24FC:0022 Maher "Mark" Waad/Des Moines Airport Authority- Dismissal Order

Date:
05/16/2024

Subject:
Maher "Mark" Waad/Des Moines Airport Authority- 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.

Maher “Mark” Waad filed formal complaint 24FC:0022 on February 28, 2024, alleging that the Des Moines Airport Authority (“Authority”) violated Iowa Code Chapter 22 on January 10, 2024, and Iowa Code Chapter 21 on February 12, 2024.

Facts

Mr. Waad requested his attorney submit a records request to the Des Moines Airport Authority on December 29, 2023. He received a response on January 10, 2024, stating he would have to pre-pay $87,417 in order for the Authority to provide the records, and it would take six months. The Authority estimating there are 27,000 potentially responsive emails and it would take over 900 hours to review them. Mr. Waad argues nothing in Iowa law authorizes the Authority to require pre-payment of an entire estimate prior to fulfilling a record request. Mr. Waad believes the Authority’s intention is to thwart his access to public information and was retaliatory following his filing of a bid protest.

Mr. Waad also alleges an open meeting violation. He alleges that after adjournment of public meetings, the board chair routinely asks board members to remain and continue discussions outside of the public view. In addition to the February board meeting, he observed this at the January 9, 2024, meeting and the December 12, 2023, meeting. 

Kristine Stone, attorney for the Authority, provided a response to the complaints. She stated Mr. Waad submitted an incredibly broad records request covering many categories of records and with no date limitations. The request was as follows:

Pursuant to the lowa Open Records Act, I am requesting copies of the following documents (in electronic format, if available):

1. All communications from and to Amy Frederick that reference American Rent-A-Car and/or Mark ("Maher") Waad.
2. All communications between Amy Frederick and members of the Des Moines Airport Board and Staff related to the RFP for car rental concessions.
3. All communications between Des Moines Airport Board and Staff and any members of the Leibowitz & Horton group.
4. All communications among the Des Moines Board Members and Des Moines Airport staff regarding the RFP for car rental concessions, including the bid protest filed by American Rent-A-Car.
5. All communications between Amy Frederick and Hertz related to the Des Moines RFP for car rental concessions.
6. All communications between Hertz and the staff of the Des Moines Airport Authority or any Des Moines Airport Authority board members related to closing its operations in Des Moines in calendar year 2021.
7. All communications between Kevin Foley and the following people or agencies:
a. The Federal Aviation Administration (FAA)
b. Polk County Government officials
c. Governor Kim Reynolds
d. Kayla Kavarna
e. Wild Rose, Etc.
f. Prairie Meadows, Etc.
g. Highview Development Group, Etc.
h. Scott Sanders
i. Reggie Sinha
j. Frank Connie
8. All communications involving Kevin Foley and the terms "Fundraiser" or "fundraising"

On January 10, 2024, the Authority responded to Mr. Waad’s request identifying more than 27,000 responsive emails and including a fee estimate of $87,417 to gather, review, and provide the documents. The letter asked for the fee to be paid in advance, and indicated that the requester would be responsible for the actual cost of providing the records, which may be higher or lower than the estimate. 

An affidavit from Authority Executive Director Kevin Foley attested to the procedure used to estimate the cost of retrieving the records requested. The Authority conducted a preliminary search of responsive email records, which exceeded 27,000 emails. The Authority calculated it would take on average two minutes per email to assemble, review, and provide the requested documents. The fee was calculated based on the employee’s actual hourly rate to complete the request. The Authority requested prepayment of the fee before the records would be assembled and produced. 

Further, within two hours of sending the fee estimate to Mr. Waad, counsel for the Authority and Mr. Waad discussed the records request and the Authority was waiting to hear whether Mr. Waad wanted to narrow his request. The Authority never heard back from Mr. Waad.

The Authority recognizes the fee estimate provided by the Authority is large, but reasonable in light of the extensive request. The Authority spoke with Mr. Waad’s counsel and advised working with the Authority to narrow the request to a more focused set of documents.

