24FC:0083 Tim Ferguson/Scott County - Dismissal Order

Date:
01/16/2025

Subject:
Tim Ferguson/Scott County  - 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 September 26, 2024, Tim Ferguson filed formal complaint 24FC:0083, alleging Scott County (County) violated Iowa Code Chapter 22.

Facts

This complaint arises in the context of an ongoing dispute between Ferguson and the County. On August 16, 2024, Ferguson filed the first of a series of records requests with the County. The initial request included several public employees and a private law firm which provided its services to the county, a specified date range, and a list of responsive topics. In subsequent emails, Ferguson expanded the request to include additional persons, records of payments made to the private law firm, records relating to the hiring of particular government employees, a list of persons involved in reviewing his records request, a list of donations made to the County, and other similar requests. 

The County released records in response to some of these requests and asserted confidentiality or a lack of responsive records for others. On September 26, 2024, Ferguson filed formal complaint 24FC:0083, alleging the County failed to properly respond to the records request. 

The HR Director for the County responded to the complaint with an enumerated list of records requests made and the County’s responses to each, including attachments with records disclosed. The County sought clarification on which requests were in dispute due to the numerous requests. IPIB staff worked with Ferguson to prepare a concise list of outstanding records requests which Ferguson believed the County had failed to properly address.

On October 23, 2024, Ferguson provided a list of two outstanding requests: 1) Emails exchanged between a specified assistant county attorney and an attorney with a private law firm that provides legal services to the County and 2) Phone call logs between several County individuals and others involved in Ferguson’s dispute, including the two attorneys named in the first request.  

On November 18, 2024, after additional communication between IPIB and the parties, the County stated there were no additional emails responsive to the first request. A 41-page call analytics report was released in this same response, which included phone calls tracked by the county for the listed numbers between April 18, 2024 and June 3, 2024, with responsive lines highlighted.

At this point, a dispute arose between the parties as to whether there might be additional responsive records stored on or involving the assistant county attorney’s private cell phone, which he had previously used for work related business, as he did not have a government-issued phone. In response, the County provided an affidavit signed by the attorney and attesting the only phone calls regarding Ferguson were placed from the attorney’s work phone. The complaint appeared to be moving toward resolution. 

On December 16, 2024, the County alerted IPIB and Ferguson that an additional email string was located. The string was located by the County following an IT search. (Previously, the County had relied on the assistant county attorney to review his records and provide any relevant materials.) The email was provided to IPIB and Ferguson. The County indicated that all email requests in the future would be handled by the IT department to avoid this issue. The discovery and disclosure by the County resulted in Ferguson believing that the County had not properly responded.

Applicable Law

“Every person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record. Unless otherwise provided for by law, the right to examine a public record shall include the right to examine a public record without charge while the public record is in the physical possession of the custodian of the public record.” Iowa Code § 22.2(1).

Analysis

Despite the broad range of requests made in this case prior to the filing of formal complaint 24FC:0083, the parties agreed the scope of the case before IPIB was limited to the resolution of two specific requests. Following this agreement, the County affirmed there were no further responsive emails beyond what had already been provided. The County also released the requested phone call log. This meant the only remaining dispute between the parties was whether there were additional records present on the attorney’s personal cell phone. In response to this final issue, the County provided a signed affidavit swearing, under penalty of perjury, that no such records existed. Absent evidence to the contrary, IPIB accepts the statements made in this affidavit are true.

Unfortunately, the County identified a missing email string only after all issues appeared resolved. This caused Ferguson to question the validity and truth of the County’s prior responses. While this is a reasonable reaction, the facts show the County used due diligence to review available records one final time with a new method. This method resulted in identification of another email string that was not previously disclosed. Upon discovery, the County immediately turned over the string to IPIB staff and Ferguson. The timing of the discovery of this email is unfortunate, but it does not erase the fact that the County has ultimately released all responsive records in its possession. Furthermore, the County has indicated that it will utilize IT searches in the future to identify emails requested via public records request. 

IPIB staff finds the County could be more efficient in the review and production of public records, but also ultimately find the County did not violate Chapter 22. 

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.

Ferguson argues that a violation has occurred due to the discovery of additional emails after the County indicated that all responsive documents were provided. While this is an unfortunate occurrence, IPIB staff finds that the County worked to address numerous and voluminous records requests from Ferguson, provided requested documents, and provided the missing emails upon discovery by IT.

IT IS SO ORDERED:  Formal complaint 24FC:0083 is dismissed 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 December 19, 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.