24FC:0084 Paul Reed, Sr./City of West Liberty - Dismissal Order

Date:
11/21/2024

Subject:
Paul Reed, Sr./City of West Liberty  - 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 25, 2024, Paul Reed, Sr. filed formal complaint 24FC:0084, alleging the City of West Liberty (City) violated Iowa Code Chapter 22.

Facts

The complaint alleges the City violated Iowa Code Chapter 22 by charging excessive fees to access public records, requiring full payment of attorney fees prior to release of documents, and delaying release of the public records. The complaint also raises allegations related to “unprofessional” inclusion of others within the communications and preference for records to be provided electronically.

This case involves a dispute between Reed and the City that transcends public records. Reed is a former employee of the City and is requesting records related to his administrative leave, termination, and appeals. Specifically, Reed has requested the following:

1. Any and all communications (emails, letters, etc.) between officials, employees, and representatives of the City of West Liberty, including but not limited to:

• The City Manager
• The City Council
• The West Liberty Fire Department
• Any attorneys or legal counsel involved.

2. Any official letters or documents issued by the City of West Liberty or its Fire Department related to the employment status of Paul Reed, including administrative leave documentation, termination notices, and appeals process records.
3. Any internal or external communications regarding the decision-making process, legal advice, or discussions about Paul reed’s employment status.

The request for public records was made on September 4, 2024. 

On September 6, the City responded, verified receipt of the request, indicated they would keep Reed posted throughout the process, and provided a copy of the City’s policy and procedure for public records requests. 

On September 9, the City provided an update to Reed and indicated the City would pull records and require legal counsel to review the records for confidentiality concerns. The City indicated they would follow up with Reed and provide the actual cost to provide the records, including any legal service fees, that must be paid before the records are provided. The City also indicated that, due to the nature of the request, it may take longer than 10 business days to complete the request.

On September 10, Reed responded and indicated the records were related only to Reed and would not require review or redaction. Reed indicated the matter would be escalated to the Iowa Public Information Board if the City did not address his concerns in a satisfactory manner.

On September 12, the City responded and explained why a review would be necessary and further explained the fees. The City stated they would complete the request as quickly as possible.

On September 13, Reed responded and indicated there should not be additional information in his records and referenced a breach of privacy and unprofessional conduct.

Reed continued to escalate his complaints with numerous emails being sent in September, including a 24-hour notice to comply.

On September 24, counsel for the City sent a letter to Reed explaining the costs for the records and indicating the amount of $543 must be paid to the City before the records will be released.

On the same date, Reed requested a break-down of the costs. Counsel for the City responded on the same date and explained the fees and how they were generated. Reed filed this complaint on the same day.

Applicable Law

Payment of Fees and Access to Records

Iowa Code § 22.3 is clear that governmental bodies can charge reasonable fees for the production of public records and can produce the public records contingent upon receipt of payment. 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 held in Belin v. Reynolds, 989 N.W.2d 166 (Iowa 2023) 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

Reed raises the following concerns: Fees charged are excessive, it is improper to require payment of fees before release of documents, the delay to release records in this case is improper, there is unprofessional inclusion of others within communications related to Reed, and records should be provided electronically to avoid fees. This analysis addresses each issue.

Excessive Fees. Reed alleges the fees charged in this case are improper. He received a full break-down of fees charged in this case from the City and the City’s attorney. The fees charged by the City to research and pull the records:

• City Clerk – 8 hours
• IT Specialist – 2 hours
• City Manager – 1 hour

The City charged $20 per hour for 11 hours of examination and review. This is a total of $242. It is noted that this charge is consistent with the City’s policy for production of public records, which was provided to Reed at the time of his public records request.

The City’s attorney spent 5.9 hours reviewing hundreds of pages of documents identified as potentially confidential by the City. The rate for the City’s attorney is $275 per hour. As stated by the City’s attorney, “Of those documents, one third were not responsive to your request so I subtracted one third of the fees, leaving $1,087.00 in fees owed to review the documents for confidentiality and redactions.” This amount was divided in half for the benefit of the Reed, which resulted in a total of $543 in legal services fees. 

