24FC:0019 Kenneth Brown/City of Sidney- Dismissal Order

Date:
05/16/2024

Subject:
Kenneth Brown/City of Sidney- Dismissal Order

Opinion:

The Iowa Public Information Board

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

On February 26, 2024, Kenneth Brown filed formal complaint 24FC:0019, alleging that City of Sidney (“City”) violated Iowa Code chapter 21.

Facts

Mr. Brown filed a complaint alleging three violations of Iowa Code.

Corrected agenda not posted on website in a timely fashion
Mr. Brown alleges the City violated Chapter 21 when the City failed to fix an error in its agenda posted on February 9, 2024 for a meeting on February 12. He alleges the agenda item required a public hearing, but a revised agenda was not posted on the City’s website until the morning of the meeting. He alleges the agenda was changed less than twelve hours before the meeting. He alleges the City’s website is the official notification site for the city as of February 12, 2024 (the date of the meeting) before than there was no official notification site for the City. 

In response, the City stated the agenda for the February 12 council meeting was posted at City Hall on Friday, February 9. An item was inadvertently omitted from the agenda, so she went to the office on Saturday to correct it and repost it. The revised agenda was emailed to the media at 4:00 p.m. on February 10 and reposted to City Hall. A copy of the email was provided to IPIB. The agenda was not reposted on the City’s website until Monday morning, February 12 when City Hall was open. 

Additional items at meeting not included on the agenda
Mr. Brown alleges at the council meeting on February 12, after the public comment period, Councilmember Ann Travis added an agenda item rather than adjourn the meeting. He alleges that Ms. Travis violated Iowa Code chapter 21  by asking the other council members for their input into what additional items should be included on the next meeting’s agenda. Mr. Brown alleges that adding this item without placing it on the agenda failed to give the public notice this would be brought up by the City.

In response the City stated that Councilmember Travis presided over the meeting on February 12, 2024. At the end of the meeting, Ms. Travis asked the councilmembers if there were any items they would like to have on the next agenda. She pointed out that she would like that it to be an agenda item at all future meetings to identify items that need to be placed on the next agenda. There was no action taken, no discussion or deliberation regarding any decisions on any future agenda items—merely a logistical question regarding the next meeting. Chapter 21.4 requires a tentative agenda of the meeting to be posted in a manner reasonably calculated to apprise the public of the information to be discussed and acted on by the city council. Logistically, a city council has to be able to determine matters that should be on future agendas. Those items then being posted on future agendas for discussion and action providing the public with sufficient notice to apprise the public of the information. While Councilmember Travis did ask for a list of items that should be placed on the next agenda, she did not request discussion of any particular item—nor was any particular item discussed or acted upon. Her choice of wording may not have been the best, but she did not request any motion or action by the council. She requested a list of items so that the clerk could note those for the future agenda.

Records requests
Mr. Brown alleges that on February 9, 2024, he sent in a request for the December 2023 Clerk's Financial report and had not received the requested item as of February 21 even after sending in multiple emails asking for the reports. The request asked that the item be emailed to me. In the past, the City has not charged for the report. 

In response, the City stated that on February 9, 2024, Mr. Brown requested a multitude of documents. The city staff calculated the anticipated time necessary to compile the documents and make necessary redactions of sensitive information. The city staff provided Mr. Brown an estimate of the fee for responding to the request. Mr. Brown refused to pay the fee and became combative with city staff regarding the fee. The city has not refused to respond to his request. Mr. Brown refused to pay the fee. The city is entitled to charge a fee for the cost of responding to the request. The City stated the fee for the records would be $34.26.

Records  Requests Made:
February 8, 2024 Independent Accountant Examination Audits for year 2022-23 (provided to Mr. Brown)
February 9, 2024 December 2023 Financial Statements to include the following reports 1. Clerk’s Report 2. Balance Sheet 3. Revenue Summary 4. Expenditure Summary 5. Expenditure Monthly Guidelines 6. Journal Entries 7. Bank Reconciliation 8. Utility Reconciliation less Utility Delinquency Report 9. Library Financials. (financial documents available on the City’s website and sent to Mr. Brown by IPIB.)
February 9, 2024 Independent Accountant Examination Audits for years 2017-18; 2018-19; 2019-20; 2020-21; 2021-22 (provided to Mr. Brown)
February 12, 2024 General Obligation Corporate Purpose Bonds (resolution on the website)
February 12, 2024 Invoice from Column Software PBC
Unknown Date Recording of the council meeting on February 12, 2024 (provided to Mr. Brown)

IPIB provided a link to the documents Mr. Brown requested that are posted on the website, which include the payroll cycle; Claims Approved February 12, 2024; Library Claims approved; December 2023 Clerks Report; Resolution to enter into a General Obligation Corporate Purpose Loan Agreement; Arbor Bank Balances; First Interstate Bank Interest Payment; Volunteer Fire Reconciliation and other financial reports. In response, Mr. Brown asserts that these are not the records he requested and that his complaint is that the City wants to charge him for records that he has not been charged for in the past.

