24FC:0072 Lucian Diaconu/Gilbert Community School District - Dismissal Order

Date:
12/19/2024

Subject:
Lucian Diaconu/Gilbert Community School District  - 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 August 14, 2024, Lucian Diaconu filed formal complaint 24FC:0072, alleging the Gilbert Community School District (District) violated Iowa Code Chapter 22. The dismissal order was presented to the IPIB on November 21, 2024. The dismissal order was tabled to December 19, 2024, and the IPIB requested the Respondent be present and additional information be reviewed.

Facts

The complaint alleges the District violated Iowa Code Chapter 22 by failing to disclose all public records responsive to the request, unreasonable delays for production, unreasonable fees charged for production, and the release was “on paper, with missing information, printed pages in random order and with words out of context.”

On May 24, 2024, Diaconu submitted a records request to the District seeking all electronic communication sent or received in reference to the words, “soccer, safe, time, Noreen, and team” related to two specific employees. Diaconu requested the information be delivered via USB device. The District acknowledged the request on the same date.

On June 4, 2024, Diaconu followed up with the District and requested an update. On the same date, the District responded and indicated the request would take 40 searches and a minimum of 15-20 hours of work. The District estimated the cost for production would be $47.22 per hour at 15 hours, for a cost of $708.30. Additional conversations took place on this date regarding fees, payment, and timing of release. 

On June 24, Diaconu followed up with the District and requested an update. The District responded as follows:

We wanted to assure you we are working on your records request. We understand it is taking more time than you expected. Just so you are aware, there are over 4900 documents we have to hand sort and review prior to releasing the information to you, and that takes a significant amount of time. The reason we have so many records, for example, is one of the words you have listed was the word "soccer." One person you asked for has the word soccer in their signature line, so every email this person sent is included in your request. We then have to hand-sort and review every email to be sure it does not contain information not a part of your request that would require redaction, for example names of students not related to your request. We are continuing to work on your request, but we wanted to give you a status update and we will continue to work on this project and hope to have it completed in the next 2 weeks.

On August 2, Diaconu again requested an update on the status of the request. Diaconu did not receive a response to the request and again followed up on August 6. The District responded and indicated the documents would be available on Friday and provided the actual cost for production. It should be noted Diaconu informed the District in July he would be out of the country from July 12 through August 2, and that he would be in touch upon his return. 

On August 8, the District outreached to Diaconu and indicated the documents were ready to be received. The District stated the payment for release was $522.64 and the total was based on 12 hours of work at $47.22 per hour. 

On August 9, Diaconu sent an email to the District indicating the format for production was paper copies, some pages were copied several times, communications were missing, and an itemized receipt was not provided. Diaconu requested to know how many emails should have been provided and if there were not communications disclosed and why. At this time, a second public records request was also submitted by Diaconu to the District.

Following the request from Diaconu, conversations via phone and email continued. In one conversation, the District sought clarification of Diaconu’s request to address his concerns. Based on this conversation, the District broadened the types and number of records provided and prepared another public records disclosure. The District states that not all records were provided on August 8 because the District initially believed some of the records were not relevant to the request. The District states,

“Due to the use of the word “soccer” in one of the employee’s email signature, District staff initially understood that some of the 4900 records were not relevant to Complainant’s request because the subject matter of the emails were not “in reference to” the actual subjects identified and so the records produced were the records reasonably believed to be responsive to Complainant’s request.”

This was further confirmed in an email between Diaconu and the District. Diaconu wrote,

“From my understanding, over the phone, for my request placed on 5/24/2024 it was given on 08/08/2024 ONLY emails between the coaches (back and forth) from that time frame. It was my understanding, that other emails were omitted to be released as they have the word soccer (one of the words requested) in their signature and it may have not been what I asked for. I was also told that if I want all the emails containing soccer the cost will be higher, because 4900 emails will have to be reviewed and furthermore, and extra charge for scanning all the documents and release them electronically (how I requested).”

On August 14, Diaconu filed this complaint.

On August 15, the second round of public records responsive to Diaconu’s request was released, which was provided on an electronic drive and contained 5,750 pages of records.

Applicable Law

Payment of Fees and Access to Records

Iowa Code § 22.3 is clear governmental bodies can charge reasonable fees for the production of public records. Iowa Code § 22.3(1) states as follows: "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(2) goes on to define reasonable fees and states, "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. Actual costs shall not include charges for ordinary expenses or costs such as employment benefits, depreciation, maintenance, electricity, or insurance associated with the administration of the office of the lawful custodian. Costs for legal services should only be utilized for the redaction or review of legally protected confidential information."

