24FC:0052 Erik Johnson/Delaware Township - Acceptance Order

 Date:
11/21/2024

Subject:
Erik Johnson/Delaware Township   - Acceptance Order

Opinion:

The Iowa Public Information Board

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

On June 6, 2024, Erik Johnson filed formal complaint 24FC:0052, alleging Delaware Township violated Iowa Code chapter 22.

Facts

Johnson alleges the Township failed to produce records requested on April 29th, 2024, within a reasonable time. The records request included the following:

I am writing to request access to public records under the Freedom of Information Act (FOIA) and Iowa Open Records law for Delaware Township. Specifically, I am seeking all emails, text messages, social media messages, and any other records pertaining to the following topics and entities:

1.) Delaware Township Budget – This does NOT include individual invoices

2.) Delaware Township Fire Department Operations

3.) Delaware Township Payroll, including processing information and amounts

4.) Facebook "Norwoodville News" group

5.) Dtfd.net domain name

I request records dated from January 1, 2024, to April 30, 2024, inclusive. I am requesting the records for all Township Trustees, Township Clerk, Fire Department Chief Officers, and non-privileged communications with Township Legal Counsel.

This includes both personal and government issued phones, accounts, etc. I am notifying the Township Clerk, Trustee Chair Person, Department Chief, and Township Counsel as custodians of records.

Johnson also alleges the Township is requiring digital documents to be provided in hardcopy form, causing undue financial burden in obtaining public records. These records are digital in origination he provides he is “willing and would prefer to receive the records digitally.”

Johnson further alleges the Township “is attempting to collect an hourly rate for the compilation time of the Township Clerk. The Clerk is paid from Polk County, not Delaware Township. Charging a fee would then be a revenue generating stream for the Township, as the fee would not be used to cover the payroll of the employee.”

The Township, through counsel, stated the Township responded to Mr. Johnson’s request. After several back and forth emails, the request was sent to counsel to address. Some of the records requested do not belong to the Township, such as the Facebook page, which is maintained by non-government parties. Other documents, such as communications between counsel and others was confidential as attorney-client privileged documents.

The last communication from Johnson to the Township was on June 6, 2024, wherein Johnson stated any per page copy fee for the records should not be required, the documents should be able to be produced electronically, and Johnson refused to pay for the township clerk, board member, or fire chief reimbursed time to complete the records request.

The Township, stated it needed to print the emails to review and provide redactions where appropriate. Also, it is appropriate for the Township to recoup the direct costs of producing any open records request, including time expended in complying with the request. It stated a valid US mail address would be required to send the records through the mail to Johnson and offered no other alternatives. 

In responding to this complaint, the Township also provided documents which include all publicly available handouts from the individual meetings held from January through April 2024 where township business was transacted. These included agendas, meeting minutes, financials, and any other handouts provided. These were provided at no cost to Mr. Johnson.

IPIB suggested some ways to resolve this complaint, but neither party has agreed to any recommendations. Mr. Johnson has failed to respond to IPIB since July, so it is unknown whether the documents provided have resolved his request.

Applicable Law

“The examination and copying of public records shall be done under the supervision of the lawful custodian of the records or the custodian’s authorized designee. 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.

…

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

Analysis

The primary issues are whether the Township can require Johnson receive the records through the mail and mandate an address be provided rather than electronically and whether the Township can charge for the records. 

Electronic Records

The Township stated it could not provide records electronically because there was no government body email from which to send the information, so it would print and mail the records. In addition, the records needed to be reviewed and potentially redacted, which required printing the documents for compiling and review. The Township stated it required a US Postal address to mail the documents. It did not provide the option for Johnson to physically pick up the records or to provide a new, unused USB drive to collect scanned versions.

The Township cannot require Johnson provide a mailing address to complete the records request.[1] In resolution to a previous IPIB complaint, 18FC:0116, the Township allowed a USB drive to be provided so the requestor could obtain the records electronically. No facts have been provided why this could not be done again or why the Township did not follow the resolution from a previous matter.

Fees

Johnson’s dispute regarding fees is that the township is not entitled to request reimbursement for the time spent retrieving the requested documents because the county pays the salaries of the individuals. 

The Township stated the estimated cost for the  records requested would be approximately: 300 pages x .10 page = $30, plus $20/hr for clerk time x 4 anticipated hours= $80, plus 4 anticipated hours Chief time at $19.50/hr=$78, plus one-half hour time of review by counsel for appropriate redactions of legally privileged material $180 x 0.50 hours= $90.00, plus postage $20.00. The Township stated prepayment would be required. Iowa Code does allow pre-payment of a reasonable estimate of the fees prior to providing the requested public records. Iowa Code § 22.3(1). 

The Township is entitled to recoup the costs of the time spent retrieving the records. Iowa Code § 22.3(2); Teig v. Chavez, 8 N.W.3d 484, 496-97 (Iowa 2024). Johnson’s argument the county government typically pays the hourly rate to the Township employees does not change the fact there is an hourly employee cost to retrieving the records that Johnson as the requestor is to pay. 

The amount of time estimated to review and find records does not, on its face, appear unreasonable to review all potential email, text, social media and other records for a four-month period of time that would generate 300 pages of records. The actual amount paid will need to be the actual costs, so if the request does take less time than estimated, a refund will need to be provided.

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. This complaint meets the necessary requirements for acceptance.

The Township can charge for the actual costs of retrieving the requested records and can request prepayment of a reasonable estimate for the records. The Township cannot, however, require a physical mailing address from the requestor to receive the records.

IT IS SO ORDERED:  Formal complaint 24FC:0052 is accepted pursuant to Iowa Code § 23.8(1) and Iowa Administrative Rule 497-2.1(2)(a).

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 November 21, 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] “The [government body] may request, but not require, people requesting records disclose their names, addresses, and phone numbers.  However, under Iowa Code section 22.3, a government body must respond to all public records requests, whether those requests come through a phone call, email, or letter.  It cannot limit the records' disclosure to people who complete a specific form designed by the city or people who provide legal identification.” 19AO:0005 Traffic Monitoring System Open Records Proposed Policy.