Applicable Law

“[A] governmental body shall give notice of the time, date, and place of each meeting including a reconvened meeting of the governmental body, and the tentative agenda of the meeting, in a manner reasonably calculated to apprise the public of that information. Reasonable notice shall include advising the news media who have filed a request for notice with the governmental body and posting the notice on a bulletin board or other prominent place which is easily accessible to the public and clearly designated for that purpose at the principal office of the body holding the meeting, or if no such office exists, at the building in which the meeting is to be held….[notice]  shall be given at least twenty-four hours prior to the commencement of any meeting of a governmental body …” Iowa Code § 21.4(1)(a),(2)(a).

“All reasonable expenses of the examination and copying shall be paid by the person desiring to examine or copy. The lawful custodian may charge a reasonable fee for the services of the lawful custodian or the custodian’s authorized designee in supervising the examination and copying of the records. If copy equipment is available at the office of the lawful custodian of any public records, the lawful custodian shall provide any person a reasonable number of copies of any public record in the custody of the office upon the payment of a fee. 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.” Iowa Code § 22.3(2).

Analysis

Issue 1: Meeting agenda changed without providing 24 hours’ notice.
The City physically posted the agenda and sent a copy to the media more than 72 hours before the council meeting. A revised agenda was posted and a copy of the email showing it was resubmitted to the media more than 48 hours prior to the council meeting was provided. The crux of Mr. Brown’s complaint regarding this issue is that the agenda posted on the City’s website was not revised more than 24 hours prior to the meeting. Iowa Code chapter 21, however, does not have any requirement that an agenda be posted on a website. Because the required notice was posted and emailed to the media more than 24 hours prior to the City’s council meeting, there is no violation of Iowa Code § 21.4.

Issue 2: Adding to the agenda at end of meeting
IPIB Staff listened to the meeting. The recording includes a request by Ms. Travis to add an item on this agenda and for future agendas to ask for items to be placed on the next meeting agenda. She does state she is adding something to the agenda that was not included, but the council does not deliberate on or act on anything other than suggesting a topic to be included on the next council meting agenda, which was a report on maintenance work. 

While Ms. Travis does say she is adding an additional agenda item, the content of the item is actually more akin to a ministerial matter such as setting a date for a meeting or reciting the pledge of allegiance at a meeting.[1] Asking for items to be placed on a future agenda to be deliberated on at a later date after proper notice is not a violation of Chapter 21. Because there was no policy making and no deliberation, any failure to include this ministerial action during the meeting without prior notice is not a violation or at least is merely harmless error.

Issue 3: February 9 records requests not received by February 21
As stated on numerous occasions, there is no specific timeframe by which a records request must be fulfilled. Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 461 (Iowa 2013). Also, Iowa Code § 22.3 clearly states the following: “Although fulfillment of a request for a copy of a public record may be contingent upon receipt of payment of reasonable expenses, the lawful custodian shall make every reasonable effort to provide the public record requested at no cost other than copying costs for a record which takes less than thirty minutes to produce. In the event expenses are necessary, such expenses shall be reasonable and communicated to the requester upon receipt of the request. . . .All reasonable expenses of the examination and copying shall be paid by the person desiring to examine or copy. The lawful custodian may charge a reasonable fee for the services of the lawful custodian or the custodian’s authorized designee in supervising the examination and copying of the records.” 

The Code does suggest that when requests take less than 30 minutes, the City should make efforts to provide the records at no costs other than copying, but it is not required. Further, Mr. Brown filed multiple records requests within a few days. The City is allowed to charge for the collection and copying of records requests. The City is also able to require pre-payment of these fees. Mr. Brown does not challenge the reasonableness of the fees. His complaint is that he should not be charged at all. Iowa Code allows the City to recoup the actual costs of responding to the records requests. If Mr. Brown is seeking records that are not readily available as provided by IPIB, then there is likely time and effort required to collect and copy the documents he has requested. While the City might provide these at no charge, when faced with multiple and varied requests from the same person, it is not unreasonable for the City to consolidate the requests and require some reimbursement of the actual costs for the time and effort involved.

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.

The City posted a corrected agenda more than 24 hours before its meeting; the request for agenda items to be added to the next council meeting’s agenda was a ministerial act; and the City can require pre-payment for the estimated costs of responding to a records request.

IT IS SO ORDERED:  Formal complaint 24FC:0019 is dismissed as it is legally insufficient and/or harmless error 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 May 16, 2024.  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.

[1] See 23FC:0079 Steve St. Clair/Winneshiek County Board of Supervisors (finding addition of pledge of allegiance to a meeting was a ministerial action).