Timeframe for Production of Records

Iowa Code § 22.8(4) provides a foundation for defining a good-faith and reasonable delay in the production of public records:

Good-faith, reasonable delay by a lawful custodian in permitting the examination and copying of a government record is not a violation of this chapter if the purpose of the delay is any of the following: 

a. To seek an injunction under this section. 

b. To determine whether the lawful custodian is entitled to seek such an injunction or should seek such an injunction. 

c. To determine whether the government record in question is a public record, or confidential record. 

d. To determine whether a confidential record should be available for inspection and copying to the person requesting the right to do so. A reasonable delay for this purpose shall not exceed twenty calendar days and ordinarily should not exceed ten business days.

This section implies review of public records to determine confidentiality should be between 10 and 20 days. But this does not end the analysis. The Supreme Court has held in a recent case that the reasonability of a delay may be determined by the following factors:

(1) how promptly the defendant acknowledged the plaintiff's requests and follow-up inquiries
(2) whether the defendant assured the plaintiff of the defendant's intent to provide the requested records
(3) whether the defendant explained why requested records weren't immediately available (e.g., what searches needed to be performed or what other obstacles needed to be overcome)
(4) whether the defendant produced records as they became available (sometimes called “rolling production”)
(5) whether the defendant updated the plaintiff on efforts to obtain and produce records
(6) whether the defendant provided information about when records could be expected.[1]

Analysis

Diaconu raises the following concerns: Failure to to disclose all public records responsive to the request, unreasonable delays for production, unreasonable fees charged for production, and the release was “on paper, with missing information, printed pages in random order and with words out of context.” This analysis addresses each issue.

Failure to Disclose All Public Records. Diaconu alleges the District failed to disclose all public records. Diaconu’s request included very broad search terms that resulted in the review of 4,900 documents resulting in production of over 5,000 pages. One of the search terms was included in the signature line of emails, which resulted in a lot of potentially irrelevant emails. 

The District asked Diaconu to provide more specifics in regards to the information being requested to assist in narrowing the search and reducing the time and cost in reviewing. Diaconu refused to provide more information. This is within Diaconu’s discretion. This decision, however, will likely result in Diaconu needing to make additional records requests to further narrow and identify the information being sought if it was not captured through the key word search terms “soccer, safe, time, Noreen, and team.”

Improper Delay. Diaconu alleges the District has improperly delayed production of public records. Diaconu submitted his request for public records on May 24, 2024. The District released the records on August 8, 2024. 

The District had to review 4,900 documents to prevent release of student information or other potentially confidential information. The District communicated this as the reason for delay to Diaconu. In addition, the District acknowledged receipt of the request, assured Diaconu the records would be provided, and responded to Diaconu’s requests for updates on the status of the request. Ultimately, Diaconu received over 5,000 pages of documents. 

Excessive Fees. Diaconu alleges the fees charged in this case are improper. Diaconu received an estimate of fees on June 4, 2024. The estimate was based on the requirement that 40 searches be performed. The District estimated this would be 15-20 hours of labor at a cost of $47.22 per hour. The total estimate provided was $708.30. When Diaconu retrieved the public records, fees totaling $522.69 were paid. The District provided the following invoice:

            12 hours of labor by the IT Director  $43.56  $522.69

            Labor included: Reviewed documents in reference to the words: soccer, safe, time, Noreen and team. Redaction of information, when necessary. Downloading and uploading documents.

Diaconu’s request was very broad and involved documents containing student information. The District communicated costs to Diaconu in the form of an estimate, receipt, and invoice. The estimate provided was higher than the actual costs paid. Expenses related to the cost of production were actual costs directly attributable to the work done by District IT staff. The fees charged to Diaconu for the retrieval and production of records resulting in over 5,000 pages are appropriate and reasonable.

Form of Disclosure. Diaconu requests the IPIB make a finding based on the form of release and indicates the release was “on paper, with missing information, printed pages in random order and with words out of context.” Diaconu was charged for time, not copies. There is nothing within Iowa Code Chapter 22 stating the manner in which public records must be organized or printed. 

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, it is found that this complaint does not meet the jurisdictional requirements for acceptance as IPIB was unable to find any evidence of violations of Iowa Code Chapter 22. 

IT IS SO ORDERED:  Formal complaint 24FC:0084 is dismissed pursuant to Iowa Code § 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b). 

The District utilized Diaconu’s broad search terms, reviewed 4900 documents, provided over 5,000 pages of documents, and charged the actual costs of the time spent retrieving the documents.

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] Belin v. Reynolds, 989 N.W.2d 166 (Iowa 2023). See also, Kirkwood Inst. Inc. v. Sand, 6 N.W.3d 1 (Iowa 2024); IPIB Advisory Opinion, 24FC:0010, Clarification on the definition of “reasonable delay” as it pertains to the period of time for a record’s custodian to determine the confidentiality of records.