24FC:0032 Old Davenport Dump/City of Davenport - Dismissal Order

Date:
06/27/2024

Subject:
Old Davenport Dump/City of Davenport - 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 March 28, 2024, Old Davenport Dump filed formal complaint 24FC:0032, alleging that City of Davenport (“City”) violated Iowa Code chapters 21 and 22.

Facts

Old Davenport Dump alleges the following violations. The City consistently disregarded Iowa Open Records Law, refusing to waive fees for public records requests serving the public interest, despite legal provisions allowing fee waivers. The City abused its authority by denying access to public records, potentially violating 18 U.S.C. § 242. The City denied FOIA requests based on alleged unpaid fees, despite allowing other requests to proceed without full payment, raising questions about impartiality. The City refused to release security camera footage involving the city attorney potentially retaliating against requesters and undermining transparency.

Old Davenport Dump alleges the City’s actions violate Iowa Code Chapter 21 and 22, infringing upon rights to anonymously submit public records requests. Their demand for good faith submission disregards legal protections for anonymous requests. Furthermore, their response intimidates and harasses requesters, undermining transparency and accountability. The City’s demand for good faith submission of public records requests violates Iowa Code § 22.3(2), which prohibits the establishment of fees that would prohibit any person from making a request for access to public records. This violation imposes unjust barriers to accessing public information, contravening the principles of transparency and accountability enshrined in Iowa law.

The City responded through counsel, and stated allegations of federal law are beyond the scope of IPIB, Iowa Code allows for the recoupment of costs for records requests, and the City had responded to records requests about which it was aware from Old Davenport Dump. The City withheld the requested security footage as confidential under Iowa Code § 22.7(50). In responding to Old Davenport Dump, the City stated, “The City’s digital technology is intended solely for use in conducting City business and security camera footage is restricted to law enforcement in the case of an emergency, or to the Human Resources Director, City Administrator, or City Attorney with prior approval by one of the other two employees. See Iowa Code §22.7(50) and Davenport Administrative Policy 3.8. The purpose of §22.7(50) is to protect the integrity of security systems (i.e., range of cameras, quality of camera, frequency of recording, frequency of panning, whether the camera is operational or a dummy, how the camera might be compromised, etc.). Therefore, it is within the scope of Iowa Code §22.7(50) to withhold security camera footage.”

Applicable 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.” Iowa Code § 22.3. 

“Thus, for requests taking more time to fulfill, the amendments to section 22.3(1) clarify that in addition to copying costs, custodians can charge for other expenses incurred in producing the records, as long as they are ‘reasonable and communicated to the requester upon receipt of the request.’ Id. The general assembly's continued use of the same word ‘expenses’ in relation to recovery of costs incurred in fulfilling a request for public records reveals that it considered such expenses to not be limited to copying costs” Teig v. Chavez, No. 23-0833, 2024 WL 2869282, at *9 (Iowa June 7, 2024).

“The following public records shall be kept confidential, unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information: . . .Information and records concerning physical infrastructure, cyber security, critical infrastructure, security procedures or emergency preparedness information developed, maintained, or held by a government body for the protection of life or property, if disclosure could reasonably be expected to jeopardize such life or property.” Iowa Code § 22.7(50).

Analysis

Old Davenport Dump’s allegations regarding federal violations of 18 U.S.C. § 242 are outside the jurisdiction of IPIB. IPIB has no authority to address allegations of federal law. In addition, Old Davenport Dump, alleges a violation of Iowa Code chapter 21, but provided no facts or evidence of any violation under this chapter, so there is no violation of Iowa Code chapter 21.

Old Davenport Dump alleges violations of Chapter 22 for the City’s failure to waive fees or for requiring payment of fees prior to fulfillment of the request. Nothing within Iowa Code chapter 22 requires fees be waived in responding to requests. The City may charge for the actual costs of retrieving and copying the records. Iowa Code § 22.3; see also Teig v. Chavez, No. 23-0833, 2024 WL 2869282, at *9 (Iowa June 7, 2024). Iowa Code§ 22.3 allow the City to require payment in full for fulfillment of the request- “[F]ulfillment of a request for a copy of a public record may be contingent upon receipt of payment of reasonable expenses.” Old Davenport Dump fails to provide evidence similarly situated requestors were treated differently.

Old Davenport Dump alleges the City’s failure to provide security video footage is a violation of Iowa Code chapter 22. The City stated the footage was being withheld as confidential under Iowa Code § 22.7(50). The City provided their security camera policy stating security cameras may be utilized, but can be viewed for violations of civil or criminal law or adverse situations. Security footage is only available for business purposes with advanced written approval or for emergency use by emergency personnel. Old Davenport Dump does not provide any additional evidence as to why the videos should not be considered confidential under Iowa Code § 22.7(50). IPIB has agreed security footage could be withheld as confidential in previous decisions.[1]

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.

Iowa Code chapter 22 does allow for the recoupment of actual costs. It also allows for an estimate of costs to be paid prior to fulfillment of the requested records. Iowa Code § 22.7(50) allows for security footage to be retained as confidential.

IT IS SO ORDERED:  Formal complaint 24FC:0032 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 June 20, 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] 22FC:0116 Michael Merritt/City of Newton; 15FC:0002 Timothy Miller/Buchanan County