The second complaint filed by Mr. Waad alleges an open meeting violation. The Authority board consists of five members. The board meets monthly. Board meetings are open to the public. In addition to board members, board meetings are attended by the five Authority directors whoi are employees. 

At the January 9, 2024, meeting three of the five board members appeared in person and two members appeared remotely. The board chair appeared in person for the January meeting. It is routine for the chair to stay after the conclusion of board meetings to sign documents approved at the board meeting. The Authority disagrees that members were asked by the chair to remain after the meeting adjourned. Affidavits were provided by Mr. Christensen and Mr. Foley stating this.  The Authority states that it is common for directors to stay after meetings to talk with consultants in attendance at the meeting.

At the February 13, 2024, board meeting, four board members appeared remotely for the meeting.  Only one member was physically present at the board meeting. Once the meeting concluded, it would have been impossible for a majority of members to gather after the end of the meeting because they appeared remotely and the Zoom meeting was turned off at the conclusion of the meeting.

Law

 “The lawful custodian shall not require the physical presence of a person requesting or receiving a copy of a public record and shall fulfill requests for a copy of a public record received in writing, by telephone, or by electronic means. 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. A person may contest the reasonableness of the custodian's expenses as provided for in this chapter. 

…

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.

“‘Meeting’ means 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. Meetings shall not include a gathering of members of a governmental body for purely ministerial or social purposes when there is no discussion of policy or no intent to avoid the purposes of this chapter.”  Iowa Code § 21.2(2).

Analysis

Record Request
The records request from Mr. Waad is voluminous and will like require extensive hours of staff time to collect and review the records. Collecting and reviewing 27,000 emails is an extensive undertaking. Estimating the Authority could review and collect the emails at an average of two minutes per email amounts to over 900 hours of staff time to respond to the request. The hourly rate for the person reviewing the request is $97.13. Due to the sensitive nature of the communications involved in running an airport, the Assistant Executive Director would need to undertake the review the documents. The Authority spoke with Mr. Waad’s counsel about narrowing the request to reduce the costs. This could be done by providing time limits or including less broad search terms. Adjusting the request that would narrow the expansiveness of the search and review. 

The fees quoted are quite extensive, but so is the scope of the records request. The request includes communications with the FAA, Governor Reynolds, Polk County Government, and others. The initial search showed at least 1,475 emails between the Executive Director and the FAA alone. There would likely be confidential information that would need to be reviewed by someone with knowledge of their contents and authority to review, which also increases the costs. 

 “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.” 22AO:0003 Reasonable Fees for Producing Records Requests. “[F]ulfillment of a request for a copy of a public record may be contingent upon receipt of payment of reasonable expenses.” Iowa Code § 22.3. Based on these specific facts and scope of the request, there is not a violation of chapter 21. 

Meeting after the Meeting
The allegations of the Authority meeting following the adjournment of their monthly open meeting do not appear to have merit. No evidence was provided that a majority of the board were asked to or did stay after the meeting. Affidavits were provided to that extent. The affidavits state that the employees of the Authority will often remain after a meeting to talk with attendees, but there is no evidence a majority of the board engaged in deliberation at the conclusion of the January meeting. The evidence indicates that for the February meeting, a quorum of the Board was not even physically present for the meeting, so there could not have been a meeting of the majority of the board after the board meeting adjourned. Under these facts, there is no violation of chapter 22.

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 does not meet those requirements.

The Authority is allowed under Iowa Code § 22.3 to require prepayment of an estimate of the actual costs of producing the records requested. The scope of the request was quite extensive resulting in 27,000 emails with confidential information likely within the information. Also, there is no evidence a majority of the Authority’s board met improperly after the adjournment of the board meeting.

IT IS SO ORDERED:  Formal complaint 24FC:0022 is dismissed as legally insufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b).  The Des Moines Airport Authority did not violate any part of the open meeting or public records code sections.

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.