The total amount charged to Reed for production of public records was $785.

Iowa law provides clear guidance regarding charges for production of records. This guidance outlines the following elements:

• Expenses for the cost of production of public records must be reasonable. Iowa Code § 22.3(1).
• Expenses for the cost of production of public records must be communicated to the requester. Iowa Code § 22.3(1).
• Expenses for the cost of production must be actual costs and will include only those reasonable expenses directly attributable to supervising the examination of and making and providing copies of public records. Iowa Code § 22.3(2).
• Actual costs shall not include charges for ordinary expenses or cost associated with administration of the office of the lawful custodian. Iowa Code § 22.3(2).
• Costs for legal services should only be utilized for redaction or review of legally protected confidential information. Iowa Code § 22.3(2).

The City fully complied with all requirements outlined in Iowa Code § 22.3(1) and (2).

Reed’s request was very broad, involved his former employment, which likely involved legal concerns, and specifically requested communications regarding legal advice. The City’s attorney indicated legal review included hundreds of documents, which was one portion of the full documents reviewed by the City. The City spent eleven hours reviewing these documents and charged $20 per hour, rather than the actual hourly rate paid to the employees, which is consistent with City policy. The City’s attorney charged for review only of relevant records and cut the final amount in half. 

The City clearly communicated the costs to Reed. Upon request, the City supplied Reed with the City’s policy that outlines how fees for public records are assessed. The City provided Reed with a break-down of the cost for production. The City’s attorney provided Reed with the specific cost for legal service fees. The City has clearly and consistently communicated costs to Reed.

Expenses for the cost of production were actual costs directly attributable to the work done by City staff and the City’s attorney to examine records. There were no copying costs included. There were no administrative costs included. The costs were consistent with those outlined in the City’s policy.

The City’s attorney clearly stated that legal services were used for review and redaction of legally protected confidential information. Her charges were narrowed to only those documents necessary to review. Legal services provided in this case were reasonable, especially considering Reed’s request specifically included legal advice provided to the City.

IPIB finds that fees charged to Reed for the production of records are appropriate and reasonable.

Payment Before Release. Reed alleges it is improper to withhold public records contingent upon payment of the costs of retrieval and review. Iowa law is clear that fulfillment of a request for a copy of a public record may be contingent upon receipt of payment of reasonable expenses. Iowa Code § 22.3(1); Teig v. Chavez, 8 N.W.3d 484, 496-97 (Iowa 2024) (holding costs for retrieval of records is permissible). It is reasonable and legal for the City to withhold public records until payment is made.

Improper Delay. Reed alleges the City has improperly delayed production of public records. Reed submitted his request for public records on September 4, 2024. On September 24, 2024, Reed received communication from the City’s attorney indicating Reed could obtain the records upon receipt of payment. 

Iowa law states a good-faith, reasonable delay is not a violation of Chapter 22 if the delay is due to determining whether a record is confidential and a delay for this purpose should not exceed twenty calendar days. Iowa Code § 22.8(4). The City made public records available to Reed within the statutory twenty days. Even if the City had exceeded twenty days for production, the City met many of the criteria that justify a longer delay pursuant to the Belin factors.

Inclusion of Others Within Communications. The City’s determination of who to include or not include within communications is outside the scope of IPIB’s jurisdiction under Iowa Code Chapter 23 and will not be reviewed. 

Electronic Production. Reed suggests costs for production of records would be reduced if copies of the documents were not made. The only fees charged to Reed are related to retrieval and examination of public records. IPIB finds no violations related to this allegation.

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 this complaint does not meet the jurisdictional requirements for acceptance.

IPIB’s review found no violations of Iowa Code Chapter 22. Rather, it appears the City did an exceptional job responding to a complicated public records request.

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). 

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] 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.