010 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 January 31, 2024, Tirzah Wedewer filed formal complaint 24FC:0010, alleging the City of Manchester (“City”) violated Iowa Code Chapter 21.
Facts
Ms. Wedewer alleges the City violated Iowa Code Chapter 21 by making changes to the City Council agenda without appropriate notice and that members of the City Council discussed business outside of open session. Ms. Wedewer states as follows:
“We recently had a change in our City Council effective January 2024 and I am deeply concerned about early signs with the newest council members (Joe Dittrick, Bryan Gray and Linda Schmitt) of violations of the Open Meeting Law and Freedom of Information Act in their first month of meetings. Specifically, a controversial item was added to the agenda the Friday before Monday’s meeting. Only three out of the five members were aware of it and the Mayor was not involved in the initial emails. It appears there are meetings/conversations before the meeting to prepare to cause disruption and ultimately distrust within the council and the public.”
Legal counsel to the City replied and provided email communications between members of the City Council and city administrators. The emails provided by legal counsel referenced emails from the personal accounts of some members of the City Council. IPIB staff followed up and requested any additional emails from members of the City Council that were sent from personal accounts and related to City Council business.
Legal counsel for the City followed up and provided additional email that showed communication from personal accounts related to City Council business.
Applicable Law
Adding items to the agenda: Iowa Code Section 21.4 requires that a tentative agenda be posted at least twenty-four hours prior to the commencement of any meeting of a government body. (Iowa Code § 21.4(2)(a)).
Meetings of members outside of open session: Iowa Code Section 21.2 defines a “meeting” as a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberation or action upon any matter within the scope of the governmental body’s policy-making duties. (Iowa Code § 21.2(2)).
Access to public records. Iowa Code Section 22.1 defines “public records as “all records, documents, tape or other information, stored or preserved in any medium.” Subsection 22.2(2) states that a governmental body cannot prevent access to a public record by contracting with a nongovernmental body (such as a cloud storage provider). Section 22.3A addresses public records and data processing software. The cumulative effect of these statutes is that a public record does not lose its public status by being retained on a privately-owned electronic device.
Analysis
The Complaint alleges a violation of Chapter 21 in the following respects:
- An item was added to the agenda on a Friday before a Monday meeting.
- Meetings occurring outside of public session.
In addition to these issues, IPIB staff reviewed this Complaint for a Chapter 22 violation related to disclosure of public records.
Adding items to the agenda: Iowa Code § 21.4 requires a tentative agenda be posted at least twenty-four hours prior to the commencement of any meeting of a government body. Iowa Code § 21.4(2)(a). In this case, Ms. Wedewer alleges items were added to the agenda on a Friday before a Monday meeting. No specific deficiencies were alleged related to public notice requirements. There is nothing in Iowa Code Chapter 21 that prohibits changes to the agenda if those changes are made within the twenty-four hour notice requirement and are in compliance with all of the requirements in Iowa Code § 21.4.
Meetings of members outside of open session: Iowa Code § 21.2 defines a “meeting” as a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberation or action upon any matter within the scope of the governmental body’s policy-making duties.
Upon review of the emails provided by the City, there is communication that occurs outside of open session between some members of the City Council and city administrators. Other members of the City Council were sometimes included in these emails. These emails were primarily related to requests that information be placed on the agenda for discussion in open meeting. These communications do not include deliberation or action between a majority of the Council. In addition, they primarily focused on ministerial matters, such as requests for an item to be added to the Council’s agenda. For this reason, these communications do not rise to the definition of a meeting pursuant to Chapter 21.
Chapter 22 review of public records: Personal email accounts were used to conduct official business. Emails sent from personal accounts related to the business of the Council, constitute public record and must be disclosed upon a records request.[1]Iowa Code Section 22.1 includes “all records, documents, tape or other information, stored or preserved in any medium” in the definition of public records. The determination of whether a document is a public record is based on the content of the document, rather than where it is stored. A public record does not lose its status by being retained on a privately-owned electronic device.[2]
Private emails were provided to IPIB when requested after a delay. Some had been sent to government email recipients, copies of which were easier to collect and provide. But, the delay in retrieving and concern with ensuring all private emails can be collected is cause for concern, not just for the requestor of the records, but also for the government body that is required to collect and provide the records.
Elected, appointed, and employees of government bodies should avoid utilizing private email and texts for government communications.[3] IPIB encourages the City to consider adopting policies and procedures governing the use of privately-owned electronic devices used to conduct government business and retention and disclosure of these public records to avoid any issues in the future.
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.
On the face of the information presented, the City did not violate Iowa Code Chapter 21 or Iowa Code Chapter 22.
IT IS SO ORDERED: Formal complaint 24FC:0010 is dismissed 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 July 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] See Kirkwood Institute v. Sand, No. 23–0201 (Iowa Apr. 26, 2024) (factual issue as to whether the delay in producing the records requested was reasonable when the auditor’s office failed to provide an email thread sent from an employee’s personal email to a reporter).
[2] 21AO:0009 Public records maintained on privately-owned electronic devices “If a government official or employee uses privately owned electronic devices or services, such as cell phones, computers, email accounts, smart phones, or such to conduct official government business, then the record generated is a public record. What governs the issue is the content of the message. If it concerns public business relating to public duties of an official or employee, then it is a public record.”
[3] IPIB recognizes that the emails sent from private emails were shortly after the elected officials may have taken office, so it is possible the use of private emails to conduct government business has been remedied.